176 Ky. 753 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming.
The appellant, Herman Ockerman, was jointly in-dieted with Ed Bradley for robbery. . They were given separate trials and each was found guilty. Ockerman appeals and asks a reversal upon two grounds. He insists, (1) that his motion for a peremptory instruction directing the jury to find him not guilty, should have been sustained; and (2) that the verdict is not sustained by the evidence.
The prosecuting witness, Taylor Arnold, testified that while he was riding in his buggy on the public highway,
Their story of what subsequently happened is somewhat hazy and confused. Some of the witnesses say that Arnold proceeded up the road a short distance when his horse again stopped, and that when Ockerman and Bradley went to Arnold to see what was the matter, they asked him for whiskey; that Arnold,, pulled his pistol upon them; that they in self-defense grabbed his pistol and 'took it away from him and threw it into an empty house. Bradley testified that Ockerman took the pistol from Arnold, while Ockerman testified that Bradley took it.
Andrew Fuller, the man who owned the buggy in which the four men had traveled along the road, corroborated Ockerman, in a large measure, as to what happened before the altercation at the buggy. Bradley testified that he and Fisher were in a cabin in the Durham yard nearby when Arnold’s buggy stopped, and that when Bradley left the cabin, Ockerman, who was coming into the yard, said, “Let’s go out and see what this fellow has”; and that Ockerman took Arnold’s pistol and threw it into an old cabin. Ockerman, on the other hand, admitted that he was on the road at Durham’s place on the night of the robbery, and was sitting in Fuller’s buggy at the time Arnold’s buggy collided with >it. He further testified that Bradley and Fisher,- the two negro boys, were near the buggies, and that Arnold attempted to draw his pistol, whereupon Bradley grabbed it and fired it four or five times, to get the shots out of it. In short, according to Ockerman’s story, the incident which Arnold calls the robbery, occurred when Arnold was aroused by the collision of the buggies; that in his- excitement Arnold tried to draw his pistol, and was prevented from using it by Bradley’s prompt action in taking it from him.
Myers, the arresting officer, stated that when they were conducting Ockerman to jail he said:. “They have got me in a pretty durned close .place, haven’t they? What will I do to lay it on the nigger?” Ockerman denies having’ made that statement; and, there was some evidence tending to show that Arnold had made a statement to the effect that he did not lose the watch at the time he says he was robbed. Arnold, however, denied having made any statement of that kind. Under, this proof, conflicting as it was in some material respects, it cannot be said there was no evidence tending to show the
There was ample testimony to take the case to the jury; and under the rule that the credibility of the witnesses and the weight that is to be given to their testimony are matters addressed to the judgment of the jury, we cannot say that the verdict is palpably against the evidence.
Judgment affirmed.