91 Ky. 563 | Ky. Ct. App. | 1891
delivered the opinion of the court.
On Saturday, in August, 1887, Mrs. Sallie Moore, who lived on her farm in the county of Ballard, was found murdered in her room. Her skull had been crushed with a club, and her throat cut from ear to ear, and a considerable sum of money taken from the premises-by those committing this horrid crime. The murderers, it seems, ransacked the entire house, turning up the bed clothing below and in the upper rooms. They took four hundred and eighty-dollars from one pocket-book, leaving in it two hundred dollars; also
The family of the murdered woman consisted of herself and two unmarried sons, Henry and James Moore. The two sons left the house about sunrise on the day of the murder, having gone to repair some fencing on the farm, and returning between ten and eleven o’clock of the same morning, found their mother murdered. The appellant, Ivan Shelby, who was indicted jointly with his uncle, O. M. Shelby, for this murder, had a separate trial, resulting in his conviction, with the punishment fixed at imprisonment for life. The appellant and his uncle were neighbors of Mrs. Moore, and had lived but a short distance from her during their entire lives. The appellant was a widower, living on his farm, and his uncle, a married man with several children, living on his farm that was almost in sight of the Moore place.
The indictment contains three counts. The first charging a conspiracy between the appellant and his uncle to kill and murder Mrs. Sallie Moore, and the execution of their purpose by the murder of the old woman in the manner stated; second, charging Ivan Shelby with the murder, and his uncle as present, aiding and abetting in the commission of the offense; and in third count charging O. M. Shelby with the murder, and Ivan Shelby, the appellant, as an aider and abettor. To this indictment the appellant entered his plea of not guilty. A change of venue was had to the county of Carlisle, and such was the excitement growing out of the murder that a jury could not be obtained in that county, and in order to fill the
After the twelve men had been proven competent jurors upon a voir dire examination, and before they were sworn to try the issue, the defense claimed the right to challenge, without cause, two of the jurors, and the court refused to permit this to be done, be
When a full panel of qualified jurors is obtained the Commonwealth must accept or challenge. If the Commonwealth declines to challenge, the jurors are passed to the defense. (Munday v. Commonwealth, 81 Ky., 233; Jenkins v. Commonwealth, 9 Ky. Law Rep., 254.)
The court below, therefore, erred in refusing the peremptory challenge of the two jurors, and for that reason the judgment must be reversed. If, however, the action of counsel and his client could be construed as waiving this right of peremptory challenge, as the attorney for the State maintains was done, still
The evidence upon which the accused has been convicted is altogether circumstantial, and the attempt to show that his uncle was particeps criminis, or the person who, in fact, murdered the old lady, is based on circumstantial evidence, and the verdict evidently found on the idea that the appellant was present, aiding and abetting in the commission of the offense. We have read the testimony in this case with much care, and find no such state of facts developed from the proof as would justify the conclusion that any conspiracy or agreement was entered into between the uncle and the nephew to perpetrate this horrid crime. í
The only motive for its commission was to obtain the money that had been left in the house by a man by the name of Harvey for safe-keeping, and of this sum the murderers took only four hundred and eighty dollars, leaving two hundred in the pocket-book. We know it is difficult to establish an actual agreement between two or more persons to commit a felony, and, therefore, the prosecution must resort to facts and circumstances affecting each party charged, that when linked together form such a chain of proof as must convince the mind, when the act has been committed, that the parties charged understood in advance the object in view , must be accomplished even to the taking of the life of a neighbor or friend if necessary. If a conspiracy is established in that way, the acts and .declarations of the one made in the execution
The only circumstance connecting the acts of the one with the other in this case is the relationship existing between them, and, therefore, the evidence touching the guilt or innocence of the uncle should have been excluded from the jury. Nor is the declaration or admission of one, made before the commission of the offense, that the other was united with him for the purpose of doing an act that would amount to a crime when committed, sufficient to show a conspiracy, and statements made after the commission of the act that another had conspired with him to commit it are clearly incompetent against a conspirator; and any other statement affecting the question of guilt or innocence of the party under trial made after the perpetration of the felony by another in the absence of the one being tried is equally incompetent. The uncle was not on trial, and yet his statements and the circumstances connecting him with the offense were permitted to go to the jury as evidence, and must have been considered by them in making their verdict.
Mrs. Clark, a witness for the Commonwealth, was permitted to state as a witness that the uncle of the
It was also shown that the uncle, on a certain day, was seen near the home of the deceased standing by a tree with some one with him, with the defense proving an alibi on the part of the uncle. All such circumstances, and those of a like character, mingled with circumstances arising, as the State insists, against the nephew showing guilt on his part, but having no connection with what was proven against the uncle, the jury was allowed to consider in determining the question of guilt or innocence on the part of the accused. It is true guilt must be shown on the part of the principal before you can convict one of aiding and abetting in the commission of the offense. The acts of the uncle, whether guilty or innocent, or being such as to create a mere suspicion of guilt on his part, were not evidence against the accused.
All the conversations had with the uncle, and acts done by him after the killing, not in the presence of the accused or approved by him, were incompetent. If the uncle had confessed that he committed the murder it would have been incompetent in this case for the purpose of connecting the accused with the commission of the offense. The conspiracy must be shown by the testimony, and the acts of each,
The act and declarations of one made in the prosecution of a common purpose to do wrong is the act of all. It becomes a part of the res gestae, and on this principle is made competent. This doctrine is elementary, and where the acts and circumstances proven fail to show a conspiracy, no instruction should be given, based on such a ground, and the evidence of the statements, conduct and appearance of the uncle should have been excluded. (Metcalfe, &c., v. Conner, &c., Littell’s Sel. Cases, 497; Wharton on Evidence, 1205-6; State v. Frederick, 85 Mo., 145; State v. Duncan, 64 Mo., 263.)
The only question at issue in this case as the record now stands is, did the accused kill and murder Mrs.
It is not proper that we should discuss the testimony in behalf of the State or that for the defense, as the case must be retried. All we can say is, we are satisfied, from the facts of this record, the accused should have another trial. It follows that the instructions in regard to a conspiracy should not have been given.
Judgment reversed, and remanded with directions to award a new trial, and for proceedings consistent with this opinion.