197 Ky. 101 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Appellant, William Penn Watts, who was jointly indicted with Bud Noble, 'Soldier Noble, Beecher Noble Tom Porter, Sam Grigsby, Hagins Noble, Luther Noble
The facts are as follows:- About a week before the homicide in question, ITargis Noble, Willie Noble, Alton Grigsby and Isaac Watts were convicted off the murder of Joe Napier, -and sentenced to the penitentiary, the first three for life and Isaac Watts for a term of two years. Hargis Noble is a son of Bud Noble and a brother of Soldier and Beecher Noble. Willie Noble is a nephew of Bud and Luther Noble. Isaac Watts is a brother of appellant. After their conviction, Hargis Noble, Willie Noble, Alton Grigsby and Isaac Watts were confined in the Breathitt county jail, but a day or two bef ore Maggie Allen was killed, Hargis Noble and Willie Noble were removed to the Clark county jail for safekeeping. Appellants and his codefendants, with the exception of Hagins Noble, who-lives on Gfapetine in Perry county, live on Lost creek, aboiit eighteen miles from Jackson, and all of them were in Jackson as spectators 'or witnesses during the trial o.f their relatives for the murder of Joe Napier. On the day before Maggie Allen was killed, appellant, Bud'Noble, Beecher Noble and Tom Porter, and perhaps others indicted with him, were at the home of- Honeysuckle Noble at an “infair” given in honor of the latter’s son, who had just been married. About three -o’clock in the afternoon Bud and Beecher Noble employed appellant and Tom Porter to go to the home of Bud Noble’s brother on Grapevine in Perry -county to get a rifle, saying that they had arranged with the jailer to have their relatives released, and w-anted the.rifle for their use. A little .after one the next morning, a crowd of from six to ten persons appeared at the Breathitt county jail and knocked on the door of the jailer’s residence. When the jailer, A. A. Allen, appeared, he was told by the men that they had a prisoner to put in jail. After calling to his son, Oscar, to bring the keys, the men were admitted, and 'immediately went up the -steps. Several shots were fired, and in the melee Maggie Allen and Albert Roberts, the deputy jailer, were mortally wounded, while Mrs. Oscar Allen received wounds from which she subsequently recovered. Of the men who made the assault on the jail, the j-ai'ler recognized Bud Noble, Tom Porter and Lewis Watts. Oscar Allen recognized -Soldier Noble, and in her dying -declaration Maggie Allen -claims to have recognized Bud and Beecher Noble. There was also found a
The court instructed the jury in substance to find appellant guilty if they believed from the evidence beyond a reasonable doubt (1) that he unlawfully, wilfully, feloniously and of his malice aforethought shot and killed Maggie Allen, or (2) that either of the other named defendants shot and killed her, and he was present aiding, abetting or assisting, or (3) that he entered into a conspiracy with other named defendants to kill Maggie Allen, and in pursuance of said conspiracy, and while same existed, any one or more of the parties to said conspiracy did unlawfully, wilfully, feloniously and with malice aforethought shoot and kill Maggie Allen, or (4) that appellant and the other defendants conspired and banded themselves together for the purpose of rescuing Hargis Noble, Willie Noble, Alton Grigsby and Ike Watts, or any one of them, from the Breathitt county jail, and that in pursuance of said conspiracy, and while same existed, the "other defendants,'or any one of them, attempted to rescue said persons, or any one of them, from said jail, and in making said attempt, the other defendants, or any' one or more of them, unlawfully, wilfully, feloniously and with malice aforethought shot and wounded Maggie Allen, and that she died therefrom within a year and a day thereafter.
It will be observed that the only conspiracy charged in the indictment was the conspiracy to murder Maggie Allen, and that the indictment contained no count charging a conspiracy to effect a jail delivery. That being true, appellant insists that it was error to instruct on a charge not contained in the indictment.
We find no other error in the record.
Judgment reversed -and cause remanded for new trial consistent with this opinion.