Commonwealth v. Moore

• Decision Date: 27 September 1905
• Citation: 88 S.W. 1085,121 Ky. 97
• Parties: COMMONWEALTH v. MOORE et al.
• Court: Kentucky Court of Appeals

88 S.W. 1085

121 Ky. 97

COMMONWEALTH v. MOORE et al.

Court of Appeals of Kentucky.

September 27, 1905

Appeal from Circuit Court, Knott County.

"To be officially reported."

John Moore and another were indicted for murder. The indictment was dismissed, and the commonwealth appeals. Affirmed.

N. B Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

BARKER J.

The appellees, John Moore and John Kelly, were indicted by the grand jury of Knott county, charged with the offense of willful murder. As the question of law arising upon the face of the indictment has never been adjudicated in Kentucky, we give the indictment in its entirety: "The grand jury of Knott county, in the name and by the authority of the commonwealth of Kentucky accuse John Moore and John Kelly of the crime of willful murder committed as follows: The said defendants on the 20th day of March 1905, in the county and circuit aforesaid, did unlawfully, willfully, maliciously feloniously, and of their malices aforethought kill, slay and murder Anderson Young by causing said Young to be shot with a rifle gun loaded with powder and leaden ball or other hard and explosive substances. The said gun was at the time in the hands of John Young who at the time assaulted by the defendant John Moore with the felonious intent to rob and kill the said John Young who shot or discharged the said gun at said Moore in his necessary self-defense and in the defense of his house and killed the said Anderson Young. The said defendants unlawfully, willfully, feloniously did conspire, band and confederate themselves together for the purpose of committing robbery upon the person of John Young and in pursuance of said conspiracy and confederacy and while the same was existing the said defendant John Moore willfully, maliciously and feloniously went to the house of said John Young and assaulted and robbed the said Young and the said Young, in order to defend himself and his house from the unlawful acts of said Moore he shot and killed the said Anderson Young as aforesaid; that the said defendant John Kelly did willfully, feloniously and of his malice aforethought counseled, advised and encouraged the said defendant Moore to commit said robbery against the peace and dignity of the commonwealth of Kentucky." A general demurrer to the indictment was interposed by the defendants and sustained by the court, and the indictment dismissed from which judgment the commonwealth appeals.

It is unquestionably true that, where two or more persons conspire or confederate together to commit a felony, each is criminally responsible for every crime committed by his co-conspirators done in pursuance of the original conspiracy and which naturally or reasonably might be anticipated to result from it. Therefore, if either of the defendants, in attempting to commit the robbery for which they conspired, had shot and killed John Young, or had shot at John Young and, missing him, had killed a bystander, both would have been guilty of murder. In 1 Hale, Pleas of the Crown, 441, the rule is thus stated: "If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them in doing thereof kill a man, this shall be adjudged murder in them all that are present of that party abetting him and consenting to the act or ready to aid him, although they did but look on." And in 1 East, Pleas of the Crown, 257, it is said: "Where divers persons...