Alsbrook v. Commonwealth

• Decision Date: 17 May 1932
• Citation: 243 Ky. 814,50 S.W.2d 22
• Parties: ALSBROOK v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

50 S.W.2d 22

243 Ky. 814

ALSBROOK v. COMMONWEALTH.

Court of Appeals of Kentucky

May 17, 1932

Appeal from Circuit Court, Hopkins County.

Mervin Alsbrook was convicted of confederating and banding together with others for the purpose of intimidating, alarming, and disturbing certain persons, and he appeals.

Reversed for a new trial.

Fox &amp Gordon, of Madisonville, for appellant.

J. W Cammack, Atty. Gen., and Saml. B. Kirby, Jr., Asst. Atty Gen. for the Commonwealth.

WILLIS J.

Mervin Alsbrook, with eighteen associates, was indicted for the crime of confederating and banding together for the purpose of intimidating, alarming, and disturbing Willie Love and Roy Love. Alsbrook was given a separate trial, convicted, and condemned to serve a sentence of eighteen months in the penitentiary. He has prosecuted an appeal, complaining that he was denied a peremptory instruction of not guilty, that incompetent evidence was adduced against him, and that the instructions to the jury were incorrect and incomplete.

1. The statute upon which the prosecution was predicated provides: "If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing or injuring any person or persons *** they, or either of them, shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years." Ky. St. (1930 Ed.) § 1241A-1.

The testimony for the commonwealth tended to show that Alsbrook and his associates were miners out on a strike, and that their former employer, the Norton Mining Company, was endeavoring to run its mines by the employment of other miners. Early one morning in March, 1930, Alsbrook and a number of the strikers, including the men indicted with him, assembled about a railroad crossing where the other miners would likely pass on the way to the mines.

Roy Love and Willie Love were proposing to work and were proceeding in an automobile from their home to the mines. As the railroad crossing was approached, the striking miners lined up across the road and one of them waved his cap as a signal for the car to stop. The car did not stop, but continued on its journey, and as it passed over the crossing a rock was thrown, which crashed through the windshield, and struck Willie Love on the forehead. As a result of this episode the Love boys decided that it would not be safe to work. Roy Love said the crowd that intercepted them contained thirty-five or more men, and that he saw Alsbrook put his hand in his coat pocket immediately before the rock was thrown. Alsbrook was standing in the middle of the highway on the crossing, but got out of the way of the car. Willie Love told substantially the same story. He did not see who threw the rock, but it came through the windshield and hit him on the forehead, inflicting a painful injury which was dressed by a doctor. He said he was not scared, but was afraid they would be hurt if the car stopped. Herbert Love, father of the two boys mentioned, testified that the crossing where the trouble occurred was between twenty-five and forty feet from his home. As many as forty men were gathered at the crossing, and they fell back to each side as the car drove through. A sister of Roy and Willie Love, who was at her father's home, said she saw Alsbrook and several others line up on the crossing and hail the approaching car. Alsbrook put his hand in his pocket, but she did not see him take it out, or throw anything. She heard the crash of the glass in the car. She estimated that the crowd along the railroad contained thirty-five or forty men, and that six of them lined up so as to block the highway at the crossing. Mrs. Maud Love, mother of the boys, said the crowd began to gather on the railroad about 5 o'clock that morning and continued there and thereabout until the trouble occurred about 6:30. She was watching the men to see what they did. They blocked the road in front of the approaching automobile, but fell back when the car did not stop. Dr. Moore, who dressed the wounds of Willie Love, said he had several cuts with glass, and had one wound over the left eye. There was a bruised place about the wound. Lonnie Clark had started to work that morning, but was persuaded by Robert Noel, in the presence of Alsbrook, not to go to work. Six or seven men were there, and they all seemed to be in good humor. They asked him where he was going, and when he told them he intended to work, Robert Noel said: "We would rather you would not work." He saw Lynn Dawson flag the Love car with his cap, but did not see any more, as he turned away fearing the car might run over some of them. Clark said Alsbrook then passed up a spur track and said, "Lets go get them, boys." No one offered to go with him, and he rejoined the crowd. Bailey Keith testified that some ten days or two weeks before the occasion in question he had been stopped by Alsbrook, Sisk, and several others. They asked him where he was going, and he informed them that he was going to work. They said they would rather he would refrain from working. They said nothing out of the way to him, but he did not go to work because he did not think it was safe after they had made the request that he refrain. Elmer Sisk, one of the men in the crowd, had flourished a gun and made a threat toward any one who took his job. Mrs. Love stated that Sisk was one of the men in the crowd that intercepted her sons. A son of Clark was with him and gave similar testimony.

The offense consists of the conspiracy or banding together to intimidate, alarm, and disturb, which may be deduced from circumstances showing concert of action in the pursuit of a common purpose to coerce or to compel the victims to submit to the will or wish of the conspirators. Middleton v. Com., 204 Ky. 460, 264 S.W. 1041; Asher v. Com., 211 Ky. 524, 277 S.W. 842; Sesler v. Com., 220 Ky. 128, 294 S.W. 1062; Murray v. Com., 224 Ky. 541, 6 S.W.2d 696; Com. v. Ward, 92 Ky. 158, 17 S.W. 283, 13 Ky. Law Rep. 422; Fulks v. Com., 237 Ky. 642, 36 S.W.2d 36.

The purpose of the statute is "to promote and preserve the peace, quiet, and good order of the state, and protect its citizens from being harassed, annoyed, and disturbed." Cf. Com. v. Morton, 140 Ky. 631, 131 S.W. 506, 508, Ann. Cas. 1912B, 454.

The rule is that a case must be submitted to the jury if there is any evidence tending to prove the offense charged. Bennett v. Com., 133 Ky. 452, 118 S.W. 332; Kirk v. Com., 192 Ky. 460, 233 S.W. 1060; Kennedy v. Com., 194 Ky. 502, 239 S.W. 796,

The circumstances shown were sufficient to induce a reasonable belief that the defendant and his associates were co-operating in conduct not sanctioned by law to prevent the two Love boys from working, and the court, in such a case, could not properly direct a verdict of acquittal.

The defendant testified to facts, and produced much other evidence, tending to show that he was not guilty of any offense, but was exercising only his conceded right peaceably to assemble and to persuade the other men not to work. He said he made no attempt to coerce or to compel them to refrain from work, but was in fact acting merely as a missionary to advance by argument and peaceful means the interests of his craft. The fact that the men acted together was explained on the ground that they were all in the common pursuit of the same lawful purpose to win the strike by enlisting support and sympathy. It is said that the act of some one in throwing a missile was not the result of prearrangement, but of a sudden impulse prompted by the unexpected act of the Love boy in trying to run the car over him. Cf. Fulks v. Com., 237 Ky. 642, 36 S.W.2d 36. The determination of the truth from the conflicting contentions was for the jury, and the court, under the evidence, was bound to leave the problem to that tribunal.

This court is not authorized to rejudge the justice of the verdict of a jury. In the absence of some error of law, or failure of the proof, a new trial cannot be ordered. The jury is the tribunal established by law to determine the quality of conduct, the credibility of witnesses, and the probative value of testimony. The result of a trial by jury, derived from the consideration of conflicting evidence, under proper instructions, must be accepted here. Brown v. Com., 226 Ky. 255, 10 S.W.2d 820; Perkins v. Com., 227 Ky. 129, 12 S.W.2d 297; Mattingly v. Com., 240 Ky. 625, 42 S.W.2d 874.

2. Complaint is made of the testimony of Bailey Keith as to an occurrence ten days or two weeks before the...