Anderson v. Commonwealth

• Decision Date: 07 February 1922
• Parties: ANDERSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

237 S.W. 45

193 Ky. 663

ANDERSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 7, 1922

Appeal from Circuit Court, Daviess County.

Rush Anderson was convicted of robbery, and he appeals. Affirmed.

Louis I. Iglehart, of Owensboro, for appellant.

Chas I. Dawson, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen for the Commonwealth.

SAMPSON J.

The indictment in this case accuses appellant, Rush Anderson, and three other men of the crime of robbery, committed by going to the home of Tilden Jones in Daviess county on the night of January 1, 1921, and after covering Jones with a pistol and flash light, requiring him to stand back while they entered his cellar and took therefrom, against his will, 12 cases of bottled in bond whisky. Appellant, Anderson, pleaded not guilty to the indictment, and on trial testified that he was not present at the time of the robbery, but that he later in the night met the real culprits, who invited him to take a ride in their automobile in which the whisky was carried, and that he entered said automobile and was riding with them before he knew of the robbery or that the stolen whisky was being carried by the car. He was found guilty by the jury and his punishment fixed at three years' confinement in the state penitentiary. From a judgment entered on that verdict he appeals to this court for a reversal of the judgment, assigning the six following reasons:

(1) The court erred in Instruction No. 1 on the subject of aiding and abetting the commission of the crime of robbery.

(2) The court erred in the second instruction on the subject of grand larceny.

(3) The court erred in its instruction No. 4 on the subject of accomplices.

(4) The court failed to instruct the jury on the whole law of the case.

(5) The court erred in rejecting competent, material evidence offered by appellant.

(6) The court erred in overruling appellant's motion for a directed verdict in his favor at the conclusion of the evidence for the commonwealth.

1. Instruction No. 1, of which complaint is made, is not in the usual and approved form generally employed by trial courts in instructing juries as to the law affecting aiders and abettors in felony cases, but we do not think this error, if error it be, was prejudicial to the substantial rights of the appellant, Anderson. His defense, it must be remembered, was alibi. He claims that he was not present at the time of the robbery, and only accidentally fell in with the other defendants at a later hour. If he was not present at the time of the robbery the jury should have found him not guilty, but the evidence, it appears to the court, is overwhelmingly against him on this point, and the jury from that evidence reached the conclusion that Anderson was present at the time of the robbery, and aided, abetted, and assisted therein. He could not, however, be guilty of the crime charged in the indictment even though he was present aiding and abetting the other defendants, unless he knew of their felonious intention, and with that knowledge aided and abetted them, or himself possessed the felonious intention of taking away the whisky against the will of Jones, in whose possession it was. Instruction No. 1 in substance told the jury that, if it believed from the evidence beyond a reasonable doubt that the defendants Goodwin, Cranor, and Aldridge, or either of them, in Daviess county, and before the finding of the indictment "did feloniously and by force, or by putting Tilden Jones in fear, steal and carry away from said Jones, against his will and consent, said whisky, with the fraudulent and felonious intent then and there to convert same to their own use, or to the use of either one of them, and to permanently deprive said Jones and Herr of their property therein," and that the defendant Rush Anderson was then and there present, acting jointly with the other defendants or either one of them, aiding, assisting, and counseling or abetting the others, or any one of them, in so forciblv and feloniously taking said whisky, the jury should find him guilty. The form of the instruction could have been better, but, as appellant, Anderson, defended upon the ground that he was not at the place of the robbery, and not upon the ground, that he was there, but not a willful and felonious participant in the crime, his substantial rights were not prejudiced by the instruction, even if it was erroneous. The foregoing instruction is all in one sentence, and the court directed the jury to find the defendant Anderson guilty of the crime charged in the indictment only in case it believed from the evidence beyond a reasonable doubt that the whisky was taken by Goodwin, Cranor, and Aldridge feloniously and with force, and defendant Anderson was then and there present, acting with them, aiding, and assisting, counseling, and abetting them, or one or more of them, in so taking said whisky. The expression "in so taking said whisky" relates to the manner in which Goodwin, Cranor, and Aldridge took the whisky, and, if that was done "feloniously and by force," Anderson was equally guilty with them. While we cannot give our full approval to this manner of instructing a jury upon the law relating to aiders and abettors, we are constrained to the opinion that appellant, Anderson, was not prejudiced in the slightest by the foregoing instruction.

2. The second instruction is subject to the same criticism as the first, but, if erroneous, was not prejudicial to the rights of appellant, Anderson.

3. The fourth...