Armstrong v. Commonwealth

• Citation: 160 S.W.2d 159,289 Ky. 758
• Parties: ARMSTRONG v. COMMONWEALTH.
• Decision Date: 10 March 1942
• Court: Court of Appeals of Kentucky

160 S.W.2d 159

289 Ky. 758

ARMSTRONG v. COMMONWEALTH.

Court of Appeals of Kentucky

March 10, 1942

Appeal from Circuit Court, Livingston County; H. F. S. Bailey Judge.

Bob Armstrong was convicted of aiding and abetting another in the commission of crime of malicious striking and wounding another with a deadly weapon with intent to kill, and he appeals.

Reversed with directions.

Charles Ferguson, of Smithland, for appellant.

Hubert Meredith, Atty. Gen., for appellee.

REES Justice.

The appellant, Bob Armstrong, has been convicted of aiding and abetting one Warren H. Belt in the commission of the crime of malicious striking and wounding another with a deadly weapon with intent to kill. His punishment was fixed at imprisonment for a term of two years.

Warren H. Belt, Lewis Bagley, Tye A. Cobb, and appellant were indicted jointly and were accused of striking and wounding C B. Scarbrough, jailer of Livingston county. At the time the offense was committed they were confined in the Livingston county jail on felony charges. It is admitted that Belt made a vicious assault on the jailer, striking him on the head several times with a club, and that appellant was present but it is insisted that the evidence for the Commonwealth fails to show that he took any part in the assault or aided or assisted Belt in any manner. Evidence tending to connect appellant with the crime was somewhat meager, but was sufficient to take the case to the jury.

The jailer testified that on the evening of March 6, 1941, between 8 and 8:30 o'clock, he went into the jail and the four accused men were sitting on the floor in a cell playing cards. There was a small bench in the aisle outside of the cell, and one of the group asked the jailer if they could have the bench. He unlocked the cell door and Warren Belt stepped out, walked about 8 feet, and got the bench. When he returned to the cell door he dropped the bench and hit the jailer several times on the head with a club which he had picked up in the aisle. Concerning appellant's connection with the attack, the jailer testified as follows: "He came out and I didn't see him, I couldn't see anything, the blood was in my eyes and I had this coat on and he felt this pocket and asked where the gun was." It was the jailer's practice to carry a gun in his pocket when he went in the jail where the cells were located, and appellant and the other prisoners knew of this practice. The jailer was again asked what Armstrong said and did, and he answered: "He asked where the gun was, felt my pocket, had his hand in my pocket." Alec Aydelette, an inmate of the jail, was introduced as a witness by the Commonwealth. He stated that he saw Scarbrough when he entered the jail, and that the four accused men were in a cell. One of them asked for the bench, and the jailer said: "I will see if I have the keys." He unlocked the door, and Belt stepped out and got the bench, assisted by Armstrong. Belt dropped the bench and struck the jailer, and Armstrong and the others ran out of the jail. Walter Brown, another inmate of the jail, testified that a day or two before the attack on the jailer he saw Armstrong, Belt, and Cobb talking in a cell, and when he went in either Belt or Cobb told him they were "talking private." He did not hear any of their conversation. Appellant, Belt, Bagley, and Cobb escaped from the jail after the attack on Scarbrough, but all were arrested a few days later. Appellant denied that he took any part in the affray or that he had any knowledge of the plan to attack the jailer. Belt and Cobb testified that they had planned to break out of jail, but Armstrong knew nothing concerning the plan. There was ample evidence from which the jury might reasonably infer that appellant aided and assisted Belt in the attack on Scarbrough.

After appellant had testified, the Commonwealth introduced several witnesses who testified that appellant's reputation for truth and veracity in the neighborhood in which he lived was bad. It is argued that the court erred in failing to admonish the jury as to the effect of this testimony, but appellant did not request an admonishment and, in the absence of a motion to admonish the jury and an exception to the ruling of the court in the event the motion is overruled, the question is waived. Clair v. Commonwealth, 267 Ky. 363, 102 S.W.2d 367; Wright v. Commonwealth, 267 Ky. 441, 102 S.W.2d 376; Hedrick v. Commonwealth, 267 Ky. 481, 103 S.W.2d 111; Shorter v. Commonwealth, 248 Ky. 37, 58 S.W.2d 224.

Appellant's criticism of the indictment presents a more serious question. In the accusatory part of the indictment the defendants are accused of the crime of "unlawfully, wilfully, and feloniously striking and wounding another with a deadly weapon with intent to kill." In the descriptive part of the indictment it is charged that the defendants "did unlawfully, wilfully, feloniously, and maliciously strike and wound C. B. Scarbrough with a deadly weapon *** with the felonious and malicious intent to kill him." The indictment also charges in the descriptive part that Belt struck the first blow with the club and the others "were then and there present aiding, abetting, counseling advising, and assisting him in so doing." The felony of which appellant was convicted is defined by section 1166 of the Kentucky Statutes, which reads in part: "If any person shall willfully...