Baker v. Commonwealth

• Decision Date: 23 September 1924
• Court: Kentucky Court of Appeals
• Parties: Baker v. Commonwealth.

204 Ky. 420

Baker v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 23, 1924.

Appeal from Owsley Circuit Court.

RYLAND C. MUSICK, H. C. EVERSOLE and J. K. GABBARD for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON — Reversing.

After the decision of this court in Gabbard v. Commonwealth, 193 Ky. 460, the indictment then before the court was dismissed, and the case was re-referred to the grand jury and a new indictment was found.

A trial was had under the new indictment of Grover Gabbard. At the conclusion of the evidence the court peremptorily instructed the jury to find him not guilty. The Commonwealth appealed; in this court it was held that the case should have been submitted to the jury, and the law was so certified to the circuit court. Commonwealth v. Gabbard, 200 Ky. 642. The facts of the case are stated in those opinions.

After the law had been so certified to the circuit court by this court, Harlan Baker was again placed on trial; the evidence was practically the same as on the last trial of the case. The jury returned a verdict finding him guilty of murder and fixing his punishment at confinement in the penitentiary for life. He appeals.

Appellant filed in the circuit court a special plea in bar of the further prosecution of the proceeding against him to the effect that Sanlin had been placed on trial for the offense and that he had testified for the Commonwealth on that trial and that he was discharged from all liability for the offense charged, "so necessarily disclosed in his testimony." Kentucky Statutes, section 1241a, subsection 7.

This provision of the statute, however, only applies to the offense named in section 1241a, which is a felony. The indictment under which the trial was had does not charge a violation of this section. It simply charges a conspiracy to go to the home of Bessie Allen for the purpose of taking her therefrom and having carnal knowledge and illicit sexual intercourse with her. It does not charge that they conspired to do this against her will or consent, or by force. The charge is simply a conspiracy to commit a misdemeanor. The statute does not affect in any way the common law as to conspiracies, other than those named in the statute. Such conspiracies may be prosecuted and are in no way affected by this statute. The circuit court therefore properly held the plea in bar insufficient. Commonwealth v. Barnett, 196 Ky. 731.

At the conclusion of the evidence the court gave the jury this instruction:

1. "If you shall believe from the evidence in this case beyond a reasonable doubt that the defendant, Harlan Baker, commonly called `Wood,' Grover Gabbard, Charlie Gabbard, Robert Clark, Leonard Baker and Robert Sanlin, in Owsley county, Ky., and before the finding of this indictment herein, did unlawfully, wilfully, feloniously and with malice aforethought conspire, confederate or band themselves together in the nighttime, and agree to and with each other to go to the home of Bessie Allen for the purpose of taking her therefrom, for the unlawful purpose of having illicit sexual intercourse with. her, against her will and without her consent, and while said conspiracy and agreement existed, and in furtherance thereof, and in trying to carry same into effect, the said Harlan Baker, Grover Gabbard, Charlie Gabbard, Robert Clark, Leonard Baker and Robert Sanlin, or any two...