Bates v. Commonwealth

• Decision Date: 14 June 1892
• Citation: 19 S.W. 928
• Parties: Bates v. Commonwealth.
• Court: Kentucky Court of Appeals

19 S.W. 928

Bates v. Commonwealth.

Court of Appeals of Kentucky.

June 14, 1892

Appeal from circuit court, Boyle county.

"Not to be officially reported."

Pompey Bates was convicted of murder, and appeals. Reversed. For decision on former appeal, see 16 S.W. 528.

LEWIS J.

This is the second appeal from judgment convicting Pompey Bates under a joint indictment against him and George Word, for the murder of George Wells, though the grounds now relied on are different from those upon which the judgment was reversed on the former appeal. 16 S.W. 528. The facts proved on the last are not, however, essentially different from those proved on the former trial, and therefore it is not necessary to repeat them at length. It appears from the record before us, as shown by the former one, that the accused was quietly and peaceably sitting down in the room of an eating house waiting for his breakfast, as were several other of his companions who were raftsmen on their way home in Clay county, when the deceased, accompanied by another person named Sampson, both being armed, entered the room, and, approaching one of them (Little,) seized, disarmed, and carried him to the door of the house, where he was delivered to one Russell, who had accompanied the deceased and Sampson to the house. The two then returned to where the appellant was sitting, and, as the evidence tends to show, asleep, and also took hold of him when one of his companions, Word, with an oath, demanded that he be turned loose. Whereupon Sampson turned his attention to Word, and they commenced firing, there being several shots fired in the room, creating, of course, a good deal of confusion. In the mean time appellant and deceased were struggling, but do not seem to have been together when the latter was shot, and it is not entirely certain who did inflict the fatal wound.

The court permitted evidence to go to the jury showing the kind and color of clothes worn by the deceased, and also insignia of the office of marshal that he had about his person. Inasmuch as the deceased was not at the time marshal, nor, if he had been, was authorized to seize and arrest appellant without a warrant, it was prejudicial to appellant to admit any evidence having the effect to show or indicate to the jury he was invested with authority of a peace officer especially as the court failed to instruct the jury, as ought to have been done, he was not marshal, and had...