Brashear v. Commonwealth

• Decision Date: 11 November 1938
• Citation: 275 Ky. 356
• Parties: Brashear v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

275 Ky. 356

Brashear v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 11, 1938.

1. Conspiracy. — Evidence that defendant was member of party assaulting prosecuting witness, though it was shown that member other than defendant struck prosecuting witness, was sufficient to sustain conviction of having banded together, gone forth, and injured a person (Ky. Stats., secs. 1241a-2, 1241a-3).

2. Conspiracy. — Lapse of time between heated controversy which party in which defendant was member had with party assaulted, and the subsequent assault, was sufficient evidence to justify jury in concluding that assaulting party had ample opportunity to, and did, band together for purpose of subsequent attack (Ky. Stats., secs. 1241a-2, 1241a-3).

3. Conspiracy. — In conspiracy cases, evidence is allowed to take wide range, and participation may be shown by actions, declarations, acts, facts, and circumstances, though there is no positive or direct evidence.

4. Assault and Battery. — Under indictment charging defendant with having banded together, gone forth, and injured another person, trial court could properly instruct on lesser offenses of malicious striking and assault and battery (Ky. Stats., secs. 1241a-2, 1241a-3).

5. Criminal Law. — Under indictment charging defendant with having banded together, gone forth, and injured another person, instructions on lesser offenses of malicious striking and assault and battery, if error, were harmless (Ky. Stats., secs. 1241a-2, 1241a-3).

Appeal from Clay Circuit Court.

A.T.W. MANNING for appellant.

HUBERT MEREDITH, Attorney General, and J.M. CAMPBELL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

On a former appeal of this case we reversed a judgment of the lower court sentencing appellant to confinement in prison for two years, upon an indictment charging him, Arthur and Homer Fisher, and Carlo Belt with having banded together, gone forth and injuring another person. Kentucky Statutes, sections 1241a-1 and 1241a-3.

The material facts are fairly set out in the former opinion (269 Ky. 293, 106 S.W. (2d) 999), to which reference is made, if one desires to become acquainted with the facts and circumstances which led to the indictment, and consequent trial resulting in a conviction of appellant and the imposition of one year's imprisonment.

On the former appeal appellant contended that the indictment was faulty, but we held that the court properly overruled demurrer. However, we reversed the judgment because the court had not properly framed instructions Nos. 1 and 2, in that he had not fixed the limitations of penalty as provided in the statutes, and had failed to describe the offense properly as set out in the indictment. We held that the court had not erred in refusing to sustain appellant's motion for an instruction directing acquittal.

As said above, the facts are substantially given in the former opinion, though nothing was said of the defense. Appellant's testimony was to the effect that he did not strike Squire Jones; that he had not confederated with another, or others, for the purpose of injuring any one, that he was not near enough to the scene of difficulty to participate, and did not participate, and that he was intoxicated to such an extent that he hardly knew what did happen.

The proof is that several of the alleged attacking party were intoxicated to a degree. We found in the other case, and find here, ample proof of app...