Combs v. Commonwealth

• Decision Date: 22 May 1928
• Parties: COMBS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

6 S.W.2d 1082

224 Ky. 653

COMBS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 22, 1928

Appeal from Circuit Court, Perry County.

John Combs was convicted of aiding and abetting in murder, and he appeals. Reversed.

W. C Eversole, of Hazard, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

WILLIS J.

John Combs was indicted jointly with Joe Newberry and Dill Asher for the murder of Liew Banks. The indictment was in four counts, one count charging a conspiracy among the defendants to commit the crime, and the others charging each of the defendants separately as principal with the others aiding and abetting in the murder of Banks. On a separate trial Newberry was convicted, and his punishment fixed at life imprisonment, which was affirmed by this court. Newberry v. Commonwealth, 222 Ky. 630, 1 S.W.2d 1045. Combs was tried and convicted on a count in the indictment of aiding and abetting Newberry in the murder of Banks, and his punishment fixed at ten years in the state penitentiary, from which conviction he prosecutes the present appeal.

But two points are presented to us for consideration. It is first insisted that the indictment herein is invalid, because it was returned at the April term, 1926, of the Perry circuit court, seventy-second day, when in fact there was no April term of the Perry circuit court, because that term was abolished by the act of the General Assembly of 1926, approved by the Governor on March 25, 1926, and the next regular term of that court under the new act began on the second Monday in June, and lasted 24 days. Acts 1926, c. 54, p. 168. It was held by this court in McIntyre v. Commonwealth, 221 Ky. 17, 297 S.W. 931, and in Deaton v. Commonwealth, 220 Ky. 343, 295 S.W. 167, that the emergency clause in the act of March 25, 1926, was invalid on its face and for that reason the act changing the terms of court in the Thirty-Third judicial district comprised of the counties of Leslie and Perry, did not take effect until 90 days after adjournment of the Legislature. Constitution, § 55. Consequently, there was in fact and in law an April term of the court in that year, and we cannot say from anything appearing in the record that the grand jury was not legally in session, or that the indictment in this case was invalid. Cf. Sloan v. Com., 211 Ky. 318, 277 S.W. 488.

The next insistence is that the appellant should have a peremptory instruction of not guilty, on the ground that the evidence was insufficient to show that he rendered any aid or assistance to Newberry, or in any way incited, counseled, encouraged, or advised him in the commission of the crime. The facts in this record are very similar to those appearing in the Newberry case, which are fully stated in that opinion, and need not be repeated. There can be no doubt that Newberry and Combs were together on the occasion involved, and had been for some time, but Combs knew that Newberry was unarmed, and neither of them knew the deceased, Liew Banks, or any of his companions. The commonwealth proved by one witness who did not know any of the four boys involved in the difficulty that John Combs hit the deceased with his fist, but it was before the killing occurred, and apparently before the pistol was procured. There is nothing to show that Combs had any knowledge, or any reason to believe, that Newberry would inflict serious injury on Banks. Combs and Newberry were fighting the two Bailey boys and the two Banks boys, but they were fighting independently with their fists, and the two were holding their own very well against the four. There may be circumstances under which mere participation in a fight, knowing that an associate and ally is armed and likely to kill somebody, will furnish sufficient evidence of aiding, encouraging, and abetting to warrant submission of the case to a jury, but we cannot say from this record that there is any evidence that Combs aided or abetted, counseled or advised, commanded or encouraged, Newberry to kill Banks. The deceased, Liew Banks, or his cousin, Fred Banks, had the pistol. The evidence is conflicting on that point, but the one that had the pistol pointed it at Newberry, whereupon Dill Asher, with his pistol, compelled the other party to drop the weapon, which Newberry immediately seized, and with it shot the deceased in the back of the head while he was trying to get away. Asher had not taken any part in the fight, but happened along at the critical moment.

There is evidence that John Combs hit Fred Banks and one of the Bailey boys with his fist, and kicked another of the Baileys. Of course, it is for the jury to determine the facts of the case, but their determination must be based on evidence. It is our duty to give the evidence the construction most favorable to the commonwealth of which it is reasonably susceptible, and, when that is done, if it tends to prove the guilt of the defendant, the case should be submitted to the jury. Kirk v. Commonwealth, 192 Ky. 460, 233 S.W. 1060.

If it be admitted that the jury believed that Combs hit the deceased before he was shot, that he struck one of the Baileys, and kicked the other after that one was hit by Newberry with a bottle, that he had gone to the residence of Asher for assistance or to procure a pistol, but failed to get either, that he was...