Combs v. Commonwealth

• Decision Date: 15 December 1922
• Citation: 196 Ky. 804,246 S.W. 132
• Parties: COMBS ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

246 S.W. 132

196 Ky. 804

COMBS ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Boyd County.

Leslie Combs and others were convicted of murder, and appeal. Judgment in each case reversed and remanded.

Waugh &amp Howerton, of Ashland, Ryland C. Musick, of Jackson, W. H Flannery, of Catlettsburg, and Henry L. Spencer, of Jackson for appellants.

Charles I. Dawson, of Frankfort, A. H. Patton and A. S. Johnson, both of Jackson, Dysard & Adamson, of Ashland, A. Floyd Byrd, of Lexington, and Thomas B. McGreggor, Asst. Atty. Gen., for the Commonwealth.

MOORMAN J.

Leslie Combs, George Allen, Jr., French Combs, and Shade Combs were indicted in the Boyd circuit court for the murder of George McIntosh committed on the 8th day of November, 1921, at what is known in the record as the Clayhole precinct in Breathitt county. The indictment contains several counts, one of which charges the commission of the murder pursuant to a conspiracy entered into by the defendants. The others aver as to each of the defendants that he committed the murder and the others aided and abetted him. From a judgment of conviction sentencing Leslie Combs and George Allen, Jr., to 15 years and French Combs and Shade Combs to 5 years in the penitentiary, this appeal has been prosecuted.

The defendants ask a reversal of the judgment on the following grounds: (1) The presiding judge of the Breathitt circuit court should have vacated the bench on motion made by defendants; (2) the order made by the judge of the Breathitt circuit court, changing the venue of the prosecution from Breathitt county to Boyd county, was void; (3) the Boyd circuit court had no jurisdiction of the action; (4) instruction No. 1 given on the trial of the case was erroneous; (5) a peremptory instruction to find the defendants French Combs and Shade Combs not guilty should have been given at the conclusion of the commonwealth's evidence; (6) the trial court erred in not giving an instruction on self-defense; and (7) errors in admitting incompetent testimony against the defendants and excluding from the jury competent evidence offered by them.

We will discuss the errors assigned in the order in which they are mentioned and in which they are argued in brief of counsel. Before proceeding to consider them, however, it is proper to outline the respective theories of the commonwealth and the defense as they are shown in the evidence, and this makes it necessary to refer briefly to the conditions existing in the vicinity of the Clayhole voting precinct immediately preceding the tragedy occurring on November 8, 1921, in which 4 men were killed and 17 others wounded. The Clayhole precinct had been recently created, and the evidence shows that normally it was largely Democratic. It appears that at the November election, 1921, there were to be elected the county officers for Breathitt county, and also the officers for the judicial and senatorial districts in which that county is located. The campaign for these offices was hotly contested. On the Sunday before the election several men who resided at Jackson proceeded to the Clayhole precinct, as they say, for the purpose of working for the election of the Republican ticket, but, as appellants contend, for the purpose of preventing an election being held in that precinct. Defendants and others who were interested in the election were also engaged on the Sunday and Monday preceding it, in working for the Democratic ticket. The two crowds came in contact with each other on several occasions in the course of their respective activities as indicated. On the morning of election day they all appeared at the voting place for that precinct. It was a small building, in front of which a wire had been stretched in order to prevent the voters and others from pressing up to the door of the building. A short time after the voting began, and when not more than about 40 ballots had been cast, a difficulty arose which eventuated in a fight between the opposing factions in which a great many shots were fired, and as a result of which, as stated, 4 men were killed and 17 wounded. Three of the men killed were members of the faction to which defendants belonged, and one of them was a member of the opposing crowd, sometimes referred to in the record as the Campbell crowd.

The evidence as to the origin of the conflict in which decedent lost his life, and as to who killed him and who fired the first shot, is extremely conflicting. The trial of these cases consumed several days. The testimony is voluminous, and on every material issue of fact there is persistent contradiction. A detailed analysis of the evidence, which consists of two theories diametrically opposed to each other, if it were practicable to give such an analysis in this opinion, is not, in our judgment, necessary to a decision of the questions relied on for a reversal. Having therefore given something of the conditions existing at the Clayhole precinct immediately preceding and on the day of the election, we will now state the respective theories of the prosecution and defense as developed in the proof, in order that the legal questions presented may be determined.

According to the commonwealth's theory, George Allen, who had been appointed an inspector at the polls, grabbed Katie Sizemore by the shoulder, as she started in the door, and demanded that she tell him how she was going to vote; and, being informed that she expected to vote for certain named candidates, he said, in substance, that she should not vote that way, and thereupon Ed Combs and Allen engaged in an altercation with regard to Allen's right to enter the room in which the votes were being cast; that Combs insisted that it was against the law for Allen, who had not been sworn in as an election officer, to enter the house while the votes were being cast, and Allen said, "Damn the law, there is no law," and called Combs a vile name, making a menacing gesture as if to draw a pistol; that about that time George McIntosh, who was an inspector or challenger, came out of the house and stated, in substance, that if they did not hold the election fair they could hold it themselves, and, "I am not going to be in it"; that Leslie Combs then appeared at the door of the house, and George Allen said, "Let her go, Les," and Leslie Combs, who was then within a few feet of McIntosh, fired two shots both of which struck McIntosh, who fell dead; and that immediately the firing, in which Shade Combs and French Combs participated, became general. It is also the theory of the commonwealth that the statement of George Allen just quoted was the signal for the execution of a prearranged plan of defendants and their friends to intimidate the voters and workers at the election.

The contention of the defendants is that Will and Amby Barnett, Will Campbell, Ed Combs, and others of that crowd came to the election armed, for the purpose of destroying it; that Allen did not grab the Sizemore woman by the shoulder, but met her at the door, shook hands with her, and, being informed as to how she expected to vote, asked how much she had been paid to vote that way, and, when informed $7, offered her $10 to vote differently, which offer she accepted; that Ed Combs immediately began to abuse Allen, using the incident as a ruse to start trouble; that during the argument between Combs and Allen no such statement was made by George Allen as the commonwealth's witnesses attributed to him; that while Allen and Combs were arguing, Shade Combs and Mary Hardin, a sister of Leslie Combs, took Allen around the house to keep down trouble, and just as they started with him the deceased rushed out the door and made an attempt to grab Allen, saying, "Let me to the pale-faced son of a bitch," or words to that effect. By that time his coconspirators had come up, and deceased fired at and mortally wounded Asbury Combs, a brother of Leslie Combs, and then Cleveland Combs, a brother of Leslie and an election officer, who also was killed, came to the door of the house and fired at deceased, killing him. It is also the contention of the defendants that Leslie Combs never fired a shot, that George Allen did not fire at all, and that none of them aided or abetted in the shooting of George McIntosh.

The first three grounds relied on for a reversal of the judgment are so closely allied to each other that we will consider them collectively, disposing of each of the points raised. We should say, at this juncture, that the judge of the Breathitt circuit court, whose rulings are first complained of, was a candidate to succeed himself at the November election of 1921, and that, several weeks after the election was held the four defendants were indicted in Breathitt county for the murder of George McIntosh. At the same time indictments were returned against a number of the prosecuting witnesses for the killing of Ethan Allen, Cleveland Combs, and Asbury Combs, who were members of the crowd to which defendants belonged. At the March term, 1922, of the Breathitt circuit court, the commonwealth attorney filed a petition in the prosecutions growing out of the Clayhole precinct election, and moved the court for a change of venue from Breathitt county to some other county to be agreed upon or not objected to by the parties, but not to Lee, Estill, Perry, or Owsley counties. The petition was supported by the affidavits of a number of citizens, some of which were taken by counsel for defendants. The motion for a change of venue was overruled, and then defendants filed a motion, supported by their joint affidavits, to have the presiding judge vacate the bench in their cases. That motion was also overruled, and these cases, with the others growing out of the affair at...