Commonwealth v. Barnett

• Decision Date: 08 December 1922
• Parties: Commonwealth v. Barnett, et al.
• Court: Kentucky Court of Appeals

196 Ky. 731

Commonwealth v. Barnett, et al.

Court of Appeals of Kentucky.

Decided December 8, 1922.

Appeal from Boyd Circuit Court.

CHAS. I. DAWSON, Attorney General, THOS. B. McGREGOR, Assistant Attorney General, WAUGH & HOWERTON, RYLAND C. MUSICK, and JOHN C. COLDIRON for appellant.

A. F. BYRD, A. H. PATTON and H. R. DYSARD for appellees,

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

At the regular election held in Clayhole precinct of Breathitt county on November 8, 1921, Asberry Combs, Cleveland Combs, Ethan Allen and George McIntosh were killed, while seventeen others were wounded. The grand jury indicted Will Barnett, Willie Davis, Will Campbell, Alfred Barnett, Amby Barnett, Marion Barnett, Ed Davis, Ed Combs and Chester Davis for the murder of Asberry Combs. At the same time Leslie Combs, French Combs, Shade Combs and George Allen, Jr., were indicted for the murder of George McIntosh. On motion of the Commonwealth, a change of venue was granted and the prosecutions transferred to the Boyd circuit court, where the indictments were quashed and the causes referred to the grand jury of that county. Shortly thereafter the grand jury of Boyd county returned an indictment against Leslie Combs, French Combs, Shade Combs and George Allen, Jr., charging them as principals and aiders and abettors in the murder of George McIntosh, and also containing a count charging them with having entered into a conspiracy to break up the election, and having killed McIntosh while carrying out that conspiracy. On the trial of that indictment Will Barnett and the others who were jointly indicted with him under a separate charge for the murder of Asberry Combs testified as witnesses for the Commonwealth and detailed their conduct and speeches, not only on the day of the homicides, but for several days prior thereto. Thereafter the grand jury returned another indictment against Will Barnett and others, charging them with having banded themselves together and having entered into a conspiracy to break up the election and with having murdered Asberry Combs while carrying out that conspiracy. Upon the calling of that case for trial, Barnett and his codefendants filed a plea in bar claiming immunity from prosecution because of the evidence which they gave in the trial of French Combs, et al. Thereupon the court entered this order:

"It is considered and adjudged by the court that in the trial of the defendants herein for the murder of Asberry Combs that the testimony given by them, or any of them, as witnesses for the Commonwealth in the trial of this case in this court, on a former day of the term, wherein the Commonwealth of Kentucky was the complainant and French Combs, Shade Combs, Leslie Combs and George Allen, Jr., were defendants for the murder of George McIntosh, so far as they testified to his or their acts, conduct or movements prior to the shooting of George McIntosh and Asberry Combs, or the beginning of the difficulty in which they were shot and killed on the morning of November 8th, 1921, may not be used against them in the trial of this case against these witnesses, and so far as any such testimony, as to their acts, conduct or movements, prior to the commencement of the difficulty in question conduces or tends to show an agreement or conspiracy on the part of said witnesses to intimidate or injure any officer of the election at and of the Clayhole voting precinct No. 22 of Breathitt county, Kentucky, at the regular November election held in said county on November 8th, 1921; or to prevent any of said officers from performing his duty as such officer; or from preventing any legal voter of said precinct from casting his or her vote at said election as he or she desired to cast same, the facts so testified to by the said witnesses at the former trial may not in this case be gone into or proven by the Commonwealth for the purpose of showing the defendants in this case made an agreement, combination or conspiracy to do the same things the defendants, French Combs and others, in case No. 254, were charged with conspiracy to do, but the court also adjudges that such testimony so given by the defendants herein in case No. 254 is not a bar to their trial and conviction for the murder of Asberry Combs, nor for any conspiracy to do so other than the one charged under section 1241a-1 of the Kentucky Statutes, and only to the extent the testimony of the defendants given in the trial of case No. 254 shows, or conduces to show, a violation by them of section 1241a-1 and same is included or embraced in the indictment against them for which they are to be tried is such testimony held and adjudged a bar to their conviction in this case or to be excluded from the consideration of the jury in their trial for the murder of Asberry Combs.

"The Commonwealth is permitted to prove the defendants or any one or more of them shot and killed Asberry Combs and that the others, or any of them, aided, advised, encouraged, etc., the one, or more who did the shooting, and all their acts, conduct and movements at the time of the difficulty just previous thereto, and while it lasted, and if able to show or prove a conspiracy other than the one indicated and set out under section 1241a-1 and proven by testimony outside of the acts, conduct and movements of the defendants, testified to by them in case No. 254 the court will allow it to do so."

From the foregoing order the Commonwealth appeals.

Section 1241a-1, Kentucky Statutes, says: "If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing or injuring any person or persons, or to rescue any person or persons charged with a public offense from any officer or other person having the lawful custody of any such person or persons with the view of inflicting any kind of punishment on them, or with the view of preventing their lawful prosecution for any such offense or to do any felonious act, they, or either of them, shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years."

Section 1241a-2 makes it unlawful for two or more persons to band themselves together "and go forth" for the purpose of injuring property, whether it be injured or not, and provides a penalty therefor. Section 1241a-3 says: "If any injury shall result to the person or property of any person or persons, by reason of any unlawful acts denounced in the preceding section of this act," then the person or persons engaged or participating or any one or more of them aiding or abetting shall be guilty of a felony and upon their conviction shall be confined in the penitentiary not less than one nor more than fifteen years, "unless death should result in which case the penalty for such offense shall be as now prescribed by law." Other provisions in that section relate to matters foreign to any involved on this appeal. Section 1241a-6 provides a punishment for sending threatening letters, while section 1241a-7 says: "In any prosecution under this act it shall be no exemption for a witness that his testimony may incriminate himself; but no such testimony given by the witness shall be used against him in any prosecution except for perjury, and he shall be discharged from all liability for any violation of this act so necessarily disclosed in his testimony." It will be observed that the seventh section (1241a-7) grants immunity to a witness for his violations of the act, only where he testifies in a prosecution "under this act," and the only question we deem it necessary to decide is whether appellees were witnesses in a prosecution under the act, leaving out of the consideration the further one, whether they were indicted for an offense under it.

The conspiracy count in the indictment against French Combs and others, on whose trial appellees testified, is as follows: "The grand jury of Boyd county in the name and by the authority of the Commonwealth of Kentucky accuse French Combs, Shade Combs, Leslie Combs, and George Allen, Jr., of the crime of wilful murder committed in manner and form as follows, to-wit: The said French Combs, Shade Combs, Leslie Combs, and George Allen, Jr., on and before the 19th day of December, 1921, in the county of Breathitt and state of Kentucky, and before the finding of this indictment, did unlawfully, wilfully, feloniously and with their malice aforethought form and enter into a conspiracy with each other and with other persons unknown to the grand jury, the purpose of which was to prevent any election being held in the Clay Hole precinct in Breathitt county, Kentucky, on the regular election day in November, 1921, at which time and place county officers were to be elected and voted for in said election in said precinct and also at the time and place a state senator was to be elected for the senatorial district in which said county and precinct was located and the further purpose of said conspiracy was to intimidate the officers of the election in the said precinct and prevent them from holding an election and also to intimidate the legal voters in said precinct and to prevent them from casting their vote at said election at said time and the further purpose of said conspiracy was to kill and murder one George McIntosh and any other person or persons who might attempt to hold an election in said precinct at said time and pursuant to said conspiracy and in furtherance thereof and while the same existed the said defendants, French Combs, Shade Combs, Leslie Combs and George Allen, Jr., or some other person to the grand jury unknown who as a member of said conspiracy and while engaged in an effort and in attempting to carry out and consummate each and every purpose of said conspiracy as above stated did unlawfully, wilfully, feloniously and with their malice aforethought kill and murder the said George McIntosh with guns and pistols loaded with powder and...