Commonwealth v. Gabbard

• Decision Date: 12 October 1923
• Citation: 255 S.W. 73,200 Ky. 642
• Parties: COMMONWEALTH v. GABBARD.
• Court: Kentucky Court of Appeals

255 S.W. 73

200 Ky. 642

COMMONWEALTH v. GABBARD.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, Owsley County.

Prosecution for homicide by the Commonwealth against Grover Gabbard. Verdict was directed for defendant, and the Commonwealth appeals for a certification of the law. Law certified.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and C. W. Napier, of Hazard, for the Commonwealth.

C. B Johnson, of Tallega, and Ryland C. Musick, of Jackson, for appellee.

MOORMAN J.

On the first appeal of this case the judgment was reversed, because the lower court refused to instruct the jury peremptorily to find the defendant not guilty. Gabbard v Commonwealth, 193 Ky. 460, 236 S.W. 942. On the return of the case and its resubmission to the grand jury a new indictment was returned, charging that defendant and his codefendants therein, five in number, entered into a conspiracy to do the unlawful act of taking Bessie Allen from her home for immoral purposes, and in the course of prosecuting their common purpose shot and killed her. Separate counts in the indictment charged each of the defendants with having shot her, and the others with aiding and abetting.

Grover Gabbard was tried on this indictment, and at the conclusion of the evidence the trial court directed the jury to return a verdict of not guilty, upon which judgment was rendered. The commonwealth has appealed for a certification of the law.

A detailed statement of the evidence on this trial is unnecessary to a determination of the case, since it is in many respects similar to that introduced on the first hearing. However, there is a difference in the legal effect of the evidence in relation to the respective charges. Besides, the testimony given by Anne Smith and Norman Hutchinson as to the circumstances under which the deceased left her home the night that she was shot is different in some of its essential features from their testimony as reported on the first trial. The witnesses for the defense on this trial gave substantially the same testimony as they gave at the former trial. But the question is, was the changed testimony, with that given by the witness Sandlin, as it related to the new charge, sufficient to take the case to the jury?

It is a rule of general application that if several persons conspire to do an unlawful act, and another is killed in the prosecution of the common object, the conspirators are alike guilty of homicide, as they are each responsible for the probable and natural consequences of, and those things incidental to, the execution of the common purpose, even though they were not intended by the parties as a part of the original design. Powers v. Com., 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 22 Ky. Law Rep. 1807, 23 Ky. Law Rep. 143, 53 L. R. A. 245, and authorities there cited. This rule was recognized and announced by this court in the first appeal of this case, although the question as it pertained to the subject-matter of that appeal was not before the court for determination. By an application of this rule to the facts in evidence the law must be certified.

The evidence for defendant shows that Robert Sandlin killed Bessie Allen. Sandlin did not testify on the first trial, but on this trial he testified that he fired three shots from his pistol at...