Commonwealth v. Hargis

• Decision Date: 18 January 1907
• Citation: 124 Ky. 356,99 S.W. 348
• Parties: COMMONWEALTH v. HARGIS.
• Court: Kentucky Court of Appeals

99 S.W. 348

124 Ky. 356

COMMONWEALTH v. HARGIS.

Court of Appeals of Kentucky.

January 18, 1907

Appeal from Circuit Court, Fayette County.

"To be officially reported."

James Hargis was tried for murder, resulting in a disagreement, and the commonwealth appeals. Questions of law decided.

N. B Hays, C. H. Morris, J. R. Allen, C.J. Bronston, and Byrd &amp Jouett, for the Commonwealth. J. H. Hazelrigg, Geo. R. Hunt Morton, Webb & Wilson, and E. P. Farrell, for appellee.

CARROLL C.J.

The appellee, James Hargis, was put upon his separate trial under an indictment charging that: "James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer committed the crime of murder, as follows, viz.: That said James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer, in connection with Curtis Jett and William Britton, on the 24th day of January, 1905, in the county of Breathitt and state of Kentucky, did unlawfully, willfully, feloniously, and with malice aforethought, shoot and wound James Cockrill with guns and pistols loaded with powder and leaden ball and other hard substances, from which shooting and wounding the said Cockrill died in Fayette county on the following day. (2) The said James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer, together with Curtis Jett, William Britton, and other persons unknown to the grand jury, on the 25th day of January, 1905, and prior thereto and before the finding of this indictment, formed and entered into a conspiracy with each other, the purpose of which conspiracy was to kill and murder James Cockrill, and pursuant thereto and in furtherance of said conspiracy and while the same existed, said Curtis Jett, William Britton, and others, to the grand jury unknown, with the knowledge and consent and by the direction and procurement of the said James Hargis, Alexander Hargis, Elbert Hargis, Ed Callahan, and Jesse Spicer, on the 25th day of January, 1905, in the county of Breathitt and state of Kentucky, did unlawfully, willfully, and with malice aforethought, shoot and wound James Cockrill, * * * and the said James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer, before the time of said killing, did unlawfully, willfully, feloniously and with malice aforethought, advise, incite, procure, and persuade the said Curtis Jett, William Britton, and others unknown to the grand jury, to so shoot and wound and kill the said Cockrill, and at the time said shooting and wounding occurred, which resulted in the death of Cockrill as above stated, said James Hargis, Elbert Hargis, Ed Callahan, Alexander Hargis, and Jesse Spicer were present conveniently near, and did unlawfully, willfully, feloniously, with malice aforethought, aid, abet, counsel, advise, incite, and encourage the said Curtis Jett, William Britton, and others unknown to the grand jury, to do said shooting and wounding and killing." The jury failing to agree, were discharged, and the prosecution continued. For the purpose of having certain material and important questions of law, that arose during the trial, settled for the guidance of the lower court on another trial, the commonwealth, under the authority of section 335, of the Criminal Code of Practice, and Commonwealth of Kentucky v. Matthews, 89 Ky. 287, 12 S.W. 333, Commonwealth of Kentucky v. Hourigan, 89 Ky. 305, 12 S.W. 550, has brought the record to this court.

The questions we are called on to consider, involve the refusal of the lower court to give certain instructions requested by the commonwealth, and relate to errors alleged to have been committed in the admission and rejection of evidence, the first and principal question being whether or not, the evidence authorizing it, the trial judge should have instructed the jury as requested by the commonwealth, that the defendant might be convicted of being an accessory before the fact. A sharp issue is here made between the state and the accused. In brief, the commonwealth insists that, under this indictment, he might be convicted of being the actual perpetrator of the act, or as aider and abettor actually or constructively present when it was committed, or as an accessory before the fact, and there being sufficient evidence to authorize the trial judge to give the jury instructions in behalf of the commonwealth submitting for their consideration these several views, he should have done so. For appellee it is urged that, in the same indictment the defendant cannot be charged with being the principal actor, as aider and abettor, and also as an accessory before the fact; that the charges are inconsistent, one accusation being that he was present, the other that he was absent, and therefore by the common law and statute they are separate offenses. The lower court accepted as correct the view of the defense, and refused to instruct the jury that they might convict the accused if they believed that he procured, advised, or counseled Jett or others to kill Cockrill, although absent when the crime was committed, and instructed the jury, in substance, that there could be no conviction unless Hargis was the actual perpetrator of the crime, or was present at such shooting, correctly defining his presence as follows: "Was so near to the person or persons committing it that he could give to him or them aid or assistance in doing such shooting, or could give to him or them notice of the approach of danger, or could aid him or them in escaping protection or in evading or resisting arrest, and, if the defendant was in such position for the purpose on his part of giving such aid and assistance, or giving such notice, or of giving such aid and escape of protection, or of such evading or resisting of arrest, and if any of the persons who did such shooting knew, believed, or understood that the defendant was in any such position with any such purpose, this was a presence of the defendant at such shooting within the meaning of the law."

The importance of this question to the commonwealth and the accused will be more fully appreciated when it is understood that there was some evidence conducing to show that Hargis although not the actual perpetrator of the crime, yet procured, counseled, and advised the murder of Cockrill. Whether or not he was present as an aider and abettor is a disputed question between the commonwealth and the accused--the evidence disclosing that he was in his store a short distance from the scene of the murder when it occurred. The commonwealth contends that he was there to render aid and assistance to the assassins, whilst the testimony for the defense tends to show that he was at the store attending to his business and knew nothing of their murderous purpose. Under the common law a person might be guilty of the crime of murder as a principal in the first degree, the actual perpetrator of the crime, as a principal in the second degree, being present aiding and abetting the fact, as an accessory before the fact, in that, although absent at the time, the crime was committed, he yet procured, counseled, or commanded another to commit it. Blackstone, vol. 4, p. 36; Russell on Crimes, vol. 1, p. 47. Under the rules that prevailed under that system, it was always important for the prosecution to keep clearly in mind the technical distinction between the various degrees of the same crime. It is not necessary here to describe with more fullness the common-law procedure in the indictment and prosecution of aiders and abettors and accessories. Elaborate accounts that have now little more than historical value can be found in Hale's Pleas of the Crown, Russell on Crimes, and other standard authorities. Happily for the just and correct administration and enforcement of the law, the protection and security of persons and property from the violence or viciousness of the criminal classes, the shadowy and confusing technicalities and distinctions of the common law have been supplanted by the simpler and more intelligent expressions of modern law as found in codes and statutes. It is scarcely necessary at this point to add that the common-law definition of those crimes that are punishable under the statute, although not described in it, must be followed, as in murder, burglary, and other offenses mentioned, but not defined, in our statute. But, when the offense is both created and described by statute, the common law as to it is abrogated, and when the punishment for a common-law offense is prescribed by statute, it is exclusive. Ky. St. 1903, § 1127. It may in fact be said that the change has been more radical in the practice and procedure than in the description or definition of crime. Our statute does not create or describe the crime of murder, nor does it mention aiders and abettors or principals in the first or second degree. It merely fixes the punishment for murder. Nor does it define the penalty that shall be visited upon an accessory before the fact, but does make a radical change in the common law in the respect that an accessory may be tried and convicted although the principal has not been, providing in section 1128 that: "In all felonies accessories before the fact shall be liable to the same punishment as principals, and may be prosecuted jointly with principals, or severally, though the principal be not taken or tried, unless otherwise provided in this chapter." Therefore, it may safely be declared as the law in this commonwealth that the principal actor, the aider and abettor, and the accessory before the fact are all principals in legal effect and equally guilty, and may be so accused and convicted. The Constitution, in section 11, provides that "in all criminal prosecutions the accused has the right * * * to demand the nature and cause of the accusation against...