Commonwealth v. Ramey

• Decision Date: 03 October 1939
• Citation: 279 Ky. 810,132 S.W.2d 342
• Parties: COMMONWEALTH v. RAMEY.
• Court: Kentucky Court of Appeals

132 S.W.2d 342

279 Ky. 810

COMMONWEALTH v. RAMEY.

Court of Appeals of Kentucky

October 3, 1939

Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.

Ted Ramey and others were jointly indicted with the crime of confederating and banding themselves together for the purpose of intimidating, alarming, or injuring certain named persons and upon the conclusion of the evidence the trial court directed a verdict of not guilty, and the Commonwealth appeals.

Judgment in accordance with opinion.

Hubert Meredith, Atty. Gen., and J. E. Childers, of Pikeville, for the Commonwealth.

Joe P Tackett, of Prestonsburg, and F. M. Burke, of Pikeville, for appellee.

PERRY Justice.

The appellee, Ted Ramey, and six of his associate employees of the Barrowman Coal Mining Company, were jointly indicted in the Pike circuit court, charged with the crime of confederating and banding themselves together for the purpose of intimidating, alarming, etc., Joe Smith, Ersel Ratliff and others, whose names to the grand jury were unknown, an offense denounced by the provisions of section 1241a-1 Kentucky Statutes, which are as follows: "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 *** 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."

Upon call of the case for trial at the February, 1937, term of court, the jointly indicted defendants demanded a severance and the commonwealth elected to first try the appellee, Ted Ramey.

Upon the conclusion of the evidence for the commonwealth, the trial court directed the jury to return a verdict of not guilty, resting his conclusion upon the ground that there was a total failure of proof upon the part of the commonwealth conducing to show or connecting the accused with the commission of the crime charged.

The trial judge, it may be conceded, has the same right and authority to give a peremptory instruction in a criminal proceeding that he has in a civil action, from which it results that if the evidence introduced in behalf of the commonwealth fails to incriminate the defendant, or is wholly insufficient to show his guilt of the offense charged, it becomes not only the right, but the duty, of the trial judge to instruct the jury to return a verdict of not guilty.

It is not, however, within the authority or province of the trial court to take from the jury a criminal prosecution, if there is any evidence, however slight it may be, conducing to show that defendant is guilty of the offense charged. Commonwealth v. Murphy, 109 S.W. 353, 33 Ky. Law Rep. 141. Further, in the cited case it is announced that: "This rule of practice is not found directly in either the Code or the statutes, but it is firmly established as a part of the criminal jurisprudence of the state, and is uniformly applied by this court in considering appeals in criminal cases when a reversal is asked because the verdict is flagrantly against the evidence, or is not supported by sufficient evidence, and should control the lower courts in the disposition of criminal cases. Vowells v. Commonwealth, 83 Ky. 193; Patterson v. Commonwealth, 86 Ky. 313, 5 S.W. 387, 765; Green v. Commonwealth, 83 S.W. 638, 26 Ky.Law Rep. 1221; Martin v. Commonwealth, 106 S.W. 863, 32 Ky.Law Rep. 657."

In accord with such statement of this rule, see Kennedy & Wigginton v. Commonwealth, 194 Ky. 502, 239 S.W. 796, 797, wherein the rule was thus enunciated: "It is well settled in this jurisdiction that a directed verdict is not authorized in a criminal prosecution where there is any evidence, however slight, conducting to show that the defendant is guilty of the offense charged. Gordon v. Commonwealth, 136 Ky. 508, 124 S.W. 806; Commonwealth v. Little, 140 Ky. 550, 131 S.W. 387."

The Commonwealth here appeals from the directed verdict and judgment of acquittal entered thereon, asking for a certification of the applicable law, here necessary for trying the pending six other cases of the defendants jointly indicted with appellee and charged with violation of section 1241a-1, Kentucky Statutes, denouncing as a crime the offense of banding and confederating together for the purpose of intimidating, alarming, etc., another.

Sections 335 and 337, Criminal Code, authorize an appeal on behalf of the commonwealth, even when there can be no reversal, where it appears that it is important, as it is here stated, for the correct and uniform administration of the criminal law, that this court should pass upon the question presented on the appeal.

Accordingly this appeal is before us, asking a certification of the law under the authority of such code provisions.

While conceding that our disposition of this appeal will not affect the appellee, Ramey, as the verdict of acquittal returned under the direction of the court operates to free him from a second prosecution for this same offense, yet (under section 337, Criminal Code), "If the attorney-general, on inspecting the record, be satisfied that error has been committed to the prejudice of the Commonwealth, upon which it is important to the correct and uniform administration of the criminal law that the Court of Appeals should decide", he may take an appeal for the purpose of having a certification of the law. Commonwealth v. Cain, 77 Ky. 525, 14 Bush 525, 4 Ky.Law Rep. 38; Commonwealth v. Cessna, 140 Ky. 25, 130 S.W. 811; Commonwealth v. Murphy, 109 S.W. 353, 33 Ky.Law Rep. 141.

It is the contention of appellant that the court erred in directing the jury, at the close of the commonwealth's evidence, to find a verdict for the defendant, his challenged ruling being based upon his conclusion that the evidence heard wholly failed to in any wise incriminate appellee or conduced to show his guilt of the offense charged.

We have very carefully examined the evidence introduced for the commonwealth upon Ramey's trial, for the purpose of determining whether or not there was any testimony given by its several witnesses conducing to show that appellee was guilty of the crime charged by the indictment jointly against him and his six associate members of their labor union, that they did feloniously band and confederate themselves together for the purpose of intimidating, alarming and disturbing Joe Smith and Ersel Ratliff and others (whose names to the grand jury were unknown) and that they did, in pursuance of said conspiracy entered into, on May 7, 1935, intimidate and disturb the said Smith and Ratliff, a crime denounced by section 1241a-1, Kentucky Statutes.

The proof given by the commonwealth's witnesses before the trial court, briefly summarized, is to the effect and tends to show that all of these seven jointly indicted defendants were at one time employees of the Barrowman Coal Mining Co. and were such when, in 1934 or 1935, the United Mine Workers of America organized a miners' union among this mining company's employees, and that Ted Ramey was elected president of this "local" and was such at the time and upon the occasion herein complained of.

It further appears by the proof that soon after the organizing of this mining company's employees, they were called out on a strike, when appellee, together with his named associate miners and other members of this "local" (numbering some thirty-five or forty), by way of furthering the winning of the strike, began to picket the Barrowman mine for the purpose of persuading by one means or another its employees to quit their jobs and not return to them during the period of the strike, during which the company was refusing to recognize the union organization and trying to operate its mine with non-union laborers, conspicuous among whom were Joe Smith and Ersel Ratliff, the indictment charging that the named defendant union miners had confederated and banded themselves together for the purpose of intimidating, disturbing and injuring them.

The evidence is further that on the particular occasion complained of, Joe Smith and Ersel Ratliff, upon going to the mine for the purpose of returning to their jobs, were met at the mine entrance by the appellee, Ramey, and his associate union miners, who undertook to first persuade them not to work in the mine, but that, upon their refusal to yield to these pickets' lawful, persuasive inducements not to return to work and their manifestation of a continued will and intention to enter the mine and return to their jobs, as testified by Ersel Ratliff, the appellee Ramey climbed upon a pile of...