Cornett v. Commonwealth

• Decision Date: 13 March 1923
• Citation: 198 Ky. 236,248 S.W. 540
• Parties: CORNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

248 S.W. 540

198 Ky. 236

CORNETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 13, 1923

Appeal from Circuit Court, Perry County.

Robert Cornett was convicted of murder, and he appeals. Reversed and remanded.

Rogers T. Moore, T. E. Moore, Jr., and F. J. Eversole, all of Hazard, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

McCANDLESS J.

Wash Kilbourn and Robert Cornett were indicted in the Perry circuit court, charged with the murder of Jerry Cornett. In a separate trial Robert Cornett was found guilty, and his punishment fixed at confinement in the penitentiary for life. The evidence is to the effect that one Warren Crisp had some liquor and gave a drink to Logan Johnson, a deputy sheriff that the latter threatened to carry him to the county seat and make him divulge the source of his supply, and Crisp voluntarily told him that he had arranged with a bootlegger to deliver four gallons to him at a certain place the following Friday night, and proposed for the deputy to accompany him to the meeting place, to which he agreed. On the appointed evening they met in the village of Lothair, and Johnson summoned Crisp, Buffalo Hall, Jerry Cornett, and David Grover as a posse to assist him in the anticipated arrest of the bootlegger.

After walking some distance they reached the appointed place at about 10 p. m. It was a moonlight night, but rather cool, and a fire was kindled. Crisp suggested that the bootlegger was expecting to meet two men only, and he and Johnson remained at the fire, while the other three hid behind some rock. Shortly afterward Kilbourn arrived, riding a mule, and spoke to Johnson; Crisp having gone down the road a little ways. He returned, and the three went to get the liquor. It was found in the possession of Robert Cornett, about 150 yards away. The four had some conversation about it, Johnson and Crisp sampling it and retiring a time or two for consultation. As they returned to the defendants the last time, the other three members of the posse came up.

It is admitted by all parties that up to this time neither Johnson nor Crisp had intimated that they were officers or were seeking to apprehend defendants. They claim that defendants had mentioned the fact that there might be officers around, and, if so, "they would shoot their heads off"; that on this account they, Johnson and Crisp, were exercising diplomacy and marking time until the remainder of the posse arrived. On the other hand, the defendants assert that the man who accompanied Crisp called himself Jerry Cornett, and was so addressed by Crisp, and that he said, "If the officers come up they cannot get the whiskey; that he had been in France, and had seen men stacked on top of each other, and had faced worse things than officers;" that three men were seen approaching, and Crisp said, "I see somebody coming, a band of robbers, we will all be killed," and the two jerked out their pistols.

At any rate, the other three walked up at the time, and it is claimed by the commonwealth's witnesses that Buffalo Hall said, "Gentlemen, if this is moonshine whisky, consider yourselves under arrest." There was a short silence, and without further words the firing began. The commonwealth's witnesses say that Robert Cornett fired the first shot, while the defendants as stoutly maintain that such shot was fired by Logan Johnson. The mêlée lasted but a few seconds, but about 30 shots were fired. Jerry Cornett was fatally wounded, and both defendants and Logan Johnson more or less seriously injured.

Objection is made to the instructions, and to the limitation put upon certain evidence by the court; the former being criticized in many respects. It is assigned as error that the court in the first instruction assumed that Johnson was a deputy sheriff; that the court submitted to the jury the question of Johnson undertaking to make the arrest, with no evidence to support it; that the court should have instructed the jury that under the evidence Hall had no authority to make the arrest, but erroneously failed so to do, and submitted the hypothesis to the jury as to whether appellant knew or could have ascertained Hall's authority in so doing, and on this faulty hypothesis the instruction required the appellant to quietly and peaceably submit to arrest, if he knew or could have ascertained by inquiry for what offense his surrender was demanded, and what authority Hall had to make it; that the instruction told the jury that the posse had the right to use such force as appeared to them, in the exercise of a reasonable judgment, to be necessary to overcome such resistance. The first instruction is quite long, and we will refer to it, without quoting it.

Logan Johnson testified that he was deputy sheriff of Perry county at the time. This was competent evidence. Goslin v. Com'th, 121 Ky. 703, 90 S.W. 223, 28 Ky. Law Rep. 683. Being undenied, the appellant was not prejudiced by the failure to submit that issue to the jury. Section 41 of the Criminal Code of Practice authorizes an officer to orally summon as many persons as he deems necessary to aid him in making the arrest. Section 39 provides that the persons making the arrest shall inform the person about to be arrested of the intention to arrest him and of the offense charged against him for which he is being arrested. The evidence is uncontradicted that Johnson summoned the other members of the party to aid him in making the arrest. The word "aid" means to act in co-operation with, and implies a concurrent effort on the part of all of the party. It is not contemplated that all the posse will be in the immediate presence of the officer at all times, and the members could be of but little assistance, if neither of them could take any action, except to second what he was doing. We are of the opinion that any one of them, when so acting, may demand the surrender of the culprit, and, as there was evidence that Hall did so, it was not error to submit that hypothesis to the jury.

It is shown in the proof that the defendants were unwilling to bring their liquor down to the firelight, nor would they deliver it, except at a place of their own selection. They were armed; their conversation ran upon the...