Deaton, Haddix and White v. Commonwealth

• Citation: 211 Ky. 651
• Parties: Deaton, Haddix and White v. Commonwealth.
• Decision Date: 02 October 1925
• Court: United States State Supreme Court (Kentucky)

211 Ky. 651

Deaton, Haddix and White v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 2, 1925.

1. Homicide — Finding of Guilt Held Not so Flagrantly Against Evidence as to Require Reversal. — In a prosecution against deputy sheriff for murder, where evidence was in dispute as to whether decedent shot first in attempt to evade arrest for making whiskey, a finding of guilt held to be not so flagrantly against weight of evidence as to justify a reversal, which is granted only when verdict is so patently against the truth as to shock the conscience of the court.

2. Homicide — Instruction that Making of Whiskey did Not Justify Officer in Shooting to Kill on Attempt to Escape Held Proper. — In a prosecution of deputy sheriffs for murder, instruction that making of whiskey was only a misdemeanor, and officers had no right to shoot to kill on attempt to escape arrest, was not error, since state enforcement act did not require officers to enforce federal laws, which would have made decedent's act a felony, justifying killing.

3. Intoxicating Liquors — State Enforcement Act, by Omission, Held to Repeal Provisions of Prior Act Requiring State Officers to Enforce Federal Laws. — Enforcement act of 1922, which under section 45 expressly superseded all other laws and was complete in itself, omitting under section 23 provisions of Ky. Stats., section 2554a34, requiring state officers to enforce federal prohibition laws, repeals such provisions.

Appeal from Breathitt Circuit Court.

A.S. JOHNSON and A.H. PATTON for appellant Deaton.

W.L. KASH, E.C. HYDEN and R.A. DUNN for appellants Haddix and White.

A.F. BYRD, FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Affirming.

In February, 1923, Deaton, White and Carpenter were each deputies under the sheriff of Breathitt county, and Haddix was a constable of that county.

They went together to a remote section of the county for the purpose of serving papers for an approaching term of the circuit court; but while in that section they received information of the existence and location of some moonshine stills, and sought to find and destroy them. They destroyed one, and on the following day went to Horse branch of Quicksand creek in search of another. They finally located it, and two of the party got near enough, without being observed, to ascertain that there were some men in the small shack where the liquor was then being made. After notifying the other members of their party some one or more of them demanded of the occupants of the shack that they come out and surrender. Two of the occupants, Howard and Bradley, came to the door of the shack and, seeing the officers, immediately went back into it, and then again emerged from the door, but instead of surrendering to the officers they undertook to escape and evade arrest, and while so doing Howard was shot in the back by some one of the officers, from which he subsequently died.

Each of the four officers was jointly indicted, charged with the murder of Howard, but thereafter the prosecution was dismissed as to Carpenter. The other three were placed on their joint trial, and were each found guilty of manslaughter and sentenced to five years' imprisonment.

The indictment is merely a joint one against the four defendants, charging them all with the murder of Howard; and there is no charge either that the defendants conspired together to kill him or that any one or more of them killed him while the others aided and abetted.

The two grounds for reversal are (1) that the verdict of guilty is flagrantly against the evidence on the issue whether or not the decedent while attempting to evade arrest first shot at the officers as he was fleeing, and (2) that the instructions did not embrace the whole law of the case because they did not in substance say to the jury that under the federal laws, which it was, as assumed, the duty of the officers to enforce, the decedent and his companions by the act of making illicit liquor were guilty of a felony, as the evidence tended to show they had entered into a conspiracy or agreement to do so.

On the first question the evidence for the Commonwealth in dying statements made by the decedent is to the effect that he had no pistol in his possession when he undertook to escape arrest, and that neither he nor Bradley fired a shot upon that occasion. Bradley testified on the trial and fully corroborates the statement of the decedent, although he admits that he himself at the time had a pistol; and to some extent these statements of the decedent and Bradley are corroborated by their associate Davis who, while stating that he remained in the shack when the other two undertook to escape, and consequently did not see any of the shots fired, did state that no shot was fired until after each of his associates had gotten some distance from the shack going up the mountain, whereas the evidence of the...