Diamond v. Commonwealth

• Decision Date: 13 February 1931
• Citation: 237 Ky. 374
• Parties: Diamond et al. v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 374

Diamond et al. v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 13, 1931.

1. Conspiracy. — State's evidence held sufficient to show confederation violative of Ku Klux statute (Ky. Stats., secs. 1241a-1 and 1241a-3).

2. Criminal Law. — In prosecution under Ku Klux statute, admission by one defendant held competent against all, it being made before complete execution of conspiracy and in presence of others (Ky. Stats., secs. 1241a-1 and 1241a-3).

3. Criminal Law. — In prosecution under Ku Klux statute, statement by one defendant held sufficiently corroborated as confession and statement by accomplice (Ky. Stats., secs. 1241a-1 and 1241a-3; Criminal Code of Practice, secs. 240, 241).

4. Conspiracy. — In prosecution under Ku Klux statute, testimony as to contents of house searched held admissible to show purpose of defendants in confederating, Ky. Stats., secs 1241a-1 and 1241a-3).

Evidence tended to show that alleged violation of Ky. Stats., secs. 1241a-1 and 1241a-3 by defendants was their confederating for purpose of forcibly preventing sheriff and posse equipped with search warrant from searching house and premises of one of defendants. Evidence objected to was that of witness as to contents of such residence, indicating unlawful manufacture of intoxicating liquor, discovered by executing search warrant during following night, after defendants had prevented such execution by force.

5. Conspiracy. — That members of posse precipitated battle would not relieve defendants charged with conspiring and confederating for purpose of preventing execution of search warrant (Ky. Stats., secs. 1241a-1 and 1241a-3).

Since defendants were not indicted and trial for maliciously shooting and striking any member of posse, but on contrary were indicted for conspiring, confederating. and banding themselves together for purpose of doing acts testified to by commonwealth's witnesses, fact that members of posse discovered them with belligerent equipment and themselves precipitated battle would not relieve defendants of violations charged, if proven by requisite weight of proof outside of such assault.

6. Conspiracy. — In prosecution for conspiracy under Ku Klux statute, failure to instruct on right of self-defense against officers held not error, defendants not being indicted for shooting or striking (Ky. Stats., secs. 1241a-1 and 1241a-3).

Appeal from Martin Circuit Court.

WILLIAM R. McCOY for appellants.

J.W. CAMMACK, Attorney General, and DOUGLAS C. VEST for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellants and defendants below, Jeff Diamond, Bert Diamond, Ona Diamond, and Robert Thompson, were jointly indicted by the grand jury of Martin county in which they were charged with violating what is generally termed our Ku Klux statute, as contained in sections 1241a-1 and 1241a-3. At their joint trial they were each convicted and punished by confinement in the penitentiary for one year. Their motion for a new trial was overruled, and they prosecute this appeal, and through their counsel urge as grounds for reversal: (1) That the court erred in not instructing the jury to acquit them; (2) the admission of incompetent evidence; and (3) failure of the court to properly instruct the jury by not submitting to it the whole law of the case. These three divisions embrace all the contentions made, although the presentation as contained in brief of counsel is further subdivided. The three grounds as classified by us will be considered and determined in the order named.

The disposition of ground 1 requires a brief statement of the substantial facts proven at the trial. Jeff Diamond lived in a remote section of Martin county and only a short distance from the residence of his father, John Diamond. Bert and Ona Diamond were his brothers, and one of them lived some five or six miles from him, while the other's residence was some two or three miles distant. Thompson, a brother-in-law of his three codefendants, resided about the same distance from where Jeff Diamond lived, as did Ona Diamond. A justice of the peace of the county had issued a search warrant to search the residence and premises of Jeff Diamond, and it was placed in the hands of Wilson Evans, a deputy sheriff, for execution, and he obtained the assistance of his brother, David Evans, another deputy sheriff, and two others, in serving and executing it. Between 10 and 11 o'clock a.m., on July 24, 1930, the officers and those summoned to assist them approached the residence of Jeff Diamond near which is a rise in the road. As the posse appeared in view over the elevation, they discovered some if not all of the defendants sitting on a log in the yard of the residence, and they also discovered other persons there, some of whom were unknown to them, and immediately some one fired a gun of some description from out of or near the dwelling house, and which was immediately followed by a fusilade of shots from those of the defendants who were in the yard as described, all of whom were armed, except perhaps Thomson, who ran into the residence and obtained a double-barrel shotgun. The officers returned the fire, and some thirty or forty shots were exchanged with one of the officers receiving a slight flesh wound.

The gun of Wilson Evans, the leader of the posse, became locked or in some manner disabled. Other members of the posse become alarmed and sought safety in a nearby brush pile, and defendants immediately rushed upon them and disarmed them and struck at least two of them over the head with pistols and guns and captured the whole crowd. Later they put them in the road and told them to go back the way they came. Bert Diamond stated in the presence of the others, at about the time of or immediately following the capture, in substance, that they (defendants) knew of the intended visit of the officers and had prepared for them.

The testimony as so briefly outlined was that given by the four members of the posse, and it is practically admitted by defendants with the exception that they testified that the first shot was fired at them by Wilson Evans, and they denied the statement that was made by Bert Diamond as proven by the commonwealth's witnesses. The fact of the defendants being congregated at the residence of Jeff Diamond and apparently waiting in his yard while all of them, except perhaps one, were heavily armed, was admitted; but, they, of...