Drake v. Commonwealth

• Decision Date: 23 April 1926
• Citation: 214 Ky. 147
• Parties: Drake v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 147

214 Ky. 147

Drake v. Commonwealth.

Court of Appeals of Kentucky.

Decided April 23, 1926.

1. Indictment and Information — Indictment Charging Defendants with Aiding and Abetting Each Other in Shooting Held Not Demurrable for Failure to Allege Jury's Lack of Knowledge as to Who was Principal and Who was Aider or Abettor. — Indictment in murder prosecution, charging each defendant with aiding and abetting the other in the shooting, held not demurrable because not showing that grand jury was ignorant as to who was principal and who was aider or abettor, since both were parties in first degree and might be so accused and convicted.

2. Criminal Law — Statute does Not Deprive Commonwealth of Right to Try Separately Defendants Jointly Indicted for Murder (Criminal Code of Practice, Section 237). — Criminal Code of Practice, section 237, providing that if two or more defendants be jointly indicted for felony any defendant is entitled to a separate trial, does not deprive Commonwealth of right to try defendants jointly indicted for murder at separate trials.

3. Homicile. — In murder prosecution, question of defendant's guilt held for jury.

4. Criminal Law — Testimony of Witness as to How Far Pistol would Burn Clothing Held Properly Admitted, where he had Qualified. — Testimony of witness as to how far a pistol would produce a powder burn on clothing or set clothing on fire held properly admitted, where he had qualified.

5. Criminal Law — Letter Written by Defendant to Codefendant Advising Her as to What Testimony She should Give, Held Admissible, where it was Properly Identified. — In murder prosecution, letter from defendant to codefendant, advising her as to what testimony she should give, held admissible, where it was properly identified.

6. Criminal Law. — Jury are sole judges of weight to be given evidence of witnesses.

7. Criminal Law. — Jury are triers of the facts.

Appeal from Muhlenberg Circuit Court.

T.O. JONES for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE GOODPASTER.

Affirming.

At the September term, 1924, of the Muhlenberg circuit court the following indictment was returned, to-wit:

"The grand jury of the county of Muhlenberg, in the name and by the authority of the Commonwealth of Kentucky, accuse Sam Drake and Lena Wing of the crime of willful murder committed as follows, to-wit: The said Drake and Wing heretofore, within one year before finding of this indictment, to-wit: on the ___ day of ___, A.D. 192_, in the county aforesaid, did unlawfully, willfully, feloniously, and of their malice aforethought, murder, kill and slay one Morton Wing by shooting and wounding him, the said Wing, upon his head, limbs, body and person with a pistol or gun loaded with powder and ball or balls of lead or other hard substance, a deadly weapon, with the intention to kill the said Morton Wing and from the effects of which said shooting and wounding he did die within a year and a day thereafter; and each did then and there counsel, advise, aid, abet, encourage and assist the other in the shooting, wounding and slaying of the said Morton Wing as aforesaid, done as aforesaid and against the peace and dignity of the Commonwealth of Kentucky."

At the April term of said court, 1925, the Commonwealth moved the court for a separate trial of the defendants, which motion the court sustained, to which the defendants excepted. Thereupon the Commonwealth elected to try the defendant, Sam Drake. The defendant demurred to the indictment and the court being advised overruled the demurrer. Thereupon both sides announced ready for trial and the trial proceeded and resulted in a verdict finding the defendant, Sam Drake, guilty of the crime of voluntary manslaughter and fixed his punishment at confinement in the penitentiary for a period of twenty years.

At the same term of court the defendant filed his motion and grounds for a new trial, which are as follows:

"The defendant, Sam Drake, moved the court to set aside the verdict of the jury and grant him a new trial herein, for the following reasons:

"First: Because the court erred to the prejudice of the defendant in admitting incompetent evidence offered by the plaintiff, and in rejecting competent evidence offered by the defendant.

"Second: Because the court erred to the prejudice of defendant in refusing to peremptorily instruct the jury to find the defendant `not guilty' at the conclusion of the evidence on behalf of the Commonwealth.

"Third: Because the court erred in refusing to peremptorily instruct the jury to find the defendant `not guilty' at the conclusion of all the evidence.

"Fourth: Because the court erred in giving to the jury instructions Nos. one to eleven, inclusive, and each of them.

"Fifth: Because the court erred in failing to give to the jury the proper instructions on the law of the case, and in failing to instruct the jury on the whole law of the case.

"Sixth: Because the court erred in advising the jury after the case had been submitted to them and they had retired to their room to consult, by designating and interpreting specifically certain instructions given, without mentioning that the instructions should be considered by the jury as a whole.

"Seventh: Because the verdict of the jury is contrary to both the evidence and law of the case, and is not supported either by evidence or law.

"And upon this motion defendant prays the judgment of the court."

At said April term the court overruled the motion and grounds for a new trial, to which the defendant objected and excepted and prayed an appeal to this court, which was granted. At the same term of court the following judgment was rendered, to-wit:

"The defendant was this day brought into open court and, being informed of the nature of the indictment, plea and verdict of the jury, was asked if he had any legal cause to show why judgment should not be pronounced against him, and none being shown, it is ordered and adjuged by the court that the defendant, Sam Drake, be conveyed by the sheriff of Muhlenberg county to the state penitentiary at Eddyville, Kentucky, and there confined at hard labor for a period of twenty years, and prayed an appeal to the Court of Appeals of Kentucky, which is granted. On motion of defendant the execution of the above judgment is hereby suspended until the expiration of the period within which the defendant is required to lodge a transcript of the record in the clerk's office of the Court of Appeals, or a copy of the order of the Court of Appeals is filed with the clerk of this court, granting further time to lodge the transcript, or until the clerk of the Court of Appeals issue a certificate that an appeal has been taken, and the defendant is remanded to the custody of the jailer."

Defendant's counsel insists that the indictment is not good on demurrer because, as alleged by him, it charges each defendant with aiding and abetting the other in the shooting and does not show this fact was unknown to the grand jury, and alleges that for that reason the demurrer should have been sustained. In the case of Reed v. Commonwealth, 125 Ky. 131, this court, speaking through Judge Settle, said:

"No better statement of the law on the subject here presented can be announced than is found in Roberson's Kentucky Criminal Law, vol. 1, section 78, wherein it is said: `The distinction between principals in the first and second degree is of no practical importance. All the offenders may be included in the same indictment, which may charge the offense as done generally by all, or specially as done by one and abetted by the rest. Thus, if two or more persons are indicted as the actual perpetrators of a crime, they may be convicted as principals in the first degree, although some of them were merely aiders and abettors. So, when two persons are jointly indicted, the one as principal and the other as aider and abettor, the one charged as principal may be found guilty of aiding and abetting, and the one charged as aider and abettor may be found guilty as principal. This is for the reason that each is the agent and instrument of the other. There is in law but one crime. Hence each, although performing different parts, is, in law, a principal, and is criminally responsible for the act of the other, as well as his own act."

In the case of Grapes v. Commonwealth, 202 Ky. 761, this court, speaking through Judge Clarke, said:

"It is the law in this Commonwealth that the principal actor, aiders and abettors, and accessories before the fact, are all parties in the first degree and are equally guilty and may be so accused and convicted."

It is clear that the court's action in overruling the demurrer was proper.

The second ground is as follows: Error in granting separate trial of the defendants. In support of his contention that the court erred in granting a separate trial on the motion of the Commonwealth, he cites section 237 of the Criminal Code, which provides, in substance, that any defendant jointly indicted may be granted a separate trial. In the case of Hoffman v. Commonwealth, 134 Ky. 733, this court, speaking through Judge Settle, said:

"Section 237, Criminal Code of Practice, provides: `If two or more defendants be jointly indicted for a felony, any defendant is entitled to a separate trial.'

"The language of this section is mandatory as to the right of a defendant, jointly indicted with another or others for a felony, to a separate trial. The court is without power to refuse it to him when demanded. The section is, however, silent as to the right of the Commonwealth to separately try one of several defendants jointly indicted for a felony. But in the absence of any statute denying the Commonwealth the right to try separately one of several defendants so indicted, there is, in our opinion, no obstacle in the way of its exercise of such right. It must not be overlooked...