Fulks v. Commonwealth

• Decision Date: 27 February 1931
• Citation: 237 Ky. 642
• Parties: Fulks v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 642

Fulks v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 27, 1931.

1. Conspiracy. — To support conviction of banding together to intimidate another, proof must show conspiracy and acts of

intimidation committed pursuant to conspiracy (Ky. Stats., sec. 1241a-1).

2. Conspiracy. — In prosecution for banding together to intimidate another, evidence held to present question for jury whether necessary conspiracy existed (Ky. Stats., sec. 1241a-1).

3. Conspiracy. — Defendant would not be guilty of banding together to intimidate another if there was no pre-existing conspiracy, but, as result of sudden anger and passion, acts of intimidation were committed (Ky. Stats., sec. 1241a-1).

4. Conspiracy. — If conspiracy to intimidate existed, that acts of intimidation were result of sudden anger would not be defense (Ky. Stats., sec. 1241a-1).

Appeal from Greenup Circuit Court.

MANN & VINCENT and EARL R. STEPHENS for appellant.

J.W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, Jr., Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE LOGAN.

Reversing.

The appellant and his brother, D.K. Fulks, were jointly indicted for banding and confederating together for the purpose of intimidating, alarming, and disturbing Lindsey Bruce. Appellant was convicted, and his punishment fixed at one year in the penitentiary. A brief recitation of the facts is necessary.

There was a controversy between the appellant and his brother on one side and C.M. Davis on the other. Davis is a money lender, and appellant and his brother were borrowers and had become rather heavily involved. They had gone through bankruptcy. Davis had a method of doing business which left little to chance. He had been obtaining attachments in actions instituted against appellant and his brother, and their wages had been garnisheed. They were employed by the Chesapeake & Ohio Railway Company. They felt keenly about the treatment by Davis, and they appeared to think that a grave injustice had been done them, and probably there was basis for their belief. On the occasion that resulted in the indictment, appellant learned that his wages had again been attached. According to the undisputed evidence of appellant and his brother, they decided they would proceed to the office of Mr. Davis, or his attorney, Mr. Bruce, and endeavor to prevail upon him to discharge the attachment as his job with the railroad company was imperiled by reason thereof. They testified that they had no intention of doing any harm to any one on their way to the place of interview. When they arrived in the building, they went to what they thought was the office of Bruce, but, finding it locked, they went to the office of Davis. Words followed, resulting in a sharp dispute between them and Davis, and a threat that, if Davis did not release the attachment, he would be subjected to corporal punishment. Davis obtained a pistol and drove them from his office. They proceeded to the office of Bruce, where they found him, and there was some talk between them and Bruce about the attachment and probably the threat of corporal punishment was repeated, whereupon Bruce obtained his pistol and drove them from his office. Davis and Bruce then hurriedly got in touch with the police officers, obtained a warrant, and caused appellant and his brother to be arrested. They were...