Gabbard v. Commonwealth

• Citation: 236 S.W. 942,193 Ky. 460
• Parties: GABBARD v. COMMONWEALTH. BAKER v. COMMONWEALTH.
• Decision Date: 20 January 1922
• Court: Court of Appeals of Kentucky

236 S.W. 942

193 Ky. 460

GABBARD v. COMMONWEALTH.

BAKER v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 20, 1922

Appeal from Circuit Court, Owsley County.

Grover Gabbard and Harlan Baker were convicted, on separate trials of murder, and they appeal. Cases considered together on appeal. Reversed, with directions to grant each of the accused a new trial.

E. E Hogg, of Booneville, and H. C. Eversole, of Annville, for appellants.

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

TURNER C.

At the June, 1920, term of the Owsley circuit court Robert Sandlin, Harlan Baker, Grover Gabbard, Robert Clark, Leonard Baker, and Charlie Gabbard were indicted, charged with a conspiracy to murder Bessie Allen, and that they each did murder her, pursuant to and in furtherance of such conspiracy.

The indictment is in five counts. In the first count, as recited above, the conspiracy is charged, and each of the defendants charged with shooting and wounding Bessie Allen, from which she died. The second count charges that Robert Sandlin killed and murdered Bessie Allen by shooting and wounding her, from which she died, and that the other named defendants were at the time present and near by, and counseled, advised, encouraged, and assisted Sandlin in so shooting and wounding her. The third count is the same as the second, except that it charges Harlan Baker with the shooting and wounding; and the fourth count is the same as the second, except that it charges Grover Gabbard with the shooting and wounding; and the fifth count is the same as the others, except that it charges Robert Clark with the shooting and wounding.

The appellants, Harlan Baker and Grover Gabbard, demanded and were granted separate trials, and each of them on his separate trial was found guilty, and sentenced to imprisonment for life, and they each of them have appealed.

The evidence on each trial was in its essential elements the same, and the cases have been briefed in this court together, and by acquiescence of the attorneys who briefed them will be heard together in this court and disposed of in one opinion, as the same questions are presented on each appeal.

The evidence shows that in the late afternoon of either the 2d or 3d of June, 1920, Grover Gabbard, Robert Clark, Leonard Baker, and Charlie Gabbard were together at a swimming hole on Buffalo creek, in Owsley county, and that at least part of them went in swimming; that, about the time they had finished their swimming and were dressing, Robert Sandlin and three other young men came to the place, Sandlin at the time being drunk and having with him a quantity of whisky; that a short time after the coming of Sandlin and his party Harlan Baker joined the party, and Sandlin freely passed around his whisky, and most, if not all, the party participated therein; that the three men who came with Sandlin and joined the party remained only a short time after the coming of Harlan Baker, when they went toward their homes. Robert Sandlin, Harlan Baker, Grover Gabbard, and Robert Clark were each young men between 20 and 30 years of age, while Leonard Baker and Charlie Gabbard were only boys, from 16 to 19.

The six remained at or near the swimming hole until shortly after dark, engaging in such conversation and conduct as rural young men are wont to under such circumstances, except that Sandlin, being much drunker than the others, expressed his determination to have intercourse with some woman. The house of Ann Smith was only 200 or 300 yards distant, and had the reputation, as the evidence satisfactorily shows, of being a house of ill fame. Shortly after dark Harlan Baker and Robert Clark left the others at or near the swimming hole and started off in the direction of the house of Ann Smith, but, so far as the evidence discloses, expressed no purpose of going there; a few minutes later Robert Sandlin alone started in the same direction, and shortly thereafter Grover Gabbard, Leonard Baker, and Charlie Gabbard went in the same direction, and they all went to or near the home of Ann Smith, although only two of them, Harlan Baker and Grover Gabbard, entered the house.

The evidence shows, not only that Robert Sandlin was a desparate and dangerous man, but will, we think, unmistakably disclose, as hereinafter recited, that the other members of the party were not only afraid of him, but sought to dodge or get away from him. The evidence further shows that Sandlin unexpectedly came upon the swimming party, and that there was no previous arrangement or understanding by which the members of the party were to meet him there or elsewhere, nor does it disclose that prior to the meeting there was any collusion between Sandlin and any other member of the party by which the meeting was to take place. There were three women at the house of Ann Smith, Ann Smith, Esther Hutchinson, her daughter, and Bessie Allen, her niece, and in addition there was Norman Hutchinson, the husband of Esther, and the infant child of Ann Smith, which was sick.

Ann Smith's testimony is in substance that only two of the men came in the house, Harlan Baker and Grover Gabbard although she heard others outside of the house, and, as will be presently disclosed, went to the door and talked to Sandlin, who was just outside of the door. She says that Baker was the first one who came into the house and said to Bessie that he wanted to talk a few words to her, but Bessie in substance declined to talk with him, and she (Ann) said that Bessie was there for the purpose of helping her with the children; that Baker went outside of the house, and came back and sat down on the bed beside Bessie, and told her that, if she did not go out with them, she would be killed, and the last one of them killed, and that hell would be played there within a few minutes; that she (Ann) then ordered him out of the house, when Baker said that there was a man out there that would not do to "sass"; that he would certainly kill anybody that "sassed" him, and about that time some one called on the outside, and she stepped to the door, and the man on the outside, whom she did not then know, but who is shown to have been Sandlin, said what he had to have from Bessie, and if she did not go with him that he was going to kill her, burn down the house, and play hell, and that hell would be played within a few minutes; that she saw Grover Gabbard and called him, and asked him to keep them from shooting through the door, and told him about the baby being sick, and Grover said he was going up to 'Lish Gabbard's and that he would take her (Bessie) with him, and Bessie said she would rather go than be killed, or see some of the others killed; that when she called Grover Gabbard in she told him to try to get the men away, and he told her he would go and tell them just the shape she was in, and would try to get them away, and would try to keep them from shooting in the house; that Grover said he was going away himself, and he would get them away if he could; that the girl Bessie spoke up and said she would go to 'Lish Gabbard's before she would be killed, or see some one else killed, and she would go as Grover went; that Grover was going to his father's; that a few days before that 'Lish Gabbard had sent for Bessie to come to his house and help him do some work, and the girl took a notion that she would go, and...