Galloway v. Commonwealth

• Decision Date: 09 November 1945
• Citation: Galloway v. Commonwealth, 301 Ky. 299, 191 S.W.2d 821 (Ky. Ct. App. 1945)
• Parties: GALLOWAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

191 S.W.2d 821

301 Ky. 299

GALLOWAY v. COMMONWEALTH.

Court of Appeals of Kentucky

November 9, 1945

Rehearing Denied Feb. 5, 1946.

Appeal from Circuit Court, Bracken County; Wm. D. Cochran, Judge.

Bert W Galloway was convicted of willfully and maliciously shooting into the occupied dwelling house of another, and he appeals.

Affirmed.

M. J Hennessey, of Augusta, and Clyde Barker, of Brooksville, for appellant.

Eldon S. Dummit, Atty. Gen., H. K. Spear, Asst. Atty. Gen., Robt. T. Jennett, Jr., of Brooksville, M. Hargett, of Maysville and Silas Jacobs, of Brooksville, for appellee.

SIMS Justice.

Appellant, Bert W. Galloway, was convicted of the offense of willfully and maliciously shooting into the occupied dwelling house of W. A. Polley, and his punishment was fixed at confinement in the penitentiary for a term of two years.

The grounds assigned upon which a reversal of the judgment is asked are: (a) The court erred in not instructing as a matter of law that James Sellers and Lloyd Poe, Jr., were accomplices; (b) the verdict is not supported by the evidence.

The Commonwealth's evidence shows that around 10 o'clock on the night of October 4, 1945, appellant, who was nineteen years of age, had an argument with W. A. Polley over the latter's refusal to sell him beer on account of his youth. Polley put appellant out of his place of business, and upon being ejected the boy said to him, 'You will pay for this.' About midnight appellant, Galloway, in company with Lloyd Poe, Jr., and a young lady, his companions at Polley's roadhouse, drove to Polley's home and inquired of his wife what time her husband would be home, to which she replied, 'A few minutes after twelve o'clock.'

Galloway then drove to Brooksville; let Poe out of his car and took the girl to her home. He returned to Brooksville, picked up Poe and another young man, James Sellers. All three boys were drinking and Galloway tried to borrow a gun at a couple of places, but being unsuccessful he drove to his home some miles away and obtained a shotgun. Upon leaving his home with the gun in the car, he asked the other two boys to 'bend up' the rear license plate on the car; when they would not act, he did so himself. Galloway, with his two companions, drove to a point near Polley's home where he asked Sellers to take the wheel, which he did, and as they drove by Polley's house Galloway fired the gun into it. Sellers drove rapidly and turned down a side road taking a route which brought him back by Polley's home in about fifteen minutes, when Galloway fired a second shot into the house.

Sellers when asked if he knew appellant was going to shoot into the house replied, 'I don't know. I don't remember much being said about it. I think it was mentioned; I didn't think he'd shoot.' Sellers further testified he did not know appellant was going to fire the second shot. Poe in reply to a question why he did not attempt to prevent the shooting said, 'I didn't think he had guts enough to shoot.'

Appellant admitted the difficulty with Polley, also going to his residence and inquiring of Mrs. Polley when her husband would be home, but denied joining Sellers and Poe at Brooksville after taking the girl home, or attempting to borrow a gun. He testified that he went directly home after taking the girl to her home and proved an alibi by his foster parents, one of whom testified he reached home at twenty minutes to two when the shooting was at 2 a.m.

The court in an appropriate instruction submitted to the jury the question whether Sellers was an accomplice, using practically the same instruction as appears in Stanley's Instructions to Juries, § 946. He told the jury if they found Sellers to be an...