Gambrel v. Commonwealth

• Decision Date: 10 November 1931
• Citation: 241 Ky. 39,43 S.W.2d 335
• Parties: GAMBREL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

43 S.W.2d 335

241 Ky. 39

GAMBREL v. COMMONWEALTH.

Court of Appeals of Kentucky

November 10, 1931

Appeal from Circuit Court, Knox County.

Gord Gambrel was convicted of murder, and he appeals.

Reversed and remanded.

Tuggle & Tuggle, of Barbourville, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

CREAL C.

Gord Gambrel, Tom Gambrel, Merkle Gambrel, Allen Gambrel, and Jim Messer were jointly indicted in the Knox circuit court for the murder of A. Y. Messer. In a second count it was charged that Gord Gambrel committed the murder and the other defendants aided and abetted him in the crime. In a third count it was charged that all the defendants entered into a conspiracy to murder A. Y. Messer, and that, in pursuance to said conspiracy and while it existed, they did murder him. On separate trials, Gord Gambrel, Tom Gambrel, and Merkle Gambrel were found guilty. The punishment of Merkle Gambrel was fixed at life imprisonment, and the punishment of Tom and Gord Gambrel was fixed at ten years' imprisonment.

The homicide occurred about 2 p. m. on Sunday, June 15, at the home of Jim Messer on the Lost Fork branch of Stinking creek in Knox county. The Jim Messer at whose home the tragedy occurred and Jim Messer, the defendant, are different persons, and, in order to avoid confusion and to distinguish between them in a discussion of the case, we shall call the latter defendant Jim.

So far as the record discloses, Jim Messer had three sons, Earl Allen, and A. Y. Messer. Earl resided with his father. A. Y. Married Sudie Gambrel, and they lived on a branch of Lost Fork about a mile above the home of his father. Allen Messer was married and lived on the same branch a short distance below the home of his brother A. Y. Messer. Gord Gambrel lived on another branch of Lost Fork about one-half to three-quarters of a mile above the home of Jim Messer. Defendants Tom Gambrel, Merkle Gambrel, and Allen Gambrel are his sons; the former being married and living a short distance below the home of his father. The other two lived with their father. Defendant Jim Messer was making his home with Gord Gambrel at the time of the homicide.

Some time prior to June 15, the wife of Tom Gambrel caused a warrant to be issued, authorizing a search of the homes of A. Y. and Allen Messer, which warrant was placed in the hands of a constable by the name of Allen Messer. To avoid confusion arising out of the identity of names, we shall refer to him as constable Messer. The officer deputized one Jim Patterson to assist him in making the search. They arrived at the home of Gord Gambrel on Saturday afternoon and remained there that night. On Sunday morning, they went to the homes of Allen and A. Y. Messer, accompanied by Mrs. Tom Gambrel, Allen Gambrel, and Rosie Messer. In making the trip to the homes of the Messer boys, they followed a road down the right-hand branch on which the Gambrels lived, passed by the home of Jim Messer at the forks of the creek, and then up the other branch. After searching Allen Messer's home, they proceeded to the home of A. Y. Messer. The evidence discloses that A. Y. Messer told the officers that they might proceed with the search, but there is some conflict in evidence as to what was said by him. The evidence, however, indicates that he was not in the best of humor. Mrs. Gambrel and others in the party testified that he made threats against the Gambrels and that he ran Allen Gambrel away from his home and followed him some 75 or 100 yards. Allen Gambrel proceeded across the mountain to the home of his father and a little later was followed by the officers and others who accompanied them. Constable Messer or some of the party told Gord Gambrel what had occurred at A. Y. Messer's.

Twenty five or thirty minutes before the killing occurred, Merkle Gambrel, Allen Gambrel, and defendant Jim Messer left the home of Gord Gambrel and went down the road towards the home of Jim Messer. They testified that they were going to a store on the main branch of the creek and that the regularly traveled route to the store led by the home of Messer. They admitted that Merkle Gambrel and defendant Jim Messer were armed with pistols. They all testified that Allen Gambrel was not armed. Tom Spurlock, who married a daughter of Gord Gambrel and who testified that he spent Saturday night and Sunday with his father-in-law, stated that he saw defendant Jim Messer and Allen and Merkle Gambrel start down the road, and that about twenty-five minutes thereafter Tom Gambrel and Gord Gambrel left, going in the same direction. The former carried a high-powered rifle and the latter a shotgun; that about twenty minutes later he heard about thirty-five shots fired in rapid succession which seemed to be near the forks of the branch; that after a short time he heard twenty or twenty-five more shots up near the home of Gord Gambrel. He stated that shortly after the last shooting Jim Messer, Tom Merkle, and Allen Gambrel returned to the house and after "so long a time" Gord Gambrel came back; that Merkle Gambrel had been shot and it appeared that the wound had been inflicted with a shotgun.

Sudie Messer testified as to ill feeling between her father and her deceased husband. She stated that about four years before the homicide, A. Y. Messer reprimanded her father for courting his own daughter, and the latter stated that he would see her husband later, if he lived.

Mrs. Mary Miller, who with her husband was spending the day with the Gambrels, testified that a short time before the shooting she heard Tom Gambrel's wife say to him, "I would not go, you will get killed or have to kill some of them." Thereupon Tom shook three high-powered cartridges in his hand and said, "That's what will do the work."

Earl Messer and his mother, Mrs. Jim Messer, were introduced as witnesses by the commonwealth; Jim Messer having died previous to the trial. These witnesses stated that Allen Messer was insane or that his mind was so impaired as to prevent his testifying. Their evidence shows that about 2 o'clock Jim Messer went out in his yard to untie a mule that was hitched to a post, leaving his wife and their three sons in the house. Shortly after he left the house, a number of shots were fired, and they all ran out into the yard. Defendant Jim Messer and Allen Gambrel were in the road about thirty feet from the house. They were armed with pistols. Gord Gambrel was near the barn and Tom Gambrel by a fence a short distance away. They were both armed with long guns. All of the defendants were firing toward the Messers and toward the house. A. Y. Messer ran back into the house, procured a shotgun, and fired two shots at the defendants, after which he was shot and killed. Mrs. Messer who ran to her son after he fell in the yard received a number of gunshot wounds. One shot, evidently a ball from a pistol or rifle, struck her foot, tearing off two toes. Small shot, evidently a charge from a shotgun, struck her legs; she testified that there was also a gunshot wound in her arm. Earl Messer testified that he saw no arms in his crowd other than the shotgun which was fired by his brother. Mrs. Messer testified that she saw Allen fire one shot with the pistol.

All of the defendants and a number of other witnesses who were at the home of Gord Gambrel on the day of the tragedy testified that Allen and Merkle Gambrel and defendant Jim Messer started to the store to purchase some tobacco and coffee. After they left and before the shooting, Mary Miller and her husband and another woman left Gambrels and started across the mountain to their home. They heard the shots a short time after they left. Gord Gambrel and his son, Tom, and others who remained at his home, testified that he and Tom Gambrel did not go down to the home of Jim...