Gambrell v. Commonwealth

• Decision Date: 19 November 1908
• Parties: GAMBRELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

113 S.W. 476

130 Ky. 513

GAMBRELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 19, 1908

Appeal from Circuit Court, Knox County.

"To be officially reported."

Allen Gambrell was convicted of murder, and appeals. Reversed, and new trial ordered.

B. B Golden, J. M. Robsion, Jas. D. Black, and W. R. Black, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

The two principal questions in this case are: First, whether there was sufficient evidence to establish the existence of a conspiracy between Allen Gambrell and his codefendants to take the life of John Gambrell, and whether, in pursuance of such conspiracy, and while it existed, his life was taken; and, second, does the existence of a conspiracy, and a homicide as the result of it, operate to deprive the accused of the right to rely upon the plea of self-defense?

The appellant and his brothers, Silas, Rice, Tom, and Nelson, were jointly indicted, charged with the murder of John Gambrell. The indictment contains several counts, in one of them accusing all of them of unlawfully, maliciously, and willfully confederating and conspiring together to kill John Gambrell, and of committing the crime in pursuance of the conspiracy and while it existed. In others, it charges each of them individually with the murder, and the others with aiding, abetting, and assisting in its commission. The appellant was tried separately, and his punishment fixed by the jury at imprisonment for life in the state penitentiary. He asks a reversal of the judgment upon this verdict: First, because of error of the court in admitting incompetent evidence against him, and in rejecting competent evidence offered in his behalf; second, for error of the court in instructing the jury and in refusing to properly instruct the jury; and, third, because the verdict is against the law and the evidence. An examination of the record shows that the only alleged errors we need notice are those relative to the admission of evidence and the correctness of the instructions. Indeed, these are the only ones pointed out or relied upon by his counsel.

John Gambrell was killed in July, 1907. About a month previous to this, Garrett Gambrell, a brother of John, shot Green Gambrell, a brother of appellant, and from the effects of the wound received he died some days afterwards. The difficulty between Green and Garrett was the cause and beginning of the hostility between Allen Gambrell and his brothers and friends, upon the one side, and John Gambrell and his brothers and friends, upon the other. The record does not disclose any previous ill feeling between the parties. Soon after Green Gambrell was shot, Allen Gambrell procured the issual of a warrant against John Gambrell and his brothers Garrett and Hedger, charging them with the shooting of Green Gambrell, and this aggravated the ill feeling between the families. Soon after this, and while Green Gambrell was lying wounded at the house of Elijah Hubbard near where he was shot, Allen and his brothers were almost constantly in attendance upon him, and during the time several, if not all, of them were armed with pistols. John Gambrell occasionally passed along the road near by the house of Hubbard, and on one occasion, while all of the accused were at Hubbard's, Nelson and Rice asked Silas and Allen if they were going with them that night to waylay the boys (meaning John Gambrell and his brothers), and if so to get ready; but for some reason they did not make the attempt. On another occasion, Silas Gambrell ran into the house of Hubbard, got his pistol, and told Allen and Rice to get theirs, that some persons were coming up the road, and he expected John Gambrell was one of them. One witness testified that, a short time after Green Gambrell was shot, he was advising Rice Gambrell to keep out of trouble, when Rice replied that "he would rather fight it out." On another occasion Rice said, speaking of John Gambrell and his brothers, that "he would kill them all." On Sunday morning, the day of the homicide, Nelson Gambrell said he was going to the schoolhouse, that all of his brothers would be there with whisky, and he was expecting trouble. On the same morning, Tom Gambrell called at the house of Gus Warren, got his pistol, and said that if he did not come back to get a wagon and haul him back. On the Saturday before, a man named Mount Warren, in company with Tom Gambrell, borrowed a 32 pistol (Smith & Wesson special) from Gayle Patterson. On Sunday morning, Allen and Rice Gambrell bought pistol cartridges at one place, and Tom bought cartridges at another. Other witnesses said they saw all of the Gambrells at the schoolhouse whispering a short while before John Gambrell arrived there, and heard one of them ask one of the others to let him have some cartridges, when the one to whom the request was made replied, "I need mine." Another witness said that after John Gambrell came to the schoolhouse, and while he was looking in at the window, Allen Gambrell passed by him and gritted his teeth, and presently threw a rock, just missing John's head. Other witnesses say that Allen Gambrell and his brothers were in the schoolhouse where the services were being conducted, and that when John Gambrell rode up all of them went out of the house. The homicide took place on a Sunday afternoon at a schoolhouse in which a religious meeting was at the time being conducted. Numbers of people, men, women, and children, were present, and many testified for the commonwealth, and others in behalf of the accused. The testimony in some of its details is conflicting, but in a general way two views of it were presented; one favoring the commonwealth, and the other the accused. That for the commonwealth tended to show that the altercation that ended in the death of John Gambrell was commenced by Allen Gambrell, who was at all times the aggressor and fired the first shot. The evidence for the accused conduced to show that the difficulty was commenced by John Gambrell, and that Allen shot him in self-defense.

The evidence for the commonwealth tended to show that Allen Gambrell and his four brothers, the majority, if not all of them, being armed with pistols, were present at the schoolhouse, that they knew John Gambrell would be there, and that they assembled for the purpose of engaging him in a difficulty and killing him. That more than one of them shot him is made plain by the evidence of the doctor, who examined the four pistol wounds inflicted upon his person, and testified that one of them was made with a 45 pistol, two with a 38 pistol, and one with a 32 pistol. Two of these balls entered the front of his body, one of them entered his back, and another struck him in the hand or arm. The difficulty commenced almost immediately after John Gambrell alighted from his horse and came up to the house. He there met Allen Gambrell. A few words passed between them. Allen threw a rock at John and drew his pistol, but was prevented from doing further violence by spectators who interfered. When this affray was ended by the interposition of others, John Gambrell went into the schoolhouse through one of the windows near which he was standing, and almost immediately the shooting commenced that ended in his death. The encounter on the outside, the angry words, the display of weapons, and the knowledge on the part of the congregation of the hostile feeling between the parties, naturally caused great excitement and confusion; the result being that the record contains conflicting statements as to who fired the first shot. Some witnesses testified that the first shot was fired by Allen; others that it was fired by John. Allen Gambrell, in his own behalf, said that he was on the outside of the schoolhouse when John went in through the window, and that in a moment afterwards he heard a pistol fired in the house, and some one said, "Rice is shot," and thinking, that it was his brother, he stepped inside the door, when John Gambrell immediately fired his pistol at him; the bullet going through his hat. Thereupon, to protect his own life, he quickly fired two shots at John. Immediately after the shooting, Allen Gambrell and his four brothers left the schoolhouse together, and a few days afterwards, and before his arrest, Allen Gambrell fied from the state and went to the state of Illinois, where he was arrested while going under an assumed name.

There are in the record a number of circumstances pointing to the conclusion that Allen Gambrell and his brothers entertained for John Gambrell a feeling of deadly hostility. These circumstances, taken in connection with the facts heretofore mentioned, were well calculated to convince the jury that there was a conspiracy and agreement between these brothers to take the life of John Gambrell, and that, in pursuance of it, and while it existed, he was killed by being shot by more than one of them; all of them acting at the time in concert. Three of them shot him. Which one fired the fatal shot is not material. The declarations, acts, and conduct of Allen and those indicted with him, heretofore mentioned, were all competent and sufficient to establish a criminal intent on their part to take the life of John Gambrell. The declarations and acts of either of the conspirators, in pursuance of the conspiracy, after it was formed and before the end, was in legal contemplation the act of all of them. Each was responsible for what the others did in the prosecution of the design for which they combined. It was competent to show the cause of the ill feeling, the threats the hostile declarations, the purchase of the cartridges, the whispered conversation at the schoolhouse, the fact that they left it in a body when John...