Howard v. Commonwealth

• Decision Date: 28 March 1901
• Citation: 110 Ky. 356,61 S.W. 756
• Parties: HOWARD v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

61 S.W. 756

110 Ky. 356

HOWARD v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 28, 1901

Appeal from circuit court, Franklin county.

"To be officially reported."

James Howard was convicted of murder, and appeals. Reversed.

W. C Owens, J. B. Finnell, and Carlo Little, for appellant.

Robt. J. Breckinridge, B. G. Williams, and T. C. Campbell, for the Commonwealth.

BURNAM J.

The appellant, James Howard, was jointly indicted with Henry Youtsey, Berry Howard, Harlan Whitaker, and Richard Combs for the murder of William Goebel, and was, upon separate trial found guilty of murder, and judgment was rendered in pursuance of the verdict. The indictment charges, viz "That the said Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and others then and there acting with them, but who are to this grand jury unknown, in the county of Franklin, on the 30th day of January, 1900, and before the finding of this indictment, unlawfully, willfully, feloniously, of their malice aforethought, and with intent to kill, did kill and murder William Goebel, by shooting and wounding him with a gun or pistol loaded with powder or other explosives, and lead and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the 3d day of February, 1900; and the indictment does further charge that one of the above-named defendants, or another person then and there acting with them, but whose name is to this grand jury unknown, did so as aforesaid then and there kill and murder said Goebel, and the other of said defendants did then and there counsel, advise, assist, aid, and abet same; but which so actually fired the shot, and which so actually counseled, aided, advised, and abetted therein, is to this grand jury unknown."

Appellant complains of the indictment because it charges him with being the principal, and at the same time of being the aider and abettor of the four other persons named therein, and of another person then and there acting with them, but who is to the grand jury unknown, in the commission of a crime which was the result of a single act, the firing of a single shot; and to support this contention we are referred to the cases of Com. v. Patrick, 80 Ky. 605; Mulligan v. Com., 84 Ky. 230, 1 S.W. 417. In the Patrick Case the offense charged in the indictment was that Amos and Wiley Patrick shot at and wounded Joseph Dyer with a pistol, and that each of them was present, and aided and encouraged the other to commit the offence. In that case the demurrer to the indictment was sustained upon the ground that the punishment imposed by the statute was upon the person alone who actually committed the act constituting the offense, and that there was no provision in the statute for the punishment of an aider and abettor; and that, as it was a purely statutory offense, an indictment did not lie for aiding and abetting therein, the aiding and abetting being a minor offense, punishable only as a misdemeanor. In the Mulligan Case there was no question as to the sufficiency of the indictment, but the question was one of variance. The indictment was against Mulligan alone, and charged him as the actual perpetrator of the crime, and the court held that proof that he was only an aider and abettor constituted a variance. When the court said that the indictment must disclose the name of the principal, it did not mean that there could be no indictment if the name of the actual perpetrator of the crime was unknown. The case adjudged was that proof that the defendant aided and abetted the commission of the felony will not support an indictment charging him as the actual perpetrator of the crime, unless the actual perpetrator is joined with him. In this case the indictment charges that one of the defendants fired the shot, and that the others were present, aiding and abetting, and that the grand jury does not know which one fired the shot. This is in effect an averment in the alternative as to the different modes and the different means by which the offense may have been committed, as authorized by section 126 of the Criminal Code. That the actual perpetrator of a criminal act and one present aiding and abetting him may be jointly indicted in the alternative, one as the principal, and the other as the aider and abettor, and that either may be convicted as principal or as aider and abettor, has been frequently held by this court. See Benge v. Com., 92 Ky. 1, 17 S.W. 146; Travis v. Com., 96 Ky. 77, 27 S.W. 863; Howard v. Com., 96 Ky. 19, 27 S.W. 854; Jackson v. Com., 100 Ky. 239, 38 S.W. 422. To say that one who is known to have been present aiding and abetting a murder cannot be punished because the person who fired the shot is not known would, in a large degree, destroy the efficacy of the law for the punishment of crime. Bishop, in his New Criminal Law (section 495), says, viz.: "A grand jury should not indict a man unless reasonably informed of his guilt; but the jurors may know it sufficiently while ignorant of an identifying circumstance such as ought ordinarily to appear in the allegation. Then they may state the main facts, adding that this circumstance is unknown to them, and the indictment will be good. Thus, if they are ignorant of identifying names, the allegation may be in this form; that is, the indictment, instead of saying what they are, may state that they are to them unknown." We are, therefore, of the opinion that the indictment comes up to the requirements of section 124 of the Criminal Code.

The next ground of complaint is that the instructions given by the court to the jury do not fairly and correctly state the law of the case. Only three instructions were given, and only two of them are complained of upon this appeal. The basis of appellant's objections to the first instruction are the same as those which are urged against the validity of the indictment itself. It, in effect, tells the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant willfully and maliciously shot the deceased with the intent to kill him, and from which shooting he afterwards died; or if they believe from the evidence, beyond a reasonable doubt, that either of the other defendants named in the indictment willfully and maliciously shot the deceased, and from which shooting he soon thereafter died; and they believe from the evidence, beyond a reasonable doubt, that this defendant was then and there acting with them, or any one of them, and did then and there counsel, aid, and abet such shooting,--they should find him guilty. This instruction has been frequently approved by this court in cases similar to that on trial, and is a fair and clear statement of the law. The next instruction complained of is as follows: "The defendant cannot be convicted upon the testimony of an accomplice, unless such testimony is corroborated by other evidence tending to connect the defendant with the offense; and such corroboration is not sufficient if it merely proves the commission of the offense, and the circumstances thereof." This instruction is substantially in the language of section 241 of the Criminal Code, and in cases where only one accomplice was introduced by the commonwealth would be a sufficient compliance with the Code; but in this case the commonwealth introduced as witnesses two persons who had been previously indicted as accessories before the fact to the murder of the deceased, and it complained that the instruction is erroneous and misleading because it fails to tell the jury that the testimony of one accomplice or accessory before the fact cannot be used to corroborate the testimony of the other for the purpose of convicting the defendant. The rule as to the corroboration of accomplices is stated in Rosc. Cr. Ev. 122, as follows: "There should be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it." Russ. Crimes, 962, says that, viz.: "It is not sufficient to corroborate an accomplice as to the facts of the case in general, but that he must be corroborated as to some material fact or facts which go to prove that the person was connected with the crime." The degree of evidence which shall be deemed sufficient to corroborate the testimony of an accomplice is a matter for the jury; but there must be some fact deposed to independently altogether of the evidence of an accomplice, whether one or a dozen is introduced by the commonwealth, which, taken by itself, fairly tends to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of accomplices (see People v. Platt, 4 N.Y. Cr. R. 53; 3 Rice, Ev. p. 511, and authorities there cited); and this instruction is erroneous because it fails to present this idea.

We will next consider the claim of appellant that numerous errors to his prejudice were committed in the admission of incompetent testimony. As most of the objections to the testimony are based upon the same general rule of evidence, with a view to brevity we will consider a number of them together. First, it is claimed that, as there was no charge of a conspiracy in the indictment, it was error to allow numerous witnesses to prove the condition of the statehouse yard on the morning of the 30th of January, the day on which deceased was shot, as compared with the five or six preceding days, with reference to the number of people therein; and also that the witness Culton was permitted to testify as to conversations had with Youtsey on the 12th and 13th of January, in which Youtsey detailed a plan to him for shooting the deceased from the...