Johnston v. Commonwealth

• Decision Date: 13 June 1916
• Citation: 186 S.W. 655,170 Ky. 766
• Parties: JOHNSTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

186 S.W. 655

170 Ky. 766

JOHNSTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 13, 1916

Appeal from Circuit Court, Fulton County.

W. T Johnston was convicted of manslaughter and he appeals. Reversed.

W. J Webb, of Mayfield, and H. T. Smith, of Fulton, for appellant.

M. M Logan, Atty. Gen., and C. H. Morris, Asst. Atty. Gen., for the Commonwealth.

CLARKE J.

On the 19th day of January, 1916, Lonnie Johnston shot and killed Chester Stowe in Fulton county, and at the January term of the Fulton circuit court an indictment was returned by the grand jury, accusing Lonnie Johnston and his uncle, W. T Johnston, the appellant, of murdering Chester Stowe, that Lonnie Johnston shot him in the back of the head with a shotgun, and that W. T. Johnston was present, aiding and abetting in the killing. At the next term of court appellant was tried upon this charge, convicted, and his punishment fixed at confinement in the penitentiary for a minimum term of not less than 2 years and a maximum term for not more than 21 years. Lonnie Johnston was not present or tried at the time, and the record does not disclose why, but it is stated in brief that he was a fugitive from justice. About two weeks previous to the killing Chester Stowe and his wife, Ida, separated, and she had become a domestic in the home of appellant, at which Lonnie Johnston also resided. A few days before the killing Chester Stowe came to the home of appellant to see his wife, and found Lonnie Johnston in conversation with her in the kitchen. This angered Stowe, and he warned Lonnie Johnston against talking to his wife, and in the heated argument that ensued the lie was passed.

Mrs. Stowe testified that the next morning she saw Lonnie oiling a pistol and drinking some whisky, and that he then told her that the trouble between him and Stowe was not over. Later in the day, Lonnie Johnston met Stowe on the levee crossing, and angry words were again exchanged.

W. T. Johnston was foreman upon the farm of a Mr. Bondurant, and had working for him some 40 or 50 cotton pickers, men and women, black and white, whom he was going to pay off on Sunday, the day the killing occurred. Chester Stowe had also done some work for the appellant, who informed him a few days before the killing that he was going to pay off his hands on this Sunday, when he would also pay Stowe if he would come to his house at that time. On Sunday morning about 9 o'clock a great many of the cotton pickers having appeared, appellant, his wife, and a Miss Lizzie King, a school-teacher, were paying off the cotton pickers in a front room of W. T. Johnston's residence. While this was being done, Stowe rode up, hitched his horse in front of the house, came upon the front porch, and looked into the room where the paying off was being done. Some one in the room remarked that Chester Stowe was there. After looking into the room Stowe left the front porch and went around to the rear of the house and engaged in conversation with the cotton pickers who were there, near the kitchen door, waiting to be paid. Almost immediately Lonnie Johnston came up, went through the kitchen and into the room where the paying was being done. When he came into the room appellant said to him that he wished to speak to him just a moment, and the two went into an adjoining room, where they remained for a short time. They both returned to the paying off room, W. T. Johnston resumed his work, and Lonnie went to the dresser in the same room and took some shells from a drawer thereof, and then picked up a shotgun, which was standing behind a trunk to one side, but rather behind appellant. Lonnie left the room, went through the kitchen, and, when he reached the outside door, shot Stowe, who was standing about 8 or 10 feet from the door with his back to it, in the back of the head, killing him instantly.

Mrs. Ida Stowe, wife of the deceased, was in the paying off room and, having seen Lonnie get the shells and the gun, followed him to the kitchen door and saw him shoot her husband. She and the only other eyewitness who testified about the homicide say that Stowe had his back to the kitchen door and was shot without warning or provocation. Mrs. Stowe went immediately to her husband and supported his head in her lap. A pistol was found in the pocket of Stowe.

When the shot was fired appellant was seated at the table in the front room, paying off hands. He raked the money together in a pile on the table, told his wife and Miss King to take care of same, and went to where Stowe lay, having a tablet in his left hand, a pencil in his right, and wearing his glasses. Mrs. Stowe was crying and bewailing the death of her husband, and appellant told her not to do that, asked some one to take her away and some of the men to carry Stowe's body into the house. No ill feeling or unfriendliness between appellant and Stowe is shown. The body of Stowe remained in the home of appellant for about two hours when it was removed, and some time that afternoon Lonnie Johnston was arrested and taken away. At the conclusion of the testimony for the commonwealth, which is substantially as stated above, appellant filed a motion for a peremptory instruction, which was overruled, and he saved an exception.

Appellant, testifying in his own defense, denied that he was present, or that he aided, abetted, or encouraged in any way Lonnie Johnston to kill Stowe, and stated that at all times he advised both parties against any difficulty, and, knowing of the ill feeling between them, and having heard that Chester Stowe was there, he took Lonnie into an adjoining room and advised him to avoid trouble with Stowe, and that Lonnie promised him he would not have any trouble; that, after getting this promise from Lonnie, he resumed his work, did not see Lonnie get the gun or the shells, or know that any trouble was impending; that when the killing occurred he was engaged in making a calculation of the amount due one of the hands, and had no knowledge of Lonnie's action.

In rebuttal the commonwealth introduced five or six character witnesses, who testified that appellant's reputation for morality in the neighborhood was bad. The commonwealth then recalled W. T. Johnston, and asked him, after Lonnie had been arrested and taken away to jail, if he did...