Landrum v. Commonwealth

• Decision Date: 11 October 1906
• Parties: LANDRUM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

96 S.W. 587

123 Ky. 472

LANDRUM v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 11, 1906

Appeal from Circuit Court, Laurel County.

"To be officially reported."

Joe Landrum was convicted of manslaughter, and he appeals. Reversed.

Geo. C Moore, Walker Moren, Sam C. Hardin, and B. B. Golden, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

O'REAR J.

Appellant was convicted of manslaughter under an indictment charging him and George Ward and Frank Ward with the murder of Jeff Goff. In view of the conclusion we have reached in the case and of the grounds of this decision, it becomes necessary to detail the particulars of the homicide. Appellant conducted a grocery store and restaurant in the little mining town of Pittsburg, Laurel county. About 11 o'clock at night of April 15, 1905, some parties, particularly Bill Miller, Frank Ward, and possibly George Ward, engaged in a shooting affray in and about appellant's place. At the time the shooting began appellant was asleep in a rear room, sitting in his chair, and had been for some hours before. We think the proof shows he was more or less drunk at the time. There were some words passed between Bill Miller and the Wards, all more or less drunk, between whom there was also some feeling owing to a brother of Miller's having, about a month previous shot and killed a brother of the Wards. Frank Ward was armed with a 45-calibre pistol. Bill Miller was armed with a 38-calibre pistol, and George Ward with a 38-calibre, or smaller. Frank or George Ward opened the fight by firing upon and wounding Bill Miller, who, though desperately wounded, returned their fire vigorously. They all passed out of the building where the fight began, onto the street, where the firing was kept up for a while. Both Bill Miller and Frank Ward fired into the room after they went out. Some one, we think the proof shows satisfactorily it was Frank Ward, fired through a window into the room where Jeff Goff was staggering about drunk, unarmed and harmless. There is no pretense that either of the Wards or Miller was attempting to injure Goff, or even knew of his presence. During the mêlée appellant, awakened from his slumber, rushed into the store room where Goff was, and into which somebody was shooting, grabbed a 32-calibre pistol from behind his counter and began to return the fire being directed into the room. He saw Jeff Goff staggering about the room, and probably shot at him, and we think the proof shows, struck him in the hands and lower arm with several bullets from his pistol. But none of these wounds were serious--certainly none a mortal wound. While appellant was blazing away into the fight indiscriminately, or even it may be, for the purposes of this decision, be said, firing at Goff, a pistol shot from the outside came through the window of that room and entered Goff's body from behind, pierced his heart and came out in front. This bullet was a 45-calibre. He fell forward, dead of course, and was not removed till next morning, after a number of witneses had examined his position and wounds. There is no evidence of any previous agreement or conspiracy between appellant and the Wards to shoot or injure either Goff or Bill Miller, or anybody else. There is no evidence that they had been together, or communicated with each other. There is no evidence that appellant knew Frank Ward was shooting at anybody, or was outside the building, or about it. Whatever may have been the purpose or motive of the Wards towards Bill Miller, or any other person present, there was not a scintilla of proof that appellant knew of it or shared it to any extent. After the shooting was all over, appellant said that he had killed Goff. In this there is no sort of doubt but that he was mistaken. He was still drunk, and may have then thought that he had killed him, and, for aught we know, may have intended to kill him while shooting at him. Still, he did not kill him. Nor did the wound inflicted by him upon Goff contribute to the latter's death. The shot that killed Goff beyond all possibility of dispute or doubt, so far as the evidence in this record stands, was the one fired from the outside of the building from a 45-calibre pistol. Appellant was not outside the building, and did not have a 45-calibre pistol, or any other weapon except the 32-calibre pistol. At least the record now before us shows none other. Let it be admitted that appellant shot at Goff and wounded him, intending to kill him, and shot not in his own or another's defense; that he not only intended to kill Goff but believed that he had done so, and said so. Still he is not being tried for shooting and wounding, but for killing, or for aiding or abetting the one who did kill Goff.

The indictment contained several counts. It charged the...