Logan v. Commonwealth

• Decision Date: 16 February 1917
• Citation: 191 S.W. 676,174 Ky. 80
• Parties: LOGAN ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

191 S.W. 676

174 Ky. 80

LOGAN ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 16, 1917

Appeal from Circuit Court, Hopkins County.

Mack Logan and Frank Tribble were convicted of voluntary manslaughter, and they appeal. Reversed and remanded.

Yost &amp Franklin and Gordon & Gordon & Moore, all of Madisonville and Bourland & Blackwell and Hunt & Bennett, all of Dixon for appellants.

Jas. Breathitt, Sr., of Hopkinsville, and M. M. Logan, Atty. Gen., and Charles H. Morris, Asst. Atty. Gen., for the Commonwealth.

CLAY C.

In the month of January, 1916, K. H. Keach was appointed marshal of the town of Dawson. In the month of July following he was shot and killed by Mack Logan, who, together with D. F. Tribble and Buck Ferguson, was indicted for murder. The indictment charged a conspiracy on the part of the defendants to murder Keach, and that they did murder him pursuant to, and during the existence of, the conspiracy. The indictment further charged Logan as being the principal in the commission of the murder, and Tribble and Ferguson as being aiders and abettors. On a joint trial before a jury Ferguson was acquitted and Logan and Tribble found guilty of voluntary manslaughter. Logan's punishment was fixed at 18 years' and Tribble's at 3 years' confinement in the penitentiary. Judgment was entered accordingly, and Logan and Tribble appeal.

In view of there being no claim on the part of the defendants that the evidence was not sufficient to take the case to the jury, a brief statement of the facts is all that will be required.

The homicide occurred under the following circumstances: K. D. Rogers went before J. R. Franklin, a justice of the peace of Hopkins county and of the district in which Dawson Springs is situated, and had a warrant issued for K. H. Keach, charging him with a breach of the peace, alleged to have been committed by striking Rogers with his pistol while Rogers was a prisoner in his charge. It appears that before the warrant was obtained Jim Williams, who conducts a restaurant in the town of Dawson, had a son who had been arrested by Keach for running an automobile without a license. When he was arraigned before the police court the city attorney demanded a jury, which was denied by the court. Thereupon the city attorney dismissed the case without prejudice. Shortly after the dismissal of the case Jim Williams, Frank Tribble, and Mack Logan were seen near Hay's store. Logan was in the machine, and Tribble was standing by the machine. Jim Williams, his son, and Mack Logan went away in the car and stopped at the house of K. D. Rogers. After being there a short time in close conversation they started to Buhla. William's purpose, it is claimed, was to surrender his son to Squire Franklin and have him fined for running his automobile in Dawson without a license. Rogers' purpose was to swear out a warrant against Keach for assault. Logan, who had been away from home for some time, claims that he joined the party for the purpose of calling on his parents. Squire Franklin lived seven or eight miles from Dawson. As soon as the warrant was issued Rogers went to a sawmill, where Ferguson, the constable of that district, was engaged, and delivered the warrant to Ferguson. He then went with Ferguson to the latter's home and waited until Ferguson changed his clothes. On the way back Rogers and Ferguson stopped at Rogers' house, while Williams and Logan went into town. Later on Ferguson went to the restaurant of Williams. There Ferguson found Logan and summoned him to act as one of a posse to assist in the arrest of Keach. Logan said: "I don't think Rogers is a proper party to act." Ferguson insisted that he was, and suggested to Logan the importance of getting a pistol, which Logan proceeded to do. About this time defendant Tribble appeared, and Ferguson summoned him to act as a member of the posse. Tribble claims that he did not think it necessary for the constable to have a posse, but went along with no intention to do any wrong. About this time Keach was seen in front of Hamby's well. As the posse approached Keach, Ferguson was walking with Tribble, while Rogers and Logan were together. Tribble passed a little beyond Keach, while Logan took the position to Keach's left. Ferguson stopped in front of Keach and told him that he had a warrant charging him with a breach of the peace. Keach demanded that the warrant be read. Ferguson then put on him glasses and read the warrant. Ferguson then told Keach to give up his pistol until the matter was settled. Keach stepped back and pulled his pistol from its holster. The evidence for the commonwealth is to the effect that at this stage of the proceeding Rogers fired at Keach and missed him. Thereupon Keach fired at Rogers and killed him. The evidence for the defendant is that Keach fired first. At this point Tribble grabbed Keach from behind and caught hold of the pistol. At the same time Ferguson also caught hold of the pistol. While they were struggling Logan placed his pistol to Keach's head and killed him. The evidence for the defendants is that Keach was attempting to fire the pistol all the time, and that Ferguson, the constable, asked for help in order that he might not be killed, whereupon Logan fired in order to prevent anybody else being killed by Keach. When Logan fired, Keach, who was a powerful man, had gotten the pistol almost in a position to kill Ferguson.

It was the theory of the commonwealth that the warrant for Keach's arrest was not obtained in good faith, and was not given to Ferguson to be executed in good faith, but merely to give an opportunity to the members of the alleged conspiracy to murder Keach in pursuance of the conspiracy which they had theretofore formed. In addition to other circumstances tending to support this theory, the commonwealth introduced several witnesses who testified to conversations with each of the defendants, wherein they used language amounting to threats against Keach or showing their hostility towards him. The evidence for the defendants tended to show that none of them had any previous malice towards Keach, and that they had not conspired to kill him; that Ferguson attempted to execute the warrant, and in good faith summoned Logan, Tribble, and Rogers to assist him in making the arrest.

The trial court gave several instructions. Instructions 1 and 2 bear on the question of conspiracy. Instruction No. 3 authorized the jury to find Mack Logan guilty, even though there was no conspiracy, if they believed from the evidence beyond a reasonable doubt that Mack Logan willfully shot and killed Keach, and further told the jury that they should find him guilty of murder if the shooting was done with malice aforethought, or guilty of voluntary manslaughter if the shooting was not done with malice aforethought, but done in sudden affray or in sudden heat and passion. These three instructions are not complained of.

Instruction No. 4 is as follows:

"The court further instructs you that, if you do not believe from the evidence beyond a reasonable doubt that the defendants Frank Tribble and Buck Ferguson, or either of them, conspired, confederated, and banded together or with Mack Logan and K. D. Rogers, but do believe from the evidence beyond a reasonable doubt that the defendant Mack Logan shot K. H. Keach, from which shooting he presently died, and at said time the defendants Frank Tripple and Buck Ferguson. or either of them, were present and willfully aided, abetted, advised, counseled, or encouraged the said Logan to so shoot and kill the said Keach, you will find them guilty or such one of them guilty as you so believed so aided, abetted, advised, counseled, or encouraged him; guilty of willful murder if said aiding, abetting, advising, counseling, or encouraging was done with malice aforethought; guilty of voluntary manslaughter is said aiding, abetting, advising, counseling, or encouraging was done not with malice aforethought, but in sudden affray or in sudden heat and passion and upon provocation ordinarily calculated to excite passion beyond control. If you find them or either of them guilty, you will fix the punishment as is set out in the instructions Nos. 1 and 3."

Instruction No. 5 defines the words "willfully," "with malice aforethought," and "conspiracy," and is not subject to complaint.

By instruction No. 6 the court told the jury, in substance, that defendant Ferguson had the right, and it was his duty, to serve the warrant by arresting Keach, provided he was not a party to a conspiracy to kill Keach and received the warrant for execution in good faith, and that he had the right, in the exercise of a reasonable judgment and good faith, to command and deputize the defendants Logan, Tribble, and Rogers to assist him in making said arrest, provided they were not members of a conspiracy to kill Keach and that they acted in good faith. He further set out the circumstances under which the jury could acquit the defendants if they believed from the evidence that the defendants acted in the necessary, or apparently necessary, defense of themselves or of each other. There was added to this instruction, however, the qualification that the jury could not acquit any of the defendants on this ground if they believed as in instruction No. 7.

The most serious error in the instructions occurs in Instruction No. 7, which is as follows:

"You are further instructed that, if you believe from the evidence in this case beyond a reasonable doubt that the defendants were parties to a conspiracy, confederation, or banding together formed for the purpose of taking the

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