Luttrell v. Commonwealth

• Decision Date: 23 June 1933
• Parties: LUTTRELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

63 S.W.2d 292

250 Ky. 334

LUTTRELL v. COMMONWEALTH.

Court of Appeals of Kentucky

June 23, 1933

As Modified on Denial of Rehearing Oct. 13, 1933.

Appeal from Circuit Court, Casey County.

Clyde Luttrell was convicted under an indictment for murder, and he appeals.

Affirmed.

Montgomery & Montgomery, and Oliver Popplewell, all of Liberty, for appellant.

Bailey P. Wootton, Atty. Gen., and Francis M. Burke, Asst. Atty Gen., for the Commonwealth.

DRURY Commissioner.

Jess Fox and Clyde Luttrell were indicted jointly for the murder of Charley Fox. Separate trials were had. The case against Jess Fox has been disposed of. See Fox v. Com., 248 Ky. 466, 58 S.W.(2d) 608, and now Clyde Luttrell is asking for the reversal of the judgment by which he has been condemned to 10 years' confinement in the penitentiary.

For reversal, Luttrell is contending his substantial rights were prejudiced by the overruling of his motion for a directed verdict, by the giving of the instructions given, and the failure to give other instructions to which he contends he was entitled.

The nature of the alleged errors relied on for reversal and some differences in the evidence require some additional statement of facts from those stated in Jess Fox' appeal.

Jess Fox, Clyde Luttrell, and Charley Fox are all cousins to each other. On March 29, 1923, John Foley was killed. He had married a Fox, a cousin of Jess and Charley Fox, and they were charged with killing him. An appeal by Jess Fox reached this court. See Fox v. Com., 202 Ky. 41, 258 S.W 950. The killing of Charley Fox grew out of an accusation by Jess Fox that Charley Fox had given false testimony on the trial of Jess Fox for killing Foley.

The evidence shows Clyde Luttrell and Jess Fox had spent a portion of Sunday December 13, 1931, at Sylvester Foley's. Charley Fox came while they were there.

They were all drinking. Charley Fox left and went to the Luttrell home, where he had his supper. Later Jess Fox and Clyde Luttrell left Foley's together and went to the Luttrell home. Charley left and Jess and Clyde had their supper and stood around and talked for a while. Then Charley came, and presently Jess left, and in a short time Charley left. Soon Charley came back and wanted to borrow Clyde's pistol. Clyde refused to let him have it, but took it out to look at it, and as he says, while he was fooling with it, the pistol was dicharged, accidentally. No one was struck. Clyde reloaded the pistol. Charley walked out onto the front porch Jess Fox, who was in the roadway started to the house talking to Charley Fox as he came, and by the time he reached the porch this conversation had become a quarrel, and the men began a struggle. Clyde Luttrell, so some of the evidence shows, came to the door during this struggle, and shot Charley Fox in the left leg near the knee. All three then began a struggle for the pistol. Jess Fox got it and fired one shot which struck no one. Luttrell, thus disarmed, ran back in the house. About that time Charley Fox fell off of the porch. He had at some time in this mêlée, either while on the porch or after he had fallen on the ground, been cut on the right arm and in the abdomen. This last-mentioned wound proved to be fatal. Clyde testified he did not shoot Charley Fox, neither did he cut him. Jess Fox did not testify on this trial. That one or both of them did so is quite evident. Charley was shot with Clyde's pistol, and both Jess and Clyde had knives.

There was enough evidence of Clyde's guilt to require that the case be submitted to the jury. The evidence is not only conflicting, but is also confusing.

A map was used to which the witnesses would point and refer, thus making the evidence more intelligible to the jury than to us. As a result of the use of this map, which was never filed with the record, much of this evidence reads like this sample. "It was out in the front here. I turned around, and Chloe was facing here, and my face was to the door here and it wasn't but a few words--I didn't hear but a few words till I heard two shots fire at the front of the house."

The questions were as bad as the answers, as this one will show: "When Clyde goes in there Jess gets up and goes out here, doesn't he? Then when Clyde is in there Charley goes into that room and Charley was in there when the shot was fired and you were standing at that door?"

This reminds us of the case of Wolfinbarger v. Stanton, 220 Ky. 451, 295 S.W. 467.

Luttrell cites the cases of Combs v. Com., 224 Ky. 653, 6 S.W.2d 1082, State v. Hildreth, 31 N.C. 440, 51 Am. Dec. 369, Levering v. Commonwealth, 132 Ky. 666, 117 S.W. 253, 136 Am. St. Rep. 192, 19 Ann. Cas. 140, Anderson v. Commonwealth, 193 Ky. 663, 237 S.W. 45, Plummer v. Commonwealth, 64 Ky. (1 Bush) 76, Gill v. Commonwealth, 235 Ky. 351, 31 S.W.2d 608, Landrum v. Commonwealth, 123 Ky. 472, 96 S.W. 587, 29 Ky. Law Rep. 924, 16 C.J. p. 130, §§ 118 et seq., and other authorities to support his contention that there should have been no instruction on aiding and abetting, because there was not, so he contends, any evidence that he shared the intent of Jess Fox, and that, while there was some evidence from which the jury might have believed he shot Charley Fox, there is no evidence he then had any part in the intent with which Jess Fox was doing what he did. We do not so view the evidence.

Luttrell says he did not know who it was who was quarreling on the porch, but, in view of his intimacy with both these men, and that Charley had just stepped out there (one witness says Jess called Charley out), that seems incredible. It was dark, but a light was burning in the house, and through a window it lighted up the porch to some extent. Other witnesses more distant from the two combatants saw and recognized them, and Luttrell, by reason of his nearness to them, almost against them, must have done so. Luttrell's testimony is that he never had this pistol after he reloaded it and put it under the pillow of his bed, and that he never went out until after the two shots had been fired and the combat was over, but there is enough to show that Luttrell was holding himself in willing readiness to aid Jess Fox, if indeed it is not enough to support the inference that it was agreed he should do so, and certainly there was evidence he did shoot Charley Fox at a very opportune time for Jess. Where two men are in a struggle and a third rushes up and shoots one of them, he certainly is aiding the other, and must share his intent, at least it would take more evidence than this record discloses to induce the belief it was a mere chance occurrence.

The court gave this definition: "Aiding, abetting, assisting, encouraging means to act in concert with another in the commission of a crime or to purposely help one to commit a crime and to be present at the time of the commission of the crime, and helping."

Luttrell now contends this instruction should have had in it at an appropriate point the words "sharing the felonious intention of such other."

There may be cases when such an instruction should be given, but this is not one of them.

In Ross v. Com., 9 S. W. 707, 10 Ky. Law Rep. 558, Ross had held a lamp while Parker killed, with an ax, Benedict Rhodes as he lay asleep in his bed. The court instructed on aiding and abetting, and said nothing about sharing Parker's intent. The death sentence of Ross was affirmed.

Instructions are only required on matters about which there is some issue to be presented to the jury.

In Gibson v. Com., 204 Ky. 748, 265 S.W. 339, 344, we said:

"Ordinarily, the defendant's theory of the case is simply 'not guilty,' and this theory is fully presented by the instruction to acquit him, unless he is proven guilty beyond all reasonable doubt.

However, there are cases where the accused admits one or more of the essential elements of the offense charged, but attempts to avoid conviction by proving facts or circumstances to excuse what he did, and under such circumstances his theory of the case should be set out in a special instruction."

Luttrell makes no claim he shot to frighten Charley Fox and induce him to withdraw from the combat and did not intend to kill him or that Jess Fox should do so, but says he was not there and did nothing neither shooting Charley Fox or cutting him. Instructions should present the issues. Luttrell makes no claim he was there and took some small part in this combat, but had no intent that Jess Fox should carry it to the extent that the man should be killed, or seriously injured.

After the commonwealth had introduced evidence that while Jess Fox and Charley Fox were engaged in a struggle, Clyde Luttrell ran up to them with a pistol and shot Charley Fox with it the presumption arises he intended to kill Charley Fox. Charley Fox did not die as a result of the pistol wound inflicted on him by Luttrell, but died as a result of a knife wound in the abdomen, which was probably inflicted by Jess Fox just before or just after this shooting, but which may have been inflicted by...