Marion v. Commonwealth

• Citation: 269 Ky. 729,108 S.W.2d 721
• Parties: MARION v. COMMONWEALTH.
• Decision Date: 11 May 1937
• Court: Court of Appeals of Kentucky

108 S.W.2d 721

269 Ky. 729

MARION v. COMMONWEALTH.

Court of Appeals of Kentucky

May 11, 1937

Rehearing Denied Oct. 12, 1937.

Appeal from Circuit Court, Laurel County.

Perry Marion was convicted of murder, and he appeals.

Affirmed.

Victor A. Jordan, of Barbourville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

STANLEY Commissioner.

On his separate trial under indictment jointly with Arnold Clift and Roy Hale, the appellant, Perry Marion, was convicted of the murder of Mrs. Reed Taylor and sentenced to death. The facts of the conspiracy to rob the store of Reed Taylor, during the commission of which both he and his wife were killed, are related in the opinion of Clift v. Commonwealth, 268 Ky. 573, 105 S.W.(2d) 557, delivered May 7th. As therein stated, Clift testified on this trial that the appellant Marion, did the killing. The appellant testified that on entering the store he warned Clift that there should be no shooting; that Mrs. Taylor came in and fired first and then Clift shot her husband and then her, firing four times altogether; that he did no shooting whatsoever.

It is argued for reversal of the judgment that the court erred in overruling the appellant's demurrer to the indictment because it is in fact five indictments instead of one. For the purpose of charging the commission of murder in five different ways, or stating it in different counts, the indictment is divided. Each of these divisions contains both an accusatory and a description and concludes with the statement that the crime was "contrary to the form of the statute in such cases made and provided and against the peace and dignity of the Commonwealth of Kentucky." Each division is a complete indictment within itself except for a caption and the signature of the Commonwealth's attorney and the indorsement that it is a true bill, signed by the foreman of the grand jury. The first paragraph charges the three men committed the murder in pursuance and consequence of confederating and banding together and going forth armed for the purpose of committing robbery (section 1223 Statutes). The second count charges that the three of them murdered Mrs. Taylor. The other three counts charge each one as principal and the other two as aiders and abettors, respectively. We have often held that an indictment may charge a conspiracy and also in separate counts charge that the offense was committed in one or more other ways. It is still one indictment charging but one offense. Philpot v. Commonwealth, 236 Ky. 831, 34 S.W.(2d) 718. The repetition of the accusation and the conclusion is surplusage and does not render the indictment defective.

The instructions submitted only the accusation that the crime was committed in pursuance and furtherance of the conspiracy to rob. The criticism is that the instructions should have been confined to the charge stated in the last count of the indictment, that is, of Roy Hale, as principal, and the appellant, Marion, as an aider and abettor; or, at least, that there should have been an instruction under that count in addition to that given, since, if several persons are present at a killing, each may be guilty of different degrees of homicide, for one aiding and abetting may be guilty only of manslaughter if there is no previous malice on his part. See Mickey v. Commonwealth, 72 Ky. (9 Bush) 593. The basis of this argument is the evidence of the defendant and some conclusions drawn from some evidence of the Commonwealth respecting the size of the bullet that Clift fired the shots that killed Mrs. Taylor, which was against appellant's warning and expectation. The difficulty the appellant is in is that he, himself, testified that he entered into the conspiracy to rob the proprietor of the store and that it was in pursuance thereof that the killing occurred. A homicide committed or caused by one engaged in robbing or committing any other felony is murder, and this is so whether the person killed is the one upon whom or whose property the attempt is made, or of another interfering to prevent its success. Roberson's Kentucky Criminal Law, § 357; Jackson v. Commonwealth, 100 Ky. 239, 38 S.W. 422, 1091, 18 Ky.Law Rep. 795, 66 Am.St.Rep. 336; Williams v. Commonwealth, 258 Ky. 830, 81 S.W.(2d) 891. Coupled with this universal law is that which declares that one participating in a conspiracy to commit robbery is held accountable for any act done by any member of the conspiracy in furtherance of the design, and cannot escape the consequences. Tincher v. Commonwealth, 253, Ky. 623, 69 S.W.(2d) 750. There was no need for any further instruction. But if one had been given it must have been to the effect that under the circumstances the appellant was guilty of murder if his companion, Clift, did actually kill Mrs. Taylor, as appellant claims.

It was not error to admit evidence as to the mutilated condition of the body of the deceased when found by her little boy the next morning, or as to the fact of the killing of her husband. Gambrel v. Commonwealth, 241 Ky. 39, 43 S.W.(2d) 335; Warner v. Commonwealth, 255 Ky. 361, 74 S.W.(2d) 201; Thornsberry v. Commonwealth, 256 Ky. 166, 75 S.W.(2d) 1079; Hudson v. Commonwealth, 249 Ky. 845, 61 S.W.(2d) 874.

A number of questions asked by the trial judge are submitted as being prejudicially improper. We have carefully examined every one of those interjections and questions and in no one was there any degree of incompetency or impropriety. They were made and asked for the apparent purpose of clarifying a situation or confining the testimony within proper limits. In the matter of Clift's testimony, the judge simply made it certain that he was testifying voluntarily. There is no merit in this contention.

It is a common-law right of a person being tried for the commission of a crime to be free from all manner of shackles or bonds whether of hands or feet, when in court in the presence of the jury,...