McGraw v. Commonwealth

• Decision Date: 11 October 1892
• Parties: McGraw v. Commonwealth.
• Court: Kentucky Court of Appeals

20 S.W. 279

McGraw v. Commonwealth.

Court of Appeals of Kentucky.

October 11, 1892

Appeal from circuit court, Whitley county.

"Not to be officially reported.

William McGraw was indicted for murder. He was convicted, and appeals. Reversed.

Pryor J.

The appellant was indicted for the murder of James T. Middleton and convicted. The indictment charges a conspiracy on the part of the appellant, Granville Fee, James Howard, and others to take Middleton's life. The deceased was shot from ambush, and killed without warning. There are some facts and circumstances connected with the assassination conducing to create a suspicion that the accused might have been cognizant of the purpose on the part of others who have been convicted to take the life of the deceased, but, as the case must be retried, it is not necessary or proper that this phase of the case should be discussed. What there is of it is purely circumstantial, and much of the testimony on the part of the state tends to show that the appellant had no connection with the feud existing between the Howards on the one side and the Turners on the other, and finally terminating in the shooting of Middleton. As the testimony against the accused was altogether circumstantial, it was incumbent on the court to keep from the jury the mass of testimony found in this record establishing the guilt of other parties, and with which (this testimony) neither the acts, conduct, nor statements of the accused had any connection. There is no sufficient evidence of a conspiracy and therefore the accused was entitled to the testimony of those indicted with him, and their statements as to what they proposed to do with Middleton were clearly incompetent as against the accused. Statement after statement made by those indicted with the accused was permitted to go to the jury as evidence against the appellant, when he was not even present and when the state had failed to show a conspiracy to murder entered into either before or after the statements were made. Conceding that a conspiracy had been established, the court allowed the statements of one of the Howards to go to the jury, made long before the accused knew Howard, and when the accused was living in another state. These statements consisted of threats against Middleton, made before the accused knew either Middleton or Howard. As said by counsel for the defense, this character of testimony, when added to that which...