Montague v. Com.
| Decision Date | 19 February 1960 |
| Citation | 332 S.W.2d 543 |
| Parties | Wayne A. MONTAGUE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Rhodes Bratcher, Claude E. Smith, Owensboro, for appellant.
John B. Breckinridge, Atty. Gen., Robert Matthews, Jr., Asst. Atty. Gen., for appellee.
STANLEY, Commissioner.
We sustain the motion of Wayne A. Montague for an appeal from his conviction of involuntary manslaughter with imprisonment in jail for one year.
Montague, Allen and Thomas Raymond were jointly indicted for the murder of Elmer Winters. Allen had been convicted of voluntary manslaughter before the appellant's trial.
The appellant strongly urges that the trial court should have directed a verdict of acquittal and, alternatively, that he committed error in giving the instruction on involuntary manslaughter as an aider and abettor of Allen.
Montague and Allen had become acquainted a week or so before Winters was killed. Allen's automobile had been wrecked and Montague had favored his friend by driving him in his car. Early in the evening of April 29, 1957, the young men had visited several taverns drinking only beer, as the appellant testified. Late in the evening they saw two men working with an automobile flat tire near the street in the parking lot of the Turf Club in Owensboro, and they stopped to offer their help. Allen got out of the car; but one of the men, with an oath, told them they did not want their help. There is some indication they feared a 'holdup.' One of the men cut Allen in the back. Montague and Allen then drove to Raymond's residence, where Allen lived. Allen went inside, told Raymond and his wife of the incident, while Montague stayed on the porch. Raymond suggested that Allen go for the sheriff and take out a warrant for the arrest of the two men. Mrs. Raymond did not want to stay alone, and she joined her husband, Allen and Montague and started out in the latter's car to go, as they all testified, to the sheriff's office. While they were in the house, unknown to Montague, Raymond gave Allen a pistol, which he put in his hip pocket.
As they were passing the Turf Club parking lot, someone in the car said, 'Turn in,' and the appellant drove into the lot. It was then near midnight. Shortly before this the two men (called the 'carnival boys') had asked the proprietor to call a taxicab to take them to their hotel and he had done so. A night watchman testified that neither of the strangers made a move, but one of the men who had driven up got out of the car, advanced upon the strangers and began shooting. The other three persons, according to the night watchman, jumped out of the automobile and ran away from the scene. Both of the 'carnival boys,' Winters and Ernest Emard, were killed by bullets admittedly fired by Allen. The Commonwealth proved neither man was armed.
Allen was called as a witness for the Commonwealth. His testimony was that one of the strangers said, 'The sons of bitches are back again'; he jerked the car door open, grabbed him, violently fought Allen and cut him across his hand. Someone in the car exclaimed, 'They've got a gun.' Montague, Raymond and his wife quickly jumped out on the other side of the automobile. The three ran, just as the night watchman had testified. Allen testified he could not get out while being attacked because the back of the front seat had been pushed forward by those getting out of the rear seat. He succeeded in getting the pistol out of his pocket and at first fired through the roof of the car for the purpose of letting his assailants know he had a pistol, thinking they might retreat; but as they kept on with their violence, he then shot at the two men. Winters was shot three or four times. Allen, as a witness for the Commonwealth, insisted that the appellant did not know he had a...
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