Morgan v. Commonwealth

• Citation: 188 Ky. 458
• Parties: Morgan, et al. v. Commonwealth.
• Decision Date: 11 June 1920
• Court: Kentucky Court of Appeals

188 Ky. 458

Morgan, et al. v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 11, 1920.

Appeal from Laurel Circuit Court.

HAZELWOOD & JOHNSON for appellants.

CHARLES I. DAWSON, Attorney General, THOMAS B. McGREGOR, Assistant Attorney General and W. P. HUGHES for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

The appellants, Leonard Morgan, John Forman, Felix Forman, Steve Forman and William Poe were convicted in the Laurel circuit court of the crime of voluntary manslaughter on their trial under an indictment charging them with murdering James Baker. The verdict fixed the punishment of Leonard Morgan, John Forman and William Poe at confinement in the penitentiary for twenty-one years; that of Felix Forman five years, and of Steve Forman two years. Their motions for a new trial having been overruled, they each appeal.

The killing occurred in Clay county on the night of February 12, 1919, near the hour of eight o'clock. The first count in the indictment charged the defendants with jointly committing the murder, while the second count alleged a conspiracy entered into between the defendants whereby they agreed, conspired, and banded themselves together to commit the murder, which they afterward did in pursuance thereof.

But three grounds are urged as alleged errors to secure a reversal of the judgment, they being (1) the admission of incompetent testimony introduced by the Commonwealth; (2) erroneous qualification of the instruction on self-defense, and (3) misconduct of the jury while in the room considering their verdict.

The record in the case is a large one, and it would unnecessarily encumber this opinion and serve no useful purpose to make a detailed statement of all of the facts. We will therefore give only a brief synopsis of the more prominent ones which we deem sufficient for the determination of the questions raised.

The two factions engaged in the fight in which the killing of James Baker occurred may be said to have been headed the one by the deceased, who was at the time a deputy sheriff, and the other by the defendant William Poe. The deceased and his crowd, consisting of seven or eight persons, including his brother, Hugh Baker, were stationed at a school house for the purpose of arresting some members of the Poe crowd, which included the defendants, under a warrant which Hugh Baker had procured from a justice of the peace about four o'clock that afternoon. The warrant had been issued at the instance of Hugh Baker because of depredations committed by Poe and his crowd the night before at the home of Vernon Hensley, where Hugh Baker was spending the night. It is the introduction of the details of what occurred at Hensley's house on the night before the killing that forms the principal basis of ground (1) urged for a reversal.

The defendants, Leonard Morgan, Felix Forman, William Poe, Steve Forman and Jim Hatchett Baker, Merida Smith, Tine Williams and Bud Tegarden, composed the Poe crowd who went to the home of Vernon Hensley on the night of the 11th, the defendant, John Forman, was not present. All of them knew that Hugh Baker was spending the night there, and they claimed that they went there to see him in response to an invitation sent by him to William Poe for the purpose of talking about a lost moonshine still worm. All of the crowd armed themselves with shot guns, pistols and rifles of various calibers and powers for the visit, in response to this alleged invitation, and they explain their being thus armed by saying that they intended on this trip to catch some chickens which Leonard Morgan had sold to Jim Hatchett Baker, but since they neither carried nor could find a lantern, they abandoned that idea after they left Hensley's house.

As to what occurred there the witnesses for the Commonwealth, some six or seven in number, practically agree, and since Vernon Hensley is a disinterested witness, we have concluded to incorporate his statement as to what happened. He says that awhile after supper someone hallooed at the gate; that he went to the door and asked what they wanted, when William Poe inquired if Hugh Baker was there, and being informed that he was, the following occurred, according to the witness:

"Q. He told me to tell Hugh to come out there, he wanted to see him, and I went back into the house and told Hugh that Wm. Poe was out there, he wanted to see him and he said to tell him to come in the house, and I stepped back and told William that Hugh said to come in — I invited him in, and he spoke to Hugh, and he says, `Hugh, old brother, come out here, I want to talk to you a minute.' Hugh got up and come out. Orville Hensley and Charley Collins come pretty close to him, and I was out in the yard. We all walked up to the front gate, and Hugh was a little in front. He walked up and put his hands up on the pailings, like this (indicating to the jury). William reached out like he was shaking hands with him, with his left hand, Poe did, and Hugh asked him what he had in his hand, and he says, `I have got a forty-five,' he says, `I understand you are going to report me for moonshining and I have come up here to tell you one thing, there is no God damned man can do that and live.' He says, `Who told you that?' and Hughie says, `Jim Hatchett Baker told me,' and Hughie says, `I never said it,' or something like that, and about that time Jim Hatchett Baker come around from behind the little mill house, on the left of the gate, that was on the right, and I was standing about the road. A part of this mill house was boxed up, and he come around with a pistol in his hand and he says `Hugh Baker, you are a God-damned black-hearted son-of-a bitch-of-a-liar,' and he throwed his pistol on Hughie. I heard a little noise back there, on the outside, and I thought I would go around the mill — lower side of the mill house — something struck me that there might be somebody else there, and as I was crossing the fence at the far end of the mill house from the yard, Jim Hatchett Baker says, `Vernon Hensley, by God, you get back into the house,' I says, `I am at home,' and he says, `You God damned son of a bitch, get back there or I will shoot your brains out if you don't. I made another step, and I heard something like guns clicking, and I looked up and seen Tine Williams, Steve Forman, Felix Forman and Bud Tegarden had guns on me, and Merida Smith was standing there with a gun, and Leonard Morgan run back with a pistol in his hand, kindly down by his side, and I say, `What are you doing there?' None of them would speak and I started to go back in the yard, and as I crossed the fence, Leonard Morgan following me to the engine, and left him standing between myself and Hugh Baker, and after I walked back to where I was — Jim Baker was cursing and calling me all kinds of bad names, and cursing me, and they was cursing Hugh and calling him all kinds of bad names, and Leonard Morgan come on down around directly, and says, `Boys, we had just as well go now,' and they started on up the road."

It is shown that several others, including Mrs. Hensley, were present and heard and testified to that conversation, and the latter importuned William Poe and his crowd with tears not to shoot or kill any one, but to go away and let them alone. William Poe's version of what occurred on that occasion is that he called for Hugh Baker, who came out, and he discovering that Poe had a pistol, asked the latter to lay it down, which he did, whereupon the parties shook hands. Poe then asked Baker, "Who told you that I had anything to do with your still worm in any way?" when the latter replied, "Jim Hatchett Baker," and thereupon Jim Hatchett performed his part as testified to by Hensley. Witness then says that he and Hugh Baker felicitated each other over the amicable understanding reached and extended mutual invitations for visits between their respective families. The Poe crowd, on leaving the Hensley house, went to the residence of a brother of William Poe, and after a considerable time the members scattered to different places to spend the night. According to the testimony of Poe, Williams and Smith, they and Tegarden were traveling along Ayler Lick branch the next evening on their return from inspecting a rented place which they were going to cultivate that year, when about six thirty p. m. Hugh Baker and his brother Bob shot at them from a mountain side, wounding Tegarden, from which wound he died a few days thereafter; that immediately after this shooting William Poe went to the home of one of his brothers and from thence to the home of the defendant, John Forman, and began gathering a crowd for the purpose of looking after and taking care of Tegarden, Smith and Williams, all of whom, he thought, as he testified, had been wounded. He collected his crowd and they were on their way to the scene of the alleged shooting when they arrived at the school house where the fight occurred in which Jim Baker was killed. Poe seems to have had but little trouble in assembling his crowd on that occasion, and each of them, when found by him, was either armed or immediately armed himself. Hugh and Bob Baker deny that any shooting took place on Ayler Lick branch, or at any other place except during the fight at the school house, the two occasions being...