Nails v. Commonwealth
| Decision Date | 16 April 1929 |
| Citation | 16 S.W.2d 474,228 Ky. 838 |
| Parties | NAILS et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Muhlenberg County.
Roscoe Nails and others were convicted of banding and confederating for the purpose of alarming, troubling, and injuring certain persons, and they appeal. Affirmed.
W. O Smith, of Central City, for appellants.
J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.
The appellants were charged by indictment in the Muhlenberg circuit court with the crime of banding and confederating for the purpose of alarming, disturbing, and injuring Jess Cook, his wife and infant children, and that they did disturb, alarm, intimidate, and injure Cook. his family and property. A jury convicted them and fixed their punishment at three years each in the penitentiary.
The evidence is not as conclusive of guilt as to be entirely satisfactory, but charges such as this are usually provable only by circumstances. Ordinarily no one knows of a conspiracy except the conspirators. Where parties conspire for an unlawful purpose and set in motion the unlawful agreement, they cannot avoid the consequences of the conduct of any of the conspirators when that conduct is pursuant to the unlawful agreement or understanding, although the act of one of the conspirators may have been committed in the absence of the others. Gambrell v. Commonwealth, 130 Ky. 513, 113 S.W. 476; Daniel v. Commonwealth, 154 Ky. 601, 157 S.W. 1127; Crenshaw v. Commonwealth, 227 Ky. 223, 12 S.W.2d 336; Anderson v. Commonwealth, 144 Ky. 215, 137 S.W. 1063; Napier v. Commonwealth, 110 S.W. 842, 33 Ky. Law Rep. 635.
Cook and family resided in or near Central City, Ky. On the 6th day of August, 1927, the appellants went to his home, according to their testimony, to buy whisky, and, according to his testimony, they came drunk and somewhat disorderly but not to buy whisky. He requested them to leave. They went a short distance away from his house to a spring. They claim he directed them to go there, and that he would bring them a quart of whisky, which he did. He denied that he went to the spring at all. They remained about the spring for some hours drinking whisky. Cook requested a man who stopped by his home to go down to the spring and ask them to leave. When they were ready to leave, they came to Cook's house and attempted to go in over his protest. Words passed between them, but Cook appears to have been unwilling to force them to leave his home. But his wife was of a different temperament. One of them forced his way into the house while the others were about the door. Mrs. Cook seized a mop used to scrub the floors and flailed each of them with the mop until they fled.
On that night shots were fired into the home of Cook about 8 o'clock. Cook returned the fire and then left his home and went out some distance on the hillside, when he saw Fentress and Garrett. He did not see Nails. The 9 year old girl of Cook testified, and, while her testimony is confusing and contradictory, as she appears to confuse the time of the shooting into the house with the dynamiting of it which happened later, as we read her evidence, she testified that at the time of the shooting she saw all three of the appellants run off. It was either at the time of the shooting or at the time of the dynamiting that she saw them from the window of a room where she and her younger brothers and sisters were playing. We cannot give much weight to her testimony.
About two weeks thereafter Cook heard a noise one night, and, upon going out to investigate, he found Fentress within 6 or 8 feet of his home with a small package in his hand. Upon his asking what he meant by being there, Fentress informed him that he was lost. Fentress lived within a few hundred yards of Cook's home, and his statement that he was lost is entitled to no weight.
Nothing else happened until the latter part of August. About 4:30 in the morning there was an explosion under the house of Cook which tore away the corner of his house and the floor under the bed. He and his wife and baby were sleeping in the bed. He dropped into the hole in an unconscious condition, but he was not seriously injured. He did not see either of the appellants on that occasion. Neighbors came in and examined the premises and testified as to their condition. That a heinous and cowardly crime was committed cannot be doubted. Early in the morning, and within two or three hours after the crime was committed, Cook went into a restaurant and sat down to eat ice cream. The appellant Nails saw him in the restaurant and immediately went in and approached him. He stated to Cook that he understood he was threatening to kill him and was accusing him of having dynamited his house. Cook attempted to deny that he had made any such statement, but Nails struck him over the head with a pistol, seriously wounding him.
The appellants deny...
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