Ockerman v. Commonwealth

• Decision Date: 28 September 1917
• Citation: 176 Ky. 753,197 S.W. 385
• Parties: OCKERMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

197 S.W. 385

176 Ky. 753

OCKERMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 28, 1917

Appeal from Circuit Court, Nicholas County.

Herman Ockerman was convicted, and appeals. Affirmed.

Conley & McCartney, of Carlisle, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

MILLER J.

The appellant, Herman Ockerman, was jointly indicted with Ed Bradley for robbery. They were given separate trials, and each was found guilty. Ockerman appeals, and asks a reversal upon two grounds. He insists: (1) That his motion for a peremptory instruction, directing the jury to find him not guilty, should have been sustained; and (2) that the verdict is not sustained by the evidence.

The prosecuting witness, Taylor Arnold, testified that while he was riding in his buggy on the public highway, near Moorefield, between 10 and 11 o'clock on Sunday night October 17, 1915, he fell asleep; that for some cause unknown to him his horse stopped, and he then heard persons engaged in conversation, which aroused him from his sleep; that he saw a man on each side of the buggy, standing between the wheels thereof; that one of these men held a pistol in Arnold's face, and asked him what he was doing there, and Arnold replied that he was going home; that the man then asked him if he had any whisky, whereupon Arnold replied that he had none; that they then asked him if he had any money, to which Asnold answered that, if he had any, they could not get it; that Arnold then reached for his pistol, which was lying in the body of the buggy, and got hold of the barrel of the pistol, while one of the men grabbed hold of the butt and wrenched the pistol from Arnold's hand, and threw him back in the buggy, while the other man went through his pockets and took his watch therefrom; that then they went behind the buggy and fired the pistol several times, and then stepped back to the buggy and presented another pistol against Arnold's face. Arnold further testified that he subsequently recovered possession of his pistol, without any explanation however as to how he did so, but that he had never recovered his watch. Arnold did not recognize the men and it does not appear that he was acquainted with them at any time before the robbery. Ockerman and Bradley both testified that they were present on the occasion mentioned by Arnold, but deny that they robbed him. They attempted to explain their presence and participation in the affair by saying that Bradley and Fisher, who were colored men, had seen Wm. Miller, another colored man, going to church with a girl, and that they concluded to "speed" him upon his return from church. About that time Andrew Fuller and Ockerman passed along the road in Fuller's buggy, and, the colored boys having told Fuller and Ockerman of their intention to "speed" Miller, the four drove up the road to a convenient spot, where the colored boys got out of the buggy, leaving Ockerman and Fuller seated in the buggy, waiting to see the fun; that, while they were thus waiting, Arnold came along the road asleep in his buggy, and that the wheel of his buggy became locked with the wheel of Fuller's buggy;...