Philpot v. Com.

• Decision Date: 13 January 1931
• Citation: 34 S.W.2d 718,236 Ky. 831
• Parties: PHILPOT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

34 S.W.2d 718

236 Ky. 831

PHILPOT v. COMMONWEALTH.

Court of Appeals of Kentucky

January 13, 1931

Appeal from Circuit Court, Bell County.

Tim Philpot was convicted of murder, and he appeals.

Affirmed.

Brock &amp Wall, of Harlan, and J. Henry Taylor, of Pineville, for appellant.

J. W Cammack, Atty. Gen., and George H. Mitchell, Asst. Atty Gen., for the Commonwealth.

LOGAN C.J.

Tim Philpot, the appellant, was jointly indicted with his brother, Ed Philpot, Joe Stewart, and Arthur Jackson for the murder of Sam Farmer in Bell county early in January, 1928. They demanded separate trials, and the commonwealth elected to try the appellant. He was convicted and his punishment fixed at life imprisonment.

In the mining camp of Carey there is a building, the lower floor of which is used for a barber shop and a pool room. On Saturday night Sam Farmer, the man who was killed, with his stepson, Frank Ashburn, went to this room about 6 o'clock in the afternoon. Upon their arrival the appellant was in the room, and his codefendants were also there, as well as a number of other persons. Some were standing around the stove, others were playing pool while yet others were idling about. The appellant left the room within a few minutes after Farmer and Ashburn came in. Farmer had gone to the place to obtain a hair cut and shave. He did not immediately demand of the barber that the work be done. A blind man came in with a musical instrument and the crowd listened to the music for some time. When Farmer was ready to obtain the hair cut and shave he went to the barber chair in which Arthur Jackson was sitting, although it appears that the barber was not engaged in performing any work for him. He requested Jackson to get out of the chair, and at this Jackson took offense. The barber directed him to get out of the chair and probably some force was applied to remove him. He immediately drew his pistol from his pocket and about that time other pistols appeared in the hands of others, particularly in the hands of Joe Stewart, Ed Philpot and Arthur Jackson. Frank Ashburn also had a pistol in his possession which fell on the floor, and there were one or more pistols that were lying on the floor at the time. The evidence goes into some detail pointing out the character of pistols that each one had. They were many and of high class. Sam Farmer was unarmed, or at least he had no pistol. His stepson, Frank Ashburn, had obtained the pistol which he owned at the home of Sam Farmer without his knowledge. The armed truce continued for some time, probably as long as fifteen minutes. Jackson, however, was disarmed and removed from the room, but his pistol was restored to him, and he returned and took his position among the others who were standing ready for anything that might take place. There was little said. It was a sullen bunch of men standing armed in the room. Sam Farmer told Arthur Jackson that if he had offended him by requesting him to leave the barber chair he was sorry, and that he meant no offense. He said to the others thus assembled, "Boys let us have peace." The excitement grew less, and it appeared that the pistols might again be placed in pockets, or scabbards, without harm to any one. Propositions were made by one or more that they would put up their pistols if the others would do likewise. Appellant was not present while these demonstrations and maneuvers were taking place.

To present a complete picture it is necessary to follow the acts of appellant. When he left the room soon after Farmer and Ashburn came in he walked on the railroad track, which passed near the building in front, for a distance, and after leaving it he went to the home of some person where religious services were being conducted. He went in and remained there for some little time, when he received a message from the pool room that his brother was involved in a difficulty there. This information was brought to him by some party who had seen what was going on and had made his way from the scene of probable conflict. Appellant left the religious services and went near the room sheltering the armed men. He saw his brother and others in there with drawn pistols. It is made to appear that serious difficulties had taken place in the past between some of Farmer's folks on the one side and the Philpots on the other. He saw Frank Ashburn there with his pistol and saw, or thought he saw, Sam Farmer with a billiard cue. He did not go in, but he went to the home of a neighbor to obtain a shotgun. He was told that the shotgun was not there, but he knew where it was kept, and when he looked in the place he found it. He took possession of it and also took three shells needed for shooting the gun. He returned to the pool room.

There is no material conflict in the evidence until the events following the return of the appellant. There was a porch in front of the building not across the entire front, but about half way across. The building was about fifty feet in length, and about twenty feet wide. The barber chair was on the right of the door going in, and the stove was on the left. The pool tables were further back. When appellant reached the porch in front of the building he met a man who had been in the room who suggested to him that he ought not to go in as the armed men were quieting down and everything was about over. He made no response to this. He approached the door with the gun in position to shoot. Frank Ashburn testified that he saw him approach the door, and at the same time he saw Ed Philpot, Arthur Jackson, and Joe Stewart move from near the center of the room towards the left side, leaving Ashburn alone near the center of the room. When he looked towards appellant the gun was leveled at him and was fired immediately, the load finding a target in the breast of Ashburn. That appellant fired the shot gun at Ashburn when Ashburn was making no demonstration towards him, or any one else, is established by the evidence for the commonwealth. Many witnesses so testified. When Ashburn was struck by the shot in his bosom Ed Philpot, Joe Stewart, and Arthur Jackson turned loose a fusillade at him. He fell on the floor and was shot more than once while lying on the floor. Those who were in the room scattered, getting out as fast as possible, and through any opening available. For that reason many of them did not see the shooting of Sam Farmer. The evidence in the main is directed to the shooting of Ashburn, and the appellant is not on trial for that. Although seriously wounded, Ashburn recovered. The evidence for the commonwealth was to the effect that Sam Farmer was shot by appellant when he was making no demonstration, and when he had his hands up in front of him. This shooting took place about the door and soon after the shooting of Ashburn. Probably Farmer had passed out of the door onto the porch before he was shot. There was evidence to the effect that he was shot by appellant without any provocation whatever.

The appellant testified that he approached the building after he left the religious services and saw that his brother was in danger, and when he returned to the door with the shotgun Ashburn had his pistol drawn on Ed Philpot, and that his object in approaching the door was to protect his brother, but when he approached Ashburn saw him and immediately fired two shots at him, and he returned the fire. He and his witnesses testified that he fired no shot until Ashburn had fired at him twice. Immediately after this appellant testied that Sam Farmer came towards him with a billiard cue in one hand and a knife in the other, and when he saw that his life was endangered he fired at Farmer. He produced evidence in corroboration of his statement.

It will thus be seen that the jury, if it believed the evidence offered by the commonwealth, must find appellant guilty of murder, but, if it believed the evidence of appellant and his witnesses, he was entitled to an acquittal on the ground of self-defense. The question of his guilt or innocence under the evidence was for the jury, as is always true in such cases. Nothing remains, therefore, but for this court to examine the grounds for reversal urged by counsel for appellant. The first of these grounds is that the court should have sustained a demurrer to the indictment. The indictment is in two counts. In the first count a conspiracy is charged, and...