Reed v. Commonwealth

• Decision Date: 19 March 1907
• Citation: 100 S.W. 856,125 Ky. 126
• Parties: REED v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

100 S.W. 856

125 Ky. 126

REED v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 19, 1907

Appeal from Circuit Court, Morgan County.

"To be officially reported."

Newton Reed was convicted of voluntary manslaughter, and he appeals. Reversed and remanded.

S Monroe Nickell and Allan N. Cisco, for appellant.

N. B Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

SETTLE J.

Nathan Day, Edgar Patrick, and the appellant, Newton Reed, were jointly indicted by the grand jury of Morgan county for the murder of Charles Frisby. Day was separately tried for and acquitted of the crime charged. The indictment as to Patrick was filed away on motion of the commonwealth's attorney. The appellant, Newton Reed, was accorded a separate trial which resulted in his conviction of the crime of voluntary manslaughter at the hands of the jury, and their fixing his punishment at confinement in the penitentiary for a period of two years. He was refused a new trial, and by this appeal seeks a reversal of the judgment of conviction.

The indictment charged that Frisby was shot and killed by Day, but that Patrick and appellant were at the time present, and "did aid, abet, unlawfully, feloniously, and of their malice aforethought, assist, and encourage the said Nathan Day to do the killing." As shown by the bill of evidence, the material facts were that Day, as town marshal, had arrested Frisby for disorderly conduct in the forenoon of the day of the homicide, but released him upon his promise to go home and behave himself. Frisby then went home, but returned to the town in the afternoon, and on the way told a witness, who testified in appellant's behalf on the trial, that he had submitted to arrest that morning because he did not then have his pistol, but, having secured it, he would not again submit to arrest. In the afternoon he fired his pistol on a street of the town in view of and about 100 yards from the marshal, Day, and the chairman of the town council. The latter, claiming authority under the law to act as judge, ex officio, of the police court in the absence of the regular judge, who, on that occasion, was out of town, ordered the marshal, Day, to immediately arrest Frisby, which he proceeded to do, after summoning appellant and Patrick as a posse comitatus to assist him. Upon getting within a few yards of Frisby, and before attempting his arrest, Day and his posse were ordered by Frisby, pistol in hand, to stop, which they did. Day then informed Frisby if he would go home he would not arrest him. Frisby, instead of promising to go home, told appellant, who was a little in advance of the others of his party, to go back, which he started to do, accompanied by Day and Patrick. At that juncture, Frisby, who was in the street with one Keeton, made some exclamation, threw his hat on the ground, and fired his pistol twice in rapid succession. The first shot, though in the direction of Day and his posse, seemed to have been fired by Frisby in the ground, but the evidence strongly conduced to prove that the second shot was fired at the marshal and his posse, all of whom then began shooting at Frisby, who continued to shoot at them. As the shooting progressed, the marshal and his posse advanced upon Frisby, who ran behind a building, followed by appellant; Day and Patrick going on the other side of the building to intercept Frisby. After getting behind the building, Frisby "broke" his pistol, apparently to rid the cylinder of the exploded cartridges and reload it. A bystander, observing this act, called to appellant to run upon and capture Frisby before he could reload his pistol. Appellant attempted to take his advice, but Frisby ran to a fence as if to climb over it and escape through an adjoining lot, seeing which, appellant, as some of the witnesses testified, shot at him twice. About the same time Day and Patrick, who had entered the lot from the other side of the building, also shot at Frisby. When the latter reached the fence he fell, mortally wounded, and in a few minutes died.

Appellant admitted on the witness stand that he shot at Frisby more than once before he ran behind the building, but denied that he fired upon him afterwards. This denial was supported by at least two witnesses introduced in his behalf. Upon this point, however, the evidence was conflicting, for several bystanders testified that appellant did shoot at Frisby after he followed him behind the building, and it is argued in the brief of the Assistant Attorney General that Frisby was shot and killed by appellant, though it is equally apparent from the evidence that both Day and Patrick shot at him after he ran behind the building. Counsel's contention that appellant fired the fatal shots rests upon the theory that they were received by deceased in the back, and that his back was toward appellant, when, as some of the witnesses stated, the latter shot at him behind the building. There was, however, one fact established by the evidence that apparently militates against this theory, which is that the wounds upon the body of the deceased seemed to have been made by bullets from a 38 pistol, which was the caliber of the pistols used by Day and Patrick, respectively; whereas, the two pistols used by appellant on that occasion--one in each hand--were of 44 and 45 caliber, respectively.

While there can be no doubt from the evidence that appellant, Day, and Patrick each shot at deceased, it is difficult to determine whether the fatal shots were fired by Day and Patrick, or one of them, or whether they were fired by appellant. It is, however, insisted for appellant that he was only a principal in the second degree in committing the homicide, and, in view of the acquittal of Day, named in the indictment as the slayer of Frisby, the jury should have been peremptorily instructed by the trial judge to acquit appellant. This contention is unsound. No better statement of the law on the subject here presented can be announced than is found in Roberson's Kentucky Criminal Law, vol. 1, § 78, wherein it is said: "The distinction between principals in the first and second degree is of no practical importance. All the offenders may be included in the same indictment, which may charge the offense as done generally by all, or specially as done by one and abetted by the rest. Thus, if two or more persons are indicted as the actual perpetrators of a crime, they may be convicted as principals in the first degree, although some of them were merely aiders and abettors. So, when two persons are jointly inindicted, the one as principal and the other as aider and abettor, the one charged as principal may be found guilty of aiding and abetting, and the one charged as aider and abettor may be found guilty as principal. This is for the reason that each is the agent and instrument of the other. There is in law but one crime. Hence each, although performing different parts, is, in law, a principal, and is criminally responsible for the act of the other, as well as his own act. The aider and abettor may be indicted alone; but, in that case, the indictment must disclose the name of the principal, and give a description of his acts, because the aider and abettor, being a principal of the second degree, cannot be guilty of crime unless the principal of the first degree actually perpetrated the act. Hence, to make a man a principal in the second degree, there must be a principal in the first degree to perpetrate the main fact. One cannot, therefore, be aider and abettor of himself. Two or more persons must act. But if the party indicted as aider and abettor was the perpetrator of the crime, if his act completed it, then, of course, the rule that the indictment must include the principal actor jointly, or disclose who he is, together with a description of his acts, does not apply. The principal in the second degree may be tried before the principal in the first degree. So, the party charged as principal in the second degree may be convicted, though the party charged as principal in the first degree is acquitted."

We find that the doctrine announced by Roberson has been approved by this court in numerous cases. One of the best considered of these is Benge v. Commonwealth, 92 Ky. 1, 17 S.W 146. The appellant Benge, Jere Hampton, and others were indicted for the murder of Joseph Bowling by cutting him with a knife; Hampton being charged in the indictment as the perpetrator of the deed, and appellant Benge and the other defendants as aiders and abettors. The facts stated in the opinion are strikingly like those of the case at bar, for they conduced to prove that Benge, though charged as aider and abettor, actually did the cutting that caused Bowling's death. It was contended by Benge that, inasmuch as he was only indicted as an aider and abettor, the trial court erred in instructing the jury that he might be convicted as an actual perpetrator of the deed. The court, speaking through Judge Bennett, in passing on this objection, said: "This contention is a mistaken view of the law. * * * There is but the one crime charged--that of murder by all the defendants. It is true the prosecution goes upon the theory that the appellant and Jere Hampton committed different parts of the crime; the appellant committing a dependent part, which was not criminal unless the deed itself was actually perpetrated. But, nevertheless, there is in law but one crime charged, and the separate parts performed by each constitute, in legal contemplation, the joint act of all. Each is the agent and instrument of the other. Hence each, although performing different parts, the aider and abettor being a dependent part, is, in law, a principal, and is criminally responsible for the other as well as for his own act. The one charged as...