Ringstaff v. Com.

• Decision Date: 28 January 1955
• Citation: 275 S.W.2d 946
• Parties: Charles RINGSTAFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 946

275 S.W.2d 946

Charles RINGSTAFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 28, 1955.

Rehearing Denied March 25, 1955.

Albert Karmes, Paducah, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., Roy N. Vance, Commonwealth Atty., Paducah, for appellee.

MONTGOMERY, Justice.

Charles Ringstaff, J. B. Riley, and James Stuart were indicted jointly for the offense of unlawfully, feloniously, and maliciously assaulting another with an offensive weapon or other instrument, with intent to rob. The defendants Stuart and Riley filed a motion that each be tried separately, which motion was sustained, and the Commonwealth elected to try Charles Ringstaff first. A verdict was returned fixing his punishment at twenty-one years in the penitentiary.

On this appeal, Ringstaff is urging that the court erred: (1) in giving an instruction on assault with intent to rob; (2) in not giving an assault and battery instruction; (3) in failing to give a peremptory instruction, there being no proof as to which was the aggressor; (4) in failing to instruct on self-defense; (5) in admitting incompetent evidence; (6) in not instructing the jury that if they believed the witnesses were accomplices, they would find the defendant not guilty; and (7) the instructions given were otherwise erroneous.

On January 12, 1954, at about 7:00 p. m., Charles Ringstaff, James Stuart, J. P. Riley, and John Delk met at Hattie's Tavern on North Third Street in Paducah, Kentucky, where they all drank beer for a couple of hours. Stuart had a loaded .32 revolver. During their stay there, Stuart gave Ringstaff his .32 revolver. Ringstaff then asked his companions to help him rob Meacham's Market on the outskirts of Paducah, but Stuart and Riley declined. There was no talk of robbing any other place or person. The boys then left Hattie's and went to the B & B Bar, another tavern, on South Third Street, where they stayed for twenty minutes, and Ringstaff again asked the boys to assist him in robbing Meacham's Market. They declined. While in the B & B Bar, Stuart asked Ringstaff for his revolver. Ringstaff refused. Thereupon, the boys left the B & B Bar and walked south on Third Street to Norton Street, where they turned west on Norton and stopped at an alley halfway between Third and Fourth. While standing there, they saw Henry Powell walking south on the east side of Fourth Street. The evidence is not clear as to what conversation, if any, was then had, but they separated, Ringstaff and Delk going through the alley which led to Husbands Street, and Stuart and Riley walking west on Norton Street and turning south on Fourth Street. Mr. Powell crossed from the east side of Fourth Street to the west side of Fourth. Stuart and Riley followed him across the street, whereupon Henry Powell recrossed the street. They then proceeded south on Fourth to where Powell was intercepted by Ringstaff and Delk, who had come through the alley to Husbands Street and west on Husbands to Fourth Street. Stuart and Riley, who were fifty to seventy-five feet behind Powell, saw Powell run to the middle of the street with a drawn revolver and call for help. At the same time, Ringstaff had his revolver drawn and pointed at Powell. Stuart and Riley separated and began to run in the opposite direction. Stuart testified that he was about three blocks away when he heard a number of shots fired. Riley testified that he was about a block away when he heard shots. The police arrived shortly after the shooting and found Ringstaff unconscious in the middle of Fourth Street, three hundred feet south of the intersection of Husbands and Fourth. He had been shot by a .32 caliber revolver, once through the left thumb, once across the abdomen, once in the back between the spine and right hip, which bullet lodged under his hip bone, and once in the back on the right side, the bullet ranging forward into his chest.

Powell had been shot in the abdomen, the bullet ranging upward, and had received a cut over his left eye. After the shooting, he went to Hougland's Foundry, where he was employed as a night watchman, and told John Grief what had happened. Powell then went to the hospital where he was treated for his wounds and was sent home. While at the hospital, he gave his gun to the police. Henry Powell died shortly before the trial from a cause unrelated to the wounds received. The only testimony which we have concerning the conversation and the actual shooting is from Stuart and Riley. Ringstaff did not testify, and it does not appear why John Delk was not indicted or did not testify.

The question whether Stuart and Riley were accomplices of appellant is of prime importance. The inferences to be drawn from the evidence on this point are conflicting.

The governing principles are stated in Roberson's Criminal Law, Section 209, page 301, as follows:

'Whether a witness is an accomplice in the commission of a crime is a question of fact to be ascertained from the evidence. And where the evidence is conflicting as to whether the witness participated in the commission of the crime, or where upon the evidence, as a...