Roberts, Bevins and McCoy v. Commonwealth
| Decision Date | 05 February 1926 |
| Citation | 212 Ky. 791 |
| Parties | Garcie and Floyd Roberts, Bevins and McCoy v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Homicide — Peremptory Instruction should Have Been Given for Defendant. — In prosecution of four defendants for murder, a peremptory instruction should have been given for one defendant because of lack of evidence to connect him with the crime.
2. Homicide — Commonwealth Must Prove Accused was Aider and Abetter by Some Testimony, though it May be Circumstantial. — In prosecution of four defendants for murder, it devolved upon Commonwealth to prove its case against one of such defendants as an aider and abetter by some testimony, though it may do so by circumstantial evidence.
3. Homicide — Peremptory Instruction Should Have Been Given for Defendant who was Not Shown to Have Encouraged Principals by Overt Act or Expression of Advocacy or Sympathy. — In murder trial a peremptory instruction should have been given for a defendant who was present at commission of offense but who was not shown to have entered into any prior agreement with codefendants or to have encouraged principals in commission of homicide by some overt act or expression of advocacy or sympathy.
4. Criminal Law — For Jury to Say which Set of Witnesses They Believed. — In murder trial, where defense by two defendants was an alibi, it was for jury to determine which set of witnesses they believed.
5. Homicide — Evidence Held to Support Conviction for Voluntary Manslaughter. — In prosecution against four defendants for murder, evidence held to support conviction for voluntary manslaughter as against two defendants.
6. Criminal Law — Affidavit for New Trial Should Set up Facts Showing Why Newly Discovered Evidence Could Not Have Previously Been Discovered. — In prosecution for murder, affidavit to effect that defendants were unable to discover newly discovered evidence before trial by exercise of due diligence, stated merely a conclusion, and such affidavit should have set up facts showing why defendants could not have previously discovered such evidence.
7. Criminal Law — When New Trial on Ground of Newly Discovered Evidence Authorized, Stated. — To authorize a new trial on ground of newly discovered evidence, such evidence must be such as to satisfy court that if heard by jury along with other evidence a different verdict would have been returned.
8. Criminal Law — Newly Discovered Evidence Merely Corroborative and Cumulative Will Not Warrant New Trial. — If newly discovered testimony be merely corroborative and cumulative, it will not warrant a new trial, especially if it be not of such controlling character as would probably change verdict.
9. Criminal Law — Newly Discovered Evidence Held Not to Authorize Granting of New Trial. — In prosecution for murder affidavits as to seeing defendants on night of homicide held not to authorize granting of new trial for newly discovered evidence, as it was merely cumulative and matters alleged could have been true and yet defendants could have committed homicide, so that it would not necessarily have changed the verdict.
10. Criminal Law — Instruction that Defendants Should be Found Guilty if They Willfully Shot Deceased Not Erroneous, where Supplemented by Instructions as to Malice Aforethought. — In murder prosecution, instruction, if defendants not in necessary or apparently necessary self-defense willfully shot deceased they should be found guilty, held not erroneous in omitting words "maliciously and with malice aforethought" after word "willfully," where court subsequently supplied such element by instructing that defendants should be found guilty of willful murder if act was done with "malice aforethought."
Appeal from Pike Circuit Court.
STATON & KEESEE for appellants.
FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.
Reversing as to appellants, Bevins and McCoy, and affirming as to appellants, Garcie and Floyd Roberts.
The four appellants herein were indicted for the murder of Ora Kimble and on their trial were found guilty of voluntary manslaughter and each sentenced to twenty-one years in the penitentiary. To properly get at their contentions on this appeal it will be necessary to summarize the testimony of each witness, at least so far as that of the Commonwealth is concerned.
Freeland Staton testified, in substance, that on the night of January 31, 1925, he and Ora Kimble, who lived near Stringtown in Pike county, Kentucky, went to visit their kinsman, John McCoy, who lived nearby. On their way two men, one of whom he recognized as the appellant, Floyd Roberts, but the other of whom he could not identify, came out of a hollow. These two men followed them down the road. After visiting for about an hour at the home of John McCoy, he and Kimble started home. They had gotten up the road some little distance when two men came up to them. These were the appellant, Floyd Roberts, and another man whom he did not recognize. Floyd halted them and when Kimble stepped towards Floyd he went for his gun. At this instant two other men came up. These were the appellants, Landon Bevins and Garcie Roberts. The latter commanded Kimble to stop and then made for his gun. At this, the witness Staton went up the road about two hundred feet away from the crowd and turned around. Just as he did so the shooting started and at about the third shot he heard Kimble say: "Lord have mercy — come to me, buddy." Instead of doing so the witness fled up the road from the scene. He also says that Kimble had a pistol but it had but one cartridge in it. It may be said in passing that one of appellants' witnesses testified that this gun was found at the scene of the shooting with one cartridge in it and that unexploded. Kimble was shot several times in the back. The witness, John McCoy, says that he was at his home and just after Staton and Kimble left he heard some shots fired out in the road; that he went to the door of his house, located some little distance away from the public road, and saw four men going down the road, and that he heard them laughing and talking. When asked if he knew who they were, he said he thought he did but he would not swear who they were. He further says that there were about six shots fired, and then three shots, the last shots being different in sound from the first shots, and seemed to have come from a high-powered gun, whereas the first shots seemed to have come from a pistol. The witness, Lizzie McCoy, wife of John McCoy, says she was at home; that she heard a great many shots in the road; that she got up and went to the door and saw four men passing down the road; that she recognized the voices of Floyd and Garcie Roberts, and there were two other men with them. When asked how many of them she knew, she said: "Two of them" (obviously the two referred to) "but there were four of them." She also says that she heard Floyd say: "I did not think about killing the G____ d____ s____ of a b____" and then Garcie say: "I knew that you had killed him when he said, `Lord have mercy — come to me, buddy.'" The two witnesses, Ezra Phillips and Rolin McCoy, testify only that they saw Garcie Roberts and Floyd Roberts walking behind Staton and Kimble when they were on their way to the McCoy house. There was other testimony from these witnesses and also from the witness, Kennis Staton, in rebuttal that there was ill feeling between Kimble and the Roberts boys. The defense testimony was an alibi for all four men. The Roberts boys...
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