Skillian v. Commonwealth

• Decision Date: 16 January 1925
• Citation: 206 Ky. 586,268 S.W. 299
• Parties: SKILLIAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

268 S.W. 299

206 Ky. 586

SKILLIAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 16, 1925

Appeal from Circuit Court, McCracken County.

Emma Skillian was convicted of conspiracy to murder, and she appeals. Reversed, with directions.

Reed &amp Burns, of Paducah, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

TURNER C.

Appellant on her separate trial was convicted and sentenced to life imprisonment under an indictment charging her and Henrietta Wagner with entering into a conspiracy to murder Rosetta Warren, and that as a result of such conspiracy Henrietta Wagner placed dynamite or other high explosive under or near the house where Rosetta Warren was sleeping, and caused the same to explode, whereby she was killed.

The record discloses that Henrietta Wagner had been wildly infatuated with Alf Warren, the husband of decedent, Rosetta Warren, almost since his childhood; that she claimed he had been her lover since he was 10 years of age, and it is disclosed that in his youth for some years he had lived at her home, she at the time being a married woman. After so long a time, however, Alf Warren married Rosetta, who was at the time a widow with 3 small children. They lived together for some time and had no children, but at the time of the explosion she was just ready to present him with a child, and except for it would have done so in a day or two.

After their marriage the Wagner woman appears to have been almost insanely jealous, and to have nursed her real or fancied injuries until she determined to do one or both of them violent bodily injury. She appears never to have abandoned the idea of reclaiming Alf Warren for her own, and when she heard of the approaching event in his family she became obsessed with the conviction that if his wife ever bore him that child her chance to reclaim him would be gone, and she therefore determined to destroy the mother and incidentally the child before its birth.

The evidence discloses that several times after the marriage of Warren, when the parties met, there were violent quarrels and personal encounters, either between the Wagner woman and one of them, or between her and both of them; that upon one occasion she laid in wait and undertook to shoot Alf Warren and it is inferentially, at least, shown that she burned or caused to be burned the lumber which Alf Warren had assembled for the erection of a home for his family. The record discloses that the Wagner woman upon her separate trial under this indictment was found guilty, and is now serving a term of life imprisonment.

On the separate trial of appellant a number of things occurred which are complained of as reversible errors, but, as the judgment must be reversed because of error in the instructions, it will be assumed that such errors complained of will not occur on another trial, and they will not be noticed. This opinion will therefore be confined to a consideration of the two alleged vital errors, viz.: That the evidence did not make out a case of prima facie conspiracy so as to make competent certain threats and statements of Henrietta Wagner made outside the presence of appellant, and, second, that if such statements so made by Henrietta Wagner were competent, the court erred in failing to instruct the jury under what circumstances it might consider such statements of Henrietta Wagner made outside the presence of appellant as evidence against the latter.

The evidence discloses that appellant and Henrietta Wagner were very intimate friends and associates, and that at the time of the explosion had been for some years; that they had been often seen together on the streets in public places, many times during the previous few months, and that they were each frequent visitors to the home of the other; one lived a few squares from the Warren home in one direction, and the other a few squares from it in another; they often passed that home together and were seen peering...