Smiddy v. Commonwealth

• Decision Date: 02 October 1925
• Citation: 210 Ky. 359
• Parties: Smiddy v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

Page 359

210 Ky. 359

Smiddy v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 2, 1925.

1. Criminal Law — What Constitutes One an "Aider and Abettor" Stated. — To Constitute one an aider and abettor in the commission of crime he must be actually or constructively present when it is committed and participate in its commission by some act, word, or gesture, and though no prearranged agreement between accused and codefendants is essential, it is necessary that accused be guilty either of some overt act, advocacy, or encouragement, of principal in some way in commission of the unlawful act.

2. Homicide — Evidence as to Accused Aiding and Abetting Murder Required that Accused's Motion for Directed Verdict be Sustained. — In prosecution where accused was indicted for murder, and for aiding and abetting murder, where it appeared that accused was actually present when son killed deceased, but, at the time of and before the killing was unconscious as a result of being struck with an adz by deceased, and there was no evidence of aiding and abetting before so struck, held that, under the evidence, accused's motion for directed verdict of not guilty should have been sustained.

Appeal from Whitley Circuit Court.

STEPHENS & STEELY for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing.

Appellant and his two sons, Bill and Dave, were jointly indicted, charged with the murder of Gross. The first count in the indictment charged them jointly with the killing, while the second count charged that his son, Bill, had done the killing, and that appellant and Dave were then and there present and near enough to and did aid, abet, counsel and assist Bill in the commission of the crime.

There were two other counts, in one of which the three were charged with a conspiracy to bring about the death of Gross, and in the other they were charged with being in a conspiracy for the purpose of injuring and intimidating Croley, and while in pursuit of such conspiracy did kill and murder Gross.

On his separate trial appellant was convicted of manslaughter and sentenced to two years' imprisonment.

The father and two sons were each employes at the Cook mines in Whitley county, and were at work in adjoining rooms in the mine, the two brothers in one room and the father and another in the adjoining room. Appellant had been at work for the company operating the mine for some time, and in some way had become indebted to it. In November, 1924, he was working under some sort of an arrangement with the officers of the company by which a part of his earnings were to be applied to the extinguishment of his debt.

It is the custom at the mines for the miners' wives to go to the commissary and make purchases to be charged against their husband's earnings. On one Saturday in November, 1924, appellant's wife went to the commissary and was denied further credit, whereupon she wrote a note and sent it to the mine notifying her husband of that fact and telling him that he would have to quit work early so that he could go to Jellico, a few miles away, and get some supplies to last over the week-end. Appellant did not receive the note, but did get information as to its contents. He accordingly quit work a little earlier than the other miners and proceeded to walk out of the mine instead of going out on the coal cars, as was his custom.

Croley was the superintendent of the...