Southerland v. Com.
| Citation | 288 S.W. 1051,217 Ky. 94 |
| Parties | SOUTHERLAND ET AL. v. COMMONWEALTH. |
| Decision Date | 10 December 1926 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Laurel County.
Dan Southerland and others were convicted of robbery, and they appeal. Reversed, and defendants awarded new trial.
Reams & Johnson, of London, and William Moore, of Peoples, for appellants.
Frank E. Daugherty, Atty. Gen., for the Commonwealth.
The appellants, hereinafter referred to as the defendants, were convicted of robbery, and each one sentenced to 5 years' confinement in the penitentiary.
On Sunday evening, October 18, 1925, these three defendants attended Hazelgreen Church in Laurel county, but did not go into the meeting house. William Prewitt brought some members of his family to the church, but he did not go in himself. The defendants claim to have received information that some of the boys were going to run them away, and they had started home, when Prewitt walked up behind them. Prewitt claims to have started to his car and was using his flash light to light his way. Defendants claim he turned this flash light in the face of one of them, and that one (Southerland) asked him to turn it out. Prewitt said he would shine his light where he d____ pleased, and applied an insulting epithet to Southcrland, whereupon Southerland struck Prewitt, and those two engaged in a fight, in the course of which they fell to the ground with Prewitt on top. Prewitt had a .32 Colt automatic pistol, worth about $15, which defendants claim he attempted to draw, whereupon one of them took it away from him. Prewitt says one of the defendants took his pistol, but denies that he had tried to draw it. The men were soon separated. This fight had occurred about 30 feet from the church. Prewitt and the three defendants walked on to Prewitt's car, which was standing on the pike about 65 yards from the scene of the fight. At the car Prewitt asked the defendants to return his pistol, but they did not do so then, but asked him his name; he told them, and they told him they would give him back his pistol. The defendants say they were afraid to return Prewitt's pistol to him then, as they regarded him as still angry, and they were afraid he would shoot one of them if they did.
They left Prewitt and went to East Bernstadt, where, in less than an hour, they were arrested as they sat in a restaurant eating a lunch. Prewitt's pistol was found on Cody Lawson, also a flash light, claimed by both Prewitt and Lawson. There is no proof of its value, and, while Prewitt claimed it, he said he could not swear to it. Lawson claimed this flash light, and said he had owned it for about a year. He had dropped his flash light at the time of the fight, and picked it up after the fight was over. There is no positive identification of the flash light by either of these men. We cannot regard it as throwing any light on this case, and it should have been eliminated. Prewitt testified that he had some money, but that the defendants made no effort to take it. Aside from Prewitt's pistol, these defendants were unarmed. The three men were jointly indicted for robbery. The three instructions given correctly submitted the commonwealth's theory of the case. The defendants have cited the case of Terhune v. Com., 144 Ky. 370, 138 S.W. 274, and attacked the second instruction with great vigor. That instruction is:
"If you shall believe from the evidence beyond a reasonable doubt that the defendant Dan Southerland or Cody Lawson or James Vaughn, or either of them, in Laurel county, Ky. and before the finding of this indictment, and on the occasion mentioned in the evidence, willfully and feloniously by force and violence, and by putting the witness William Prewitt in fear of bodily harm, took or carried away from the person and the actual presence of the witness Prewitt the pistol and flash light mentioned in the evidence, against the will and without the consent of the said Prewitt, and with the felonious and fraudulent intention to convert the same to their own use and to permanently deprive the said Prewitt of his property therein, and shall further believe from the evidence beyond a reasonable doubt that the defendant Dan Southerland or Cody Lawson or James Vaughn was then and there present and near enough so to do and did aid, assist, abet, advise, counsel, or command any one of the other defendants to so take and carry away from the person and actual presence of the witness Prewitt the property mentioned in the evidence, against his will and without his consent, by force and violence, and by...
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