Stacey v. Commonwealth

• Court: Court of Appeals of Kentucky
• Writing for the Court: HURT, J.
• Citation: 225 S.W. 37,189 Ky. 402
• Parties: STACEY ET AL. v. COMMONWEALTH.
• Decision Date: 26 October 1920

225 S.W. 37

189 Ky. 402

STACEY ET AL.
v.
COMMONWEALTH.

Court of Appeals of Kentucky.

October 26, 1920

Appeal from Circuit Court, Perry County.

Angeline Stacey and another were convicted of willful murder, and appeal. Affirmed. [225 S.W. 38]

Eversole & Turner, of Hazard, for appellants.

Chas. I. Dawson, Atty. Gen., and W. P. Hughes, of Frankfort, for the Commonwealth. [225 S.W. 39]

HURT, J.

The appellants, Angeline Stacey and Shade Stacey, appeal from the judgment of the Perry circuit court, wherein they were found by the verdict of the jury and adjudged by the court to be guilty of the crime of willful murder, which was committed, as alleged, by the killing of one Harrison Banks. The indictment accused the appellants, together with one Dewey Stacey, with being jointly guilty of the crime. It contained two counts, in the first of which Angeline, Shade, and Dewey Stacey were accused of having conspired for the purpose of killing Banks, and in pursuance of the conspiracy they jointly shot and killed him. In the second count, the manner in which they were accused of the murder was that Shade Stacey shot and killed Banks, and that Angeline and Dewey were present at the time and place of the killing, and aided and abetted Shade Stacey in the killing of him. For some reason, which does not appear from the record, Dewey Stacey was not put upon trial with Angeline and Shade, although he was present and testified as a witness at the trial.

The errors which the appellants complain of are as follows:

First. The court did not instruct the jury upon the entire law of the case.

Second. The court erred in the instructions given to the jury, to the prejudice of the substantial rights of Angeline Stacey.

Third. The court erred in admitting incompetent evidence against them over their objection.

Fourth. The court erred in excluding competent evidence in their behalf, and in failing to admonish the jury as to the purpose for which it was permitted to consider certain evidence.

These criticisms of the fairness of the trial will be considered in their order, but, that an understanding may be had of the questions to be determined, a condensed statement of the facts, which the evidence conduced to prove, will be given. Angeline Stacey is the mother of Shade and Dewey, each of whom are from 19 to 20 years of age. In the spring of the year 1919, Angeline, with her sons, was living in a coal-mining camp, where they became acquainted with the deceased, Banks, who owned and resided upon a farm. Angeline, desiring to move from the camp, applied to Banks for the rent of land for cultivation and he answered that he could furnish her the land, but there was not a dwelling house upon it in which she could reside; but she replied that she had a tent, and that she would live in that. Shortly thereafter the tent was moved upon the premises of Banks, and the Staceys were permitted to cultivate about three acres of land in a field called the "orchard," and probably other small pieces of land. They cleaned up the land in the "orchard" and cultivated it in corn, assisted to some extent by Banks and his two nephews, who resided with him, during the following season. In the following autumn, an unfriendly state of feeling arose between the Staceys and Banks. The latter accused Dewey and Shade of having invaded his watermelon "patch," and with having destroyed and stolen his melons, and they were confined in jail for a time at the instigation of Banks; but it does not clearly appear whether it was upon the charge of destroying his watermelon field, or some other misdoing. Banks also accused them of having stolen money from him. Angeline accused Banks of having come to her tent, twice in one day and once at night, with a club in his hand, and with having threatened, abused, and menaced her, and ordered her to remove from his premises.

About two weeks before the homicide, Shade and Dewey, according to evidence of the two young nephews of Banks, who resided with him, were accused by Banks of being in his orchard and stealing his apples; but according to the statements of the Staceys they were only passing through the orchard, on their way to their corn field, for the purpose of gathering beans. Banks shouted at them, and directly taking a shotgun, and while standing in his yard, discharged the gun in the direction of the orchard, and Dewey and Shade claimed that he shot at them, and the shots fell around them; two of them striking Dewey's arm. Banks then went from his dwelling, in the direction of the orchard, with his gun, but stopped when he arrived at the railroad track and sat down. Shade and Dewey called to Angeline to come and bring her pistol. She immediately responded and with pistol in hand came to where Banks was sitting, and, presenting the pistol, cursed him severely and threatened him with death. At the same time Shade and Dewey were loudly threatening Banks, and daring him to approach the place where they were. Upon the suggestion of a neighbor, Banks retired into his dwelling and left the field to the Staceys. Upon other occasions, and at different times, and before other persons, Angeline threatened to kill Banks, sometimes without conditions and at other times in certain events. While in jail Shade and Dewey, one or the other, but in the presence of the other, said that they would kill Banks when they got out of jail; and after getting out of jail, upon another occasion, one or the other of them, in the presence of the other, made the same declaration. Banks claimed that he was to have a portion of the corn crop, which was grown by the Staceys, for the rent of the land, while they claimed that the entire crop was theirs, and that under the contract for its cultivation they were to [225 S.W. 40] have the entire crop for cleaning up the land.

The evidence for the commonwealth conduced to prove that, on the day before the homicide, Angeline sent a message to Banks to come and gather the corn, and to haul her a load and one for himself, and at the same time admitted that he was to have one-half of it, and in response to the message, on the following morning, he harnessed his team to the wagon and sent it to the field, by one of his nephews, who lived with him, while he walked another route, and, as stated by Shade, came to where he was, and said to him to tell Angeline that if she intended for him to have any of the corn to come on to the field, which message he delivered to Angeline. When the wagon arrived at the place where the corn was, Banks waited a few moments, as though waiting for Angeline, and then said to the two boys with him that they would go to putting corn into the wagon. According to the evidence for the prosecution, when he had gotten a...