Tincher v. Commonwealth

• Decision Date: 19 January 1934
• Citation: 69 S.W.2d 750,253 Ky. 623
• Parties: TINCHER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

69 S.W.2d 750

253 Ky. 623

TINCHER v. COMMONWEALTH.

Court of Appeals of Kentucky

January 19, 1934

Rehearing Denied April 20, 1934.

Appeal from Circuit Court, Scott County.

George W. (Stribby) Tincher was convicted of murder, and he appeals.

Affirmed.

T. K Shuff, Jr., and Jesse McKnight, both of Georgetown, and George R. Smith, of Lexington, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

THOMAS Justice.

The grand jury of Scott county jointly indicted appellant, George W. Tincher, and Francis Glenday, Isaac Swanagan, Jimmie Tincher, and Lonnie Harvey, accusing them of the crime of willfully murdering Ben Keenon. The first count in the indictment charged each of the accused as a principal in the crime. The second one charged that Francis Glenday fired the shot resulting in Keenon's death, and that the other defendants, including appellant, were present aiding and abetting; while the third one charged a conspiracy by the five conspirators to rob a bank located in Stamping Ground in Scott county, and pursuant thereto they did rob it, and that during the progress of the robbery, "and in pursuance of said conspiracy to rob said bank and in pursuance of said robbery the shot was fired by Glenday and that appellant was present aiding, abetting, encouraging and advising him to do so." The indictment embraced the necessary terms to constitute murder, such as "malice aforethought," etc.

Appellant's demurrer thereto was overruled, and on his motion he was given a separate trial at which he was convicted and punished by death. From the verdict and the judgment thereon he prosecutes this appeal, and by his counsel urges two grounds for reversal, which are: (1) Error in overruling appellant's (who will hereinafter be referred to as defendant) demurrer to the indictment; and (2) error in giving and refusing instructions. The latter one is subdivided in briefs into four heads, but they all relate to and are embraced in, that general ground. We will dispose of the two general grounds in the order named.

1. In the argument of counsel in support of ground 1, it is contended that the indictment is duplicitous because in its accusatory part it prefers only the charge of murder, while in its descriptive part in some of its counts it not only charges a conspiracy which counsel seem to conclude is a distinct offense, but it also sets out the object and purposes of the conspiracy, which was to rob the bank, and which counsel seem to be convinced is a distinct offense. However, it is our conclusion that the mere statement of the contention is sufficient to refute the argument. The facts were that the conspiracy was formed to perpetrate the robbery and which it was eminently proper should be stated in the indictment, as it was also proper that the killing should be charged to have resulted from some act committed in pursuance to the execution of that conspiracy. In counsels' brief they positively state that there was no such allegation in the indictment, but the above quotation therefrom absolutely contradicts that position, since it is expressly stated therein in more than one place that the killing of Keenon by Glenday was not only during the progress of the robbery, but "in pursuance thereof," and, in substance, a part of it. The testimony conclusively shows, and which was admitted and confessed by defendant while on the stand, that the conspirators (defendants in the indictment) met some days before the robbery, which was on the afternoon of November 28, 1932, and determined to rob the bank. They stole an automobile for the purpose of familiarizing themselves with the situation beforehand, and for a like purpose with reference to another bank that they had in mind to also rob. Defendant also admitted that he, Glenday, and Swanagan robbed a bank at Morefield, Ky. some few days before conspiring to rob the Stamping Ground bank. In other words, the testimony shows, without any objection thereto (and which was admitted by defendant in his testimony), that the crowd, with perhaps the exception of Willie Tincher and Lonnie Harvey, had been engaged in the business of bank robbery. Defendant also confessed or admitted that some time about the 1st of August of the same year he finished serving a term in the penitentiary in California, but he did not state for what offense.

The plan of the robbery was carefully prepared, and all of the testimony in the case, except that of defendant, was to the effect that he was the moving spirit and the dominant figure in all of the arrangements and in their punctilious execution, even to providing for the pistols and where each of the conspirators should be located while the robbery was going on; and it was he who first entered the bank with pistol in hand and demanded the holding up of the occupants' hands and the turning over to him of the money. It was he who gathered the money and put it into the receptacle while all of the inmates were holding up their hands, including a customer, except Keenon, who was sitting at his desk making some sort of calculation. While defendant was so engaged, with Keenon only a short distance from him and who had not held up his hands, Glenday, pursuant to instructions from defendant, was standing in the back door opening into the space behind the counter in the bank when he shot Keenon through one arm near the shoulder, severing a small vein, from which he bled profusely. Immediately thereafter the two conspirators who had entered the bank (two of the others being in the automobile at its front, and the fifth one standing in the entrance door), all got into the automobile with their loot and drove away. They came towards Frankfort, and later divided the loot between them, defendant making the division. They then scattered, and later met in Covington, Ky. but, before the robbery, the first automobile stolen by them was wrecked or in some manner became unfit for use, and they conscripted another one by hiring a taxicab driver to take them out of Covington, and subsequently putting him out and taking the car away from him, and it was the latter one they employed in perpetrating the robbery. During the course of their preparation for the robbery, they likewise feloniously took some Kentucky automobile plates from some one along the route and put them on the taxicab which seems to have borne...