Tucker v. Commonwealth

Decision Date25 October 1911
Citation140 S.W. 73,145 Ky. 84
PartiesTUCKER v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Graves County.

Fannie Tucker was convicted of murder, and she appeals. Reversed.

W. J Webb, for appellant.

James Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

MILLER J.

On June 20, 1910, Elias Burgess shot and killed Finis Tucker, the husband of the appellant, Fannie Tucker. Burgess was indicted and tried for murder, and was convicted of manslaughter on March 11, 1911, and by way of punishment was given a term of eight years in the penitentiary. Subsequently, on March 24 1911, the appellant, Fannie Tucker, was indicted for the murder of her husband, Finis Tucker, and was convicted, and also given a term of eight years in the penitentiary. She appeals, and assigns three principal grounds for a reversal.

1. She contends that, since Burgess had been previously convicted of manslaughter for the killing of Finis Tucker, she should have been tried upon the charge of manslaughter only, or as an accessory to the crime of manslaughter, and not upon the charge of murder. In view of the repeated decisions of this court, there is no merit in this contention. The indictment against her is in two separate and distinct counts. The first count charges appellant and Burgess jointly with the murder of Finis Tucker by shooting him with a pistol; while the second count charges that Burgess did the shooting which killed Finis Tucker, and that Fannie Tucker was present aiding, assisting, and abetting therein.

Section 1128 of the Kentucky Statutes (Russell's St. § 3155) reads as follows: "In all felonies, accessories before the fact shall be liable to the same punishment as principals, and may be prosecuted jointly with principals, or severally, though the principals be not taken or tried unless otherwise provided in this chapter." This section makes a radical change in the common law in the respect that an accessory may be tried and convicted, although the principal be not taken or tried. In construing this section in Commonwealth v. Hargis, 124 Ky. 363, 99 S.W. 350 30 Ky. Law Rep. 513, we said: "It may safely be declared as the law in this commonwealth that the principal actor, the aider and abettor, and the accessory before the fact, are all principals in the first degree, and equally guilty, and may be so accused and convicted."

And in referring to section 126 of the Criminal Code of Practice, providing that an indictment, except in certain specific cases, must charge but one offense, this court used the following language in the Hargis Case just quoted from: "Under the latter section, although the indictment can charge only one offense, with the exceptions saved, the pleader is at liberty to describe the offense charged in as many different ways as may be necessary to present his case, keeping always in mind that the description of each mode and means of its commitment must be sufficient to give the accused full information of the crime charged, so that he may be prepared to meet it. In harmony with this rule of law it has been announced in a number of cases that in the same indictment a person may in one count be charged as a principal actor, and in another with being present aiding and abetting in its commission." Cases cited.

The cases of Reed v. Commonwealth, 125 Ky. 126, 100 S.W. 856, 30 Ky. Law Rep. 1212, and Terhune v. Commonwealth, 144 Ky. 370, 138 S.W. 274, contain the authorities sustaining the validity of this indictment. It is clear, therefore, that the indictment was properly drawn, and in trying appellant upon the charge set forth therein the court followed the well-established procedure of this state.

2. The most substantial character of evidence against the appellant consisted of threats she had previously made of her desire or intention to kill her husband. It is insisted that threats of this character are not admissible upon a charge of manslaughter; and Commonwealth v. Matthews, 89 Ky. 292, 12 S.W. 333, 11 Ky. Law Rep. 505, is cited to sustain that proposition. This contention is based upon appellant's former contention that she should have been tried upon a charge of manslaughter only; and, that contention having been found to be untenable, and that she was properly tried upon a charge of murder, it follows that proof of the threats was properly admitted.

3. The court gave the usual instruction as to self-defense upon the part of Burgess in protecting himself, but did not extend the instruction as to self-defense by Burgess in defense of appellant. There is no controversy over the main facts as to the killing. No one was present, except appellant, her husband, and Burgess; and Burgess has not testified. Burgess is the cousin of appellant, and lived in St. Louis. He had been in the habit of visiting the Tuckers in Mayfield about once a year for the past five years. At the time of the killing he had been at the home of the Tuckers for some six weeks. Tucker was killed in his home shortly after midnight. A lodge of which Tucker was a member had given an entertainment that night, and shortly after supper Tucker, who took part in the entertainment, went alone to the lodge, and appellant and Burgess went later. They spent the evening at the entertainment, and started home about half past 12. Burgess and appellant arrived at the house about 45 minutes before Tucker came in.

Appellant was the only eyewitness who testified upon the trial. She gave the following account as to what occurred: "Well when h...

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29 cases
  • Allen v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • June 22, 1917
    ... ... civil case, and, if the verdict of the jury is palpably or ... flagrantly against the evidence, to order a reversal ... therefor. Wilson v. Commonwealth, 140 Ky. 36, 130 ... S.W. 793; Blanton v. Commonwealth, 147 Ky. 817, 146 ... S.W. 10; Tucker v. Commonwealth, 145 Ky. 84, 140 ... S.W. 75. The evidence is conflicting as to appellant's ... participation in the conspiracy, but the evidence is ... conclusive that a conspiracy existed, and that the tobacco ... barns, including the Wright-Allen barn, were burned in ... pursuance of that ... ...
  • Cottrell v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • December 10, 1937
    ... ... whole law of the case, whether so requested or not, or, as ... this has been stated by us, "it is a well-settled rule ... that instructions applicable to every state of case deducible ... from the testimony, or supported by it to any extent, should ... be given." Tucker v. Commonwealth, 145 Ky. 84, ... 140 S.W. 73, 74. Further, where the evidence is entirely ... circumstantial, the court should give the whole law ... applicable to any state of case that might have existed, but, ... where there is evidence (as here there is, the appellant, an ... eyewitness ... ...
  • Luttrell v. Commonwealth
    • United States
    • Supreme Court of Kentucky
    • October 13, 1933
    ...judgment was reversed for an error in the instructions but not for the alleged error of which Luttrell is complaining. Tucker v. Com., 145 Ky. 84, 140 S.W. 73, is like the Mickey Case. The evidence in this case was stronger in establishing defendant's guilt than was true in any of the cited......
  • Vaughn v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • July 1, 1924
    ... ...          It is a ... well settled rule of law that instructions applicable to ... every state of case deducible from the testimony or supported ... by it to any extent should be given. Greer v ... Commonwealth, 111 Ky. 93, 63 S.W. 443, 23 Ky. Law Rep ... 489; Tucker v. Commonwealth, 145 Ky. 84, 140 S.W ... 73. The rule is thus stated in Bowlin v ... Commonwealth, 94 Ky. 391, 22 S.W. 543, 15 Ky. Law Rep ...          "In ... fact it is not the province of the lower court, any more ... than of this, to weigh evidence for the purpose of ... ...
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