Whitt v. Commonwealth

• Decision Date: 21 October 1927
• Citation: 221 Ky. 490
• Parties: Whitt v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 490

Whitt v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 21, 1927.

1. Homicide. — In prosecution for murder, evidence held insufficient to justify submission of case to jury as to defendant for aiding and abetting, where it was not shown that he shared in any crim-intent or purpose which prompted another to fire fatal shot.

2. Criminal Law. — To constitute one an "aider and abettor" to crime of murder, he must not only be on ground, and by presence aid, encourage, or incite principal to commit crime, but he must share criminal intent and purpose of principal.

Appeal from Floyd Circuit Court.

CAUDILL & TACKETT for appellant.

FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing.

Appellant, Bill Stanley, and Lillie Smith were jointly charged with the murder of Robie Scott. A conspiracy is charged, and it is likewise charged that Stanley did the shooting resulting in Scott's death, and that the other two were present aiding and abetting. It was further charged that appellant did the shooting, and the other two were present aiding and abetting. On appellant's separate trial he was found guilty of manslaughter and sentenced to five years' imprisonment, and this appeal results.

The evidence discloses: That all the parties involved, and many of the witnesses, were residents of a mining town named Garrett, in Floyd county, and its vicinity. That appellant and the witness Moore, on a morning in February, 1926, went to a mine operation on Stone Coal creek near Garrett. They first went to the drift mouth of the mine, which is some little distance from the office maintained there, and across a railroad track from the office. There they met and talked to several parties; there being some little contradiction in the evidence as to whether Stanley and Smith were at the drift mouth at the time appellant was, the preponderance of the evidence tending to show they had not then arrived there. However that may be, if they arrived before appellant left there is no evidence of any private talk or communication between appellant and either of them before he left and went across the railroad track to the office. When appellant left there to go to the office, three other persons left with him, but neither Stanley nor Smith was among them.

Decedent, Robie Scott, was a deputy constable, and was seen approaching from up the railroad track about the time appellant and his companions went over to the office. Scott had two warrants delivered to him that morning against appellant, charging him with violations of the prohibition law, and when he came up to appellant he notified him that he had such warrants, and possibly had one or more of them in his hand. Appellant declined to be arrested, and both he and Scott drew their pistols. There was no shooting, however right at the office, but appellant seems to have started away and Scott followed him and called to him to stop. Appellant did not stop but continued to leave, whereupon Scott fired one or two shots at him, and about that time reached a post, from behind which he continued to shoot at appellant. Appellant turned, or partially turned, and emptied his pistol at Scott, and, finally, at the last or next to the last shot fired by Scott, appellant was wounded in the leg and fell. While this was going on Stanley and Smith came across from the drift mouth toward the office, and just after Scott had shot appellant and the...