Wingfield v. Commonwealth

• Decision Date: 19 January 1923
• Citation: 246 S.W. 822,197 Ky. 331
• Parties: WINGFIELD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

246 S.W. 822

197 Ky. 331

WINGFIELD v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 19, 1923

Appeal from Circuit Court, Whitley County.

Henry Wingfield was convicted of aiding and abetting the commission of rape, and he appeals. Affirmed.

W. B Early, of Williamsburg, and R. L. Pope, of Knoxville, Tenn for appellant.

Chas I. Dawson, Atty. Gen., Chas. W. Logan, Asst. Atty. Gen., and Tye & Siler, Stephens & Steely, and J. C. Bird, all of Williamsburg, for the Commonwealth.

TURNER C.

At the January term, 1922, Whitley circuit court, two separate indictments were returned against appellant and one Clyde Earls, jointly, charging them with rape.

In one of them appellant was charged with the actual commission of the crime upon the person of Maude Richmond, and it was charged therein that Earls was then and there present unlawfully, willfully, feloniously, and forcibly aiding abetting, and encouraging appellant in the commission of the crime.

In the other indictment it was charged that Earls actually committed the crime against the person of Maude Richmond, and that appellant was then and there present, unlawfully, willfully, feloniously, and forcibly aiding, abetting, and encouraging Earls in the commission of the crime.

At the same term of court appellant was placed on his separate trial under the first-named indictment, wherein he was charged with the actual commission of the crime, and wherein there was no charge against him of committing the same by aiding or abetting Earls, and a verdict of acquittal was returned upon which a judgment of not guilty was entered. Thereafter, at the May term, 1922, appellant was again placed on his separate trial under the last-named indictment, wherein he was not charged with the actual commission of the crime himself, but was charged with aiding and abetting Earls in the commission thereof.

On his last trial he was found guilty and sentenced to imprisonment for ten years. He was denied a new trial by the lower court, and has appealed.

On the last trial he not only pleaded not guilty, but filed a written plea of former jeopardy and relied upon the first trial as a bar to the last. He filed with his plea the record and transcript of the evidence upon the former trial.

No demurrer was filed by the commonwealth to the written plea of former jeopardy, but at the conclusion of the evidence for the commonwealth the defendant asked the court to instruct the jury peremptorily to find the defendant not guilty under his plea of former jeopardy, and this the court declined to do and required defendant to introduce his evidence. While it would have been better practice for the commonwealth to have demurred to the plea of former jeopardy and raised the question in that way, it is apparent the direct question of the sufficiency of the plea was raised by the defendant's motion. Counsel for appellant in their brief expressly waive all other questions, and rely for a reversal wholly upon the sufficiency of the defendant's plea of former jeopardy.

The evidence for the commonwealth shows that in November, 1921, John L. Richmond, a young man about 28 years of age, lived with his wife and two children and his aged mother at the former home of his father, who had died there about a month before, in a remote section of Whitley county; that the five of them slept in three beds all in the same room; that about midnight on the night before Thanksgiving Day some persons called him from the outside, and when Richmond got up and made a light and opened the door he was there confronted by two masked men with pistols presented at him. They required him to hold his hands up and entered the house and declared their purpose to be to get the money, which they said they knew was there. It appears that about a month before Richmond's father had died, and it was rumored in the neighborhood that he had several hundred dollars secreted about this house. They proceeded to search the house, while Richmond was required to stand with his hands up, and they more than once reiterated their purpose to find the money they said was there. Having searched for the money unsuccessfully for an hour or more, including the three beds in the room and the occupants thereof, they evidently concluded their venture should not be wholly barren of results, and they then forced the young wife of Richmond at the point of a pistol to leave her bed and go out into the yard with one of the men while the other held his pistol upon the husband and forcibly prevented his interference; then the two masked men changed places, and the one who had first gone out with the woman returned and guarded in like manner while the other went out with her. Each of them, according to the prosecuting witness, Maude Richmond, had intercourse with her against her will under these circumstances, and John L. Richmond and his aged mother verify all these facts and circumstances, except the actual rapes, which occurred outside of the room where they were so guarded.

The evidence on each of the trials was in the essential features the same. The commonwealth was permitted on the first trial to show by its witnesses, not only the act alleged to have been committed by appellant in person and the acts of Earls in protecting appellant in its commission, but it was permitted to show the perpetration of a similar act upon the person of the same woman by Earls and the acts of appellant in protecting Earls while perpetrating the act.

Section 13 of the Constitution of Kentucky provides: "No person shall, for the same offense, be twice put in jeopardy of his life or limb," and under this provision it is the earnest contention of counsel that the constitutional rights of appellant have been invaded by placing him upon trial the second time, as above recited.

The fundamental error of counsel is in assuming that appellant upon the second trial was charged with the same offense, or a degree of the same offense, of which he was on the first trial acquitted. Not only are the two indictments separate, but they charge against each of the defendants named in them separate and distinct offenses from that named in the other indictment. In one indictment appellant is charged with the perpetration of the act of rape upon the person of Maude Richmond (that is, that he in fact and in person committed that crime), while his codefendant, Earls, is charged with being present and aiding and abetting in the actual commission of the crime. It charges an offense against each of them, separate and distinct from any other offense theretofore or thereafter committed in person by Earls, at which time, as is alleged in the second indictment, appellant aided and abetted Earls in the commission of a separate and distinct, but similar, offense.

The first trial, therefore, had to do with a crime jointly committed by them, wherein appellant was principal and Earls was aider and abettor; while the second trial had to do only with a separate crime of the same nature committed by Earls, and in which appellant was the aider and abettor.

It is true the evidence on the two trials shows that the two separate and distinct offenses were committed on the same night and only a few minutes apart, but the contention that they...