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CHADWELL v. COMMONWEALTH.
COURT OF APPEALS OF KENTUCKY
69 S.W. 1082; 1902 Ky. LEXIS 392; 24 Ky. L. Rptr. 818
October 22, 1902, Decided
PRIOR HISTORY: [**1]
Appeal from circuit court, Laurel county.
Ed Chadwell was convicted of murder, and appeals.
DISPOSITION: Affirmed.
COUNSEL: James Sparks, D. K. Rawlings, C. B. Lyttle, and W. B. Hansford, for appellant.
Clifton J. Pratt and M. R. Todd, for the Commonwealth.
JUDGES: WHITE, J.
OPINION BY: WHITE
OPINION
[*1082] WHITE, J. The appellant, Ed Chadwell, together with several others, was indicted by the grand jury of Clay county, charged with the murder of Geo. Thacker. There was a change of venue to Laurel county, and upon trial Ed Chadwell was convicted, his punishment fixed at confinement in the penitentiary for life, and he appeals.
The indictment is against eight defendants, and consists of nine counts, it being charged first that the defendants conspired together to kill Thacker, and that while such conspiracy existed, and in pursuance of same, the defendants did kill and murder Thacker, etc. It is then charged separately that each of the defendants shot and killed Thacker, and that the other defendants did aid, abet, counsel, advise, and encourage the defendant so charged to kill Thacker, etc. Upon the trial the prosecution offered testimony tending to show that all the defendants were seen together, armed and in close conversation, near the place where Thacker was killed, late in the evening before Thacker was killed; that appellant was seen, shortly after Thacker was killed, not far from the place, and was armed and in company with others accused, and they were in the woods, and not traveling the road. Thacker was shot shortly after sunup, while he was traveling along the road in company with another; but the only witness to the murder saw no one,—only heard the shots and saw Thacker fall. He was assassinated from ambush. The prosecution then offered, and was by the court permitted, over objection by defendant, to prove that certain of the accused in the indictments had made threats against the life of Thacker at different times, and this action of the court is urged as error. It was admitted by the witnesses testifying that these threats had been made that on no occasion was this appellant present when the threats were made. The only theory, therefore; on which such testimony would be competent against this appellant is that a conspiracy is charged and was proven to have existed between appellant and the person making the threat. In the case of Com. v. Delaney, 29 S. W. 616, this court, by Grace, J., said: "Of the testimony in cases of conspiracy, we may say generally that it is seldom possible to establish same by direct positive testimony; that, in the very nature of the case, it must finally be but an inference of the jury, and can only be established by circumstantial testimony, often by isolated facts and particular circumstances gathered here and there along the line of the investigation from time to time and place to place—things done and said by the respective parties charged with such an offense; and that finally it is only by a combination of the whole of same that the jury may be able to come to an intelligent and correct verdict, whereby they determine whether or not the conspiracy charged has been fully proven." Very similar expressions were used as to the proof of a conspiracy in the case of Shelby v. Com., 91 Ky. 568, 16 S. W. 461. Upon the question being presented as to the admissibility of testimony, the court must determine whether, in his opinion, a conspiracy has been established. Sparks v. Com., 89 Ky. 650, 20 S. W. 167. But when objection is made to testimony offered by the prosecution, the court is not called on to decide, as a juryman, that a conspiracy has been established beyond a reasonable doubt. Independent acts and statements of a person other than the defendant on trial may be shown, if, within itself, or in connection with other facts proven, it tends to show any material fact of a conspiracy between the defendant on trial and the person whose acts or statements are shown. The testimony objected to here was threats of persons jointly indicted with appellant. These threats show an intention to kill, malice aforethought, and the reason given for the killing. This would not be competent against appellant but for the fact proven that he was seen near the murder, armed, in company with others, shortly after the shot was fired that killed Thacker, and that these persons thus seen on that day were seen in conference with the persons making the threats the evening before Thacker was shot, and in the same vicinity, all being armed. We are of opinion, as was the trial judge, that these circumstances tended to show a conspiracy to kill Thacker, and it was therefore proper to admit the evidence, and to submit the question to the jury as to whether they believed beyond a reasonable doubt that the conspiracy had been proven to exist.
The court gave to the jury two instructions as follows: "No. 1. Gentlemen of the Jury: If you shall believe beyond a reasonable doubt that the defendant Ed Chadwell, in Clay county, and before the finding of the indictment herein, unlawfully, willfully, [*1083] feloniously, and of his malice aforethought, and not in his necessary, or to him reasonably apparent necessary, self-defense, shot and killed G. W. Thacker; or, if you shall believe from the evidence beyond a reasonable doubt that the defendants James Tom Griffin, Sol Griffin, Green Griffin, Dan Hampton, Charley Barnett, William Brown, and Floyd Chadwell, or either one or more of them, in Clay county, and before the finding of the indictment herein, unlawfully, willfully, feloniously, and of their malice aforethought, and not in their necessary, or to them reasonably apparent necessary, self-defense, shot and killed the said G. W. Thacker, and that the defendant Ed Chadwell was present and near enough so to do, and did unlawfully, willfully, feloniously, and of his malice aforethought, and not in his necessary, or to him reasonably apparent necessary, self-defense, of himself or the other defendants, or some of them, aided, assisted, advised, and counseled them to so kill the said Thacker; or if you shall believe from the evidence beyond a reasonable doubt that the defendant Ed Chadwell, in Clay county, and before the finding of this indictment herein, unlawfully, willfully, feloniously, and of his malice aforethought, confederated, conspired, and banded himself together and agreed to and with the defendants James Tom Griffin, Sol Griffin, Green Griffin, Dan Hampton, Charley Barnett, William Brown, and Floyd Chadwell, or any one or more of them, to kill and murder the said G. W. Thacker, and that in pursuance of said conspiracy, confederation, agreement, and banding together, and while same existed, any one or more of the parties of the said conspiracy did kill and murder the said G. W. Thacker,—then the jury ought to find the defendant Ed Chadwell guilty of murder as charged in the indictment, and fix his punishment at death, or confinement in the state penitentiary for life, in their discretion. No. 2. The law presumes the innocence of the defendant until his guilt has been proven by the evidence beyond a reasonable doubt, and it is the duty of the jury, if they can reasonably do so, to reconcile all the evidence in the case with that presumption; and if, upon the whole case, the jury have a reasonable doubt as to whether the defendant has been proven guilty or not, they ought to find him not guilty." A peremptory instruction to acquit was refused. In our opinion, the instructions given embrace the law of the case, and are correct.
The accused offered no testimony, and so the case went to the jury on the testimony of the prosecution. That a verdict of guilty was returned, which the jury must have believed beyond a reasonable doubt, is sufficient answer to the contention here that a peremptory instruction should have been given. There was evidence tending to show guilt of appellant, and where such is the case a peremptory instruction should not be given, and for the same reason we are not justified in reversing.
There appears to be no error in the record prejudicial to the substantial rights of accused, and the judgment is therefore affirmed.
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