Two Killed, One Injured in Churchyard Shootout, Wayne, 1904

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[August 14, 1903] -

THE SLAYERS ESCAPED

Amos Ackle and His Son Dock Killed at a Church

Monticello, Ky., Aug. 14. -- A desperate fight occurred at Mt. Union church, this county, between Granville Taber and Lee Rector on one side and Amos Ackle and his son Dock on the other, in which both the Ackles were shot and killed and Pierce Hubbard, a bystander, perhaps fatally wounded.

The trouble grew out of an alleged insult to a lady relative of the Ackles. Taber and Rector made their escape. Amos Ackle was about 75 years old. [1]

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[August 22, 1903] -

KILLING AT A CHURCH

Amos Acre and His Son Shot to Death By Two Men.

Somerset, Ky., Aug. 22.-- Amos Acre and his son Doc were shot to death by Granville Taber and Eph Rector at Mt. Union church, over the Wayne and Pulaski county lines. Taber and Rector, it is alleged, insulted a female relative of Acre, and when the men met in front of the church William Acre remonstrated. A fight ensued and old man Acre became involved.

Taber and Rector opened fire, killing two of the Acres. William Acre took refuge in the church. Taber and Rector followed them in with drawn revolvers and were only prevented from shooting him by the interference of other members of the congregation. Both were arrested and taken to Monticello.

Pierce Hubbard, a bystander, was fatally shot by a stray bullet. [2]

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[August 26, 1903] -

Granvile Taber and Eph Rector, charged with murdering Amos and Dock Acree, in Wayne county, were given an examining trial at Monticello last Friday. The former was held in the sum of $2,500 and the latter $1,500. [3]





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[October 21, 1904] -

TABER v. COMMONWEALTH.

COURT OF APPEALS OF KENTUCKY

82 S.W. 443; 1904 Ky. LEXIS 381; 26 Ky. L. Rptr. 754

October 21, 1904, Decided

PRIOR HISTORY:  [**1] 

Appeal from Circuit Court, Wayne County.

"Not to be officially reported."

Granville Taber was convicted of manslaughter, and appeals.

COUNSEL: Stone & Stone, for appellant.

N. B. Hays and Loraine Mix, for the Commonwealth.

JUDGES: BARKER, J.

OPINION BY: BARKER

OPINION

 [*444]  BARKER, J. The appellant was indicted by the grand jury of Wayne county, charged with the murder of Dock Acrey. A trial resulted in his being found guilty of the crime of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for a term of 15 years.

The accused and two brothers, William and Dock Acrey, had a difficulty the day preceding the homicide, at the store of the former, but had separated without bloodshed; the Acreys saying, as they left the store, "There will be another day." The next day, Sunday, the appellant armed himself with a Winchester rifle and a Smith & Wesson revolver, and went to Mount Union meetinghouse, the neighborhood place of worship, at about the hour for holding religious services. Before he quite reached the place he stopped on the roadside, and waited until the Acreys passed along. He then, according to his own statement, "hunkered (squatted) down" until they passed. After they reached the front  [**2] of the church, and William Acrey had joined a small group of men, and stood talking with them, appellant walked up, armed as before described, and, addressing himself to James Chrisman, said: "Have you heard the derned (or damned) lies they are telling about me?" To this Chrisman gave an affirmative reply, and Acrey said: "If you are throwing that at me, they ain't no lies." Here the evidence becomes contradictory. According to that of the commonwealth, the accused at once opened fire on William Acrey with his pistol, to escape from which the latter sprang behind Pierce Hubbard, who was accidentally shot in the face and nearly killed. Then Dock Acrey, in order to save his brother's life, assaulted appellant by throwing a brick at him; whereupon appellant opened fire on him, inflicting wounds from which he in a few moments died. That at this point Amos Acrey, the father of William and Dock, struck appellant with a stick, and in return was immediately shot to death, whether by appellant or one of his friends does not fully appear. There is no evidence that anybody except the accused was armed in the melee which resulted in the death of two men and a third being desperately wounded. The  [**3] appellant testified that he did not know William Acrey was in the group of men when he approached them; that he did not address his remark to him, and, when he told Acrey not to address him again, the former said "You have got the drop on me and I will go," and at once withdrew from the crowd; that he did not draw his pistol on William Acrey, or point it at him, or shoot in his direction; that he did not shoot Pierce Hubbard, but that, just after the words above quoted between him and William were spoken, he was struck with a rock or brick, thrown by some one from behind, whereupon he at once turned, and, in self-defense, fired on his assailant, and killed Dock Acrey.

We have not undertaken to give all the testimony, or even to quote it with absolute accuracy; being desirous only to give it in sufficient detail and with such fidelity as will serve to illustrate the questions of law raised by the exceptions taken by the accused on the trial.

There are, as usual in cases of this character, two theories as to the killing: That of the commonwealth is that the accused, without lawful cause, made a deadly assault upon William Acrey with a pistol, and was about to take his life when Dock Acrey  [**4] interfered to save his brother, and for this purpose assaulted, as he had the right to do, the assailant, and was by him shot to death; that of the accused is that he had no difficulty with William Acrey at the time of the killing, except some words which imported no danger to the latter, and that the assault upon him by Dock Acrey was unlawful, and made It necessary that he shoot him to save himself. It is indisputably true that Dock Acrey had no right to assault the appellant, except to defend his brother, and, if the latter was in no danger, then his assault upon appellant, desperate and deadly as it undoubtedly was, warranted the latter to kill him in self-defense. Dock Acrey had the right to assault the accused in the manner he did, and even to take his life, to save his brother from an unlawful and murderous assault, such as is claimed by the commonwealth to have taken place; the rule being that what one may do for himself he may do for another. The right of the accused to defend himself from the attack of Dock Acrey is just what it would have been if he was being attacked by William Acrey; in other words, Dock Acrey could do for his brother just what, under the circumstances,  [**5] the brother could lawfully do for himself; and the legal quality of the killing of Dock Acrey is just what the killing of William Acrey  [*445]  would have been had he, instead of dodging behind Pierce Hubbard, picked up a brick and hurled it at appellant, and then been killed in return. The court instructed the jury on the question of self-defense as follows:

"Instruction No. 3. Although you may believe from the evidence beyond a reasonable doubt that the defendant shot and killed Dock Acrey, yet if you further believe from the evidence that at the time be did so he had reasonable grounds to believe, either real or apparent, and did believe, he was then and there in danger of suffering loss of life or serious bodily harm at the hands of Dock Acrey, and that it was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to shoot and kill Dock Acrey to protect himself from such danger real or to him reasonably apparent, you will find him not guilty, upon the grounds of self-defense and apparent necessity, unless you further believe from the evidence, beyond a reasonable doubt, that the defendant sought and brought on the difficulty with Wm. Acrey in the use or  [**6] threatened use of a deadly weapon, and was then and there in the act of inflicting loss of life or serious bodily harm on the person of said Wm. Acrey, and then Dock Acrey interfered to prevent said danger to Wm. Acrey, in which latter state of case the defendant cannot be excused upon the grounds of self-defense and apparent necessity."

This instruction aptly gives the law of the case. The qualification of the right of self-defense as to Dock Acrey depended on appellant's attitude towards William. If he had unlawfully sought and brought on the difficulty with William, and was then and there about to take his life, then Dock had the right to assault and even kill him, with out the right of self-defense on the part of the wrongful assailant. There was no foundation for the further qualification of instruction No. 3, by the principle that although the original attack of accused was wrongful, if he in good faith withdrew from the affray, and made his withdrawal apparent to Dock Acrey, his right of self-defense returned to him as to subsequent parts of the difficulty. The evidence of the commonwealth was that the attack on William was murderous and incessant; that the accused turned from  [**7] his intended victim, William, only to repel the rescuing attack of Dock, and there was no withdrawal from or cessation of the affray until Dock was killed. On the part of the accused it is claimed that there was no attack on William at all, and consequently there could have been no withdrawal from a difficulty which did not take place. Instructions must be based on evidence.

The criticism of instruction No. 6, which contains a definition of "malice aforethought," is without utility on this appeal. "Malice aforethought" only appertains to instructions concerning murder. The accused was found guilty of voluntary manslaughter. Conceding, for the purposes of the case, the error of the court in the definition, appellant was not prejudiced thereby. Cr. Code Prac. § 340. The case of Bohannon v. Commonwealth, 71 Ky. 481, 8 Bush, 481, 8 Am. Rep. 474, does not militate against this conclusion. In that case Bohannon was convicted of murder, and sentenced to be hung; correct instructions concerning murder was of the utmost importance to him. The definition as given in the instruction complained of is approved in Jolly v. Commonwealth, 110 Ky. 190, 61 S. W. 49, 22 Ky. L. Rptr. 1622, 22 Ky. Law Rep.  [**8] 1622.

The court did not err in refusing to allow appellant to prove the particulars of the difficulty claimed to have taken place between him and the Acreys the day before the homicide. The reason for the admission of evidence concerning previous difficulties in cases such as this is to show motive, and the mental attitude of the parties at the time of the hostile meeting. This right is amply secured by limiting the evidence to the fact that there was a difficulty, without confusing the investigation of the main issue by conflicting testimony as to the particulars of what took place on the previous occasions. Certainly there was nothing in the evidence in this case which warranted the admission of the particulars of the difficulty the day before. So far as what took place between the accused and William Acrey is concerned, the accused admits that William did not assault him or commence any difficulty with him. He denies that there was any difficulty between himself and William. On the other hand, the commonwealth admits that the accused did not first assault Dock Acrey, or even commence any quarrel with him. It admits that Dock Acrey first assaulted the accused, and that this assault  [**9] was of such a character as fully warranted the accused in killing him in self-defense, unless he had lost that right by unlawfully attempting to kill William Acrey. The issue on this branch of the case, then, was not who commenced the difficulty, as between the accused and William, but whether or not the accused was trying to kill William when Dock assaulted him. The fact that William had inflicted an injury on appellant the day before afforded no ground for the letter's killing him in cold blood the day after.

The error complained of, that the jury, while deliberating on the case, came into the court room in the absence of the accused, and were conducted to the jury room by the sheriff, appears for the first time on the motion for a new trial. In construing section 281 of the Criminal Code of Practice we have uniformly held that errors appearing for the first time on the motion for a new trial could not be considered on appeal. Fuqua v. Commonwealth, 73 S. W. 782, 24 Ky. L. Rptr. 2204, 24 Ky. Law Rep. 2205.

Without going into an analysis of the evidence in this case, we feel justified in saying  [*446]  that no substantial injustice appears to have been done appellant by the verdict rendered.

Judgment  [**10] affirmed. [4] 

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[1] "The Slayers Escaped." The Evening Bulletin, Maysville, KY. August 14, 1903. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn87060190/1903-08-14/ed-1/seq-1/. '

Also reported in "Two Killed in Pistol Fight in Wayne." The Courier Journal, Louisville, KY. August 14, 1903. Page 5. Newspapers.com.

[2] "Killing at Church." The Evening Bulletin, Maysville, KY. August 22, 1903. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn87060190/1903-08-22/ed-1/seq-1/

[3] Excerpt from Column 7. The Adair County News, Columbia, KY. August 26, 1903. Page 3. Newspapers.com.

[4] Taber v. Commonwealth, 82 S.W. 443, 26 Ky. L. Rptr. 754 (1904). Retrieved from LexisNexis Academic.

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