Previously:
Related: Drunken Row at Roadside Keg Results in Gunfight
---
[April 20, 1905] -
A PISTOL DUEL.
One Man Dead, Another Fatally and a Third Wounded.
London, Ky., April 17. -- Jeff Goff is dead, Bill Miller probably fatally wounded and J. B. Landrum shot in the hand as a result of a pistol battle at Pittsburg, a mining town two miles west of here, on the L. & N. railroad. The affair is said to have been the outcome of a quarrel and fatal shooting that occurred about a month ago. At that time Dan Miller, a brother of Bill Miller, killed Zach Ward while trying to shoot Eli Hall. Landrum is a brother-in-law of Hall, and a warm friend of Zach Ward and his brothers, Frank and George. The latter two were with Landrum when the trouble occurred, and are said to have participated in the fight.
The row took place in Landrum's restaurant. Fully 50 shots were exchanged and the place was riddled with bullets. Landrum asserts that Goff came into the place accompanied by Bill Miller, and that the two at once opened fire on him. He returned fire, emptying his revolver twice and forcing them to retreat.
Miller alleges that Landrum and the Ward boys sent for him, and as soon as he appeared began shooting, and that he shot back in self-defense. He also says that Goff, who was unarmed, got between the and was killed accidentally. Goff was shot seven times--in the breast, the left arm and through both hands. Miller is shot in the breast, thigh and arm. All of the parties were drinking. [1]
---
[April 28, 1905] -
Judge Reams, of London held George and Frank Ward and J. B. Landrum over on the charge of killing Jeff Goff at Pittsburg last week. Landrum is allowed bail in the sum $5,000, George Ward $2,000, but Frank Ward is held withou[t] bail. [2]---
[June 6, 1905] -
Frank Ward was convicted in the Laurel circuit court for conspiracy with George Ward and Joe Landrum in killing Jeff Goff at Pittsburg and sentenced to the penitentiary for 21 years. [3]
---
[February 19, 1906] -
LANDRUM CONVICTED AND GETS TEN YEARS
SECOND TRIAL FOR COMPLICITY IN KILLING OF JEFF GOFF RESULTS SAME AS FIRST--MAY APPEAL CASE.
(Special to the Herald.)
LONDON, Ky., Feb. 18.--J. B. Landrum was again given a ten-year sentence for complicity in the killing of Jeff Goff, at Landrum's restaurant, in Pittsburg, by a verdict which was rendered today. Landrum was jointly indicted with George and Frank Ward for a conspiracy to kill Bill Miller, which resulted in the accidental killing of Jeff Goff.
George Ward has been acquitted and Frank Ward was given twenty years. A former trial of Landrum resulted in the same verdict as that rendered today, but he was granted a new trial by the court. A new trial will again be asked for, and, if refused, the case will be appealed. [4]
---
[February 20, 1906] -
ASK FOR NEW TRIAL
(Special to The Herald.)
LONDON, Ky., Feb. 19.--Attorneys for J. B. Landrum, who was sentenced yesterday to ten years in the penitentiary for complicity in the killing of Jeff Goff at Landrum's restaurant last winter, filed a motion for a new trial today.
The difficulty in which Jeff Goff was killed was started in Landrum's house while he was asleep and there is a strong sentiment here that Landrum is not guilty and ought to have a new trial. [5]
---
[March 29, 1906] -
WARD.
v.
COMMONWEALTH.
v.
COMMONWEALTH.
(Filed March 29, 1906--Not to be reported.)
1. Homicide--Evidence--Upon the trial of appellant charged with murder of Goff, evidence that about a month before the killing occurred, and on the occasion of the burial of his brother who had been killed by Dan Miller, a brother of William Miller, with whom appellant was engaged in a difficulty at the time of this homicide, appellant stated that "the trouble had just begun;" that they had as well dig up the balance of the grave yard, etc., was competent to show a motive for appellant's conduct on this occasion.
2. Instructions--In view of the conclusive proof against appellant he was not prejudiced by the words "feloniously" and "maliciously," being omitted from the first instruction, this idea being carefully expressed in all other instructions such verbal defect could not have had any influence upon the jury's verdict.
Sam C. Hardin for appellant.
N. B. Hays for appellee.
Appeal from Laurel Circuit Court.
Opinion of the court by Judge O'Rear.
Appellant, with his brother George Ward and Joe Landrum, were jointly indicted charged with the murder of Jeff. Goff. The indictment contained several counts. First it was charged that the defendants intentionally, maliciously and feloniously shot and killed Jeff Goff. Second, it was charged that defendants feloniously and maliciously shot at William Miller with the intention of killing him, but thereby shot and killed Jeff Goff. It was charged, alternatively, that one of the defendants maliciously and feloniously shot at Wm. Miller with the intention of killing him, but unlawfully killed Jeff Goff, while the other defendants, being present maliciously and feloniously aided and abetted the one so killing Goff.
The proof developed that William Miller, Jeff Goff and the defendants were all drunk on the night of the killing. About a month before, Dan Miller, a brother of William Miller, had killed Zach Ward, another brother of the appellant. The prosecution against Dan Miller for that homicide was then pending. There was some proof of threats by appellant against the Millers growing out of that affair. On this occasion the shooting began about 10 or 11 o'clock at night in Joe Landrum's restaurant, Wm. Miller, appellant and Joe Landrum, and perhaps others participating. Goff was in the midst of the fusilade, but so far as the evidence shows was too drunk to heed what was occurring, and was probably innocent of any participation of it. Wm. Miller was badly wounded and Goff was killed in that fight. Goff was seven times wounded, but the one that caused his death was a shot from a 45-caliber pistol, the ball entering the back. Appellant was shooting a pistol of that caliber in the fight, and is the only one who was so far as the record shows. There was evidence also that the appellant began the fight with Miller, though it seems that Miller very willingly engaged in it.
The court instructed the jury on every phase of the case, although there was very slight evidence that there was any intention to kill Goff. The jury found appellant guilty of manslaughter (he having had a separate trial) and fixed his punishment at 21 years confinement in the penitentiary.
The first error assigned on this appeal is that the trial court improperly allowed evidence against appellant that was irrelevant. The evidence complained of is the testimony of Mrs. Alex Jarvis and Charles Sears, each of whom testified that about a month before this killing, and on the occasion when Zach Ward was being buried, the appellant was present, and made remarks to the effect that "the trouble had just begun; that they had as well begun to dig up the balance of the grave yard," etc. We think this evidence was relevant. It tended to show a motive for appellant's conduct on this occasion, and smacked strongly of threats to do just what he is charged in this incident of having done.
The instructions to the jury were elaborate, and as stated, submitted to them every phase of the case. The first instruction was based upon the charge that appellant and his co-defendants intentionally killed Jeff Goff. It omitted the words "feloniously" and "unlawfully." This was probably an inadvertence, as in every other instruction this idea was carefully expressed. In view of the proof, we can not conceive that this verbal defect, if defect it is, could have had influence whatever on the jury's verdict. If there was even a doubt about it, and the instructions were technically erroneous, the court would not feel permitted to speculate on the effect of it, but would hold the trial to have been irregular. But where, upon the whole case, there is no doubt that the matter complained of was harmless, the court is prohibited by sections 340-341, Criminal Code, from reviewing the case on such ground. (Rutherford v. Commonwealth, 78 Ky., 639.)
Counsel for appellant is in error in the contention that the trial court used the copulative conjunction alone in the self-defense instruction. It is true the court told the jury that if appellant believed in good faith upon reasonable grounds that he or George Ward and Joe Landrum were in danger of death or great bodily harm then about to be inflicted on them by William Miller he had the right to use such force as to him reasonably appeared to be necessary to avert the real or apparent danger, but the court added, that if such danger was or appeared to be to any one of the defendants, that appellant had the right to act upon it, upon the ground of self-defense, or apparent necessity, and the defense of another. The instruction as a whole is unobjectionable.
The 8th instruction, defining reasonable doubt, told the jury that if they found appellant guilty, but entertained a reasonable doubt as to whether he was guilty of murder or voluntary manslaughter, they should find the defendant guilty of the latter offense only, and fix his punishment as defined in instructions 1, 2, 3 and 4. As a matter of fact it was instruction 5 that defined the measures of punishment, while 1, 2, 3 and 4 related to the facts necessary to be found to establish appellant's guilt of either murder or voluntary manslaughter. The jury found appellant guilty of voluntary manslaughter and fixed his punishment therefor according to instruction No. 5, which shows that the jury were not misled in the matter by the miscalling of the number of the instruction.
We see no error in the record prejudicial to appellant's substantial rights, and the judgment must be affirmed. [6]
---
[October 11, 1906] -
LANDRUM
v.
COMMONWEALTH.
v.
COMMONWEALTH.
(Court of Appeals of Kentucky. Oct. 11, 1906.)
HOMICIDE--PRINCIPAL AND ACCESSORIES--INSTRUCTIONS.
An indictment charged defendant with aiding and abetting others in the killing of deceased. It appeared that defendant, after the shooting commenced, and without any communication with parties on the outside who were doing it, ran into the room where deceased was and began firing, and supposed he had killed deceased, but he was in fact killed by a shot from outside the building. Held, that an instruction that defendant was guilty as a principal if he was present and willfully and feloniously aided and abetted those who killed deceased, was misleading as an aider or abettor must be present, participating in the crime and sharing the criminal intent of the principal.
[Ed. Note.--For cases in point, see vol. 26, Cent. Dig. Homicide, § 637.]
Appeal for Circuit Court, Laurel County.
"To be officially reported."
Joe Landrum was convicted of manslaughter, and he appeals. Reversed.
Geo. C. Moore, Walker Moren, Sam. C. Hardin, and B. B. Golden, for appellant. N. B. Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.
O'REAR, J. Appellant was convicted of manslaughter under an indictment charging him and George Ward and Frank Ward with the murder of Jeff Goff. In view of the conclusion we have reached in the case, and of the grounds of this decision, it becomes necessary to detail the particulars of the homicide. Appellant conducted a grocery store and restaurant in the little mining town of Pittsburg, Laurel county. About 11 o'clock at night of April 15, 1905, some parties, particularly Bill Miller, Frank Ward, and possibly George Ward, engaged in a shooting affray in and about appellant's place. At the time the shooting began appellant was asleep in the rear room, sitting in his chair, an had been for some hours before. we think the proof shows he was more or less drunk at the time. There were some words passed between Bill Miller and the Wards, all more or less drunk, between whom there was also some feeling owing to a brother of Miller's having, about a month previous, shot and killed a brother of the Wards. Frank Ward was armed with a 45-calibre pistol. Bill Miller was armed with a 38-calibre pistol, and George Ward with a 38-calibre, or smaller. Frank or George Ward opened the fight by firing upon and wounding Bill Miller, who, though desperately wounded, returned their fire vigorously. They all passed out of the building where the fight began, onto the street, where the firing was kept up for a while. Both Bill Miller and Frank Ward fired into the room after they went out. Someone, we think the proof shows satisfactorily it was Frank Ward, fired through a window into the room where Jeff Goff was staggering about drunk, unarmed and harmless. There is no pretense that either the Wards or Miller was attempting to injure Goff, or even knew of his presence. During the melee appellant, awakened from his slumber, rushed into the store room where Goff was, and into which somebody was shooting, grabbed a 32-calibre pistol from behind his counter and began to return fire being directed into the room. He saw Jeff Goff staggering about the room, and probably shot at him, and we think the proof shows, struck him in the hands and lower arm with several bullets from his pistol. But none of these wounds were serious--certainly none a mortal wound. While appellant was blazing away into the fight indiscriminately, or even it may be, for the purposes of this decision, be said, firing at Goff, a pistol shot from the outside came through the window of that room and entered Goff's body from behind, pierced his heart and came out the front. This bullet was a 45-calibre. He fell forward, dead of course, and was not removed till the next morning, after a number of witnesses had examined his position and wounds. There is no evidence of any previous agreement or conspiracy between appellant and the Wards to shoot or injure either Goff or Bill Miller, or anybody else. There is no evidence that they had been together, or communicated with each other. There is no evidence that appellant knew Frank Ward was shooting at anybody, or was outside the building, or about it. Whatever may have been the purpose or motive of the Wards toward Bill Miller, or any other person present, there was not a scintilla of proof that appellant knew of it or shared it to any extent. After the shooting was all over, appellant said that he had killed Goff. In this there is no sort of doubt bu that he was mistaken. He was still drunk, and may have then thought that he had killed him, and for aught we know, may have intended to kill him while shooting at him. Still, he did not kill him. Nor did the wound inflicted by him upon Goff contribute to the latter's death. The shot that killed Goff beyond all possibility of dispute or doubt, so far as the evidence in this record stands, was the one fired from the outside of the building from a 45-calibre pistol. Appellant was not outside the building, and did not have a 45-calibre pistol, or any other weapon except the 32-calibre pistol. At least the record now before us shows none other. Let it be admitted that appellant shot at Goff and wounded him, intending to kill him, and shot not in his own or any other's defense; that he not only intended to kill Goff but believed that he had done so, and said so. Still he is not being tried for shooting and wounding, but for killing, or for aiding or abetting the one who did kill Goff.
The indictment contained several counts. It charged the three men, George Ward, Frank Ward, and Joe Landrum (appellant) with having shot and killed and murdered Jeff Goff; it then charged that Frank Ward, as principal, shot and killed him, while Joe Landrum and George Ward aided and abetted it; it charged alternatively George Ward and Joe Landrum as principals, and the others as aiders and abettors. The court in the instructions, submitted to the jury all these phases of the case, except the conspiracy charge. The instructions submitted, too, that they were guilty if either shot at Bill Miller feloniously and without real or probable cause, in their own defense or in the defense of another, and thereby shot and killed Jeff Goff, and that the one or ones aiding and abetting were also guilty according to their motives. Not only is there no evidence in this record tending to show that appellant killed Jeff Goff, but there is non tending to show that he, in contemplation of law, aided or abetted the person who did kill him.
The court told the jury in the instructions that if Frank Ward or George Ward shot and killed Jeff Goff, whether shooting at Bill Miller, if such shooting was not in their own or another's defense, and if appellant was present, and willfully and feloniously aided, abetted, assisted, encouraged, counseled, advised, or commanded them, or either of them, to so shoot, that the appellant was guilty as principal, and directed the manner of fixing his punishment. We give only the substance of the instructions, the aiding and abetting feature being the one under examination. Technically, and as far as it goes, the instructions as to the aider and abettor are correct. But to the lay mind it is apt to mislead. Would not the jury suppose that to engage on the same side, shooting at the same man or men, and apparently making a common fight with the principal, Frank Ward, would satisfy at least so much of the instruction as said if he aided, assisted, or encouraged the principal in the shooting he was guilty as an aider or abettor? Yet that is not enough. For to aid and abet another in a crime one must share the intent or purpose of the principal. If two o more acting independently assault another, and one of them inflicts a mortal wound, the other is not guilty as an aider and abettor. An aider and abettor is a partner in the crime, the chief ingredient of which is always intent. There can be no partnership in the act where there is no community of purpose or intent. In Ward v. Commonwealth, 14 Bush, 233, the defendant was charged as an aider and abettor to John Biggs, in a robbery. The instruction was, if Ward was sufficiently near to the broken house with the felonious intent to render aid and assistance to the parties who did enter, if needed, he was in law a principal in the commission of the offense. And so he would have been if his intent was to render assistance to Biggs. The court reversing the judgment said the instruction should have been modified so as to inform the jury that the accused should not be convicted as an aider and abettor. The court said that the appellant had said nothing and did nothing at the time of the immediate killing. Nevertheless, if by his presence he gave aid or encouragement to the others engaged in the fight, he is guilty of murder, if they were so guilty, provided he was there in pursuance of a mutual understanding to carry out some unlawful purpose. His presence alone, without such an understanding, did not make him responsible for the acts of the others. "Therefore," the court concluded, "the case against him rests upon the intent with which he was present, to be gathered from the proof and and all the circumstances in the case." To constitute one an aider and abettor, sometimes called a principal in the second degree, it is essential that he be present, actually or constructively, at the commission of the crime, and participate in it, sharing the criminal intent of the principal in the first degree. Burrell v. State, 18 Tex. 713; Martin v. State, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Adams v. State 65 Ind. 565; Commonwealth v. Ryan, 154 Mass. 422, 28 N. E. 289; State v. Hildreth, 31 N. C. 440, 51 Am. Dec. 369, note. The aider and abettor may be guilty in a different degree from the principal, each to be held to account according to the turpitude of his own motive.
Judgment reversed, and cause remanded for a new trial, under proceedings consistent herewith. [7]
[1] "A Pistol Duel." The Citizen, Berea, KY. April 20, 1905. Page 7. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052076/1905-04-20/ed-1/seq-7/
[2] Except from "Adjourning Counties." Mount Vernon Signal, Mt. Vernon, KY. April 28, 1905. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1905-04-28/ed-1/seq-3/
[4] "Landrum Convicted And Gets Ten Years." Lexington Herald, Lexington, KY. February 19, 1906. Page 3. Genealogybank.com.
[2] Except from "Adjourning Counties." Mount Vernon Signal, Mt. Vernon, KY. April 28, 1905. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1905-04-28/ed-1/seq-3/
[3] Excerpt from "In Neighboring Counties." The Interior Journal, Stanford, KY. June 6, 1905. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052021/1905-06-06/ed-1/seq-1/
[4] "Landrum Convicted And Gets Ten Years." Lexington Herald, Lexington, KY. February 19, 1906. Page 3. Genealogybank.com.
[5] "Ask For New Trial." Lexington Herald, Lexington, KY. February 20, 1906. Page 3. Genealogybank.com.
[6] Ward v. Commonwealth, 91 S.W. 700 (1906). Retrieved from Googlebooks.
[7] Landrum v. Commonwealth, 123 Ky. 472; 96 S.W. 587 (1906). Retrieved from Googlebooks.
.
No comments:
Post a Comment