13 Ky.L.Rptr. 154
Court of Appeals of Kentucky.
June 16, 1891.
ACTION: Reversed

Appeal from circuit court, Knox county; ROBERT BOYD, Judge.
"Not to be officially reported."

Appeal of Alfred E. Brafford from a conviction of manslaughter.

Appellant having been indicted with seven others for the murder of James Tuggle, and at a separate trial convicted of manslaughter, seeks reversal on three grounds:

1. After the regular panel of jury summoned in Knox county, where the trial took place, was exhausted, only four jurors being selected therefrom, the court made an order for the sheriff to go to an adjoining county named and summon 70 citizens thereof, being sensible, discreet, fair men, possessing the qualifications of jurors, which was done, and the jury was completed from those so summoned. In the order it was recited that it was impossible to obtain such jury in Knox county on account of extensive relations and former trials of the same case, of which there had been three. Authority for such proceeding is given by section 194, Crim. Code, as follows: "If the judge of the court be satisfied, after having made a fair effort in good faith for that purpose, that from any cause it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greater probability of obtaining impartial jurors, and from those so summoned the jury may be formed." Taking the recital in the order as true, it seems to us a condition existed rendering application of that section necessary to the ends of justice; for, though it does not appear further effort was made to obtain a jury in Knox county after the regular panel was exhausted, the fact that there had already been three trials of the case was sufficient to justify the action of the court, without needlessly consuming time to accomplish what was obviously impracticable. We do not see any impropriety in the conduct of the sheriff inquiring, of those best informed on the subject, as to fit and qualified persons for him to summon in Laurel county, for without such information it is hardly probable he could have intelligibly and properly complied with the order.

2. It does not appear that any others, besides those indicated, were present when the killing occurred; and, as a consequence of refusal by the lower court to permit any of them to testify, one being called for the purpose, appellant was the only witness who stated by whom the deceased was killed, or the circumstances under which it was done. It is in evidence that there had been a dispute whether the deceased and two others associated with him, or appellant and two others, one being Jake Phipps, indicted with him, were legally trustees of the common-school district in which the killing took place, which, as generally happens, was brought on or resulted from a contest in selection of a teacher. Appellant and his two associates were proved on the trial to have been the legal trustees, though the deceased had in some way gotten his niece the place of teacher instead of the person the other party favored, and she was at the time engaged in teaching in the school-house. The evening before, Jake Phipps, accompanied by appellant and others, went to the school-house, and fastened the door with a chain and lock, and the next morning all those indicted went to the place; but there is contradictory evidence and uncertainty whether they did so for the purpose of repairing the school-house, or to meet and have a difficulty with the deceased, or to settle the dispute about possession of it. There is evidence tending to show that the meeting was preconcerted, but whether in anticipation of, or with the formed purpose of, having a personal conflict with deceased, who was a violent and dangerous man, is not shown. Jake Phipps, it seems, had been working for the deceased. and the day before the killing informed him, at his house, that the water had given out in a pasturage where he had cattle, to reach which he had to pass by the school-house. On the other hand, appellant, and, so far as this record shows, all the other defendants except two, were on friendly terms with the deceased, and no previous grudge against him or motive to take his life is shown to have existed on the part of any others except the two mentioned.

Considering the facts that the school-house was on a public road; that all the parties, except perhaps one, lived within not much, if any, over one mile of each other and of the deceased; and that the time they met was when they might reasonably expect persons to pass along the public highway, and not long before the teacher and children would assemble,--it is not credible they went there in pursuance of a conspiracy, or formed one after their arrival, to kill the deceased. It is true some of them went there armed, but that eight men, six of whom were on friendly terms with him, should meet at such time and place, in pursuance of a conspiracy to take the life of another, who was alone at the time, and between 50 and 60 years old, is improbable. Besides, the evidence is not at all satisfactory that any of them knew or expected the deceased would be at the school-house on the occasion. The two defendants who did have unfriendly feelings against him were John and Frank Trosper, whose father he had killed many years before; but there is no proof of any previous difficulty between them and the deceased, though residing within less than one mile of each other. Both of them, however, immediately after the killing, fled, and are now without the state, and, according to the testimony of appellant, they, without aid or encouragement from any of the others, did the killing. It is proper to say, in this connection, that the wife of appellant is a sister of the Trospers; but that fact alone is not sufficient to authorize the presumption appellant had a motive to kill the deceased, especially when it appears they were on friendly terms with each other. Section 234, Crim. Code, provides that, "if two or more persons are jointly indicted, they may testify for each other, unless a conspiracy is charged in the indictment, and proven to the satisfaction of the court." According to the construction heretofore given by this court to that section, although a conspiracy be charged between two or more persons jointly indicted, each one may still testify for the other, unless there be evidence sufficient to establish, with reasonable certainty, existence of such conspiracy; for it is not the policy of law, nor scarcely in the power of the legislature, to arbitrarily, or upon inconclusive evidence of a conspiracy deprive an accused person of testimony that may tend to explain or disprove the charge against him. In our opinion, the evidence in this case did not sufficiently establish a conspiracy between appellant and another or others to take the life of James Tuggle, as to authorize the lower court refusing the testimony, when offered, of any of the other defendants.

3. Instruction No. 8, objected to by appellant, is as follows: "Although the jury may believe from the evidence beyond a reasonable doubt that the defendant Brafford went with the other defendants named in the indictment to take possession of the school-house by force, or to prevent the deceased from taking possession of the same, yet if they further believe from the evidence that the defendant was opposed to the killing of the deceased, James T. Tuggle, or of doing him any bodily harm, and had entered into no conspiracy with them to do so, and that he did not know that any of the defendants intended or proposed to kill deceased, or to do him any bodily harm, and that some of the defendants, of their own accord, and without the knowledge or consent of the defendant Alfred E. Brafford, shot and killed deceased from malice, or in sudden heat and passion, they should acquit the defendant." The meaning and effect of that instruction is that, assuming it to be true that appellant and the other defendants went to either take possession of the school-house by force, or to prevent the deceased from taking possession of the same, he should, though doing no act himself, nor aiding or encouraging others to do the deed, still be found guilty, unless it affirmatively appeared, not merely that he was opposed to the killing, and also opposed to doing the deceased bodily harm, but that he did not know that any of the defendants intended or proposed to kill or bodily harm the deceased, and that some of the defendants of their own accord, and without appellant's knowledge or consent, shot and killed him. Appellant is by that instruction made to answer for what another may have done, not in pursuance of a conspiracy with him to take the life of James Tuggle, but upon the hypothesis that he and the other defendants went to either forcibly take possession of the school-house, or prevent him doing so; and, that being true, the burden was put on appellant to disprove the conspiracy, as well as show he was opposed, did not consent, and was in fact ignorant of intention of anybody else, to take the life of or do bodily harm to the deceased. The burden was on the commonwealth to show a conspiracy to take the life of the deceased, or do him bodily harm, in which appellant engaged, and that the deed was done in pursuance thereof. But the lower court, by the instruction quoted, erroneously assumed the meeting of defendants for the purpose of getting or preventing deceased getting possession of the school-house to be prima facie a conspiracy to kill him, when it was only a circumstance to be considered by the jury, without special reference to it in the instruction, as evidence of the existence of the alleged conspiracy. It seems to us, in view of the fact that no testimony, except that of appellant, was offered as to what occurred at the school-house, the instruction was prejudicial to his substantial rights; nor is it explained, or the effect of it in any degree modified, by any of the other instructions.

For the errors indicated the judgment is reversed, and cause remanded for a new trial consistent with this opinion.

HOLT, C. J., and PRYOR, J., concur.
Ky.App. 1891.
16 S.W. 710, 13 Ky.L.Rptr. 154


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