Court of Appeals of Kentucky.
Oct. 28, 1908.
ACTION: Rulings certified as stated.

Appeal from Circuit Court, Laurel County.
"Not to be officially reported."
Dempsey West was convicted of voluntary manslaughter, and the commonwealth appealed to have certain rulings settled and certified.

The commonwealth of Kentucky has appealed in this case, complaining that the law was not properly ruled in several particulars upon the trial in the court below; and it now asks that the questions mooted by it be adjudicated and certified to the circuit court.

The appellee, Dempsey West, was indicted by the grand jury of Whitley county on the 13th day of November, 1906, together with Samuel Lewis and John W. Johnson, charged with the willful murder of Esrom Lawson. The venue of the action on motion was transferred from Whitley to Laurel county. When the case was called for trial, Dempsey West demanded a separate trial, which was granted by the court, and the commonwealth elected to try him first. The trial resulted in a verdict of guilty of the crime of voluntary manslaughter, and the punishment of the defendant fixed at confinement in the penitentiary for two years. From this judgment West did not prosecute an appeal, and, as said before, the commonwealth has appealed for the purpose of having certain principles of law arising during the trial settled and certified. A short history of the facts which led up to the killing involved in this prosecution will be necessary.

In 1897 one "General" Williams was charged with and indicted for the crime of criminal assault upon a female of the Bays family in Knox county. This prosecution resulted in his being found guilty and sentenced to the penitentiary for a period of 10 years, which term he seems to have served out. While in the penitentiary in Frankfort he was so violent as to lead the officers in charge of him to doubt his sanity, and he was tried in the Franklin county court on an inquisition of lunacy. The verdict of the jury found him sane, and he was returned to prison. During the trial in the Franklin county court Williams openly stated that when his time was out, and he returned home, he intended to kill all who had any part in sending him to the penitentiary. As soon as his term expired, and he returned to his home in Knox county, he armed himself with a Winchester rifle, and went to Corbin, looking for J. W. Bays, the father of the girl he had wronged, evidently with the intention of assassinating him. Being unsuccessful in his search for the father at Corbin, he came by the Bays' home, and found Levi Bays, the brother of the wronged girl, standing in the yard. He called to Levi to come to him, saying that he desired to converse with him, and when the young man approached, without any provocation on the latter's part, Williams shot him with the Winchester rifle, the ball entering his arm just below the shoulder, having done which, and perhaps supposing his victim dead, he proceeded on his way into the mountains. This high-handed crime naturally excited the neighborhood, and W. H. Burch, a justice of the peace in the district where it occurred, issued a warrant for the arrest of Williams, charging him with the offence of shooting with intent to kill. There being no regular peace officer convenient, Samuel Lewis was appointed by the justice as special bailiff to execute the warrant, and he summoned Dempsey West and John W. Johnson as a posse to aid him in making the arrest. Armed with the warrant, these three started in search of Williams. They followed him for several hours, and finally received information that he was at the house of his aunt, Mrs. Margaret Lawson, in Whitley county, Ky. Having thus located the defendant in the warrant, the posse took counsel among themselves as to the best way to arrest the desperate man for whom they were looking. It was agreed that, as Lewis was the only one of the posse whom Williams did not know, he should go into the house of Mrs. Lawson, and ascertain certainly whether or not Williams was located therein. If Lewis did not return within 10 minutes, his companions were to understand that Williams was in the house, and to at once come forward and aid in his arrest. The Lawson house was situated near the junction of two county roads, and Williams had placed himself in a window from which he could observe the approach of persons on either to the house. His Winchester rifle was lying conveniently on a bed at his side. Lewis, who was a stranger, went to the house, and asked for a drink of water, and engaged the inmates in conversation, inquiring where he could find or purchase some "yoke cattle" which he pretended he wished to buy. At the expiration of the appointed time, Dempsey West and John W. Johnson approached the house from different sides. At this point the evidence for the commonwealth and that for the defendants diverges. The commonwealth's evidence tended to show that, as soon as West and Johnson arrived at the house, Lewis, without warning or demand for the surrender of Williams, opened fire upon him with a pistol, and while he was shooting at him from one direction Johnson was also shooting at him through a door and from another direction, with the result that Williams was shot through the body some seven or eight times, and almost instantly killed; that, when the shooting commenced, Esrom Lawson and the other inmates of the house fled from it; that Lawson ran out of a door in or near which Dempsey West was standing with a double-barrel shotgun in his hand, and that thereupon West fired upon Lawson, shooting him through the back or side, and instantly killing him. The defendants' evidence was that, as soon as Williams saw Johnson and West approaching the house, he sprang to his gun for the purpose of killing his would-be captors; that thereupon, and in order to save his own life, Lewis opened fire upon him, as did also Johnson, with the result that Williams was almost instantly killed. The testimony of the defendants also tends to show that the reason Williams did not succeed in shooting or shooting at the posse was that, for some unexplained cause, the mechanism of his gun could not be made to work, or, in the language of the witnesses, "his gun hung up on him." Dempsey West in his own behalf testified that, when he approached one of the doors of the Lawson house, he heard a hurried shuffling of feet, and instantly a fusilade of pistol shots were fired within, and he heard also a voice which he took to be Lewis' crying, "Halt! Halt!" and that at this juncture the door was thrown open, and a man whom he thought was Williams sprang out, and with him came a volume of powder smoke which had been confined in the room before the door was opened; that believing the man who sprang out of the door to be Williams, and that he had killed Lewis and was coming to kill him, he raised his gun and fired, with the result that Esrom Lawson fell dead at his feet; that he did not know Lawson at all, did not know he was in the house, and had no desire or motive to injure him in any way; that he believed it was Williams whom he had shot, and did not find out that it was Lawson for some little time afterwards. The three men composing the posse at once sought the sheriff of Whitley county, and surrendered themselves. They were afterwards indicted, with the result above mentioned.

The commonwealth challenges the competency of the testimony of the officers in Franklin county as to the declarations made by Williams that, when he had served his time in the penitentiary, he intended to return home and kill all the persons who had been instrumental in securing his conviction. We think this evidence was competent. The trial court, as we shall hereafter show, correctly ruled that the warrant, and the appointment of Lewis as special bailiff to execute it, did not justify the posse in making the arrest, but that they were authorized, if they had reasonable grounds to believe a felony had been committed and the felon was at large, to arrest him without a warrant. The declaration of Williams that he intended to kill the members of the Bays family who prosecuted him when he returned home was competent to show that the shooting of Levi Bays was felonious; and it was also competent to show that Williams was a bloody-minded and desperate man, and the necessity on the part of the posse to be on their guard when they undertook to arrest him. In other words, the defendants were entitled to have the jury thoroughly understand the danger of their situation in undertaking to arrest Williams; and his declarations to murder, made in Frankfort, coupled with what he did when he returned home, were all calculated to establish his desperate, dangerous, and lawless character. The defendants were justified in shooting much more quickly in dealing with a man of the character of "General" Williams than they would have been in undertaking to arrest a less ferocious man. Therefore all the evidence of his declarations as to what he intended to do to the Bays family, in the light of what afterwards happened, was competent.

We think the court erred in the instructions in so far as they relate to Dempsey West having aided and abetted Lewis or Johnson in killing Esrom Lawson. In form the instructions on this subject are not open to criticism; but there was no evidence which justified their being given. The indictment, it is true, consisted of several counts, in some of which West is charged with having aided and abetted Lewis and Johnson in killing Lawson; but the evidence, without any contrariety or contradiction, showed that West alone killed Lawson. He testified to this fact himself, and all of the eyewitnesses, both for the commonwealth and for the defendants, corroborated him on this point. This being true, the court should have omitted all reference to the defendant as being an aider or abettor of Lewis or Johnson, and confined its instructions alone to the principles of law arising from the evidence that West alone killed Lawson.

The most insistent complaint that the commonwealth makes as to the instructions is in the giving of No. 6, which is as follows: "Neither the warrant of arrest issued by the Magistrate Burch for the arrest of General Williams, nor the indorsement thereon, admitted in evidence, gave authority to defendants or to either of them to arrest said Williams, and the evidence as to the issual of said warrant, the indorsement thereon, and all that was done under it may be considered in connection with the other evidence to throw light on, and to illustrate, the situation of the parties and the motive prompting their conduct. But if defendants had reasonable grounds to believe that said Williams had committed a felony in Knox county, Ky., and had not been arrested therefor, defendants had the right to arrest him therefor, and to use such force as reasonably appeared to them to be necessary to accomplish the arrest. But in making the arrest it was the duty of the defendants or one of them to first inform Williams, if he gave them a reasonable opportunity to do so, of the intention to arrest him and of the offense charged against him, unless he already knew of such intention and charge. If he already knew of said intention to arrest him and the charge against him, it was his duty to peaceably submit to arrest. And if you believe, from the evidence, that defendants went to the house where the said Esrom Lawson was killed, not intending to kill him or said Williams, or to do them or either of them any great bodily harm, but only to arrest the said Williams, and at a time when defendants had reasonable grounds to believe that said Williams had committed a felony and had not been arrested therefor, and that said Williams did not have reasonable grounds to believe that defendants or any one or more of them intended to kill him or to do him some great bodily harm, but that he then and there first attempted to kill defendants or one of them, or to do them or one of them, some great bodily harm, and defendant West believed and had reasonable grounds to believe he was or the defendants Lewis and Johnson were, or one of them was, then and there, in danger of death or of the infliction of some great bodily harm at the hands of the said Williams, or the said Esrom Lawson, or any person acting at the time with them or with either of them, and that to shoot at and kill Williams was necessary, or appeared to the defendant, in the exercise of a reasonable judgment, to be necessary, in order to avert said danger, either real or to the defendant apparent, and in such shooting by defendant West, if he did shoot he believed in good faith and had reasonable grounds to believe he was shooting at said Williams and said Lawson, was thereby killed, you ought to find the defendant not guilty on the ground of self-defense and apparent necessity, or the defense of another or apparent necessity. On the other hand, if you shall believe from the evidence beyond a reasonable doubt that the defendant West did not believe and did not have reasonable grounds to believe that his life or person, or the life or person of the defendants Lewis and Johnson, or one of them, was in danger at the hands of Williams or said Lawson or any person acting with them or either of them, but that said West first willfully and feloniously, or that said Lewis and Johnson, or one of them, first willfully and feloniously assaulted said Williams with a deadly weapon, placing his life in danger, or his person, of some great bodily harm, and that defendant West willfully and feloniously aided, assisted, advised, abetted, counseled, or encouraged the said Lewis and Johnson, or either of them, to so willfully and feloniously assault said Williams with a deadly weapon, and, in doing so, defendant or the said Lewis and Johnson made the harm or danger to himself or themselves, if any there was, necessary or excusable on the part of Williams or said Lawson in his own necessary or reasonably apparent necessary selfdefense, you should not in that event excuse defendant on the ground of self-defense." The foregoing instruction certainly does not err in favor of the defendant or against the commonwealth. In it the court correctly told the jury that neither the warrant of arrest issued by the justice nor the indorsement thereon gave authority to the defendants to arrest Williams. None of the posse were peace officers, and the only occasion upon which private persons are justified in undertaking an arrest is where they have reasonable grounds to believe that a felony has been committed and the felon is at large; or where they are ordered by a magistrate or judge to arrest a person committing a public offense in the magistrate's or judge's presence. The court also properly told the jury that, if the defendants had reasonable grounds to believe that Williams had committed a felony and was at large, they had a right to arrest him therefor without a warrant, and to use such force as reasonably appeared to them to be necessary to accomplish the arrest; and it might have been added with propriety that the force used, if necessary, might be extended even to the taking of the defendant's life. Without further analysis of the instruction complained of, we deem it sufficient to say that, with the suggestion above made, it fairly states the principles of law to which it is directed, and, as said before, certainly does not err in favor of the defendant.

The other instructions of the court are not complained of by the commonwealth, and, except as corrected in this opinion, are not subject to criticism, all of which is certified.

Ky.App. 1908.


113 S.W. 76


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