30 Ky.L.Rptr. 199
Court of Appeals of Kentucky.
LOWE v. COMMONWEALTH.
Dec. 4, 1906.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Gale Lowe was convicted of homicide, and appeals.

LASSING, J.
In December, 1905, Joel Mitchell was killed at a box supper party in a schoolhouse at Wilton, Ky., and appellant, Gale Lowe, Duncan Lowe, his father, and two relatives, Green Lowe and Abner Lowe, were jointly indicted for the crime. Appellant was tried, found guilty, and his punishment fixed at seven years in the penitentiary, and from that judgment he appeals.

The proof shows that on the night of December 6, 1905, there was a gathering at the schoolhouse at Wilton, Ky., for the purpose of conducting a box supper. It seems that each young lady brought a box, and it was auctioned off, and the successful bidder therefor had the honor of escorting the lady who had brought the box to supper. The auctioning off of the boxes was progressing, when appellant bid in a box and a dispute arose concerning his bid thereon. The difficulty was finally settled and the box paid for. Later appellant ordered the box resold: but. as it did not bring a satisfactory price, he rejected the bid and became ugly in manner and talk. There were many ladies and children in the house, and when appellant became very rude, boisterous, and profane in his talk Joel Mitchell remonstrated with him and asked him to be quiet and behave himself. A slight war of words followed this request, but it is not shown just what words passed. But, just as deceased said he "was not afraid of all of them," Duncan Lowe and the other relatives, Green Lowe and Abner Lowe, had gathered around Mitchell, and Duncan Lowe ran up to him and shot him. Previous to the trouble over the sale of the box to appellant, there was no difficulty, but just as it was adjusted all of the Lowes went out of the schoolhouse and remained outside some little time. Upon their return, and later, Gale Lowe said, "Now would be a good time to raise hell," and he believed he would. His father took some part in this talk, and said he was there to stay with Gale. While the war of words between Gale Lowe and the deceased was going on, Green Lowe went over to Abner Lowe and said something, and it was then that Duncan Lowe fired the shot which killed Mitchell. The conduct of the Lowes in going out of the house together for a time after the first dispute, and their actions at the time Mitchell was endeavoring to quiet Gale Lowe, coupled with the statement of Mitchell, just before he was shot, that he was not afraid of all of them, justified the court in permitting the jury to say whether or not they were acting in concert, under an agreement or conspiracy to kill Mitchell. Gale Lowe is shown by the proof to have been the main cause of the trouble which terminated in the killing of Mitchell. He brought it on, and showed from his conduct and language that it was his purpose to make trouble. These facts were all submitted to the jury under what we conceive to be proper instructions.

Appellant complains that the court should have told the jury that "although they may believe that, at the time the shot was fired which killed Mitchell, the defendant, Gale Lowe, was then engaged in a controversy with Mitchell, yet if he, the defendant, did not at the time know of the intention of Duncan Lowe to shoot Mitchell, or while in possession of said knowledge did not aid, abet, counsel, or advise him [Duncan Lowe] in so doing, then you will find the defendant not guilty." This instruction would have been but the counterpart of the instructions given. The court told the jury that they had to believe beyond a reasonable doubt that the deceased, Joel Mitchell, was willfully and maliciously killed by Duncan Lowe, not in his necessary, or reasonably apparent necessary, self-defense, and not in the necessary, or reasonably apparent necessary, defense of Gale Lowe, Green Lowe, and Abner Lowe, or one or more of them, and that the defendant, Gale Lowe, was present at the time, and near enough to do so, and did willfully and feloniously aid, assist, abet, counsel, advise, or command the said Duncan Lowe to so shoot and kill the deceased, etc. So that the jury, before they could find against the defendant, had to believe that he was not only present at the killing, but that he aided, counseled, advised, or commanded the shooting of deceased. We see no error in the instruction given by the court, and are satisfied that he gave the whole law of the case as warranted by the facts proven.

Complaint is made that a continuance should have been granted appellant because of the absence of certain witnesses; but we find no record of the motion for a continuance, and no affidavit in support of said motion, and no reference to either in the record in this case.

We find no evidence in this record of any error prejudicial to the rights of appellant in the trial of his case in the lower court, and the judgment is affirmed.

Ky.App. 1906.
LOWE v. COMMONWEALTH.
97 S.W. 765, 30 Ky.L.Rptr. 199



     

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