Appeal from Circuit Court, Knox County.
Galloway Gambrel was convicted of unlawfully confederating
for the purpose of intimidating, alarming, disturbing, and
injuring one Margaret Messer and others, and he appeals.
Reversed and Remanded
Court of Appeals of Kentucky.
GAMBREL
v.
COMMONWEALTH.
May 6, 1904.
In a prosecution for confederating to intimidate and alarm another, the commonwealth claimed that defendant and others approached the house of prosecutrix at night, and, after shooting at a dog, began shooting at prosecutrix's residence. Defendant, however, testified that, without any intention to intimidate prosecutrix or others of her family, they were attacked by prosecutrix's bulldog in a public road, while passing prosecutrix's house, and after having shot the dog to prevent his biting one of defendant's party, they were fired on by persons in prosecutrix's house and yard, which fire they returned, believing the same to be necessary to protect their lives. Held, that it was error to fail to charge that, if the jury believed the facts to be as defendant testified, defendant was not guilty.

SETTLE, J.

The appellant, Galloway Gambrel, was indicted in the Knox circuit court, jointly with Nelson Gambrel. Silas Gambrel, John Taylor, and Jacob Taylor, for the crime of "unlawfully confederating and banding themselves together for the purpose of intimidating, alarming, disturbing, and injuring" Margaret Messer and others, and, having been accorded a separate trial, appellant was found guilty by the jury, and his punishment fixed at confinement in the penitentiary for one year. He complains that his conviction was illegal, and asks that the judgment of the lower court be reversed, and a new trial granted him. One of the grounds for a new trial in the lower court, and now urged for a reversal, is that that court erred in refusing to peremptorily instruct the jury upon the conclusion of the commonwealth's evidence to find the appellant not guilty. It appears from the bill of evidence that appellant and his brothers, Nelson and Silas Gambrel, after attending a logrolling at the home of their father, started together, and in company with the wife of Silas Gambrel, about dark, to go to Silas Gambrel's home, in doing which they had to pass the residence of Margaret Messer, who lived upon the public road. When they reached the house of Mrs. Messer, one or more of the party fired two or three pistol shots out in the road, near the house, at a dog, which howled and ran into the yard, and was found the next morning near the house, with a bullet hole in his back, dead. Other shots were then fired from the house of Mrs. Messer, and by the Gambrels out in the road. The only persons in the Messer house were C. T. Messer and one Hubbard, the latter being somewhat sick and in bed. Margaret Messer was then only a short distance from home, on her return from Barbourville, where she had been that day on horseback. When the shooting began, A. Messer, who lived near his mother, and a man by the name of Hart, who was at his home, ran to the residence of Margaret Messer. The shots from the Messer house were fired by C. T. Messer, A. Messer, and Hart at the persons who were shooting from the road. On the following morning bullet holes were found in the Messer dwelling, smokehouse, wellhouse, and a tree in the yard. According to the evidence, from 20 to 50 shots altogether were fired. The witnesses all agreed that not less than two shots were fired out in the road before the dog howled. Some of the commonwealth's witnesses say three shots were heard by them just before or about the time the dog howled. It is evident that these shots, whether there were two or three of them, were fired at the dog. The shooting that followed the howling of the dog was, as already stated, done by those in the house or yard, and the Gambrels out in the road. All the parties on the ground were armed with pistols, except Hubbard, the sick man, and the wife of Silas Gambrel. The evidence is conflicting as to whether the shooting that occurred after the dog was wounded was commenced by the persons in the house or yard, or those out in the road.

Two or three of the commonwealth's witnesses testified that the house was shot at by the Gambrels before any shooting was done from the house or yard. Upon the other hand, appellant and his associates testified that none of them shot into the yard or toward the house until after they were shot at from the house or yard. They further testified that they were peaceably passing the Messer house when they were attacked by the Messer dog out in the road; that the dog belonged to the breed known as the bulldog, and was a very large, strong, and vicious animal; that, when he attacked the Gambrel party, appellant attempted to keep him from biting by kicking him, to which the dog seemed to pay no attention; thereupon appellant, to prevent himself and party from being bitten and maimed or killed by the dog, and for no other reason, according to his testimony, shot at him twice with his pistol, the last of which shots struck and wounded the animal, and caused him to howl and flee toward the house. Appellant and his brothers, and the wife of Silas, also testified that after the shooting of the dog they were shot at by persons in the Messer house and yard, whose fire they returned, but only in their necessary self-defense, and for the purpose of protecting themselves from death or great bodily harm. Thus it will be seen that it is hard to determine from the evidence whether the shooting on the night in question, after the wounding of the dog, was commenced by the Gambrels or the Messers. The matter was a question of fact, that should have been, and was, properly left to the determination of the jury.

The only evidence relied upon by the commonwealth as tending to show that there was a confederating or banding together of the appellant and his brothers for the unlawful purpose of intimidating, alarming, or injuring the Messers, or any of them, was that for several years there had existed ill will between the Gambrels and the Messers, though it was not proved that there had been any fighting or other trouble between them; also, that each of the Gambrels was armed with a pistol on the night of the shooting. In addition, two or three of the commonwealth's witnesses testified that they found, on the morning after the shooting, a place in the bushes, near the Messer house, where a horse appeared to have been hitched or standing. They judged it to be a gray horse because of the gray hair found on the bushes at the place, and no doubt inferred that the horse had been hitched, because of the many tracks appearing to have been made by a horse confined to a limited space. In addition, it was stated by Taylor, a commonwealth's witness, that he saw the Gambrels that night before they reached the Messer house; one of them asked him to go home with them, at which time one of the party was riding or leading a gray horse. But the Gambrels all testified that none of their party had a gray horse, and that there was but one horse with them on that occasion, a bay mare, that was ridden by the wife of Silas Gambrel. They further testified that the mare was not hitched near the Messer house that night, and that she became so frightened when the shooting began that she threw her rider, Mrs. Silas Gambrel, to the ground.

We very much doubt whether the evidence relied on by the commonwealth as showing the alleged confederating and banding together of the defendants named in the indictment for the purpose of intimidating or injuring the Messers was sufficient to establish that fact, but it will not do to say there was no evidence whatever on that point, and the trial court was not authorized to give a peremptory instruction, unless there was a total failure or absence of proof. We are of opinion, however, that the trial court, in instructing the jury, failed to give the whole law of the case. In addition to the instructions given, the jury should have been further instructed by the court that if they believed from the evidence that appellant and his brothers, without any purpose to intimidate, alarm, or injure Mrs. Messer or others of her family, while passing her residence on the way to the home of Silas Gambrel, were attacked by the Messer bulldog in the public road, and they shot him to prevent his biting some of the party, and were then fired upon by persons in the Messer house or yard, which fire they returned, believing at the time, and having reasonable, or apparently reasonable, grounds to believe, that it was necessary for them to do so in order to protect their lives or persons from injury or apparent injury at the hands of such persons, then such shooting on the part of appellant or those with him did not authorize the conviction of appellant under the charge in the indictment, and the jury should so find.

Wherefore, for the failure of the court to properly instruct the jury as indicated, the judgment is reversed, and cause remanded with directions to the lower court to grant appellant a new trial, and for further proceedings consistent with this opinion.




    

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