14 Ky.L.Rptr. 605
Court of Appeals of Kentucky.
Spurlock v. Commonwealth.
Jan. 26, 1893.
ACTION: Reversed.

Appeal from circuit court, Clay county.

"Not to be officially reported."

Green Spurlock, having been convicted of murder, appeals.

Pryor, J.
The appellant was convicted of murder, and sentenced to the state prison for life. The instructions given are not objectionable, but there is much conflicting evidence as to the guilt of the accused. The deceased was shot by some one or more persons who had secreted themselves in bushes along or near the pathway that led from his house. The killing is said to have resulted from the relation of certain clans of marauders and murderers to each other, existing in the county of Harlan. These clans were hostile to each other, and roamed through the country, ready at any time to take the lives of those who disapproved of their savage and brutal deeds. Whether this appellant belonged to the one clan or the other is not necessary for this court to determine. He was arraigned and placed on trial for the murder of Caywood, and for this offense he could be tried under the indictment, and for no other; and therefore all the evidence as to the offenses certain murderous clans had previously committed was incompetent, or that other men had been shot and killed or wounded, should have been excluded from the jury; also the fact that the county judge of Harlan county had armed men to protect the county seat against an invasion from the armed force of one Howard. The testimony of Ross Stewart, to the effect that he heard a gun fired about one mile from where the deceased was killed; he reckoned that it was shot at Stephen Caywood,-all such testimony was incompetent, and was calculated to divert the mind of the jury from the real issue in the case, and produce a conviction on account of the many acts of lawlessness that had been committed in the county of Harlan. If the accused was guilty of assassinating the deceased, or aiding others in committing the dastardly deed, there is no punishment too severe for him; but the rule of law and evidence that applies to all men charged with crime must control the trial of the accused, and the evidence confined to the plea of not guilty. We are not disposed to adjudge that the court erred in denying the right of the accused to avail himself of the testimony of those with whom he was seen armed on the morning of the murder. There is enough testimony on the part of the commonwealth to show a conspiracy to take the life of Caywood by those who were seen armed at or near the place of the killing; and the only question is, was the accused one of the number? And, there being conflicting testimony on this point, it was with the jury to pass on the question. But, when the court gave such a wide range to the state in the effort to show the deplorable condition of affairs in Harlan, we cannot say that the accused was not prejudiced by it, and for that reason we must adjudge the appellant entitled to a new trial.

Judgment reversed and remanded, with directions to grant a new trial, and for proceedings consistent with this opinion.

Ky.App. 1893.
Spurlock v. Commonwealth.
20 S.W. 1095, 14 Ky.L.Rptr. 605


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