Case one of two
Helton v. Commonwealth
244 S.W.2d 762
Dec. 21, 1951.
ACTION: Judgments reversed.

Herman 'Fats' Helton was convicted in the Circuit Court, Laurel County, B. B. Snyder, Special Judge, under three indictments of maliciously striking and wounding another with a deadly weapon with the intent to kill him and the defendant appealed. The Court of Appeals, Stanley, C., held that instruction authorizing jury to find defendant guilty as a principal or as an aider and abettor was defective for failure to submit a necessary element of the crime, an intent to kill and that instruction submitting alternative condition of guilt as an aider and abettor of an unknown principal which did not require belief that defendant had acted maliciously and wilfully in aiding principals, was erroneous although error was cured by another instruction but that it was prejudicially erroneous to omit essential elements of malice and wilfullness and an intent to kill as a condition of guilt as an aider or abettor.

STANLEY, Commissioner.
Under three indictments and separate trials the appellant, Herman 'Fats' Helton, was convicted of maliciously striking and wounding another with a deadly weapon with the intent to kill him. In one case his punishment was fixed at confinement in the penitentiary for 14 years, and in the others, 10 years each. These offenses were committed in Knox County in February, 1950. By agreement, the venue of the trials was changed to Laurel County. Twelve indictments were returned against the appellant, Helton, in connection with other parties.

The Commonwealth proved that a group of 27 automobiles containing perhaps 125 men had assembled and gone as a mob, armed with various weapons, pistols and clubs and attacked the three men named in these indictments and a number of other persons at the same and other places. They brutally beat and kicked them. Some they threw into the icy waters of a creek.

The appeals have been consolidated since the records are substantially the same. The principal contentions are:
(1) the indictments were defective;
(2) incompetent evidence was admitted;
(3) there was misconduct on the part of the Commmonwealth's attorney and the court;
(4) the instructions were erroneous; and
(5) he had been placed in former jeopardy.

(1) The indictments were in two counts. The first charges appellant with the crime of maliciously striking and wounding another with deadly weapons with intent to kill. The second count accuses him of 'entering into a conspiracy for the purpose of maliciously striking and wounding.' Appellant demurred to each indictment on the ground that two separate and distinct offenses are charged; contending the first is a violation of KRS 435.170, and the second is a violation of KRS 437.110. The latter statute provides that no two or more persons shall confederate themselves together for the purpose of intimidating, alarming, disturbing or injuring any person. If two distinct statutory offenses are charged, the indictments would be demurrable.

It is apparent, however, that the second count of the indictments simply describes a different means by which the crime of maliciously striking and wounding was committed. No attempt is made in the indictments to charge two different crimes, and they were not defective in this respect.

Indictment No. 2569 was for an assault upon Douglas Noonan. At the opening of the trial the court made a statement to the jury panel condemning subversive organizations and making inquiry as to any possible connection of the venireman with such disloyal groups. The statement is susceptible to the interpretation of associating the miners' union with them. Since the judgment must be reversed upon other grounds, we need express no further opinion than that the statement was ill advised.

The other indictments were for assaults upon Douglas Blair near Barbourville, the same place Noonan was attacked, and upon James Ferguson at Kay Jay, about nine miles distant. Other than the improper statement referred to, the grounds upon which the reversal of the judgments is sought are the same in the three appeals.

(2) The alleged incompetent testimony is the description of the occurrences and assaults committed upon other persons the same morning by the same group, some of which took place several miles away from the scene of the assault for which the accused was then being tried. Those assaults were committed in the same brutal manner and by the same mob in the apparent attempt to keep the victims from working in the mines even though the strike had officially ended. This is the same notorious work stoppage of miners throughout the country for which national labor leaders were convicted of contempt of court for violating injunctions.

It is, of course, the general rule that evidence of other crimes is incompetent, because it might induce the jury to convict for the other crimes rather than the one charged, or to increase the punishment. However, there are exceptions to this general rule.

It is an accepted principle that the commission of other crimes may constitute a part of the res gestae, or such evidence may be admissible for the purpose of identifying the accused, to show motive and criminal intent, or to show that the crime for which the defendant is being tried is a part of a criminal scheme or plan.

The evidence of the other incidents which took place on the morning served to identify appellant as being a member of the mob, which was an important question in the case because his defense was that he was not a member and not present. These other events likewise showed a criminal scheme, developed the motive for the crime, and were all related parts of essentially the same transaction. It also proved the charges that the several crimes were committed pursuant to a conspiracy. Clearly this evidence was admissible. The court, in his written instructions, properly admonished the jury respecting the evidence.

The testimony that the President of the United States and the President of the United Mine Workers had issued calls for the miners to return to work and produce coal was immaterial and should not have been admitted, though probably it was not prejudicial.

(3) Complaint is made that questions were asked concerning the membership of certain witnesses in the United Mine Workers' organization. Since appellant was a member of this union, it was proper to show that those testifying, or working in the case on his behalf, were likewise members as it would tend to show their bias and might affect their credibility. It was perhaps irrelevant to bring out the fact that appellant's attorneys also represented this union, but this could hardly constitute reversible error. There are objections to other bits of evidence, which we think are without merit.

(4) Instruction No. 1, which authorized the jury to find the defendant guilty as a principal or as an aider and abettor, is fatally defective. The first part, which covers the question of guilt as the principal, seems to be in proper form with the exception of the omission of a necessary element of the crime defined by the statute under which the indictment was returned. By this statute, the common law misdemeanor of assault and battery is made a felony where it is accompanied by an intent to kill, but not otherwise. The instruction must, therefore, condition the verdict of guilt upon the finding of such a criminal intent, for that is the gravamen of the crime. This element of an intent to kill was omitted from the instruction. We cannot agree with the argument of the Attorney General that it was sufficiently covered by the clause which predicated guilt upon assault 'with a pistol, a deadly weapon or other instrument reasonably calculated to cause death in the manner in which the same was used.'

The second part of the instruction submitted the alternative condition of guilt as an aider and abettor of an unknown principal. It required the jury to believe that the principal had maliciously and wilfully struck and wounded the person named and that the defendant, Helton, had aided and abetted the principal, 'if any there was, who did such striking and wounding, with intent to kill the said' person named in the indictment. It did not require the belief that Helton had acted maliciously and wilfully in aiding the principal, nor that the jury should believe beyond a reasonable doubt that he had so aided. The instruction is ambiguous as to the element of an intent to kill. The term may be construed as referring either to the principal or to Helton as an aider and abettor. In any event, it was erroneous. It was an error to omit the condition of belief beyond a reasonable doubt. However, this was not prejudicial for it was cured by instruction No. 4 which reads: 'If upon the whole case you have a reasonable doubt of the defendant having been proven guilty under the evidence, under one or more of the instructions above set out, you will find the defendant not guilty.'

Subsection (6) of KRS 435.170 merely declares that any person shall be similarly punished who 'aids, counsels, advises or encourages another person in committing any offense described' in the preceding subsections. But it seems to us that where malice and wilfullness and an intent to kill are declared as a condition of guilt of a principal, the same predicate must be laid down, or the same condition must be found, in order to convict an aider and abettor. To constitute one an aider and abettor, he must share the criminal intent or purpose of the principal. Therefore, it was prejudicially erroneous to omit the essential elements of malice and wilfullness, and likewise to omit the element of an intent to kill as above described.

Substantially the same vices appear in instruction No. 2 which predicated guilt of the defendant upon a conspiracy with someone who did the actual striking and wounding. In addition, the necessity that a deadly weapon must have been used in the commission of the assault was not included.

It is not possible for us to agree with the argument of the Commonwealth that when read as a whole, the instructions should be regarded as not prejudicial in any of these particulars.

By instruction No. 3 the court submitted as a lesser degree of the statutory felony the misdemeanor described in KRS 435.180, namely, shooting or cutting another in sudden affray or in sudden heat of passion without previous malice. It has been the consistent construction of KRS 435.170(2) that where the evidence authorizes it, an instruction on the common law misdemeanor of assault and battery should be given because striking with a deadly weapon without malice or intent to kill is not embraced in KRS 435.180.

None of the victims of the mob was killed. None of them was armed. All undertook to defend themselves with their fists. With the weapons which the Commonwealth proved the defendant and other members of the mob used, it would have been easy to have killed the persons assaulted. In at least one instance a leader cautioned the active assailant to put up his pistol and not to kill. From all this the jury may have drawn the inference that there was, in fact, no intent to kill. Without the gravemen of murderous intent, as we have side, the offense was assault and battery. An instruction on that misdemeanor should have been given instead of instruction No. 3, although the substitution may not have been prejudicial since the jury found the defendant guilty in each case of the felony charge rather than under the misdemeanor instruction that was given.

(5) In the last of the cases for which he was tried, the appellant entered a plea of former jeopardy on the ground that he had been convicted of a conspiracy in the previous trials. The crime proven was that of maliciously striking and wounding another, either by his own hand or by acting in concert with others who committed the specific act. Each assault constituted a separate crime, and his plea of former jeopardy was unfounded.

It is the heart of our social and political system that every man may follow his own way of life peaceably, unafraid, unthreatened and unhindered. The record establishes vicious violence of a mob in an effort to accomplish their purposes of intimidating and coercing men from exercising their free right to work and earn a livelihood, and that the accused, Helton, was an active participant. The jury found that to be a fact, and the several penalties are not too severe. But this government of ours also gives to every citizen the protection of due processes of law in the accusation and trial of charges that he has not accorded the same respect for the rights of his alleged victim. In recognition of that, we are constrained to reverse the several judgments of conviction for the errors described that there may be other trials conducted in accordance with the established legal principles of fairness and justice.

The several judgments are reversed.

244 S.W.2d 762

Case two of two
Helton v. Commonwealth
256 S.W.2d 14
March 13, 1953.
ACTION: Judgments reversed.

Prosecution under two indictments for maliciously striking and wounding three men with deadly weapons with intent to kill. From judgments of convictions in the Circuit Court, Laurel County, defendant appealed. The Court of Appeals, Waddill, C., held that a special judge, designated by the Chief Justice to preside at a special term of the circuit court and try certain cases, including such indictments, had no authority to act as special judge on retrial of defendant's cases at a later term of such court after reversal of pervious judgments of convictions, so that the later trials and convictions appealed from were nullities, in the absence of redesignation of such special judge by the Chief Justice.

WADDILL, Commissioner.
On these appeals we are concerned with the jurisdictional question of whether or not Honorable B. B. Snyder was empowered to retry these cases in February, 1952, under the designation and commission issued by this Court on August 15, 1950.

The indictments against appellant were returned by the grand jury of Knox County at its regular February, 1950, term of court. By agreement the venue was transferred to the Laurel Circuit Court.

Because of a crowded docket the judge of the Laurel Circuit Court called a special term of court to commence on August 21, 1950, and to continue for twelve jurisdical days. The indictments against the appellant were assigned for trial on the first day of the special term.

A conflicting court schedule prevented the judge of the Laurel Circuit Court from presiding at the special term and the fact of his disqualification was certified to this Court.

Thereupon and pursuant to the authority of KRS 23.260 the following order was issued by this Court.
'Court of Appeals of Kentucky
'Designation of Special Judge
'It having been properly certified that the Honorable Ray C. Lewis, the regular judge of the Twenty-seventh judicial district, is disqualified or otherwise unable to preside at the August Special 1950 term of the Laurel Circuit Court on the trial of the following actions:
'All cases set out in Order of August 10, 1950 until finally disposed of, and it further appearing that no other regular Circuit Judge is available at that time, and that the parties litigant cannot agree upon an attorney to act as special judge, Honorable B. B. Snyder, a member of the bar having the qualifications of a circuit judge, is hereby designated to preside at said term and try said cases.
'Witness my hand this fifteenth day of August, 1950.
'Signed, Porter Sims,
'Chief Justice Court of Appeals'
In consequence thereof the following commission was issued:
'In the Name and by the Authority of the
'Commonwealth of Kentucky
'Court of Appeals:
'To all to Whom these Presents Shall Come,
'Know ye, that Honorable B. B. Snyder having been duly appointed Special Judge to preside at the August Special 1950 Term, of the Laurel Circuit Court to try all cases as set forth in the certification of the Circuit Clerk of said Court, and designation issued pursuant to such certification.
'I hereby invest him with full power and authority to execute and discharge the duties of said office according to law. And to have and to hold the same, with all the rights and emoluments thereunto legally appertaining, for and during the term prescribed by law. 'In testimony whereof, I have caused these letters to be made patent, and the seal of the Court to be hereunto affixed.
'Done at Frankfort, the fifteenth day of August, in the year of our Lord one thousand nine hundred and fifty and in the one hundred and fifty-eight year of the Commonwealth.
'Signed Porter Sims,
'By the Chief Justice'

Judge Snyder presided at the August, 1950 special term when appellant was convicted under three indictments.

Appeals were taken to this Court and on December 21, 1951, the several judgments of conviction were reversed because the cases were submitted to the jury under erroneous instructions.

After these cases were remanded to the circuit court the appellant seasonably challenged the authority of Judge Snyder to act as special judge in connection with the retrial of these cases in February, 1952. However, appellant's objections were overruled and he was forced into trials on two separate indictments and was convicted in each case and sentenced to a total of ten years in prison.

The cases were consolidated after the appeal of each case was perfected. Both appeals will be disposed of in this opinion.

The appointment of Judge Snyder as special judge for the special term of court was made by the Chief Justice under KRS 23.260, Ky. Constitution, � 136. The power conferred upon a special judge under this section of our statutes, insofar as pertinent here, is 'to hold the special term.'

KRS 23.110(2) provides that the order calling the special term 'shall specify the day when the special term shall commence and the time it shall continue'.

The order calling the special August 1950 term recited that the special term should commence on August 21, 1950, and extend for twelve juridical days thereafter. Therefore, under KRS 23.260 the Chief Justice's designation of Judge Snyder was for a term of court the tenure of which extended only for the time designated in the instruments appointing him. Consequently, his service was limited to the term commencing August 21, 1950.

'* * * when an attorney is designated as circuit judge he is authorized to preside at the designated term and try the designated case or cases at that term, but * * * if the designated case or cases are not tried at the term for which such attorney was designated, and are continued to a subsequent term, such designated attorney shall not be authorized to try such case or cases at such subsequent term unless he is again so designated, or unless he was in some other manner authorized to try the designated case or cases at any subsequent term.'

In view of the controlling statutes we have cited and in light of the plain language of the designation and commission issued by the Chief Justice, Judge Snyder had no authority to act as special judge in the retrial of these cases in February, 1952. His designation and commission as special judge had expired. Therefore, in the absence of Judge Snyder's redesignation by the Chief Justice, the purported trials and conviction of appellant, over his objections, were a nullity.

We reverse this case with reluctance. As was said in effect on the first appeal the appellant's guilt was established beyond doubt. But regardless of his apparent guilt, he is entitled under our basic law to a fair trial by a jury of his peers in a lawfully constituted court. This includes a presiding judge, duly elected or appointed according to law.

We are not holding that a special judge appointed for a special term, may not, after expiration of the term, enter orders incidental or supplemental to decisions made or judgments entered by him during the term. But we do hold, because we have no other alternative, that a judge appointed for a special term under KRS 23.260 to try designated cases, may not, of his own volition, later call another special term and retry the cases, over the objection of the interested parties.

Therefore, the judgment of conviction in each case is reversed.

256 S.W.2d 14


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