Case one of two
260 Ky. 534
Court of Appeals of Kentucky.
KINDER v. COMMONWEALTH.
Oct. 1, 1935.
ACTION: Reversed, with direction.


Appeal from Circuit Court, Knox County.
John Kinder was convicted of manslaughter, and he appeals.

REES, Justice.
John Kinder, John Bain, and Harvey Cain were jointly indicted for the murder of Grant Leddington, and on his separate trial Kinder was convicted of the crime of manslaughter and sentenced to a term of 21 years in the penitentiary. He first insists that the evidence for the commonwealth was insufficient to authorize a submission of the case to the jury and that the trial court erred in overruling his motion for a peremptory instruction. Grant Leddington and Claude Leddington, brothers, 22 and 24 years of age, respectively, were killed at a filling station near Barbourville on September 1, 1934. Kinder has only one leg and is referred to in the record as "Peg" Kinder. Shortly after dark on the evening of the homicide he walked from his father's home to a nearby filling station and restaurant operated by Charles Etter, a colored man. Harvey Cain and John Bain were there, and soon left in a motortruck driven by Bain. Kinder ordered a sandwich and a soft drink, and while he was eating became engaged in an altercation with Claude Leddington. Grant Leddington was not present. Kinder threw a bottle at Leddington and struck him on the head or shoulder. Bystanders separated them and Leddington left, going toward his home a short distance away. Appellant claims that Claude Leddington said as he left, "I am going down the road and get my pistol and get even with you. You'd better be gone when I get back." Kinder remained in the restaurant a few minutes and then started down the road. He met Harvey Cain and John Bain traveling in the opposite direction in Bain's truck, and he returned with them to Etter's restaurant. In the meantime Claude Leddington, accompanied by his brother Grant, had returned to the restaurant. When the truck stopped one of the Leddingtons approached, and, according to one witness for the commonwealth, asked appellant for a match, whereupon the shooting commenced. He was unable to say who fired the first shot. When the shooting ceased Grant Leddington was lying near the rear of the truck dead, and Claude, who had walked around the front of the truck, was mortally wounded. Grant had been shot four times, and three of the bullets entered his back. Appellant testified that as he opened the door of the truck and stepped on the running board Claude Leddington appeared and shoved a pistol against him and snapped it saying, "Damn you, you didn't think I would come back." Appellant grabbed the pistol and while he and Claude were struggling for its possession a man walked around the rear of the truck and began firing. Appellant thereupon drew his pistol and fired several shots at the man near the rear of the truck and then shot at Claude, who continued to snap his pistol. He admitted that he fired eight shots. Claude Leddington walked around the truck and sank down on the side of the road. There was proof that he dropped a holster and said that he had thrown away a pistol as it "had snapped and was no good." A pistol was found later a few feet from the scene of the shooting and there was proof that it had been snapped, but none of the shells had exploded. The testimony of several witnesses tended to support appellant's claim that the Leddingtons were the aggressors and that he shot in his necessary self-defense. However, there was some evidence from which the jury might reasonably conclude that appellant was the aggressor.

It was dark and none of the bystanders could see all that transpired. Clarence Lickliter testified that when he was preparing to assist others to take the wounded man to the hospital, appellant said, "Wait a minute. Don't take him anywhere, I am not ready. I done killed one God-damnson-of-a-bitch and I will kill two or three more before it is over with." Beve Smith testified that while Claude Leddington was begging some one to take him to the hospital, a truck drove up and appellant said, "Wait, don't take him. That is my meat. Don't take him." There was other testimony to the same effect, tending to show animus on the part of the appellant. There was also testimony tending to show that the pistol which appellant claims was found near the scene of the shooting belonged to his codefendant, Bain. Viewed as a whole, the evidence, and inferences deducible therefrom, authorized a submission of the case to the jury.

The court permitted the commonwealth to prove that appellant and John Bain had an altercation with Bert Shelton more than an hour before the shooting, and that appellant struck Shelton. This altercation had no connection with the trouble between appellant and the Leddingtons and the admission of this evidence was error. The acts and conduct of the accused at the time of the commission of the homicide may be proved, and evidence of prior acts is admissible when such acts tend to establish motive or intention in him to commit the crime, but it is not proper to prove other offenses not in any way connected with the homicide and which could not have had any influence in its commission. In addition, the commonwealth's attorney persisted in asking questions which tended to brand appellant as a dealer in illicit liquors. Some of these questions are as follows: "You go up there to this Etter joint, pretty often, colored joint?" "You go there every week don't you?" "Take anything there with you when you go there every week?" "Didn't you know you were going to the colored joint for the purpose of raising a racket with somebody, and didn't you do that?" "Didn't you call these colored friends, these colored fellows you sell the whiskey to, to go into a huddle or caucus and plant that holster there and place your defense right there?" "After you shot these fellows, didn't you walk in the restaurant and have more business with them?" "You was there with the colored folks selling whiskey to them?"

"It is not competent to ask a defendant questions whose only possible object is to arouse in the minds of the jury a suspicion that he has been guilty of other offenses than the one for which he is being tried." The instant case is a close one on the facts, and we are unable to say that the incompetent evidence and the improper line of questioning referred to above did not have a prejudicial effect.

The judgment is reversed, with direction to grant appellant a new trial, and for further proceedings consistent herewith.

Ky.App. 1935.
KINDER v. COMMONWEALTH.
86 S.W.2d 297, 260 Ky. 534
Case two of two
262 Ky. 840
Court of Appeals of Kentucky.
KINDER v. COMMONWEALTH.
Feb. 25, 1936.
ACTION: Affirmed


Appeal from Circuit Court, Knox County.
John Kinder was convicted of manslaughter, and he appeals.

REES, Justice.
This case is here a second time. The opinion on the prior appeal was rendered October 1, 1935, and is reported in 260 Ky. 534, 86 S. W. (2d) 297.

On his first trial, appellant was convicted of the crime of manslaughter, and sentenced to a term of 21 years in the penitentiary. The judgment was reversed because of the admission of incompetent evidence and improper conduct of the commonwealth's attorney during the cross-examination of the accused. On his second trial, the accused was again convicted of the crime of manslaughter, and his punishment fixed at confinement in the penitentiary for a term of 15 years. He now insists that the evidence is not sufficient to sustain the verdict, and that the trial court erred in overruling his motion for a continuance. He also complains of the conduct during the trial of the trial judge and the commonwealth's attorney.

The evidence for the commonwealth at the two trials was substantially the same. In brief, it showed that appellant and Claude Leddington had a difficulty at a filling station near Barbourville, during which appellant struck Leddington with a bottle. Leddington left and soon returned with his brother, Grant Leddington. Appellant also left the filling station, but returned in a few minutes in a truck with Harvey Cain and John Bain. When the truck stopped, Grant Leddington approached it and asked Kinder for a match. The shooting started immediately. Twelve or fifteen shots were fired, and both of the Leddingtons were killed. There was no evidence that either of them had a pistol, or fired a shot. Appellant was seen with an automatic pistol in his hand immediately after the shooting, and was heard to say that he had killed one person and would kill another. The facts are fully stated in the opinion on the first appeal.

At the first trial appellant testified in his own behalf, and introduced nineteen witnesses in an effort to sustain his plea of self- defense. At the second trial no evidence was introduced in his behalf. There was ample evidence tending to show that appellant took part in the shooting that resulted in the death of Grant Leddington, for whose slaying he was indicted, and that the killing was without justification. The question of his guilt or innocence was purely one for the jury, and its verdict is sustained by the evidence.

It is argued for appellant that there is no testimony that he killed Grant Leddington, and that the evidence for the commonwealth shows conclusively that another person did the shooting. This is deduced from the fact that Grant Leddington was shot four times in the back, and one or two witnesses stated that the deceased was facing the appellant when he was shot.

Appellant was jointly indicted with Harvey Cain and John Bain for the murder of Grant Leddington, and each was accused as a principal and also as an aider and abettor. According to the evidence, both Cain and appellant took part in the shooting. If appellant shot at either Grant Leddington or Claude Leddington, he encouraged by such overt act the principal who shot Grant Leddington, and could be convicted as an aider and abettor. It was all one transaction. If a person is actually or constructively present at the time a felony is committed and renders assistance or encouragement to the perpetrator of the crime, with knowledge of his felonious intent, he may be convicted as an aider and abettor of a felony. The assistance or encouragement may consist of overt acts or oral expressions. The parties evidently were engaged in a common difficulty, the Leddingtons on one side, and appellant and Cain on the other. There is proof that appellant fired several shots, and, whether they were fired at Grant Leddington or Claude Leddington, such an overt act was likely to incite and stimulate his associate to the perpetration of the crime and constituted him an aider and abettor. He was not merely a passive observer, but an active participant in the affray which resulted in the death of the two Leddingtons, and what he did amounted to assistance and encouragement to the principal who committed the homicide.

On the first day of the November term of the Knox circuit court, after the mandate of this court had been filed, the trial was set for the eighth day of the term, which was November 12, 1935. When the case was called for trial, the defendant filed his affidavit for a continuance. He stated, in substance, that he had been out of jail only 23 days, and had not had an opportunity to prepare his defense. It was stated in the affidavit, however, that subpoenas had been issued for his witnesses and placed in the hands of the sheriff. It was stated that two of the witnesses were sick, but there was no statement as to what their testimony would be. They had testified, however, on the former trial, and their testimony was available. The same attorney who represented him at the first trial represented him at the second trial, and, of course, was familiar with the facts. No showing was made authorizing a continuance.

Appellant complains because the trial judge participated in the trial by repeating questions that had been asked and answers that had been made. An example of this is where the trial judge repeated the answer of the witness after an answer had been given to the same question twice, and the question was asked a third time. Other instances of alleged improper participation in the trial by the trial judge are of the same nature. The complaints in regard to the conduct of the commonwealth's attorney are equally without merit. The conduct of which most complaint is made is this statement made during his closing argument to the jury: "John, if you were shooting one and your buddy the other, weren't you aiding, abetting, and assisting in the killing of Leddington?"

In the first place, this did not constitute misconduct, since the statement was a proper deduction from the evidence, and was a legitimate argument. In the second place, the court sustained the defendant's objection, and instructed the jury not to consider it. It is true that the commonwealth's attorney then said, "That is in the instructions," and the court merely said to the jury, "You will go by the instructions," but, under the circumstances, no error was committed.

Finding no error prejudicial to appellant's substantial rights, the judgment is affirmed.

Ky.App. 1936.
KINDER v. COMMONWEALTH.
91 S.W.2d 530, 262 Ky. 840


     

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