|Appeal from Circuit Court, Clay County|
|Turner Vs. Commonwealth|
Court of Appeals of Kentucky|
Feb. 26, 1896
DU RELLE, J.
Appellant has been convicted of murder, the offense being that of a principal of the second degree. There were two counts in the indictment, the first count charging conspiracy by appellant, Jackson Asher, and George Thompson to commit a felony by killing Granville Fisher, and the second count charging the defendants with the murder of Fisher. A separate trial of appellant was had. There was evidence showing that Fisher was very drunk on the day of the killing; that he was quite insolent to the uncle of appellant; and, after firing his pistol into the ground, went away with Boone Philpot to the house of Mrs. Frazier. A negro man named McCall testified that after Fisher and Philpot left John Turner's place, appellant said that Fisher's conduct was hard to take, proposed to Asher and Thompson to get his (Turner's) guns, and kill them, and the three started towards the house of appellant's father; that Thompson turned back after going a short distance, and told McCall to leave the place if he wanted to save his scalp; that he (McCall) then went to the Frazier house, in which Philpot and Fisher were talking with some women, and told Philpot that appellant, Asher, and Thompson were coming to kill them. There was evidence showing that Asher and Thompson went to the house where Turner lived; that Asher got a gun and Thompson a pistol, and went to the grocery, which stands 113 feet from the Frazier house; that both in going to the Turner house and in going from there to the grocery appellant, who is a cripple, was behind the others. The evidence of one witness (Sasser) is that he was 30 or 40 steps behind them when the witness saw them on the way to the grocery, and that he stopped about 100 yards from the grocery, and went no further. Asher stated that appellant stopped before he got to the grocery. McCall stated that when the shooting occurred appellant was in the orchard, which was towards London from the Frazier house, which would place it about opposite the grocery. When at or near the grocery, Thompson called out a challenge to Fisher and Philpot in the Frazier house, 113 feet away, to come out and fight if they were brave as they were awhile ago. Fisher and Philpot came out, and a general fight ensued between them on one side and Thompson and Asher on the other. In the fight Fisher was killed, and the evidence tended to show that the shot was fired by Thompson. There is nothing to show that appellant, who was in his shirtsleeves, was armed, or took any part in the actual fight. The nolle prosequi was entered as to Asher, and he testified for the commonwealth, his testimony being corroborative of McCall's. The appellant testified in his own behalf, denying that he suggested or encouraged the killing, and explained his following Thompson and Asher by stating that he was trying to get his gun and pistol from them. There were a number of discrepancies and contradictions in the testimony of the witnesses for the commonwealth. The characters of three of them-the women at the Frazier house-were attacked by a number of witnesses, as was also the character of defendant. It is urged for appellant that testimony was admitted that "after the killing the defendant George Thompson left Kentucky, and was arrested in Tennessee," and that "Thompson is now dead." This seems to us to be immaterial. The commonwealth was permitted to prove that Fisher and Thompson got into a quarrel while appellant was present. This evidence would tend to exculpate appellant by supplying a personal motive for Thompson to kill Fisher. The commonwealth was also allowed to prove that McCall told Philpot and Fisher that Thompson, Asher, and Turner were coming there to kill them. In our opinion, this statement, as well as the challenge by Thompson to come out and fight, which is also objected to, was explanatory of the action of Philpot and Turner, and therefore admissible as part of the res gestae. There was evidence tending to show that appellant was in hearing distance of the challenge, and the jury were the judges of the weight of it.
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