Whited v. Commonwealth

Campbell, C. J.,

delivered the opinion of the court.

Wilmer Whited was jointly indicted with J. W. Sturgill and Jeff Flanary for the murder of Pete Hamilton. Upon his arraignment, he elected to be tried separately. The jury which tried him found him guilty of murder in the second degree and fixed his punishment at twenty years in the penitentiary.

The record discloses that Whited, Sturgill and Flanary were duly appointed deputy sheriffs under J. E. Quillen, Sheriff of Scott county. On the day of the homicide Whited and Quillen left Scott county on a business trip to Wise county. When they arrived at Fort Blackmore, where they had gone to procure some papers from Sturgill who was a business associate of Quillen, they were informed that Sturgill and another deputy (Flanary) had gone into the mountains in search of operators of an illicit still. They then proceeded to a point in the mountains near the dividing line between the counties of Wise and Scott, where they located the truck of Sturgill. Leaving their car at the point where the truck was located, Whited and Quillen went further into the mountains to locate- Sturgill, which they soon did. Upon enquiry, it was ascertained that Sturgill did not have the desired papers. Quillen was informed by Sturgill that two stills had been located and destroyed but that the main still, for which they were searching had not been found. After depositing in the truck some tools *531 which had been confiscated at one of the stills, they determined to make another search for additional stills. This search proved unsuccessful and upon their return to the Sturgill truck, they found that the tools they had deposited therein had been stolen. While the quartet was at the truck, eight or ten shots were fired in the vicinity of Hamilton’s home and the shot or bullets struck the timber near where the defendant was standing. It was inferred that the shots were fired either by Hamilton, who had recently been released from the Federal penitentiary, or his son-in-law, Cloyd Laney, for the purpose of intimidating them and preventing a further search for the illicit still. The officers then, after some parleying, proceeded on another search for the still, and inferentially, in search of the person br persons who had fired the shots. After another, unsuccessful search in the mountains, they were proceeding along a rough roadway when they came upon Hamilton, Laney, Mrs. Hamilton, and Mrs. Laney and some children. Hamilton, who was sitting upon a log, was armed with a double-barrelled shotgun, and Laney, standing nearby, was armed with a pistol. In addition to the shot gun, Hamilton was transporting a small quantity of illicit liquor.

There is serious conflict regarding what actually transpired when the parties came in close view of each other. The evidence of Mrs. Hamilton, Mrs. Laney and Cloyd Laney is to the effect that when the officers came into close proximity, Hamilton and Laney began running in an opposite direction, and immediately the officers began shooting at Hamilton and Laney. A number of shots were fired by the officers and Hamilton was wounded and died shortly thereafter. The evidence adduced by the defendant is to the effect that when the officers were discovered by Hamilton and Laney, they were immediately fired upon and in returning the fire of Hamilton and Laney, Hamilton was killed.

The defendant, as a witness in his own behalf, testified that he was not acquainted with either Hamilton or Laney; that he called upon Hamilton to submit to arrest; that he *532 did not shoot at Hamilton but did fire two shots at Laney, who was shooting at the officers. The jury resolved the conflict in favor of the Commonwealth.

The contention of the Commonwealth that the evidence warranted a verdict of guilty of murder in the second degree, wás based upon the presumption that, because the tools stored in the truck of Sturgill had been stolen, Whited, Sturgill and Flanary became infuriated and entered into a conspiracy to kill the thief, and that whether or not defendant fired the shot which killed Hamilton, he was present, aiding and abetting in the commission of the homicide.

In view of the conclusion we have reached, it becomes unnecessary, and, in fact, it would be improper to discuss the assignment of error that the verdict was contrary to the evidence or contrary to the well-established doctrine relating to the status of an aider or abetter.

It is assigned as error that over the objection of the defendant, the court, upon the motion of the Commonwealth, gave to the jury this instruction:

No. 11. “The Court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that Wilmer Whited killed Pete Hamilton, or that John W. Sturgill, or Jeff Flanary, killed him, and that Wilmer Whited was present, aiding, abetting, counseling and advising and consenting to the said crime, and that such killing was wilful, deliberate and premeditated, you should find the defendant guilty of murder in the first degree, and fix his punishment by death, or by confinement in the penitentiary for life, or for any term not less than twenty years. If, however, you believe from the evidence that such killing was wilful and deliberate but not premeditated, you should find the defendant guilty of murder in the second degree, and fix his punishment by confinement in the penitentiary for not less than five nor more than twenty years.”

The objection that the instruction is erroneous is well founded. The vice in the instruction is that it tells the jury that if Whited killed Hamilton, or was present, aiding and abetting, etc., in the homicide, then he would be guilty *533 of murder, even though the killing of Hamilton was warranted by law, and in pursuance of defendant’s authorized duty as a law-enforcing officer. The instruction is also amenable to the objection that it fails to draw a distinction between concert of action and simultaneous action. Concert of action must be based upon a conspiracy to commit an illegal act, and one who aids and abets in the commission of the crime must share in the criminal intent of the actual perpetrator of the criminal act. To constitute a conspiracy, there must be “a combination or agreement between two or more persons to do an unlawful act.” Wharton’s Criminal Law (11th Ed.), Vol. II, p. 1740.

The distinction between concert of action and independent, simultaneous action was recognized by the court in instructions A and B given on motion of the defendant, which became the law of the case. Instructions A and B are as follows:

“The Court instructs the jury that if they believe from the evidence that the defendant and Jeff Flanary and J. W. Sturgill were engaged in searching for an illicit still without any intent on their part to commit any crime and while so engaged an affray dr difficulty suddenly arose between them and Cloyd Laney and Pete Hamilton in which said affray or difficulty said defendant, Flanary and Sturgill acted independently of each other and in said affray or difficulty someone killed the said Pete Hamilton, no one except the one who fired the shot that killed said Hamilton can be charged with his death, and that unless the jury shall believe beyond all reasonable doubt that the defendant fired the shot that killed the said Pete Hamilton, they should find the defendant not guilty.

“The Court instructs the jury that the defendant, C. W. Whited, Jeff Flanary and J. W. Sturgill were officers and were engaged in a lawful purpose, and that if they believe from the evidence that while they were so engaged there arose a sudden difficulty, affray or combat with Cloyd Laney and Pete Hamilton in which each of said officers acted independently of each other and in which the said Pete Hamil *534 ton was killed, by one of said officers or the said Cloyd Laney, only the party that committed the homicide can be charged therewith, and if the jury has a reasonable doubt as to which of said parties killed said Hamilton, the jury must find the defendant not guilty.”

A further objection to instruction 11 is that it is in conflict with instruction “Q”, which reads as follows:

“The Court tells the jury that if they believe from the evidence in this case that at the time and place where the homicide in question was committed Pete Hamilton and Cloyd Laney had in their possession illicit whiskey and at the time and place aforesaid they were transporting said whiskey and that they had in their possession firearms to aid them in said transportation, they were each guilty of a felony, and if the defendant had reasonable grounds’ to believe and did believe that they were so armed and were transporting illicit whiskey, then he had a right to arrest each of them without a warrant, and if it were necessary to shoot and kill either of them to prevent his escape the defendant had a right to do so, and the jury should find him not guilty.”

The giving of instruction 11 in its present form constitutes reversible error.

The Court upon motion of the Commonwealth and over the objection of defendant, gave this instruction:

No. 12. “The Court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant Wilmer Whited shot at the deceased, Pete Hamilton, with deliberation, premeditation and malice aforethought at a time when the said Pete Hamilton was running away from the officers; and if the jury further believe that at the same time at which the defendant, Whited, was' firing his pistol at deceased, the other officers present were also shooting at the deceased with deliberation, premeditation and malice aforethought, then it is not material which one of the officers fired the fatal shot, and the jury should find the defendant guilty of murder in the first degree; but if the jury should believe *535 the above and further believe that the shooting was wilful and deliberate but not premeditated, then they should find the defendant guilty of murder in the second degree.”

In this instruction the jury is told that if defendant killed Hamilton while he (Hamilton) was in flight, then he (defendant) is guilty of murder. This may or may not be true. Even though the jury believed from the evidence that Hamilton was attempting to make his escape because of the two felonies he had presumably committed, to-wit, transporting liquor while armed with a deadly weapon and attempting to kill the officers by shooting at them with a deadly weapon, nevertheless, the jury are told in effect that he had a legal right to run away and make his escape and defendant was guilty of murder, even though he was trying to prevent the escape of a felon.

There are other assignments of error which we do not deem it necessary to consider.

For the errors committed in giving erroneous instructions, we are of opinion that the defendant has not had a fair and impartial trial according to law, therefore, the judgment of the lower court will be reversed and the case remanded for a new trial.

Reversed.