Jennings v. Commonwealth
16 S.W. 348
Ky.App. 1891.
May 9, 1891. (Approx. 3 pages)
13 Ky.L.Rptr. 79
Court of Appeals of Kentucky.
May 9, 1891.

Appeal from circuit court, Laurel county.
"To be officially reported."
    Where two conspire to murder another, and one of them shoots a stranger by mistake, the co-conspirator is guilty of murder equally as if the intended victim had been killed.
    It was no excuse that defendant supposed the person whom he shot at and killed was another person.
    On a change of venue a new indictment found by the grand jury of the county to which removal is made, which in one count charges the murder of deceased and in another a conspiracy to murder him and two others, does not prejudicially vary from the first indictment, quashed under Gen.St. c. 12, art. 4, 7, authorizing such proceedings, which charges the same murder, but charges a conspiracy to murder deceased only, since the murder of deceased is the crime charged.
*348 Scott & Violett and H. C. Eversole, for appellant. P. W. Hardin, for the Commonwealth.

    The appellant, Jennings, was indicted in the Harlan circuit court for the murder of John Bailey. The indictment contained two counts,--the first a conspiracy and an agreement with one Wilson Howard to murder Bailey, and the second an ordinary court for murder. On motion of the accused, and by the consent of the commonwealth, the case was sent to the Laurel circuit court for trial, and a verdict and judgment rendered finding the accused guilty, and fixing his punishment at imprisonment for life. After the change of venue, and when the case was first called for trial, on motion of the attorney for the state the indictment was quashed, and the charge referred to the grand jury of Laurel county under that provision of the statute providing that, if the indictment be quashed, * * * a new indictment may be found from time to time by a grand jury of the county to which the removal is made, and prosecuted * * * as though the offense had been committed in that county. Gen. St. c. 12, art. 4, 7. The grand jury of Laurel county returned an indictment with two counts,--the first charging a conspiracy on the part of the accused with Howard to murder Bailey, C. B. Turner, and George Turner; the second count being the usual charge of murder, by shooting Bailey. The defense denied the jurisdiction of the Laurel court for many reasons, only one of which is necessary to be considered. He had not only consented to a change of venue to Laurel county, but on his motion the change was made, and with it the indictment and order showing that fact. It is insisted by counsel that the offense charged against the accused by the grand jury of Laurel is a different offense from that embraced in the indictment found in the Harlan circuit,--the one charging a conspiracy with Howard to kill and murder Bailey, and the other a conspiracy with Howard to murder Bailey and the two Turners. Each indictment, however, contained a count charging the accused with the murder of Bailey. It is manifest under our constitution and laws that the grand jury of Laurel county had no power to indict the accused for the crime of murder or manslaughter committed by him in the county of Harlan; and it is only by reason of the statute--the indictment being found in the proper jurisdiction--that the accused is given the right to change the venue in his case, that he may have a fair and an impartial trial. John S. Bailey was the person murdered by some one in the county of Harlan. The cause of that killing alone was the subject of investigation by both the grand jury of Harlan and that of Laurel county. One found a conspiracy with Howard to murder Bailey, and the other a conspiracy to murder Bailey, C. B. Turner, and George Turner. If on the trial of the last indictment the state had failed to connect the conspiracy with the purpose to murder the two Turners, but had established the conspiracy to murder Bailey, and that it was carried into execution, it will not be argued that the accused must go acquitted because of a variance between the charge contained in the indictment and that made out by the state. It is the same offense,--that of killing John S. Bailey. The accused was in no wise misled by this charge, or called on to answer any other offense than that of murdering Bailey; and we have been unable to see why the first indictment was set aside, and the case referred again to the grand jury. It is true, the testimony connects the accused with Howard, and a purpose to kill the Turners; but this would not have prevented a conviction upon an ordinary indictment for the murder of Bailey on the facts before us. Objection was made to the testimony or statement of a witness showing that Alex Bailey had been killed the Sunday preceding the Tuesday upon which Bailey was shot. The court told the jury that it was incompetent upon the question of the guilt of the accused for the murder of Bailey, and in fact it was developed by the same testimony, that Howard, who seems to have been the leading spirit in these murders, had been tried and acquitted of the offense of murdering Alex Bailey; and this evidence, therefore, was more beneficial than prejudicial to the accused, because it showed that his accomplice or co-conspirator *349 had been acquitted; and besides, the court said to the jury that the witness had only referred to the time of the shooting of Alex Bailey, so as to enable him to fix the time or day on which John Bailey was killed, and they could consider it in no other light. The indictments both contained plain counts charging the accused with the murder of the deceased, and on the testimony there can be but little doubt as to his guilt.
    The court properly refused to continue his case. It had been once continued after its removal to Laurel, and we are satisfied the accused had a fair trial. His own testimony condemns him. It is true, doubtless, that the accused did not know the man that was shot. He says he was a stranger to John S. Bailey, and it may be that Howard was also, and still Bailey was cruelly murdered by them, and without any apparent cause. He had left his home, many miles from the residence of Middleton, the county judge of Harlan, where the shooting occurred, and in company with Howard was passing through the county, both armed with needle- guns, carried either for their own protection or for the purpose of murdering their enemies. They were at Mt. Pleasant on the Sunday that Alex Bailey was shot, and on the Tuesday following were both at the residence of the county judge, Middleton, for the purpose, as the accused says, of surrendering to the officers of the law, having been charged with committing other offenses. They were, as Jennings says, on a mission of peace, and not in pursuit of blood. This unfortunate man who was shot lived many miles distant from where his brother was killed on the Sunday before. He was on his way to his brother's funeral, or for the purpose of bringing to punishment those who had murdered him. He stopped at Judge Middleton's for the night, and early in the morning, about sunrise, opened the door for some purpose, and while standing in the door the report of the needle or Winchester gun was heard, and the deceased fell, the ball passing entirely through his body. The firing was from the bushes, about 100 yards from the house of Middleton. Those in the house--the two Turners being among the number--went hastily to the spot from which the firing began, and there found from the tracks and other circumstances where two or more persons had been concealed. They found a small pouch, in which was a cooked chicken and other meats, with bread, supplied by these men no doubt in a sufficient quantity to last them while in the pursuit of blood. The parties were pursued who had been concealed in these bushes, and without knowing who they were; but after a short distance they found that Howard and the accused had passed but a few minutes in advance of them, each with his gun, and were then making rapid strides from the place of the murder. They were overtaken, and shots were fired by both parties, each fearing to approach the other, as all were armed, and Howard and the accused with long-range guns. They were not captured on that day, but made their escape. Jennings, the accused, says the shooting was done by Howard. That both had gone to Middleton's for the purpose of giving themselves up for the murder of Alex Bailey, and, finding a good many persons at Middleton's house, they declined to make themselves known. That Howard left him, together with others, in the woods for a short time, when he heard the report of a gun, and on Howard's return he asked him if that was his gun, and his response was, "That is none of your business." So Jennings, from his statement, was entirely innocent of any wrong, or that any one had been shot, until he was overtaken by those at Middleton's and the firing began. It is shown by one or more witnesses for the defense that these two men said they were going to Judge Middleton's to surrender, but this entire proof is inconsistent with their conduct from the time they left their homes and started in pursuit of their victims. Jennings had heard that one of the Turners had abused his sister, and it is apparent that the accused, when shot, was supposed to be one of the Turners, or one of those against whom these parties entertained the most deadly hatred. This unfortunate man, Bailey, having no connection with these deadly feuds, while on his way to his brother's grave, was shot from ambush by either Howard or Jennings; and that both are equally guilty of the heinous crime there can be no doubt. He was murdered under the belief that he was one of the Turners, two of them being at Middleton's; and, while the punishment is severe, it is merited by reason of the gravity of the offense. The instructions were properly given, and contained the law of the case; and from the facts before us an error substantial in its character would have to appear in order to convince this court that the accused had been prejudiced by the finding of the jury or the judgment of the trial court.
    The judgment below is affirmed.
Ky.App. 1891.
16 S.W. 348, 13 Ky.L.Rptr. 79