Wynn v. Commonwealth.



198 Ky. 642; 249 S.W. 784; 1923 Ky. LEXIS 517

April 17, 1923, Decided

PRIOR HISTORY: Appeal from Harlan Circuit Court.

DISPOSITION: Reversed and remanded for new trial.

COUNSEL: J. S. FORESTER for appellant.

CHAS. I. DAWSON, Attorney General, and THOS. B. McGREGOR, Assistant Attorney General, for appellee.




Appellant was convicted of the offense of unlawfully manufacturing intoxicating liquor on the testimony of two witnesses, Byrd Dean and James Dean, who claim to have been present and to have seen appellant making whiskey in a moonshine still on Jones creek in Harlan county. Byrd Dean admitted that he was helping appellant and the other boys to run the still, but James Dean denied that he had any interest in the whiskey or rendered any assistance in its manufacture. On the other hand, appellant denied that he had anything to do with the operation of the still, and testified that James Dean was present with a Winchester rifle and acted as a guard. Upon objection by the Commonwealth, the latter statement was stricken and the jury admonished not to consider it.

Complaint is made of the failure of the court to instruct on the law of accomplices, and of the rejection of appellant's evidence that the witness, James Dean, was present with a Winchester rifle and acted as guard for those who were engaged in manufacturing the whiskey. Section 241, Criminal Code, is as follows:

"A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed, and the circumstances thereof."

Construing this provision of the Code, it has often been held that a conviction cannot he had solely on the testimony of an accomplice, Howard v. Commonwealth, 110 Ky. 356, 61 S.W. 756; and that if two or more accomplices are produced as witnesses, they are not deemed to corroborate each other. Blackburn v. Commonwealth, 12 Bush 181. It is insisted for the Commonwealth that the action of the court was not prejudicial because appellant denied all connection with the offense, and that being true, the witnesses could not have been accomplices. If the Code provision applied only in case the accused admitted the offense, it would be of little value. Its purpose was to prevent the conviction of the accused upon the testimony of accomplices alone, and it applies in every case where the witnesses for the Commonwealth are in fact accomplices. As Byrd Dean's participation in the offense was admitted, this fact alone was sufficient to require an instruction on the law of accomplices. Not only so, but appellant's evidence that James Dean was present with a Winchester rifle and acted as a guard for the others who were engaged in manufacturing the whiskey, though denied by the witness, was sufficient to make it a question for the jury whether or not he was an accomplice. That being true, the evidence should have been admitted, and the question submitted to the jury, accompanied by an appropriate instruction on the law of accomplices.

On another trial, the court, in fixing the punishment which the jury may impose, will be guided by the provisions of the act of 1920, which was in force when the alleged offense was committed.

Judgment reversed and cause remanded for new trial consistent with this opinion.