Burke v. Commonwealth

Affirming.

Hubert Burks, Charles Burks, age 12 and son of Hubert, Arthur Burks, Lincoln Burks, Guy Smith and Estil Smith, were charged with the murder of Forest Gregory. A second count in the indictment charged that Charles had murdered Gregory and that the others had aided and abetted him. Charles was first taken into the juvenile court, and his case referred from there to the, grand jury. All of the parties were tried jointly, except Arthur, who had not been arrested at the time of the trial. They were found guilty and their punishment fixed at 21 years in the penitentiary. They are urging on appeal that Hubert shot Gregory in self-defense, and that the other parties had no part in the shooting.

The record shows there had been trouble between the Burks family and the Gregory family for some time before Forest Gregory was killed on January 4, 1942, notwithstanding the fact that Marvin Gregory, a brother of Forest, had married a sister of the Burks boys. Arthur seems to have been the leader of the Burks group, and Forest the leader of the Gregory group. It was the custom for most of the parties to carry guns. Early in December, 1941, the two crowds came together near a mine. Several threats were made, guns were drawn and a few shots were fired, but no one was injured. Late in the afternoon of the same day Hubert, his son, Forest Gregory and some of the other parties went to the home of Marvin Gregory. There is conflicting evidence as to what took place at that time. The Commonwealth's evidence is that trouble arose between Hubert and Forest, and that Hubert gave Charles a 22 rifle and told him to stand out in the back yard and shoot Forest when he came out the door. Hubert's version is that Forest had a pistol in his bosom and he took a 22 rifle from a bed and gave it to Charles who was standing in the back yard in order that there might not be trouble in the house. He denied saying that he told Charles to kill Forest when he came out the back door. There was no shooting at that time, however, as Forest seems to have left the house by the front entrance.

On the day of the killing all of the appellants and Arthur Burks gathered at Marvin Gregory's home. Their reason for going there was that they had gone to see Marvin's sick wife. Hubert and Charles rode home with Marvin. The other parties arrived there earlier. Shortly before dark, all of the Burks crowd, including the two Smith boys, and the Gregorys, including Sol and several of his sons, showed up at a nearby store operated by Nealer Kidd. Hubert and Charles were armed with 22 rifles, Arthur had a pistol, and Lincoln and the Smith boys were armed with shotguns. None of the Gregorys had guns with them in the store. Marvin said he was taking Lincoln Burks and his wife home, and most of the other parties said they had gone to the store for tobacco or groceries. The trouble started when Forest went up to Sol Gregory, struck him in the chest, and asked him, "How do you like me?" and Sol responded, "All right." The Gregorys testified that Arthur then drew his gun on Sol, while the Burks' testimony was to the effect that Sol drew a knife on Arthur. Nealer Kidd, the storekeeper, then entered the picture by turning out the lights and telling all of the parties to go outside, which they did. Kidd did not witness the shooting which took place in a very short time after the parties went outside. He said he heard two shots fired which sounded like they came from a 22 rifle.

The Gregory version of the shooting is that, when the parties left the store, some of them (the Gregorys) went toward Marvin's car, while one or two of the others left the scene; Arthur Burks and the Smith boys went toward the rear of Kidd's garage, which was nearby; Lincoln Burks went out in the middle of the road; Hubert and Charles stood up on the bank near the store; when Hubert whistled Charles fired his rifle at Forest and struck him; Hubert then shot Forest; and he was struck by another charge fired from the direction of the rear of the garage.

The appellants' version of the shooting is that, when the parties came out of the store, some of the Gregorys went to the car to get their guns; as Lincoln turned to go home, after having a short conversation with some of the Gregorys, Martin and Forest jumped on him and took his gun away from him; Forest pointed the gun at Hubert; then Hubert shot Forest, who fell to the ground; and Hubert fired a second shot as he attempted to arise.

Notwithstanding the testimony of the parties principally involved to the effect there had been no bad feeling between the Burks and Gregory families, it is apparent from the record that trouble had been brewing for some time. While the testimony for the appellants is to the effect that Charles Burks was not even armed at the time of the shooting, the testimony for the Commonwealth shows he fired the first shot which struck Forest. It was for the jury to determine the credibility of the witnesses. Decker v. Commonwealth, 278 Ky. 145, 128 S.W.2d 600. It is obvious, therefore, that there is no basis for the contention that Charles had no part in the affray. He was present when the trouble took place early in December, and was a very reluctant witness as to what transpired at that time.

It is earnestly insisted there is nothing in the record to show that the two Smith boys and Lincoln Burks had any part in the trouble. We have noted, however, that these parties were present when the difficulty arose between the two families early in December; they were armed then; they had all been at the home of Marvin Gregory the afternoon of the killing; and they showed up at Kidd's store with their weapons. Lincoln Burks was in the middle of the road with his gun and the two Smith boys had gone toward the rear of the garage with Arthur. There was testimony showing that Forest was struck by a charge which was fired from the direction of the rear of the garage, and which made a larger hole in his body than those made by the 22 bullets. While the testimony for the appellants is to the effect that, it was the practice of most everyone in their community to carry a gun, we do not think the evidence supports the contention of Lincoln Burks and the Smith boys that they had no part in the difficulty. They were present and armed when the difficulty arose in December, they had gone to the home of Marvin Gregory on the afternoon of the shooting, and they went with the other members of their group to Kidd's store. Unquestionably, they knew that trouble was in the offing. It was for the jury to weigh the evidence and to draw the reasonable inferences therefrom. We are not prepared to say there was not sufficient evidence to warrant the finding that Lincoln and the Smith boys were guilty as charged.

Since we find no error prejudicial to the substantial rights of the appellants, the judgment is affirmed.