Citation Numbers: 223 S.W.2d 893, 311 Ky. 249
Judges: STANLEY, COMMISSIONER
Filed Date: 10/21/1949
Status: Precedential
Modified Date: 1/12/2023
Reversing.
The appeal is from the conviction of the defendants Hannah Davis, Clyde Spence and Bill Bishop, Jr. of statutory conspiracy. The Legislature, at its last session, reduced the offense to a misdemeanor and fixed the penalty the same as for a common law conspiracy. KRS
The Commonwealth's proof is that these men were members of a group, variously estimated from fifteen to thirty, who went to a construction job in Middlesboro to induce and intimidate the workmen there into joining the United Construction Workers Union, which is an affiliate of the United Mine Workers. The evidence is that they threatened those who refused to sign the organization cards and physically assaulted the foreman and two men. The defendants' Davis and Bishop were identified as among the assailants and Spence as having been standing nearby. The evidence was amply sufficient to sustain the conviction. Alsbrook v. Commonwealth,
We are of opinion, however, that it was prejudicial error not to have given instructions affirmatively submitting the respective claims of defense.
Spence was an organizer for the Construction *Page 251
Workers Union. He testified that while on his way to this place alone at the noon hour (when the foreman would be absent) to get the majority of the workmen to sign up and thereby be ready when the foreman returned to tell him the result, he happened to meet up with Davis at the bus station. He told him where he was going and Davis said, "I will walk down with you. I know a few of the boys." Only the two went together. There was no agreement or understanding with him or anyone else, and he did not know any of the other men present. Indeed, he indicates he did not see them. Davis testified that he was not a member of this union but was of the miners union. His testimony is substantially the same as that of Spence. They say they were on a peaceful mission and deny participating in the subsequent affray. The defendant Bishop testified that he knew Spence but was not acquainted with Davis and Richardson, his co-defendants. Richardson was found not guilty. Bishop happened to be passing the place in an automobile and seeing ten or fifteen men there, he stopped. He did not participate in the fight or know who were fighting. However, he admits passing out three or four union cards. The testimony of these men is shot through with inconsistencies. Nevertheless, under the law we think they were entitled to instructions in accord with those prepared by this court to be given on another trial in Newton v. Commonwealth,
The right of defendants in a case of this kind to such affirmative instructions has been questioned because under the primary instruction the jury must believe beyond a reasonable doubt that all the essential elements occurred else they must acquit the accused. It is a principle of the law of instructions in a criminal case that a special affirmative instruction should not be given except where the defense is in effect that of confession and avoidance. Sec. 771, Stanley's Instructions to Juries. It is true the gravamen of a criminal conspiracy is the *Page 252
agreement and its consummation is generally immaterial. Combs v. Commonwealth,
The judgment is reversed.
Commonwealth v. Compton , 259 Ky. 565 ( 1935 )
Alsbrook v. Commonwealth , 243 Ky. 814 ( 1932 )
Newton v. Commonwealth , 244 Ky. 41 ( 1932 )
Chaney v. Commonwealth , 286 Ky. 434 ( 1941 )
Chapman v. Commonwealth , 294 Ky. 631 ( 1943 )
Brashear v. Commonwealth , 275 Ky. 356 ( 1938 )
Jones v. Commonwealth , 305 Ky. 609 ( 1947 )