Reseña de Messer v. Commonwealth

Messer v. Commonwealth de Court Of Appeals Of Kentucky Resumen del Libro

VAN SANT, Commissioner. On Saturday afternoon, August 8, 1942, a church meeting was held in the vicinity of appellant's home in Knox County. The evidence for the Commonwealth shows that while the meeting was in progress, appellant, his cousin, Howard Messer, T. J. Carnes, a young son of the prosecuting witness, Henry Carnes, and others, sat on a stone wall in front of a store near the church. Appellant twisted the foot of the little Carnes boy, who told him that unless he stopped, he would tell his father. Leonard said he didn't 'give a damn, we will whip him, won't we Wade Smith'. From the questions asked by counsel for appellant, it appears that the Messers were under the impression that the elder Carnes had poisoned Howard Messer's dog. After the meeting in the church adjourned, appellant and his companions, together with several other people, walked toward their homes in the same direction above the church. Mr. Carnes and his wife were riding on different mounts in the same direction. Leonard, Howard, and George Messer continuously looked at the Carneses, and whispered to each other. After they had passed the Carneses they stopped and appeared, as Mrs. Carnes testified, 'to be caucusing'. Mr. Carnes stopped at the house of a neighbor to borrow a knife for the purpose of operating on a hog. While he was gone, Leonard Messer grabbed the bridle of Mrs. Carnes's horse, and began cursing and abusing her. When Henry Carnes returned, Howard Messer grabbed Mrs. Carnes and said to Leonard, 'I will take care of Martha (Mrs. Carnes). Drag off Henry (Mr. Carnes) and I will help you'. Arming themselves with sticks and rocks, they attempted to administer a whipping to the Carneses and their daughters. Mr. Carnes broke away after receiving several blows at the hands of the defendants, making his escape to the home of Sawyer Messer. The defendants pursued him, and, being unable to break down the door of the house, obtained a ladder by means of which Leonard Messer gained admission to the house. About that time assistance came to the Carneses and the disturbance was quelled. Mr. Carnes received several broken ribs in the affray. The Messers were indicted for committing the crime prohibited by KRS 437.110, viz., confederating and banding themselves together for the purpose of intimidating, alarming, disturbing, and injuring another. Appellant was tried separately, found guilty, and his punishment fixed at one year in the penitentiary. He complains (1) that the demurrer to the indictment should have been sustained; (2) that the court erred in overruling his motion to set aside the swearing of the jury and continue the case, because after the jury was sworn one of its number disclosed to the court the fact that he had heard some of the testimony at a former trial; (3) that he was entitled to a directed verdict of acquittal; and (4) that the court erred in the instructions to the jury.

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