Deaton, Haddix and White v. Commonwealth

*652 Opinion op the Court by Turner, Commissioner Affirming. In February, 1923, Deaton, White and Carpenter were each deputies under the sheriff of Breathitt county, and Haddix was a constable of that county. They went together to a remote section of the county for the purpose of serving papers for an approaching term of the circuit court; but while in that section they received information of the existence and location of some moonshine stills, and sought to find and destroy them. They destroyed one, and on the following day went to Horse branch of Quicksand creek in search of another. They finally located it, and two of the party got near1 enough, without being observed, to ascertain that there were some men in the small shack where the liquor was then being made. After notifying the other members of their party some one or more of them demanded of the occupants of the shack that they come out and surrender. ' Two of the occupants, Howard and Bradley, came to the door of the shack and, seeing the officers, immediately went back into it, and then again emerged from the door, but instead of surrendering to the officers they undertook to escape and evade arrest, and while so doing Howard was shot in the back by some one of the officers, from which he subsequently died. Each of the four officers was jointly indicted, charged with the murder of Howard, but thereafter the prosecution was dismissed as to Carpenter. The other three were placed on their joint trial, and were each ■found guilty of manslaughter and sentenced to five yearsr ■imprisonment. The indictment is merely a joint one against the four defendants, charging them all with the murder of Howard; and there is no charge either that the defendants conspired together to kill him or that any one or more of them killed him -while the others aided and abetted. The two grounds for reversal are (1) that the verdict of guilty is flagrantly against the evidence on the issue whether or not the decedent while attempting to evade arrest first shot at the officers as he was fleeing, and (2) that the instructions did not embrace the whole law of the case because they did not in substance say to the jury that under the federal laws, which it was, as assumed, the duty of the officers to enforce, the decedent and his companions by the act of making illicit liquor *653 were guilty of a felony, as the evidence tended to show they had entered into a conspiracy or agreement to do so. On the first question the evidence for the Commonwealth in dying statements made by the decedent is to the'effect that he had no pistol in his possession when he undertook to escape arrest, and that neither he nor Bradley fired a shot upon that occasion. Bradley testified on the trial and fully corroborates the statement of the decedent, although he admits that he -himself at the time had a pistol; and to some extent these statements of the decedent and Bradley are corroborated by their associate Davis who, while stating that he remained in the shack when the other two undertook to escape, and consequently did not see any of the shots fired, did' state that no shot was fired until after each of his associates had gotten some distance from the shack going up the mountain, whereas the evidence of the defendants is to the effect that Howard fired two shots directly at one of the officers immediately after emerging from the door of the shack, and that • one of those shots grazed the face or neck of that officer and its force knocked him down, whereupon the other three officers seeing him fall believed he had been killed, and for the first time opened fire on the decedent after that had occurred. The three defendants on trial each testified to these facts, and one of them testifies that, when he followed the decedent up on the mountain and found him wounded he arrested and took from him a pistol of a certain .description, all the loads from which had been fired. They all further state that a pistol was found on Bradley when he was shortly thereafter arrested, and some or all of the shots had been fired from that, and that after Bradley’s arrest he had a number of cartridges in his possession. The weight of the evidence seems to be to the effect that both Howard and Bradley fired at the officers in their efforts to escape, and fired upon them before Howard was shot; but in the light of the positive statements of the decedent and of Bradley, which are in some measure corroborated by Davis, we find it impossible to say that the finding is so flagrantly against the weight of the evidence as to justify a reversal on that ground. Under our system of jury trials, it is only when the finding of a jury is so patently against the truth of the matter as to shock the conscience that the courts may declare it flagrantly against the evidence, and we do not feel justified in so declaring under the evidence as stated. *654 The court instructed the jury that if Howard first fired upon any of the officers, then the officers had the right to use such means as were necessary or as reasonably appeared to them to be necessary, to bring about his arrest and prevent his escape, even to the taking of his life; but in the same instruction said to the jury that the making of illicit whiskey was only a misdemeanor, and, in substance, that the officers had no right to shoot and kill him because he¡ attempted to escape and evade arrest for the commission, of a misdemeanor. The‘argument for the appellants is that so much of this instruction as told the jury that the illicit making of whiskey was merely a misdemeanor was erroneous, because they say that under the enforcement act of this state it was their duty to enforce the federal enforcement act, and that under the laws of the United States the decedent and his companions, Howard and Davis, as shown by the evidence, were guilty of a conspiracy, and that one guilty of such a conspiracy under the federal laws is guilty of a felony, and that, therefore, wholly apart from the question whether Howard fired upon the officers first, they had a right to shoot and kill him because he had been guilty of,'a felony under the federal law, which it was their duty to enforce. Assuming only for the purposes of this case that it would be valid for one sovereignty to require its officials to enforce the laws of another, we find that the enforcement act of this state in force in 1923 had no such requirement. It is true that in the enforcement act of this State in force prior to 1922 it was expressly made the duty of all officers and conservators of the peace not only to enforce the provisions of the state act, but also “the acts of the Congress of the United States enacted to enforce the 18th Amendment to the United States Constitution.” Kentucky Statutes 2554a-34. But in the enforcement act approved March 22, 1922, which by its express terms (sub-sec. 45) provides it “is intended to be a full and complete law on the subjects covered by same and it is intended to supersede all other laws of the Commonwealth of Kentucky on said subjects,” the requirement that state officials should see to the enforcement of the federal act is omitted, and therefore repealed. The last named act, subsection 23, does make it the duty of the courts and judges of this state, and all officers and conservators of the peace, to enforce the provisions of the state act, *655 but makes no reference whatsoever to the enforcement by them of the federal act. It is apparent, therefore, that no duty devolved upon appellants at that time to enforce the provisions of the federal act, and the circumstances indicate clearly that they at the time had no such purpose; and as that duty did not devolve upon them the court properly instructed the jury it was only a misdemeanor to manufacture whiskey under the state act, and that appellants had no right to shoot and kill Howard in his effort to evade arrest unless he had first committed a felony by firing at the officers. There is no escape from this conclusion. Judgment affirmed.