Lindle v. Commonwealth

Opinion op the court by JUDGE BURNAM Reversing. The appellant,, J. B. Lindle, was indicted by the grand jury of Hopkins county for the murder of Henry Taylor, which it is alleged was committed pursuant to a conspiracy entered into with the other defendants, who were present at the time of the homicide, and aided, abetted, encouraged, and incited the said Lindle to kill the deceased. A joint trial before a jury resulted in a verdict and judgment sentencing the appellants Lindle, Johnson, and McIntosh to the penitentiary for a term of two years, which we are asked to reverse for numerous alleged errors. A short statement as to the conditions prevailing in — 873 — Hopkins county immediately preceding the homicide is essential to a proper understanding of the legal questions involved. There is operated in Hopkins county 12 large coal mines, which produce about one-third of the total coal output of the entire State. These mines' had been operated for many years by “nonunion laborers,” while all the coal mines in Western Kentucky, outside of Hopkins county, were operated by laborers belonging to an organization known as the United Mine Workers of America. On the 18th day or April, 1900, the operators and miners of the Western Kentucky coal field met in joint session at Central City, and it was agreed that the price for mining coal should be increased 13 2-3 per cent.; and it was further stipulated that this, scale of wages should be supplanted by a new scale, equivalent, under like conditions, to any rate of wages in excess of such scale which the United Mine Workers of America might enforce uniformly throughout the Western Kentucky district; and it was also stipulated that, in the event of the nonunion mines in the Western Kentucky competitive district, representing not less than 80 per cent, of the normal output of said nonunion mines, being' on a strike, and closed down, so that no coal should be produced for market for 30 consecutive days, then the scale should be supplanted by a scale of 80 cents per ton for mining over the rates fixed in the Indianapolis scale of 1900, and that these rates should continue during the period of siuch strike, shut down and nonproduction of coal. This agreement was signed by U. D. Woods, president of the United Mine Workers' and by a committee representing the mine owners. Soon after its execution, active steps were taken by the United Mine Workers to induce the nonunion mine workers of Hopkins county to become members of their organization. In No — 874 — vember, 1900, J. D. Woods, the president of the organization, came in person to the county of Hopkins, accompanied by quite a number of prominent leaders in his orginzation. They at once began a most persistent and aggressive movement to induce the Hopkins county mine laborers to join the organization, with the purpose of setting on foot, a strike, which would result in closing the Hopkins county mines in accordance with the Central City agreement. This movement on the part of Woods and his confreres was vigorously resisted by the mine owners, and resulted in considerable friction and bad feeling. Finally, for the avowed purpose of protecting their property against the United Mine Workers, they employed and armed numerous guards. These conditions gradually grew more tense, and the mine owners applied' to the sheriff of the county to appoint some of the guards deputy sheriffs, which he did. Among the persons so appointed wms- the defendant, J. B. Lindle and Lucien Bassett. After their appointment as deputy sheriffs, their salaries were paid by the mine owners, and the only official duties which they were called upon to discharge were to preserve peace and order in the county. On the 24th of November, 1900, C. H. Hankins, the sheriff of Hopkins county, after consultation with other county officers, issued the following proclamation: “Whereas, I have received information from many of the coal miners of Hopkins county,’ and from other reliable sources, and which I have every reason to rely upon, that there are now congregated in this county many persons, some citizens of this county, many citizens of other counties of this Commonwealth, and many from other States, with the avowed purpose of compelling the miners now at work in the many coal mines in this county to quit their work and employment against their will; that the875 said persons propose to accomplish their purpose by threats of personal injury to the miners and mine property, and other force and violence, and 'many laborers in the mines have applied to me for protection; and believing that such evil-disposed persons will proceed to do the things threatened unless warned and prevented from doing So, and believing that the peace of the county will be broken, and the citizens of the county greatly disturbed, and bloodshed ■probably result, unless prompt steps are taken to preserve the peace, and being determined to see to it that the law is enforced, and every citizen of the county is protected in his rights, liberty and property, from an illegal interference from any person or persons, and being determined to protect every one employed in the mines or elsewhere in his ■rights to peaceably quit or peaceably follow any employment in which ,he may be engaged: Now, I, therefore, command said persons now here, and those to come, to desist from their said purpose of interfering with any person, in his right to labor in the mines, by intimidation, threats, or violence, or any other illegal manner, and further command them that they shall not congregáte in public places in the county, or march through the county in squads, or crowd in a threatening manner, or in any manner, or in any way abuse or attempt to put any citizen of the county in fear, or in any way break or disturb the peace of the- citizens of the county; and the persons are warned that- any attempt on the part of any of said persons to do any of the things they are herein commanded not to do will result in the arrest and punishment of the party or parties so offending, and all other parties associated with, aiding, abetting, or counseling the parties so offending.” The issual of this proclamation by the 'sheriff was apparently futile. The United Mine Workers continued zeal — 876 — ously to recruit -their organization in Hopkins county, partly by importations from Muhlenberg and other counties, and partly by recruits from the ranks of the nonunion miners employed in the various mines of the county. It is insisted for them that they used only peaceful means to ■accomplish these ends; that they indulged in no threats, violence, or injury to property; while it is the contention of the mine owners that they supplemented persuasion and argument by threats that the mines would, be dynamited, and the homes of the employes blown up, and that they would be taken out of the mines by force. Some time previous to the 21st day of January, 1901, it was rumored throughout the county that on that day the United Mine Workers would assemble in force at the village of Box-town on the Illinois Central Railroad, and would march to the Carbondale mines, and take possession of them, and compel its employes to go with them to the Crab Tree mines, for the purpose of taking possession of them and, thus gathering force proceed from mine to mine until all the coal mines of the county were closed up. The attention of .the appellant, J. B. Lindle, was called to these rumors by the superintendent of the Carbondale mines and other parties, and he was requested to be on the lookout, and protect them from the threatened violence. The testimony shows that, on the day in question, Lindle summoned Wade McIntosh, Ed Johnson, and Scott Penrod to accompany him as a posse to Boxtown; that there he met Bassett. When he arrived at Boxtown, he found that about 100 members of the United Mine Workers had assembled in a building to which only the membrs of the organization were admitted, and where they were addressed by one Kissinger and other members of' the organization. No steps were — 877 — taken by Lindle and his posse to interfere with the meeting. At about half past two o’clock in the afternoon, the members of the organization came from the house, and formed in column, three abreast, and started in the direction of the Garbondale mines. After they had gotten well under way, Lindle and his posse mounted their horses, and started after them, and the testimony shows that as soon as he overtook the rear of the column he notified Kissinger, one of the leaders, that it was unlawful for them to march through the country in the manner in which they were, and also called their'attention to the proclamation of the sheriff, and that he continued to repeat these statements as he passed along the line of the marchers. P’inally,. his posse got in front of the column, and rode along until they arrived at a point in the road known as “Garbondale Crossroads.” When the column arrived at this point they turned into the mouth of what is known as the “Garbondale Lane,” wdiich leads directly to the mines and tenant houses of the company. At this point, Lindle and his posse rode in front of the column, and Lindle and Johnson dismounted, handing their bridle reins to Bassett and McIntosh, who remained seated upon their horses. The testimony as to what occurred at this point is conflicting. The witnesses for the defense testify that Lindle notified the men in the column that they were violating the law, and that he would have to arrest Henry Taylor, Bill Cooke, and West Cooke, who were marching at the head of the column, and that he began immediately to read the proclamation of the sheriff, and that while so engaged Henry Taylor drew a pistol from his pocket, and passed it to Bill Cooke, who immediately fired at Lindle, remarking at the same time that he would kill “the God damn son of a bitch,” and that immediately Henry Taylor also fired — 878 — at him; that as a result of this shot Lindle’s face was powder burned; and that a fusilade immediately followed, which ■was participated in by Lindle and his two posse men,Johnson and McIntosh, on the one side, and Henry Taylor, Will and West Cooke, and numerous other members of the United Mine organization on the other side. In this combat, which lasted only a moment or two, Taylor and Bill Cooke were killed. The witnesses for the Commonwealth testify, in substance, that when Lindle got off of his horse he said, “This mob must be disbanded; you can’t go any further;” that Henry Taylor said, “All right, I do not resist arrest,” and immediately drew his pistol from his pocket, and handed it, butt foremost, to Lindle; that Lindle immediately drew his pistol and fired on him; that Bill Cooke at this point took the pistol out of Henry Taylor’s hand, and said to Lindle, “You son of a bitch, how can we stand that?” that Lindle then shot at Bill Cooke, and a general fusilade ensued, which was participated in by both parties, and which resulted in the killing of Taylor and Bill Cooke. We will now consider the alleged errors of the court upon the trial relied on for reversal. First, the defendants asked a continuance of the ease upon several grounds, and filed their affidavits in support thereof. The affidavit states, - in substance, that the Commonwealth during the term of the court, and only two days before the trial began, caused numerous witnesses to be subpoenaed whose names did not appear at the foot of the indictment; that they did not know that any of these persons would be called to testify against them, and had not had time or opportunity to investigate their character, nor to ascertain what facts they would testify to with reference to the homicide; that they were all members of the Mine Workers’ organization, andi that a widespread conspiracy had — 879 — been formed in that organization in Hopkins county to convict the defendant by perjured testimony; that they had prepared their cases with the view of meeting the testimony of the witnesses whose names appeared at the foot of the indictment, and who had testified upon the motion for bail, many of whom had admitted upon cross-examination that Cooke and Taylor fired upon them first, and whose testimony they could successfully impeach by showing that they had made conflicting statements; that ' in abandoning- the witnesses .at the foot of the indictment, and summoning an -entirely new set, they were taken at a great disadvantage; that if they were given time they could impeach the general reputation of many of them for truth and veraeity, and show that they had made statements, shortly after the difficulty in which Taylor was killed, that Cooke fired the first shot. The affidavit also asked a continuance upon the ground that numerous of the witnesses for the defense were absent, and other causes which it is not necessary for us now to consider.- While we would not lay it down as a general rule that a defendant was entitled to a continuance solely because the Commonwealth had subpoenaed, with a view of introducing, witnesses whose names were not at the foot of the indictment, under the peculiar facts of this case we are of the opinion that the defendant should have been granted the continuance' on this ground. Substantially all of the witnesses for the Common-wealth, both those whose names were- at the foot of the indictment and those who were subsequently subpoenaed to testify in the case, belonged to the United Mine Workers’ organization, and had participated in all the acts and demonstrations of that order which culminated in the tragedy of the 21st of January, 1900, and the inference was not unreasonable that their testimony might be — 880 — colored by their sympathies, associations, and prejudices. Many of them were strangers in the community, and the defense were at a great disadvantage upon the trial of the case because of their ignorance of the character and •antecedents of these persons, and which they would have been able to ascertain by the next term of the court if a continuance had been granted. They also complain that the circuit judge refused to permit them to file a supplemental affidavit in which it was stated that Mrs. Carrol “would testify that two of the witnesses who were subpoenaed .by the 'Commonwealth had told her on the day of the killing that Bill Cooke had fired the first shot, and that the marchers intended to go to the Garbondale mines and force the miners out, and that the deceased had a pistol in his hand when he fell.” We think the court did not err in refusing to allow this supplemental affidavit to be filed. No sufficient reason is stated why the facts contained therein were not set out in the original affidavit for a continuance, and besides the testimony of Mrs. Carrol was merely cumulative in character, and substantially the same facts were proven by numerous other witnesses. It is also complained that the court permitted the Commonwealth to show that appellants had been employed as guards by certain coal companies previous to their appointment as deputy sheriffs. This testimony served in some degree to illustrate the motives that actuated appellants at the time of the killing, and we think was competent. And for the same reason we think the court erred in refusing- to permit the defense to prove declarations made by Pres Cummings, Jack Wright, and other members of the United Mine Workers’ association as to the plans and purposes of the organization with reference to closing up the various mines in Hopkins county, made shortly before — 881 — tlie 21st day of January, 1900, and the declaration made by them to nonunion miners that if they did not cease to-work, peaceably, they would be forced to do so. And the court erred in refusing to allow the defendants to prove by Stewart Miller the execution of the contract of April 18, 1900, at Central City between the operators and union mine workers. This contract, more than any other testimony offered in the case, shows the aim and purpose of the order in going into Hopkins county, and the jury, were entitled to have it before them. And it was competent for the defense to show that Kissinger, Chappell and Nichols were leaders in the organization, and that they were armed when coming from the1 scene of the conflict. The court also erred in permitting the Commonwealth’s attorney, at the close of the defendants’ testimony, to recall the defendants, and ask them if they did not, in their affidavit for a continuance, state that certain witnesses would prove certain facts, reading aloud from the affidavit to show what these facts were, and then to ask them if the witnesses were not present. • These statements purported to be the statements of 'witnesses who, after the affidavit was filed, appeared in court, and were not introduced by appellants. The only purpose such a line of questioning could subserve was to discredit the statements of that part of the affidavit which was read, which purported to state the testimony of absent witnesses. Appellants were entitled to be tried by the testimony which ■was actually introduced upon the trial, and, having been refused a continuance on the condition that the statements of the affidavits as to the testimony of absent witnesses should be read as their deposition, there should have been — 882 — no allusion to statements contained in the affidavit as to the testimony of witnesses which was not actually read to the jury, nor should the Commonwealth’s attorney have been permitted to state to the jury motives which actuated him in consenting that the affidavit of the defendants should be read as the testimony of the absent witnesses. Numerous exceptions gven to the admission and rejection of testimony and the general conduct of the case upon the trial are relied on, but, as they are not likely to occur again, we deem it unnecessary to consider them. We will now consider the instructions given to the jury upon the trial. The first five instructions are all based upon the theory of the Commonwealth as to the commission of the offense. * While the seventh, eighth, and ninth instructions are probably correct as abstract propositions of law, they are calculated to divert the attention of the jury from the facts upon which the guilt or innocence of the accused really turned. Questions as to the relative rights of the United Mine Workers to assemble and march in a peaceable manner, and of the right of the operators of the mines to protect their property, from violence and invasion, should not have been submitted to the jury. The sixth instruction is erroneous, and was prejudicial to the defendants, because it absolutely ignores the whole theory upon which the defense was predicated, that Lindle and those with him were acting as officers, in the discharge of what they conceived to be their official duty. An officer of the law, arresting ODe for a felony, occupies an entirely different position from a private person; and if, in making an arrest, he is forcibly resisted, he is not limited to the use of such force as was necessary to protect himself from death or great bodily harm, but can stand his ground, and use such — 883 — force as is necessary, or apparently necessary, to overcome the resistance offered, even to the extent of taking life. The tenth instruction is as follows: “If the jury believe from the evidence that said union miners had assembled at said place, and had confederated or banded themselves together, for the purpose of intimidating, alarming, disturbing, or injuring any person, or that they had confederated or banded themselves together and went forth for the purpose of molesting, injuring, or destroying any property of another, then, in such case, they were guilty of a felony, and the deputy sheriff, Lindle, and the other defendants, had the right, and it was lawful .for them, to disperse such persons, and to arrest them without warrant, provided the defendant, Lindle, had reasonable grounds to believe, and did in good faith believe, that said Taylor and the others with him, had committed, or were then committing, such a felony; and in such state of case it was the duty of Taylor and others to disperse if commanded, and submit to arrest, if required, and the defendants had the right to use such force as was reasonably necessary to make the arrest; and if the jury believe from the evidence that defendant Lindle, as deputy sheriff, had reasonable grounds to believe, and did in good faith believe, that said Taylor, and others with him, acting in concert, had confederated and banded themselves together for the purpose of intimidating, alarming, disturbing, or injuring any person or persons or the property of any person, and were then going forth for such purpose,'then it was lawful for Lindle and his posse to arrest, or attempt to arrest, said Taylor and others with him, even though in fact they were not guilty of a felony; and if, in attempting to do so, he was assaulted by Henry Taylor, or Cooke, or both, and — 884 — ■lie had reasonable grounds to believe he was in imminent danger of losing his life or suffering great bodily harm at the hands of said Taylor, or others connected with him, then the defendant Lindle had the right, and it was lawful for him, in the exercise of a reasonable judgment, to use such force as was reasonable and necessary, or apparently necessary to save his own life, or protect his person from great bodily harm, even to the taking of the life of said Taylor, on such grounds and under such circumstances the defendant, Lindle, is excusable, and the jury will acquit him.” This instruction does not state the law. In the first place, it requires the jury to believe from the evidence that the union miners had banded themselves together and gone forth for the purpose or alarming, intimidating, and disturbing others, before it was lawful for the deputy sheriff and his posse to arrest or disperse them. This is an entirely erroneous and misleading statement of the law. The question was not what the jury might believe the purpose of the miners to have been in assembling, banding themselves together, and going forth, but what the'defendants, as officers, believed, and had reasonable grounds to believe, their purpose was at the time of the attempted arrest. And, in the second place, the instruction tells the jury that if they believe from the evidence that Lindle, as deputy sheriff, had reasonable grounds to believe, and didin good faith believe,that Taylor,and others with him, were acting in concert, and had confederated and ■banded themselves together for the purpose >of intimidating, alarming, disturbing, or injuring any persons or property, and were then going forth for such purpose, it was lawful for Lindle and his posse to arrest or attempt to arrest them, even if they in fact were not guilty of a felony. But in the latter part of the instruction the right of Lindle — 885 — to use such force as was reasonably and apparently necessary to effect such arrest is made to depend upon a previous assault upon him by either Taylor, Cooke, or both of them, and required that he should have had reasonable grounds to believe that he was in imminent danger of losing his life, or suffering great bodily harm, at the hands of Taylor and others connected with him, before it was lawful for him to take the life of Taylor. If this is a correct statement of the law, then peace officers, in attempting to discharge the duty imposed upon them by their official position, truly occupy a position of great peril. But fortunately for them, and for the peace and good order of society, they are placed in no such position. All that the law required of Lindle was that he should have in good faith believed, and had reasonable grounds to believe, that Taylor, and the others with him, had banded themselves together, and gone forth armed, for the purpose of alarming, intimidating, or injuring any person or persons. If this was true he and the other defendants summoned by him had the lawful right to disperse and arrest such person without warrant, and to use such force as was reasonably necessary to effect this purpose; and if Taylor, and those with him, resisted arrest, it was lawful, if necessary to make such arrest, to shoot the persons so resisting. If, on the other hand, Lindle, and those acting with him, did not in good faith believe, and did not have reasonable grounds to believe, that Taylor, and those with him, were then-going forth for the purpose of alarming, intimidating, disturbing or injuring any person or persons, and they were not acting in good faith in what appeared to be the discharge of their official duty, but first began by shooting, or making demonstrations to shoot, then they could not — 886 — rely upon the protection with which the law clothes officers, and be excused on the ground of self-defense. For the reasons indicated, the judgment is reversed, and the cause remanded for a new trial consistent with this opinion. Judge G-uffy dissents from this opinion. Chief Justice Paynter dissents from parts of this opinion. »