Reversing.
The appeal is by Paul Hobbs, who was convicted of voluntary manslaughter, with a penalty of 21 years' imprisonment, for the killing of Tom Swafford, in Clay County, on November 18, 1946.
The appellant was indicted jointly with his father, *Page 67 Finley Hobbs, on the charge of murdering Swafford pursuant to a conspiracy; also, each was charged as principal and as aider and abettor, one of the other. A motion of the Commonwealth for a change of venue was sustained and the case transferred to Laurel County, where there was a severance.
The appellant claims it was error to grant the change of venue. The affidavit of the Commonwealth's attorney, supported by two other citizens, is in substance that the accused, Finley Hobbs, is a magistrate of Clay County and a man of wide influence; the defendants are related by blood or marriage to three of the most prominent and influential families in the county; and they themselves are well-known and have relatives scattered throughout the county. It is further stated that there had been many homicides and other crimes committed in the county in recent years, and because of the lawless conditions it had been difficult and almost impossible to secure arrests and convictions; that upon recent trials of criminal cases the many persons who were under charge and their friends had gathered at the courthouse and brought their combined influence and acquaintance to bear in the selection of juries for the trial of others. As a result of these conditions, it was alleged, the Commonwealth could not have a fair trial.
The defendants introduced several witnesses, including two other magistrates and the sheriff, who testified that there was no more talk about this case in their respective communities than about other homicides; and while they knew or had heard of the kinship of the defendants to the several influential families, yet they believed a fair jury could be obtained. However, some of the witnesses qualified their statements by admitting it would be difficult to get a jury by "going to the wheel." One of them, who was very strong in his views, stated that he had discussed the facts of the case with fifty to one hundred men, yet he regarded every one of them as qualified jurors!
The judge is given statutory authority to transfer a case to another county for trial when he is "satisfied from his own knowledge and from the written statement of the Commonwealth's attorney of that district that *Page 68 such a state of lawlessness exists" in the county, that a fair trial cannot be obtained. KRS 452.230. This factor, combined with the proof of probable difficulty in obtaining a fair jury by reason of the family connections and influence of the defendants, warranted the court's action. We are of the opinion that no error was committed in granting change of venue. Cooper v. Commonwealth, 300 Ky. 770, 189 S.W.2d 949.
The appellant contends he was entitled to a directed verdict of acquittal. There is no merit in the contention. The evidence may be briefly summarized. The deceased, Tom Swafford, and his cousin Carl Swafford, who was killed at the same time by the appellant, had been together at their respective homes on Otter Creek that morning. Tom was preparing to go to work next day at a mine in another part of the county, and Carl had a bus ticket to Cincinnati where he intended to go and join his wife. After dinner they went with George Sizemore to Hima, about four miles away; thence in a taxicab with Sam Curry three or four miles farther, where they got out near the home of Finley Hobbs with whom his son, the appellant, lived. He was then eighteen years old. The mothers of the two Swafford boys and both of these witnesses testified that they were not drinking and had no weapons. About the time they got out of the car Finley Hobbs came walking down the road and the three men stopped on the bridge and talked a few minutes, then Hobbs went to the house. So far there is no conflict in the evidence except the testimony of the defendant's mother that the Swafford boys took a drink down near the bridge and testimony of an undertaker and officer that they found some moonshine whiskey on or near their bodies, which, however, the circumstances indicate may have been "planted." Why these men went to Hobbs' home is not shown except by inference from the testimony of the defendant's mother and sister, that when they came to the house they wanted to know where Squire Hobbs was, cursed him and said that "he had some stuff on the books he had to take off," perhaps meaning some charges against them on his docket as a justice of the peace. Squire Hobbs did not testify.
The conviction rests on the testimony of Ed Owens, *Page 69 his wife, son, daughter and brother-in-law, who lived 75 to 200 yards away and who were not friendly with the Hobbs family. Their story is very indefinite for the witnesses were not in position to see all that occurred. Their attention was first attracted by four or five shots, some of which were louder than others, as if fired by two pistols, although their testimony on this point is vague. The substance of their evidence is that one or more of them saw the appellant, Paul Hobbs, between the corner of the house and the front gate, shooting in the direction of the gate, and later in the yard with a pistol in his hand and going over the fence. They did not see at whom he was shooting. Then they saw the body of one of the men at the gate (shown by other evidence to be Tom Swafford) and another man (Carl Swafford) going around the house, bent over with his hands on his stomach. They next saw Finley Hobbs on his porch fighting or struggling with his wife and striking her in the face. Paul, or a younger son, was trying to stop him. The time is variously fixed at from one or two minutes to ten to fifteen minutes after the shooting. Then Finley Hobbs looked towards the Owens home and proceeded to curse Owens violently and tell him to "keep your nose out of this." After that, some of the witnesses say, Finley was in the yard throwing rocks at his wife. When it was developed on cross-examination that this occurred after Paul had been arrested and the two bodies had been removed, the court properly admonished the jury to disregard that evidence. But objections to the testimony as to what Finley Hobbs did shortly after the shooting were overruled. When the officers came to the house, Paul told them he was the man they were looking for, but it does not appear that he told them why he had killed the men. Tom Swafford was shot near his right breast and the bullet came out under his arm. He was also shot in the back. This is a summary of the most material and essential proof of the Commonwealth as to the immediate occurrence.
After the appellant had been taken to jail, his father went there. According to testimony introduced by the Commonwealth, Finley Hobbs was drunk and boisterous and demanded that his son be turned loose. The father had not then been arrested but while there a warrant *Page 70 of arrest was served on him charging him with the homicide. The chief of police of Manchester was sent for and undertook to quiet Finley Hobbs. The appellant, Paul Hobbs, was sober and there is no evidence that he was drinking at any time. Two witnesses testified that Finley Hobbs was in the habit of carrying a 45 pistol in a holster on his person. The defendant's objections to all of this testimony were overruled.
The story of the appellant, supported by his mother, sister and brother, is that he was at work on the porch of their home, fixing the windows; when the Swaffords came inquiring for and cursing the Squire, Mrs. Hobbs told them lie was not there and asked them to go away; one or the other of them cursed her, and Tom Swafford picked up a brick and struck Mrs. Hobbs; then Carl Swafford picked up a hammer and struck at Mrs. Hobbs with it. Appellant testified that lie ran into the house and got his father's pistol. When he got back on the porch the Swaffords had knocked his mother down the porch steps and had hold of her shoulder. He shot and killed both men in defense of his mother.
There are details and circumstances from which reasonable inferences may be drawn that there was no such clear-cut justification for the killing.
The defense witnesses testified that when Finley Hobbs left the Swafford boys in the road, he had gone through the house and out to his barn, up the hollow, and came back after the shooting ceased. They denied positively that he had any difficulty with his wife at any time and say that her nose was bloodied by being struck by Tom. Swafford. The evidence as to Finley's conduct at the jail was also contradicted.
The instructions properly omitted any reference to the homicide having been committed pursuant to a conspiracy, for there was no evidence to support such hypothesis. The instructions did authorize the appellant's conviction if the jury believed from the evidence beyond a reasonable doubt that he himself shot and killed the deceased or that Finley Hobbs had done so and the defendant had aided and abetted him.
We do not find any evidence tending to prove that Finley Hobbs killed Tom Swafford. The instruction *Page 71 must be regarded, therefore, as prejudicially erroneous. Hagan v. Commonwealth, 179 Ky. 201, 200 S.W. 336. We have recently held an instruction which authorized conviction as a principal where the evidence tended to prove that the accused was guilty of aiding and abetting another was reversible error. Howard v. Commonwealth, 304 Ky. 149, 200 S.W.2d 148. The legal principle is, of course, the same where the conditions or the relation to the commission of the crime is the converse.
It was apparently upon the theory of participation and res gestae that the court ruled to be competent the evidence of Finley Hobbs attacking his wife on the porch of his home shortly after the shots were fired and of his threatening the Owens family. None of the Owens family claimed they saw Finley there until after the shooting, and, as we have related, his own family testified positively that he was not present at the time. If there had been any evidence to sustain the theory of Finley's participation in the commission of the crime, all of this, or at least all except those threats, would have been competent as res gestae. As it was, this conduct of Finley Hobbs was not connected with or illustrative of the homicide. There was no evidence of concert of action. The crime had already been committed.
However, since the defendant's evidence was that Finley Hobbs was not present and that the appellant shot Tom Swafford while his mother was at the foot of the steps, being assaulted by the two men, the evidence of the Owens family, or a substantial part of it, concerning the presence of both Finley and his wife on the porch immediately after the shooting and of his striking her, causing her nose to bleed, would have been competent in rebuttal under a proper admonition as to its purpose of contradiction. But as it came into the case as substantive proof and was calculated to inflame the jury, we are constrained to hold that its admission constituted prejudicial error.
The evidence that just before Finley Hobbs had come home he had gone into the country and stayed in a store for a while was irrelevant. This was introduced at the beginning of the trial and the court doubtless presumed it would become relevant under the charge of *Page 72 conspiracy. It could not have been prejudicial, but the court should have withdrawn its consideration from the jury. Of like character is the evidence that Finley Hobbs was in the habit of carrying a pistol. Evidence as to what he did at the jail was not competent and should have been rejected. Whether this was prejudicial or not, we express no opinion.
For the reasons stated, the judgment is reversed.