Commonwealth v. Flanary

1 Ky. Op. 183

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1866
• Status: Published

Opinion

Opinion op the Court by

Judge Duvall :

The verdict and judgment acquitting the appellee of the charge of robbery must stand.

1. He seems to have had no agency in the forcible abduction of the horse charged in the indictment as robbery. A band of confederate soldiers in Crittenden county, Kentucky, took the horse in obedience to their official commander’s orders for the alleged use of the Confederate cavalry; and, while there is no satisfactory proof that the appellee was one of that squad of soldiers, the owner of the captured horse proved that the appellee approved the capture and prevented other threatened spoliations of his household property.

2. Had the appellee, as one of the capturing soldiers, co-operated in. the intimidation of the owner or the forcible taking of his horse, his submission to the military order of his commander, claiming the belligerent right to press the horse into the Confederate service, would have deprived his act of legal criminality even though the taking of private property for his own individual profit for the wanton destruction of it might not be thus exercised under pretense of any military authority.

Wherefore, the judgment of the Circuit Court is affirmed.