Opinion op the Court by
Hobson, Commissioner
Reversing.
Elmer Grayson, Dick McNise, and Ben Sexson were jointly indicted for the murder of J. Robert Kirby. Grayson was tried and received a life sentence in the penitentiary. McNise died from a wound be received. Finally Sexson, who was only nineteen years of age was placed on trial. He was found guilty, and Ms punishment fixed at death. He appeals.
The first objection made is that the defendant’s demurer to the indictment should have ben sustained. Briefly put, the descriptive part of the indictment is tMs: In December, 1929, the three defendants willfully, maliciously, and feloniously conspired together, and, pursuant to the conspiracy, with violence robbed the bank of Oakland, Ky., with force' and arms, and took therefrom a large amount of money, and then, to make good their escape and to get away with the money they had stolen, they willfully, maliciously, and feloniously shot and Mlled J. Robert Kirby, from which shooting Kirby then and there died..
The first objection to the indictment is that it charges more than one offense, that is, it charges the robbing of the bank and the shooting of Kirby; but the robbing of the bank is only stated as a matter of inducement to show under what circumstances the shooting of Kirby occurred. The only offense with wMch the defendants are charged in the accusatory part of the indictment is
.willful murder. The descriptive part of the indictment, stating the facts constituting the offense, does not enlarge the charge. Only the crime of murder is charged.
It is also urged that it is not charged in the indictment that the offense was committed with malice aforethought. But it is charged in the indictment that they shot and killed Kirby in an effort to escape with the stolen money and for the purpose of making their escape. It is the duty of all good citizens to arrest known felons and to prevent their escape. A citizen so doing his duty is entitled to the same protection as the officer of the law. It is well setled that it is malice in law for a criminal to shoot an officer doing his duty in order to effect an escape from him. It is also malice for a criminal to shoot a private citizen to effect his escape. To have added that the shooting was done with malice aforethought would have been only to repeat what the facts stated in the indictment showed. The indictment charges that the acts were maliciously done. In Turner v. Com., 167 Ky. 365, 180 S. W. 768, L. R. A. 1918A, 329, it was held that the intentional malicious killing of one human being by another without legal justification or excuse, and under circumstances which are insufficient to reduce the crime to manslaughter, is murder. By section 122 of the Criminal Code of Practice it is provided, in lieu of the common-law forms, that the indictment must contain a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended and with such degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case. The indictment here clearly comes up to this rule, and the demurrer to it was properly overruled.
The next ground for reversal requires a statement of the facts. Kirby lived at Smith’s Grove some miles from Oakland. His car was at the door, and he and Charles Baird, when they heard of the bank robbery at Oakland by telephone, which told them that the robbers had come in that direction, at the suggestion of Kirby got in the car together and went down the road. "When the robbers saw them coming, they turned off on another road, and, as they turned, fired some shots at them. Kirby and Baird followed them down this road. When they had gone several miles, the robbers saw in the road
in front of them a lot of men, and, fearing that they could not get by, they stopped and turned their car, and, as they came back, soon met Kirby and Baird. When they saw Kirby and Baird coming, they stopped and got out of their car. Kirby and Baird got out. As Baird was getting out, his gun went off accidentally. The proof is conflicting as to whether this was before or after some shots were fired from the other car. Kirby was shot in the side, and died soon thereafter. The robbers fled across the field into the woods, leaving their car standing there. They were afterwards arrested, and there is no dispute as to their identity. The proof for Sexson on the trial was to the effect that Kirby was shot by Baird, and that Baird continued to shoot at them after he got out of the car. It is insisted for the appellant that Kirby was shot before, he reached the ground as he got out of the car, and that, there being no shot through the car door, he could not have been shot from the other ear. The fact, too, that he was shot in the side is also -relied on, as he had his side toward Baird as he got out of the car and did not have his side then toward the other car. Grayson and Sexson both testified on the trial, and this is in substance Sexson’s defense. On the other hand, the proof for the commonwealth tended to show that Kirby was not shot by Baird.
On his first appearance in the case, and some days before the trial, defendant filed an affidavit setting out briefly the above facts, and asking that the body of Karby be exhumed at his cost, stating that the examination of the body would show positively who shot him, as the balls were of different caliber. The court overruled the motion, and forced the defendant into trial without an examination of Kirby’s body. In 17 O. J. p. 1140, sec. 7, the rule is thus stated:
“The right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination. A court will not, however, order a body to be disinterred unless there is a strong showing that it is necessary and the interests of justice require it.” To same effect see Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 513, and notes.
That the court in a proper case has power to order an autopsy is well settled. State v. Clifford, 81 Wash. 324, 142 P. 472, Ann. Cas. 1916D. 329, and notes; Salisbury v. Com., 79 Ky. 425.
While the court has a discretion in matters of this sort, this is a case of life and death. If the body is exhumed, it can be seen directly from the course of the bullet ¡whether it was fired from the car in which Kirby was riding or from the other car. The two guns carry different bullets, and the bullet found in Kirby will show from which gun it came. In a case where human life is at stake and an exhumation of the body would show the truth, the exhumation should be made. The court therefore concludes that the circuit court erred in overruling the motion for the exhumation of the body of Kirby, and on the return of the case to the circuit court such an order will be entered.
The defendant introduced the coroner and proposed to prove by him the range of the ball. But his statement of facts was so meager that his conclusion as to the range of the ball was properly held inadmissible. It was, on the facts stated, simply a surmise.
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Opinion op the Court by
Hobson, Commissioner
Reversing.
Elmer Grayson, Dick McNise, and Ben Sexson were jointly indicted for the murder of J. Robert Kirby. Grayson was tried and received a life sentence in the penitentiary. McNise died from a wound be received. Finally Sexson, who was only nineteen years of age was placed on trial. He was found guilty, and Ms punishment fixed at death. He appeals.
The first objection made is that the defendant’s demurer to the indictment should have ben sustained. Briefly put, the descriptive part of the indictment is tMs: In December, 1929, the three defendants willfully, maliciously, and feloniously conspired together, and, pursuant to the conspiracy, with violence robbed the bank of Oakland, Ky., with force' and arms, and took therefrom a large amount of money, and then, to make good their escape and to get away with the money they had stolen, they willfully, maliciously, and feloniously shot and Mlled J. Robert Kirby, from which shooting Kirby then and there died..
The first objection to the indictment is that it charges more than one offense, that is, it charges the robbing of the bank and the shooting of Kirby; but the robbing of the bank is only stated as a matter of inducement to show under what circumstances the shooting of Kirby occurred. The only offense with wMch the defendants are charged in the accusatory part of the indictment is
.willful murder. The descriptive part of the indictment, stating the facts constituting the offense, does not enlarge the charge. Only the crime of murder is charged.
It is also urged that it is not charged in the indictment that the offense was committed with malice aforethought. But it is charged in the indictment that they shot and killed Kirby in an effort to escape with the stolen money and for the purpose of making their escape. It is the duty of all good citizens to arrest known felons and to prevent their escape. A citizen so doing his duty is entitled to the same protection as the officer of the law. It is well setled that it is malice in law for a criminal to shoot an officer doing his duty in order to effect an escape from him. It is also malice for a criminal to shoot a private citizen to effect his escape. To have added that the shooting was done with malice aforethought would have been only to repeat what the facts stated in the indictment showed. The indictment charges that the acts were maliciously done. In Turner v. Com., 167 Ky. 365, 180 S. W. 768, L. R. A. 1918A, 329, it was held that the intentional malicious killing of one human being by another without legal justification or excuse, and under circumstances which are insufficient to reduce the crime to manslaughter, is murder. By section 122 of the Criminal Code of Practice it is provided, in lieu of the common-law forms, that the indictment must contain a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended and with such degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case. The indictment here clearly comes up to this rule, and the demurrer to it was properly overruled.
The next ground for reversal requires a statement of the facts. Kirby lived at Smith’s Grove some miles from Oakland. His car was at the door, and he and Charles Baird, when they heard of the bank robbery at Oakland by telephone, which told them that the robbers had come in that direction, at the suggestion of Kirby got in the car together and went down the road. "When the robbers saw them coming, they turned off on another road, and, as they turned, fired some shots at them. Kirby and Baird followed them down this road. When they had gone several miles, the robbers saw in the road
in front of them a lot of men, and, fearing that they could not get by, they stopped and turned their car, and, as they came back, soon met Kirby and Baird. When they saw Kirby and Baird coming, they stopped and got out of their car. Kirby and Baird got out. As Baird was getting out, his gun went off accidentally. The proof is conflicting as to whether this was before or after some shots were fired from the other car. Kirby was shot in the side, and died soon thereafter. The robbers fled across the field into the woods, leaving their car standing there. They were afterwards arrested, and there is no dispute as to their identity. The proof for Sexson on the trial was to the effect that Kirby was shot by Baird, and that Baird continued to shoot at them after he got out of the car. It is insisted for the appellant that Kirby was shot before, he reached the ground as he got out of the car, and that, there being no shot through the car door, he could not have been shot from the other ear. The fact, too, that he was shot in the side is also -relied on, as he had his side toward Baird as he got out of the car and did not have his side then toward the other car. Grayson and Sexson both testified on the trial, and this is in substance Sexson’s defense. On the other hand, the proof for the commonwealth tended to show that Kirby was not shot by Baird.
On his first appearance in the case, and some days before the trial, defendant filed an affidavit setting out briefly the above facts, and asking that the body of Karby be exhumed at his cost, stating that the examination of the body would show positively who shot him, as the balls were of different caliber. The court overruled the motion, and forced the defendant into trial without an examination of Kirby’s body. In 17 O. J. p. 1140, sec. 7, the rule is thus stated:
“The right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination. A court will not, however, order a body to be disinterred unless there is a strong showing that it is necessary and the interests of justice require it.” To same effect see Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 513, and notes.
That the court in a proper case has power to order an autopsy is well settled. State v. Clifford, 81 Wash. 324, 142 P. 472, Ann. Cas. 1916D. 329, and notes; Salisbury v. Com., 79 Ky. 425.
While the court has a discretion in matters of this sort, this is a case of life and death. If the body is exhumed, it can be seen directly from the course of the bullet ¡whether it was fired from the car in which Kirby was riding or from the other car. The two guns carry different bullets, and the bullet found in Kirby will show from which gun it came. In a case where human life is at stake and an exhumation of the body would show the truth, the exhumation should be made. The court therefore concludes that the circuit court erred in overruling the motion for the exhumation of the body of Kirby, and on the return of the case to the circuit court such an order will be entered.
The defendant introduced the coroner and proposed to prove by him the range of the ball. But his statement of facts was so meager that his conclusion as to the range of the ball was properly held inadmissible. It was, on the facts stated, simply a surmise.
Appellant also complains that proof was given by the officers of what they found in some valises left in Bowling Green at the house ¡where the defendant stayed the night before. After the offense was committed and the defendant had left the state, the officers went to this house and took possession of these valises and other things left there by the defendant. The defendant insists that they had no search warrant, and that all this was without right. But the constitutional pro,vision as to search and seizure has no application in such a case as this. In 35 Cyc. p. 1271, the rule is thus stated:
“It is well settled that a person legally arrested and in the custody of the law on a criminal charge may be subjected to a personal search and examination, even though against his will, for evidence of his criminality, and, if found, it may be seized without violating his constitutional rights.”
When a defendant has left the state and cannot be arrested, the officer may seize anything that he has left behind that will reasonably tend to his identification, and, having seized such property, may open it and see what is in it. This is what was done here, and there was no error
in the proceedings. .The officers had a right to seize the abandoned property that' would furnish some clue to the identification of the persons who had left it.
The court properly excluded all the evidence as to what took place in Chicago leading up to appellant’s arrest, and he should have excluded the statement of these facts to the jury by the commonwealth attorney. On another trial, in stating the case these facts will not be stated to the jury, and the defendant will not be cross-examined on immaterial matters.
It is earnestly insisted for appellant that the jury were not kept together. It is unnecessary to go into this, as on another trial other arrangements may be made. The other matters complained of will probably not occur on another trial. The court finds no substantial error in the instructions to the jury on the facts shown on the trial.
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Whole court sitting.