$18,000.00, whereas the value of the farm, as estimated by appellant, is only about $5,000.00. All this may be true, and yet it is not conclusive of the controversy. This particular boundary of timber appears to have been of a superior quality and size. The timber on the balance of the farm may have been very different. The jury heard the facts and concluded from the evidence that the timber taken by appellant and the damage done by roads, etc., amount to $1,250.00, and we find no reason to disagree with the verdict.

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Judgment affirmed.

Bingham v. Commonwealth.

(Decided March 25, 1919.)

Appeal from Pike Circuit Court.

Homicide-Voluntary Manslaughter-Plea in Bar.-Where one of two persons, jointly indicted for the crime of willful murder, is found guilty of voluntary manslaughter, the other defendant can not plead that judgment in bar of the right of the Commonwealth to try him for murder, even though the one first convicted fired the fatal shot and the second defendant was only present aiding and abetting.

Homicide-Manslaughter.-Where two persons are jointly indicted for the crime of willful murder, one may be guilty of murder and the other of manslaughter only. If the one who fires the shot which causes the death acted in sudden heat of passion or in sudden affray and without previous malice, he will be guilty of manslaughter only, while the other who did not fire a shot but was present, aiding, encouraging and abetting the crime, will be guilty of willful murder, if he acted with malice aforethought. Criminal Law-Evidence.-Where there is evidence for the Commonwealth sufficient to warrant the verdict of the jury, it will be sustained notwithstanding the evidence for the defendant is in conflict therewith, the jury being the judges of the facts.

J. J. MOORE and W. K. STEELE for appellant.

CHARLES H. MORRIS, Attorney General, and BEVERLY M. VINCENT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON-Affirming. The grand jury of Pike county returned an indictnent in February, 1918, accusing Mosco Belcher and E. S. Bingham of the willful murder of Nelson Matney.

Shortly thereafter Bingham moved for a severance of trial, which was granted, and the Commonwealth elected to try Belcher first. At the spring term, 1918, Belcher was put upon trial and the jury returned a verdict finding him guilty of manslaughter and fixing his punishment at confinement in the state penitentiary for twentyone years. Judgment was entered thereon, from which Belcher appealed to this court, and that judgment was affirmed. Belcher v. Commonwealth, 181 Ky. 516. At the September term of court appellant Bingham was placed upon trial and the jury returned a verdict finding him guilty of voluntary manslaughter and fixing his punishment at fourteen years in the state penitentiary. Motion and grounds for new trial were filed and overruled, judgment entered and appeal granted to Bingham.

Appellant asks a reversal upon two grounds only: (1) The court erred in its instructions to the jury in that it submitted to the jury the question of the guilt of appellant of the crime of willful murder, whereas, appellant asserts it had been judicially 'determined in the Belcher case that the principal, Belcher, was guilty only of voluntary manslaughter, and Bingham being only an aider and abettor could not therefore have been guilty of any crime greater than voluntary manslaughter, if anything. (2) The evidence was not sufficient to warrant the court in submitting the case to the jury and the court should have sustained appellant's motion for a directed verdict in his favor at the conclusion of the evidence.

In the opinion in the Belcher case the facts are admirably set forth, and we will but briefly recite them so as to enable one to better understand the application of the principles of law which we conceive to control this

case.

The homicide occurred on Sunday, December 16, 1917, at the home of the deceased in Pike county; appellant Bingham and the deceased Matney were brothersin-law, but they had quarrelled some years before and were not friendly at the time of the killing, nor had they been for several years. Belcher had been paying attention to Jane Matney, the nineteen year old daughter of the deceased, and Matney objected to this and had threatened to run Belcher off if he came to his house again. This had been communicated to Belcher by Jane, and Belcher had not been to Matney's house for two months next

before the killing. Both Belcher and Bingham were unfriendly to Matney, but Bingham and Belcher were intimate friends. On the afternoon of the Sunday on which Matney came to his death, Bingham and Belcher met by appointment on the road near Slone's store; they claim to have transacted some slight business between them. Thereafter they went to the store operated by Slone where they met several other persons. The store was open and they bought four or five bottles of "hot drops," which they mixed with cider and whiskey and drank. They became more or less intoxicated and were dancing in the store; Bingham and Belcher used expressions between themselves, indicating that they had some secret expedition on hands, the exact meaning of the words being unknown to the other persons in the store. Matney lived a short distance down the river from the store, and Bingham and Belcher spoke of their destination as being down the river. About dark Bingham and Belcher and another man left the store and started down the road; after going only a short distance a pistol shot was heard which came from the three in the road, but appellant Bingham claims not to know who fired the shot, although he admits it was fired by one of his companions. The third man returned to the store, but Bingham and Belcher proceeded down the road. They contend that they had started to the home of Belcher to have supper; but when they reached the forks of the road they turned in the direction of the home of Matney instead of towards Belcher's home. Each knew that he was not welcome at Matney's home, and that Matney did not like them and they did not like him. In approaching the home of Matney they passed the barn where Matney was milking his cow. Without stopping with him they went immediately to the house; entering the front door, Belcher walked into the kitchen where his sweetheart, Jane, was cooking supper. Bingham, according to Bert Matney, the twelve year old son of the deceased, stopped in the front room by the dresser and said to Bert, “Your pa don't want me here, does he?" Very soon after Belcher reached the kitchen and began a conversation with Jane, Nelson Matney walked in and asked Belcher what business he had there, to which Belcher answered, "I have a little," whereupon Matney ordered Belcher to leave the house, and Belcher said he would go out when he got ready. Bingham was in the front room and

within hearing of Matney and Belcher at the time; Matney turned and came into the hall to get his shotgun, and Belcher seeing this, went out at the kitchen door and around the house towards the front gate; about the same time Bingham left the front room and went towards the front gate, where he met Belcher; Matney came around to the gate with the shotgun in his hands; he and Bingham began to quarrel and to call each other bad names; in the meanwhile Belcher had crossed the road, gaining the elevation beyond, and was some 130 to 150 feet away; while Bingham and Matney were cursing and quarreling, Bingham called Matney "a son-of-a-bitch," whereupon Matney told Bingham not to call him that again, or dared him to call him that again; about this time Belcher fired two shots from a pistol at Matney, who was inside his yard fence. Bingham, who was standing just on the outside of the fence near the gate, continued to quarrel with Matney, and an instant later a third shot was fired by Belcher which struck Matney's vitals and he turned towards the house and fell across his gun, dead. Both Bingham and Belcher left the scene immediately, although no one was there to take care of the dead man except his nineteen year old daughter and twelve year old son. The daughter remained with the body while the little boy ran for help. Bingham and Belcher fled into Virginia, where they were afterwards arrested and returned to Kentucky for trial.

One witness testified that only a few days before the killing Bingham had said that Matney was a hard man to get along with; that he had had a quarrel with him some four or five years before and that if he had had a gun at that time he would have killed Matney, and that it was not yet too late. Another witness gave evidence that Bingham had recently attempted to borrow a pistol, and there were several witnesses who gave testimony to the effect that Bingham disliked, if he did not hate, Matney. Bingham had not been to the home of Matney for about two years, and then Matney was not at home. According to some of the witnesses they frequently met and passed without speaking. The theory of the Commonwealth is, that after Belcher and Binglam met on the afternoon before the killing, they entered into an agreement or conspiracy, either expressly or tacitly, to intimidate and alarm their common enemy, Matney, and after nerving themselves for the job by

drinking a concoction of whiskey, cider and "hot drops," proceeded with the execution of their design.

Appellant's contention is that he was an innocent bystander, wholly unconnected with any plan or conspiracy to injure or bring about the death of Matney, and that he did not anticipate any trouble on his visit to the home of Matney; that the shots by Belcher were fired in sudden heat of passion without previous design even, on Belcher's part, and that he (Bingham) had no opportunity to prevent Belcher from firing the shots.

(1) Instruction "A," given by the court, defines the words "willful," "malice aforethought," "felonious" and "feloniously," as used in the instructions, and there is no objection to the form or substance of the definitions, but only that a definition of "murder" and "malice aforethought" was not relevant to the facts of this case, especially since Belcher, whom appellant asserts was the principal if not the sole perpetrator of the crime, had been judicially determined to be guilty only of voluntary manslaughter. Instruction "B" directed the jury to find the defendant guilty of willful murder, if it believed from the evidence beyond a reasonable doubt that the defendant, Belcher, willfully and feloniously shot and killed Matney at a time when it was not necessary in order to protect himself or Bingham from death or the infliction of some serious bodily harm, and that Bingham was then and there present and near enough to and did unlawfully, willfully, feloniously and with malice aforethought, aid, assist, abet, encourage, advise, counsel or command Belcher to so shoot and kill Matney. The same instruction told the jury that if it believed from the evidence, beyond a reasonable doubt, that defendant Belcher shot and killed Matney in sudden heat of passion or sudden affray and without previous malice, and that Bingham was present and near enough to and did unlawfully, willfully and feloniously aid, assist, encourage, advise, counsel or command Belcher to so shoot and kill Matney, the jury should find the defendant Bingham guilty of the crime of voluntary manslaughter, and fix his punishment at confinement in the penitentiary not less than two nor more than twentyone years.

Appellant insists that as he is not charged with firing the shot or striking the blow which killed Matney, he could, therefore, be only an aider and abettor in the