
    Pettijohn et al. v. Commonwealth.
    (Decided January 16, 1931.)
    H. C. KENNEDY for appellants.
    J. W. CAMMACK, Attorney General, and HOWARD GENTRY, Assistant Attorney General, for appellee.
   Opinion op the Court by

Hobson, Commissioner

Affirming.

James Pettijohn and Jerry Pettijohn were jointly indicted in the Pulaski circuit court for feloniously burning the barn of Bob Pettijohn. On the trial of the case they were each found guilty and their punishment fixed at two years’ imprisonment. They appeal.

No objection is made to any ruling of the circuit court in the admission or rejection of testimony or in instructing the jury. The only ground of reversal insisted upon is that the verdict is not warranted by the evidence.

Bob Pettijohn is fifty-five years old, Jerry fifty-nine, and James sixty-six. They are brothers. Jerry lived about half a mile from Bob, and Jim, who was a widower, lived with Jerry. The barn was burned on December 26, 1926. The sum of the testimony of the witnesses for the commonwealth is as follows:

Bob Pettijohn: That afternoon about 4:00 o’clock Jim Pettijohn was at his house and said to him, “Bob, Jerry and them fellows aim to burn you out, take this pistol,” and he got out his pistol and Bob told him to put it up. They then went on to the barn and Jim accused him of turning up his still and said “if I wouldn’t let Jim Sullivan arrest him he would stay with me.” Bob told him that he had nothing to do with it and Jim went off. Boh did his feeding and went into the house, which was about forty yards away. About 7:00 o ’clock he discovered the fire and ran out to the barn to get the stock out. He got out all of his stock except one calf that was burned up. He tried to get the wagon out, but the wagon wheels were chained so that he could not get it out. While the barn was burning, Jerry and Jim came up. Jerry came to the barn and Jim stopped at the house. Jerry asked, “What in the hell does this mean?” And Bob said, “What in the hell did you fire it for?” He said it was a lie and ran off, and Jim also ran off. He testified that their feelings toward him were bad; that they were mad at him for reporting their still.

Brack Pettijohn: Jim was at his house that afternoon. Jerry was up on the hill. This was about an hour before sunset. Jim said, “Jerry and them are going to burn them out and if you will stay with us we will kill them. ’ ’ After saying this, he went back up on the hill to J erry. About an hour after the fire he and Jerry came to his house together.

E. C. Tarter: On the night of the fire, about a half hour before he saw the light of the fire, Jim and Jerry Pettijohn were in his yard. He did not see what direction they came from or notice in what direction they left. They talked about fifteen minutes and left.

Mr. and Mrs. Oscar Brown: They lived about a mile from the barn. They had gone to bed. Their little boy was over by the window. He complained about the light. They went out on the porch,, and while they were .standing there Jerry Pettijohn came up in the yard. He made a good deal of racket; he was coming from direction in which the light was. In a few minutes after they heard the noise he made, he came up to the house and said Jim was down there about fifty yards away in the road. When Jerry came,' he asked Brown what he thought that light was. Brown said it must be something burning up and he said it must be too far to be at Cain-town. He asked J erry where they had been and he said they had been to Travis Ferrell’s. No one of that name lived in the community. The racket he heard just before Jerry Pettijohn came up sounded like some one running. Jerry asked him for a drink and he went down with a bottle where Jim was and they took a drink together. Jim and Jerry appeared to be drinking.

John Sawyer: A day or two after the barn was burned he was over that way with Jerry Pettijohn, and Jerry said to him: “You see what has been done. If yo.u will stay with us we will clean them out. ’ ’

Winnie Tarter: She lived in Cincinnati. Five or six months after the barn was burned she saw Jim Pettijohn in Cincinnati, and he told her that while Jerry poured the oil on and lit the match, he tied the wagon so that they couldn’t get it out.

The defendants testified in their own behalf, denying that they said any of these things stated by the witnesses for the commonwealth or that they were on bad terms with, their brother, or accused him of turning up the still. They said when they left Tarter’s house that they went to Brown’s, but did not run or come to Brown’s house from the direction of the fire, and that after staying there a short time and getting a drink, which they went there for, they went home and from their home went over to the fire, as stated by Bob Pettijohn. Section 240 of the Criminal Code of Practice provides:

“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed. ’ ’

It is clear here from the proof that the barn was purposely set on fire by some one. The testimony of Winnie Tarter is therefore sufficient to take the case to the jury as to Jim Pettijohn. Higgins v. Commonwealth, 142 Ky. 647, 134 S. W. 1135. In addition to this, her testimony is confirmed by the other testimony in the case, showing that the defendants came running from the fire shortly after it started; for there was a large amount of hay in the barn and when the fire reached this hay the building would soon be consumed. The wheels of the wagon were found chained, indicating that this was done to prevent the wagon being saved from the fire. There was therefore sufficient evidence to sustain the conviction of Jim Pettijohn. As to Jerry Pettijohn the proof is not so full.

The statements that Jim Pettijohn made, not in the presence of Jerry, were not competent against Jerry and were properly excluded by the court as to him; but leaving all this out we have the fact that he and Jim were seen together at different places just before and just, after the fire started, and that they came running to Brown’s from the direction of the fire when the light had not gotten so bright that it was certain what caused it. When Jim had the conversation with Brack Pettijohn, Jerry was up on the hill, and after -the talk with Brack, Jim went back up on the hill to Jerry. In addition to this, after the fire and referring to it, Jerry said to John Sawyer: “You see what has been done. If you will stay with us we will clean them out.” And when asked by Brown at the time" of the fire where they had been, Jerry gave the name of a man who did not live in the neighborhood and to whose house they had not gone according-to their own statement. Their own testimony as to where-they went that night is not in accord with the testimony for the commonwealth. In other words, they placed themselves where they could not well have set the house-on fire; if they had been at these places at the time they fixed. While the evidence as to Jerry Pettijohn is not as clear as that against Jim, the fact is clear that they were together all that evening and acting in concert, and in view of all the proof the verdict of the jury cannot be-disturbed.

Judgment affirmed.  