
    Sizemore v. Commonwealth.
    (Decided March 20, 1936).
    B. M. VINCENT, Attorney General, and A. E. FUNK and J. J.
    LEARY, Assistant Attorneys General, for appellee. WILLIAMS & ALLEN for appellant.
   Opinion of the Court by

Drury, Commissioner

Reversing.

Benton Sizemore appeals from a judgment rendered upon his separate trial sentencing him to life imprisonment for the murder of Wesley McIntosh.

The Facts.

McIntosh was shot and instantly killed by George Sizemore, November 21, 1934. For this George Size-more, Benton Sizemore, 'Cecil Sizemore, and Charlie Noble were on March 13, 1935, by indictment, charged with murder. -George Sizemore had died three days before he was indicted.

On this fatal day a number of young people had been on a drunken carouse. This killing -occurred about 10 o ’clock at night. Every one then in the party testify except the slayer and the slain, and aside from his being present when it happened there is not a breath of evidence to show that the appellant either planned, agreed to, aided, encouraged, or in any way participated in the homicide.

The trouble arose suddenly and terminated immediately, and the only connection the appellant had with it is he was among those present. He had just been aroused from a drunken sleep of seven or eight hours’ duration, and we are unable to discover anything he had to do with this homicide, and the Attorney General and his staff frankly admit that to be true. Therefore we hold the trial court should have directed the jury to acquit the appellant.

Judgment reversed.  