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Chief of Police John Putthoff

Covington, Kentucky

Frances Marie Brady, below, 30-year-old Kentucky :

; belle, brutally slain on the night of October 2nd
¢ as she opened the front door of her home (lower
right) just five days before her planned marriage.

a 5a
ep ior

By Harold L. Zimmer

T WAS a heavenly night. Above, the moon rode along

a flawless sky in all its fullness—the late fall air was

strangely warm. Young lovers were taking advantage

of the occasion by strolling, hand in hand; along the
street a man was walking his dog, chest out, breathing in the
rich nectar of spicy, southern winds.

A sleek new sedan purred past the young man and his dog.
In it were three lovely young women; their tinkling laughter
floated out over the stillness like happy chimes. The young
man smiled as the car pulled into the driveway nearby—at
2104 Oakland Avenue; it was the Brady sisters, Frances
Marie, Ella Celene and Margaret. Frances was to be married
Wednesday.

As the young man passed the Brady residence, he heard

a
MURDER


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sped to the scene of the unholy disturbance. The sight that
met their gaze was one to wring their hearts in horrified pity.
Frances Marie Brady lay sprawled upon her back, on the
front lawn. Bent over her, sobbing hysterically, her two
sisters moaned ler name in monotonous unison:
“Frances! Frances!’

- “Here, here! What in God’s name has—” a grey-haired
man shoved his way through the crowd, stopped suddenly as
he glimpsed an ominous, dark trickle staining the reclining
girl’s white silk frock at a spot directly between the firm,
uptilted breasts !

“She—she’s been shot!” wailed Margaret, “Oh—won’t

. Somebody get a doctor, or call an ambulance—or—or any-

thing—!”
Tender hands lifted the wounded girl and she was borne
to the next door residence. Others hastened to call the nearest
ital, S is

ad fled
darkness . . . she was dead...

So quickly had the neighbors reacted in the emergency,
that the ambulance had hardly departed before a shrieking

’ squad car of the Covington police slid to the curb outside
the Brady home.

The police had only been notified after

Sisters and fiancé of the murdered girl at the
coroner's inquest, below. Left to tight, John J.
O'Donnell, Margaret and Elia Celene Brady.

the report was called in from St. Elizabeth’s Hospital.
naware of what had occurred, the officers, Lieutenant

Edward Beebe, Detective Leroy Hall and Patrolmen Earl
Behringe and Charles Halpin, set about questioning the group
of people who had gathered on the front lawn.
hat- was the disturbance? We got a radio flash to
report to this address, and—”

“T heard a man had been shot, in the house, there,”’ offered
one bystander.

“Tt wasn’t that—some girl committed suicide,”

retorted
another.

wounded girl were gathered in their own’ home, vainly trying
to soothe the grieving sisters,

Lieutenant Beebe and his three companions officers walked

Cooperat-

ing closely with
the chief of police,
Sheriff Louis Vogt, above, of Ken-
ton County, aided materially jin
the apprehension of the slayers,

through the front door of the
Brady house. The door was
standing open and the hall
light was burning. No other
light was turned on.

The policemen made their
way through the neat, two-
Story brick bungalow and
found nothing out of place—
nor anyone in the building.
Only one thing excited Lieu.
tenant Beebe’s excitement; the
rear screen door was ajar. A
slide bolt on the wooden door
and a hook on the screen were
not forced, proving that they
had been opened by someone
from inside.

Walking back through the
front room, Beebe and Hall
noticed a huge stack of gaily-
wrapped packages, Picking a
few up, the detective lieuten-
ant discovered greeting cards
attached, expressing “Con-
gratulations on your coming
marriage” and similar saluta.
tions.

The two patrolmen were
sent to scout about the
Premises and shortly Officer
Halpin returned, his features

73

Srvusose


2

\

Assistant Chief of Police Alfred Schild of Covington, fingerprinting the
stool-pigeon who sang himself right onto the gallows platform. Patrol-
man Robert Spanton at left.

fe eee

the girls alighting from their machine and trooping up to the front door.
Ella Celene’s saucy high heels clicked resoundingly on the front porch as
she led the others to the door. F umbling in her purse, she withdrew an odd-
shaped key, tried, without success, to unlock the door.

“What's the matter?” called Frances. ’

“Oh—this darned door is stuck again. I guess you'll have to open it. It
ell always works for you—” The girls laughed and their voices picked up bits:
_ of the conversation they had had, almost without variance, for the past week,
7 “Oh, Frances—I think John is the sweetest thing. You're lucky to be
getting such a handsome husband—”

“rei

all “I think Johnnie is the lucky one,” countered Margaret, defensively.
©} “After all, he’s not the only suitor for our fair sister’s hand, by a long
shot...”

The voices faded as the man and his dog walked along. Only one thing
marred the peaceful scene. The man caught a brief glimpse of a skulking
figure behind a tree across the Street. The shadowy individual seemed to
be watching the Brady home . . . and the girls... Or was it his imagination,
the young man wondered? He decided to take a good look, just to make
sure. Yes, the fellow was watching the house. And it was only a mere
boy—not over sixteen or seventeen, at most. Suppose... half-whispered
rumors of a former sweetheart of Frances Marie’s trickled through the
young man’s mind—a sweetheart who was not at all pleased with her choice
of a man so much older than herself. ‘

But the moonlight and the balmy air soon obliterated gloomy thoughts
and the neighbor continued to walk his dog. But not for long. Suddenly,
without warning, hell itself erupted on that Quiet street!

Inhuman, agony-contorted screams split the stillness, punctuated by the
unmistakable thunder of gunfire!

_ The young man forgot his dog, began racing back up the street toward
the Brady home. The sound had come from there! ;

By the time he arrived, other neighbors had flung open their doors and

72


74

strained and white.
“A—a girl has been murdered here, Lieu-

tenant!” he blurted. “They took her to
the hospital, already. The radio announcer
didn’t give us the details when he called,
and—” ‘

“Sure, sure!” barked Beebe. “But where
are these—these people you were talking
to? Let’s go see them!”

HE sight of the two miserable sisters,

arms wrapped about each other in a
futile attempt to comfort one another, was
one that made Beebe’s throat choke up.
Obviously, the girls did not want to dis-
cuss the subject he had in mind; their
souls were still raw from the horror of
what they had witnessed. Nevertheless,
Beebe braced himself and began:

“Tell me just what happened. How was
your sister shot?”

“Oh, I can’t talk about it now. Go away!
Go away!” screamed Ella Celene.

“I’m sorry, Miss Brady,” replied the
lieutenant, a bit harshly, “but you and your
sister will have*to help us if you want the
one punished who is responsible for this.”

“Well—all I know is that. we walked up
to the front door,” began Ella Celene in
a weak, trembling voice. “I—I couldn't
seem to unlock it when I put the key in
the lock. It seemed—like it was stuck.
I—I asked F-Frances to try, and she did.

“She unlocked the door and pushed it
open. Then she reached her left hand in-
side and turned on the hall light. Then—
oh, God!” The girl covered her face with
her hands. “It happened!”

Ella Celene virtually collapsed in a fit
of sobbing that shook her slender body,
unable to continue. Margaret raised wet
eyes and said: “I’ll tell you the rest—and
then you'll have to. leave us alone for a
while.

“When Frances turned on the light, |
got a brief glimpse of a man standing in-
side the door—he—he somehow seemed
abnormally tall, or maybe it was the re-
flection of the light. But it was only for
a second, then I heard a loud report like
a revolver would make and Frances
screamed,

“We all ran off the porch. Ella Celene
tripped on the steps and fell and I stopped
to help her. I—I don’t know what was
going on in my mind, but I think the up-
permost was a feeling of relief. I thought
we had all escaped whoever it was that
had hidden inside the door and shot at
us—but—I was wrong. When I looked
around at Frances, she was sinking to the
ground. I sprang to her and then saw a
red stain forming on the front of her dress,
between her breasts.

“T tried to get her to speak to me, and
then Ella and I began to scream, and
—and—that’s all I remember... .”

“Did you get a look at the fellow’s face?”

“No. All I know is that someone was
standing there.”

“Did he run out the front door?”

“I—I don’t know. I don’t think so.”
““Were there any others in your party
when you returned home? Any young
men?” pursued Lieutenant Beebe, as gently
as possible.

“No, just we three... .” The girl pro-
nounced the word “three” in a dreamy
way, as though the word had often been
used, and would never more, after tonight.
“We attended a shower, given to celebrate

AMERICAN DETECTIVE

Frances’ coming wedding with. John J.
O’Donnell.”

Beebe was thoughtful for a moment, then
he said: “One more question, Miss Brady.
Did you lock the back door this evening
before you left for the party?”

“Yes, of course. We always make it a
point to lock up things tightly. Since
mother died three years ago, we have no
one to watch the house, and we always
take especial pains to see that nothing is
unfastened, even the windows.”

Beebe thanked the young women and
returned to the red brick bungalow. If
what the girl said were true, then the slay-
ing of Miss Frances Marie Brady was
going to be a puzzle, indeed. For, with the
back door locked before they left, and the
sisters having to unlock the. front door
when they entered, there was only one
conclusion to the presence of the slayer
inside; he had let himself in with a key.
But this simple explanation only made
things more baffling, for the front door
lock was of an expensive .type—the only
keys to it being those which had been ex-
pressly made for the Brady family, them-
selves!

NCE more the police went over the

house, inch by inch. As they probed
and searched, an astonishing fact made it-
self known; the unknown intruder had ob-
viously not been a burglar. Later checking
up with the two Brady sisters proved that
nothing in the whole house had been,
stolen or disturbed! This was plain at
first glance, when Beebe had spotted the
pile of costly wedding gifts on ‘the dining
room table. But after he and his men had
completely canvassed the upper and lower
floors, he knew that the murderer had done
nothing except hide in the building and
shoot Frances down as she entered the
front door.

Why? And how had the mysterious
slayer gotten hold of a key to the front
door? What had been his ‘motive for
ruthlessly shooting down -lovely young
Frances’ Brady? wk,

Back at headquarters, Chief John Putt-
hoff and Assistant Chief Alfred Schild
listened intently to Lieutenant Beebe’s out+
line of the investigation so far. :

“There’s something strange about this,”
remarked Putthoff when Beebe had fin-
ished. “The fact that the prowler entered
with a key and then waited there at the
front door without making any attempt to
steal anything makes me doubt it could
have been a’ burglar. Schild, you get out
to the Brady place and search it high and
low for fingerprints. As for me, I’m going
to question a few people. I’m afraid this
isn’t going to be any picnic, solving this
case. The killer was too careful about
covering his tracks.”

Assistant Chief Schild spent the next
four hours patiently dusting every door,
window, piece of furniture or article that
the intruder might have touched while in
the house. But at last he was compelled
to give up. Outside of the Brady girls—
whose. fingerprints “were gotten first . by
Schild—there was not a single foreign print
in the house! On top of other things, the
killer had worn gloves to hide his identity.

The police interviewed neighbors in the
vicinity of the Brady home and learned a
few additional facts to add to their slim

store of information. The young man who
had been walking his dog told the story of
seeing the girls walk up the front steps,
then, a few minutes later, hearing a shot
and a scream. He mentioned seeing the
strange youth across the street. People
living next door related that they had not
seen lights in the Brady home or heard
any sounds coming from the house prior
to the girls’ return.

As a result of the young man’s state-
ment about the strange loiterer, Chief Putt-
hoff instantly broadcast a warning to be
on the lookout for an, youth or small-
statured man who acted suspiciously.

Coroner James’ P. Riff lent additional
credence to the small man being a possible
suspect when he exploded Miss Margaret
Brady’s belief that the killer had been ab-
normally tall.

“The angle of the bullet, which pierced
the victim’s chest just above the heart,
was so sharp that the person who fired it
must have been. several feet above the
girls when they opened the door,” he de-
clared. “This is explained by the fact
that a narrow stairway reaching to the
second floor ends at the front door. The
murderer could have stood on these stairs
and peered through a small window there,
watching the girls as they entered. Then,
as Miss Brady opened the door, he prob-
ably fired, the path of the bullet slanting
to such a degree that it lodged in her
abdomen.”

Chief Putthoff, examining the front hall-
way and stair, was-inclined to agree with
Coroner Riff. According to this, the man
could have been small. Also, the window

‘brought home a startling truth; standing
‘there, the slayer could have gotten a clear

look at the three sisters as they ascended
the porch steps, owing to the bright moon-
light. :

“E JAD it been a burglar,” Putthoff
pointed out, “the very fact that he
could see them so well would have made

him try to escape before he was seen. In-:

stead'of that, he waited there, calmly, until
Frances opened the door. Then he shot
her and escaped out the back door, which
was found unlocked.”

The fatal shooting occurred on the night
of October 2nd, 1936. -It was the 8th be-
fore Ella Celene and Margaret Brady
would discuss the case with anyone. On
that day, a coroner’s inquest was held in
the circuit court.

At the inquest, the truth about the un-
canny entrance of the shadowy slayer was
arrived at. -The Brady sisters declared
that two keys had been lost out of an
original four, several months before. -

“Do you remember losing the keys your-
self?” Miss Ella Celene was asked.

“No—that’s the strange part of it,” the
young woman answered. “The keys, were
awfully hard to have made and we took
care not to lose them. We each carried
our keys in our change purses so they
wouldn’t be misplaced. Then, two or three
months ago, one key and then another dis-
appeared. None of us knew what had
happened to them. After that, we always
had trouble getting in, unless we were all
three .together. When Frances was out
late with Mr. O’Donnell, one of us would
be without a key, and would have to stay
home.”

The sisters were asked if the slain girl

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it out far enough to see old John White’s face. That’s. “Clay White and his Pa.were well liked in these
all I know!” baat TN parts,” the man observed. “Can’t say as they had any
Grubbs turned to the crowd. “Got any idea who did enemies. Leastways, I never knew of any.”
this or why?” Just then another voice piped up.’ ‘Clay White liked
No one answered for a long moment. And the, the women a powerful lot.”
silence was of such quality that the sheriff felt that - “This job was certainly not done by a woman,” the
these ‘people were reluctant to speak. “Well?” sheriff observed. “And if it was over a woman, why
he prodded them once more. “What are-you holding was the old man killed too?” ee
back for? Or maybe one of you .is the guilty | “Maybe old John tried to take Clay’s part, or maybe
party?” aie he threatened to tell...”
j t : ; “ Grubbs nodded. “Could be, but somehow or other
HE sheriff’s last sentence served to loosen their I doubt it.” He paused a moment. “Did these men
tongues and it seemed as if they were all trying to’ live near here?” he asked. i
talk at once. Finally, Grubbs held up his hand for The spokesman shook his head. “It’s several miles to
silence, then singled out one man and indicated that he the White place,” he said, “And it’s hard to find.”
might speak. * eed That meant, the. sheriff concluded, that the bodies

This scene—posed hy innocent spectators near spot whero ‘bodies |
were found—shows how Clay and John White were viciously killed.

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room. “Got any ideas about the case,

Josh?” he asked,

Harper was silent for a moment. At
length he replied, “If I were you I’d watch
Mary Hawkins.” ‘

“What do you know about her?”
Grubbs inquired.

Harper shifted in his chair. “You know
the talk that’s going the rounds as well
as I do—how Mary was planning on
marrying Clay, how he backed out and
how hard she took it.”

Grubbs nodded. “I’ve heard the story
several times. But it would be physically
impossible for her to commit the crime.”

“Maybe she had someone to do it for
her,’ Harper suggested.

“I’ve thought of that,” replied the
sheriff. “But who, Josh? Who?”

“Well, I saw her talking to Huston
Jeffries on the street the day before the
murders.”

“And what does that prove?”

“She used to date Huston before she
got engaged to Clay, He was wild about
her. He would do anything she asked
him to.”

“You think he’d commit murder for
her?”

“Wouldn’t be at all surprised,” Harper
replied. :

Grubbs returned to the original purpose
of his visit. He said, “Do you know who
owned that hammer used in the murder?”

Harper returned his gaze with level
eyes and shook his head. “I haven’t the
slightest idea, Sheriff.”

Obeying a sudden impulse, Grubbs
dropped the subject. He would have to
probe it further on the quiet. It was ap-
parent. that if Harper knew anything
about the death tools he had no notion of
revealing that information,

He left Harper and sped to the
Hawkins home. Grubbs came to the point
with the defiant beauty at once. “Where
is Huston Jeffries?” he demanded,

The girl’s pretty mouth opened in sur-
sa “Whatever do you want Iuston

or?’

\

“T want to ask him a few questions.
If you know where he is, you'd better tell
me.”

“But I don't, Sheriff. I haven't seen
him since the last of November.”

Grubbs pressed his lips together an-
grily. Then he snapped, “Don't bother to
lie to me, young lady. I know you saw
and spoke to him on the day before the
murders. You'd better tell me what you
know or I'll...”

The girl replied, “All right, Sheriff. I'll
tell you. I did speak to Huston but only—”

“You'd been going together lately?”
Grubbs interrupted.

“Not exactly, You see, it was like this.
I thought Clay was losing interest in me
so I got Huston to make Clay jealous.”

“And how was he to do that?”

“By being seen with me a lot, and by
going up to Clay’s house and shooting
off his mouth about me.”

“You think Huston would do a thing
like that?” ;

The girl smiled. “He did do it. He’d do
anything I told him to.”

“Even commit murder?” Grubbs
barked.

The girl’s eyes widened. “Oh, no,
Sheriff. I wouldn’t ask him to do any-
thing like that.”

“When was the last time Huston went
to Clay White's house?”

Mary Hawkins considered. “It was the
day before the bodies were found, Sheriff.
When he came back to town he told me
he was going away.”

“Did he say why?”

“No. I just supposed it was because
he’d finally worked Clay up. I figured
Clay would come to see me in a little
while but he didn’t.” Her voice broke.
“And the next morning I heard he had
been killed.” She sobbed without re-
straint.

When she had quieted down, the girl
told Grubbs that she had seen Clay about
an hour after Jeffries left, but that she
did not have a chance to speak to him.
Clay White had driven by her house with
another man. She said she did not know
who the man was, but suspected he was
a peddler or a hitch-hiker whom White
had picked up on the road.

Suddenly Grubbs remembered the hobo

Elderly, money-guarding John White, circle, was
one of the victims of the murder trio, led by the
callous slugger, lower left. Patrolman Carl
Finney, below, of Cincinnati, closed the case
when he spotted the fugitive trio’s getaway car.

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in the county jail. He rushed Mary
Hawkins to the hobo’s cell and asked her
if he was the stranger she had seen with
Clay White on the day before his death.

The girl studied the hobo carefully,
then shook her head. “That’s not the
man,” she stated emphatically,

Resolved not to overlook a single bet,
Grubbs checked on Huston Jeffries, A
woman relative told Grubbs. that the
youth had left a few days before, accom-
panied by a pal named Carl Hardin. The
boys had not told her where they were
going but had mentioned a plan to look
for work in some large city.

Little by little, the accumulation of tes-
timony seemed to absolve the two young
men.

Grubbs still was not convinced that
Mary Hawkins did not fit in somewhere
but thus far he had nothing more than
a hunch to go on.

Again the deputy who had been guard-
ing the death weapons strode into the
sheriff’s office. “I was right about Josh
Harper, Sheriff,” he said. “A fellow came
in this morning and said that hammer
belonged to Harper.”

Grubbs swore softly. First there had
been suspicion because of Harper’s evi-
dent astonishment at the sight of the
hammer. Then Harper had pointed sus-
Picion toward Huston Jeffries. And now
that the Jeffries angle had petered out,
a witness stated Positively that the ham-
mer belonged to Harper. It looked as if
the sheriff’s friend had some more ex-
plaining to do.

Grubbs anda deputy raced to Harper’s
home. He was not there. None of his
family could tell the sheriff where he had
gone. Grubbs and his deputy canvassed
the neighborhood and were finally suc-
cessful in finding one man who said: “You
might find him in our most popular blind-
pig, Sheriff, Harper left out of here yes-
terday and headed there. He appeared to
have something powerful serious on his
mind.”

An hour later Harper was located, sod-
denly drunk. Grubbs had his men put
Harper through a shower. Later he was
brought to the sheriff’s office,

Grubbs eyed the man sternly. “Josh,
I’m satisfied you know more about the

hite murder case than you’re telling,
I’m confident you know where that ham-.
mer came from,”

Harper stared at the officer sullenly,

Grubbs continued, “That hammer be-
longs to you, doesn’t it?”

Harper shook his head. “You're on the
wrong track, Sheriff. That isn’t my ham-
mer, But if you persist in picking on me
I guess I'll have to tell you who does own
that hammer.” He paused. “It belongs to
Sylvester Warner.”

Grubbs stared at him, “But Warner and
Clay White were pals,” he objected.

“T know. That’s why I hesitated to say
anything,” Harper said miserably, “
didn’t want to implicate a man | figured
was entirely innocent, Jeffries might have
done it, but Warner—” He shook his head,
“Tt’s been preying on my mind. That’s
why I got drunk.”

Under repeated questioning, Harper
maintained that he had seen the death
hammer on the Warner place only a week
before the killings,

Grubbs lost no time in driving out to
the Warner place. A young woman met
him at the door and said Sylvester was
not at home.

“Where is he?” demanded the sheriff.

“Probably in St. Louis,” she replied.
“He left with Huston Jeffries and Carl
Hardin. They were going by way of
Louisville,”

The woman was shown the murder

hammer and asked if she had ever seen
it before. She replied that she could not
remember,

Grubbs and his deputies left the Warner
place hurriedly, “It’s bound to be more
than coincidence that Warner, Jeffries
and Hardin, our three principal suspects
in this case, should elect to leave town
the same day together,” Grubbs said. He
added devoutly, “I only hope they stick
together. A three-way manhunt is more
than I'd bargained for.”

Immediately, descriptions of the three
men were broadcast over a five-state
radio hookup. A few days later Grubbs
was overjoyed when word came through
from Cincinnati, O., that all three men
had been. picked up there. The license
numbers on the car they were driving
compared exactly with those on the car
owned by Clay White!

Grubbs and Judge E. L. Cundiff left
for Cincinnati at once. When they faced
Warner, Jeffries and Hardin in the Ohio
city, the suspects maintained that White
had loaned them his car and that they
knew nothing about the murders,

The Cincinnati officers showed the
sheriff the items they had taken from
the prisoners but they included nothing
incriminating. Their total wealth was $3,

€ suspects readily waived extradi-
tion. Grubbs and Cundiff escorted them
back to Casey county; but fearing mob
violence they transferred them to the
Louisville jail for safe-keeping. There

. they were questioned rigorously for sey-

eral days,

HE Louisville police aided Grubbs and

Cundiff in the questioning, Gradually,
signs of weakening showed in the de-
meanor of the three men,

On the fifth day after their arrest,
Warner broke down. “All right,” he said
wearily. “It was my hammer. I was in
on it but so were Jeffries and Hardin.
Our motive was robbery.”

When faced with Warner’s confession,
the other two readily admitted their guilt.
Jeffries said, “We didn’t intend to kill
them, Sheriff,”

Grubbs smiled thinly. “No?” he said
dryly. :

“Our object was to tie them up and
look for their hidden money,” Jeffries
explained. “Clay laughed at us. He
thought it was a joke when we told them
what we intended to do. Then Warner
hit him over the head. He lurched out
the door and Carl and [ hit him too. Then
Warner killed old John. After we searched
the place, we weighted the bodies and
threw them in Green river. I suppose
they drifted a little and got’ tangled in
that net you told me about.”

“And how much money did you find in
the White house?” asked Grubbs.

“About eleven dollars,” Jeffries said de-
jectedly, °

Under further questioning, the trio de-
clared that neither Mary Hawkins nor
Josh Harper knew anything about the
brutal murders. The hobo was promptly
released from the Casey county jail,

Early in 1934, the three men were

brought to trial, On Feb. 17, Sylvester -

Warner and Huston Jeffries were sen-
tenced to die in the electric chair. Life
imprisonment was meted out to Carl
Hardin, youngest of the three.

On Oct. 2, 1934, Huston Jeffries’ sen-
tence was commuted to life imprison-
ment, Sylvester Warner, instigator of the
crime, was later sent to his doom in the
electric chair,

(To protect the identities of innocext persons the
names Mary Hawkins and Josh Harper as used in
this story are fictitious, —Ed.)

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WARNER, Sylvester, white, elec. KY (Casey) February 10, 1939

SLES en ee

; ; talk
4 silence
; : might
WE
CROWD of farmers dressed in overalls and sheep- | The second victim, the sheriff noted, was a middle-
lined Mackinaws were milling restlessly about'on aged individual who bore a striking resemblance to the eis
the banks of Green River, near Liberty, Kentucky, older corpse.
when Sheriff Edward S. Grubbs and Simon Rich- He turned to the crowd. “Anybody here know who de
ards arrived that cold, fateful morning of Decem- this is?” he inquired. ,

ber 4. Overhead, leaden snow clouds scudded bleakly
across the sky, making the remote spot seem even more
desolate. ~

Grubbs stamped his feet on the frozen ground as he
looked out over the muddy expanse of the river. ‘I
don’t see anything that looks like a body, Richards,” he
grumbled. “Maybe you only dreamed you saw one.”

“Just give that pole a yank,”
Richards, a Casey County fisher-
man and trapper, replied grimly,
pointing to a sapling sticking up
out of the water within arm’s
length of where the sheriff stood.

Grubbs was still skeptical, but
he grabbed the pole and began
to pull, At first, he couldn’t
budge it. There was something
awfully heavy on the end that
was in the water. He motioned
for Richards to help.

Both men pulled hard. and
seconds later the pole started
rising and a battered human
face floated on the surface of the
murky water. The face was fi
that of a very old man and it 5 te

was framed in long white hair. mets he added qyickly, “it’s about ¥
Somme, ARO Ss ‘eae a ume I cane you a few ques- |
gasped. “It’s old man John ions, ow come you’re so
White,” he exclaimed in an awed Johnny-on-the-spot about find-
tone. : . : ing these bodies?”
Grubbs turned to the crowd. Sylvester Warner took # mysterious Richards shoved his hands in

“Give us a hand,” he ordered.
Several men sprang forward
to assist. Soon the entire body
was brought to the surface. Grubbs noted that it was
securely tied to the pole with a length of ‘baling wire.
But still the entire length of the pole hadn’t been
brought out of water. There was still something heavy
holding it down. The men formed a tug-of-war and a
short while later the pole jerked free. And even Grubbs
was astonished when he saw what was holding it down.
Tied on the bottom of the pole was another body—
that of a man. And tied to the corpse’s wrist
was a piece of iron weighing around fifty pounds.

FS GRE  AR I

trip while officers
for the brutal multiple murderers.

Several heads nodded simultaneously.. “That’s Clay
White, old John’s son,” one man answered.

Under Grubbs’ supervision, the bodies were stretched
out on the bank and the sheriff bent down to examine
them. Both men had been severely beaten about the
head and neck. And both bodies were clad only in long
woolen underwear!

“Wonder what became of their
clothes?” Richards said idly,

“They were probably mur-
dered in their beds,’ Grubbs re-
plied.

“Got any idea when?” the
trapper inquired.

Grubbs gazed at the body
thoughtfully as he considered
that question. “They haven’t
been dead long enough to start
decomposing,” he said at length.

I'd say they were killed and
dumped here some time during
last night.”

He stopped talking then and

were searching his pockets.. “When I got up

this morning I noticed it was
getting colder. I had my trap
line in the water down here and I ‘thought I'd better
pull in my traps before the river froze over.”

“And when you saw that pole sticking up out of the }

water you got curious and pulled on it,” Grubbs said.
“Is that it?” :

- Richards shook his head. “Not exactly. You see,
that’s my pole, the one I had my traps fastened to. And &

I couldn’t understand it when I saw it wasn’t in the
place where I’d left it last night. I started pulling it
out, though. And about all I could manage was to get

“In fact, the clotted blood looks —
mighty fresh. I’m no expert but |

looked at Richards oddly. “But,” }


a
m & : Act

sia + epg 7 ‘ mat
rot meta dh DENY ae eo
ald | ro

3

“id

Bamuel’ McNeil, Bulan and hus
S-erey——

a Pa ing night aod dey @r bef
pureday ‘woru

disstderly conde red
Spradlin, disorderly conduct, Soa bad apg od at

_ 2 Henry
Pitney. "e agers Patterson disorderly conduct, woman named ~
: te at: South Covin;

being qualified
men, should

large class of students in
the Covingtoa. Commercial Col-P
Se nee E

eax? TOUR MONEY ary

ee - Robert Gorden, vagranc , 42 give meh fab bl 1 her i a er BIT ee ee
pond fur $100 oF go. ta the. Work: house fused adenittane® ae its
for 20 da a pacer | oa the Pn hours. mo| < Cilla and Feves Pre Curall bry KINDERGART
Jobn Kaho, bresch pf the pence; 928, | Lows goughtthe wearing 006 it dries Il the re lecdy | Miss Kate Whitaker of Brooklyt
Geo. Washington, Isroen: $3 and 30 herself, ot knowin jats vel] thers, ie enw Kindergarten at
dace ia the Work raga sargagne he Cal ae tote It you are think te te Comer ore Ss Wedomday ScD
é a ‘ mercial couree, at the Covingtoa mer- r MPR,
Barney Dunpelly, drunk, $4. purmued the - clue cial College or send: for circolare giving full ieee
Mary Thompson,. came, 10, psy for ease DH Wetecs ; caesar 44 se to-c00re® to mess cyan Ue
4 " yaaa et tah ED I COT rtéefs raduates studen' ce the
ber tsansportation to,jail. Rav 3 he from seats pO oe eS re & eeltf :
| Lest—Gold cuftbutton, ot Pike street;
finder will be rewarded “by Jeaving at THE
Ticker oftice, = agsltl
‘yy amted—Good German girl for geveral
housework, at 426 Greenup. ant
For, Rent—As lly. peat, cou- /
ae and a vanteat frame Dove, with Retail at Wholesale Tobk s-
0 Font libre” pon Howell, For the Next Twent

* Chamois and Spenges /cF hours: At snyae

i hay Wow on™
aa, rete cy RT gsr about’ seven>
Re Gems, 9, Fireries, 2, qa. the Flats i ee esa, bah
ot. + yesterday. i Fa} emain of the family bed
o This ts pay dey on. the Kentucky | net ' hold bim a8

Be oe ace When id, Thats old
be retest , +f ' eave a colo! nd said, “Thats 0
: Mr. Conrad Deisler annbuoces & MU-} phi}; TP knows him”. Mr. Winston and
sical entertainment at his garieo Sate his employes ‘mmoediately gr7° shies:
day night. - OS Ae | but old hil: was. too ted fur
Constable Gillighas filed a: new bond | them. ish Wig eta tiie : _
this morning, with: Thomas Kennedy] — At half-pest seven Saturday evening nace et Teath eee | No 531. SCOTT ST

and Pattick Tallon as eureties; @= = | Capt Charles Morgan, with ‘twenty
ay 062

The Creecent. Dancing Clab hes issued owe started: for oe Winston tare Vaults ame Stake—Ciesred,

invitations for a rece tion at Drexolius |) ey were conveyed 18 a wagon to the} night, without. dirt oF smell, by I. Besenab,

Hall ov the 20th of thie wonthak Flatt and ev et! ap aeel: Ne. 487 River Rows, Covington. alt }u

: 4 rom sere to. Mr. Winstons where] oC tly d 1 peso pe

Gembo, a horse. belonging ~ to Joc they guarded the hay mows from elewed eer Wa care of hag ge laeyern it see aR er the rol arene

Bay erates | cee Gem, Hugh. Bepjaminy}0 clock, the time they reachetl there, || Kidney, Spinal nnd) all urinary troubler Baan.
8 gale aca te SP seh vot Aamiat as yar waaser eM ** hie ‘Washing?

3 ° : t | broug the news 0 atzon’s cap applied..- .- ~------- 1e t
An. extra freight train | left ‘on. the. The colored. troops then returned to» Dal “tical Cure fnvigorates_the ee ar

Coata’s i
‘ f i ter =| town, -reacbin here about 7 o'clock, liver, and tones op th
Kentucky Ventral Railroad. this mora Pi 4 Se mcesUnrs liver, and tones gr Hold by C. A Se ee

ing to tock from Paris. to the THE MUR) : “an
ina acon E ir : : The Mayor's Court-room was crowded Shee ree for Rent aw to aoe ate
4 . * + 4 ¥ rt i a" a
; this morving, the principal par, of the o enant.. Apply #0 Wo. 31 Wat Fi th
aglitf : :

he Gems will Jay the Mohawk . : .
Hide: on the emia Grounds next pon Baca beivg reeds as ad street,
" 3 Buuday.” Tickets. can. be: found. at os ‘fo gaa ‘Abo! " 10 ol +) Hindling--Se¥ed gpd split, stove anu 5 7
David's nows stand. he wife murderer. ut LY oc cord wood, forsale in ‘rear of No. 58 Eaat AND
i Marshal Bolan brought the prisonet into} Ninth street.« All “rderé promptly attend ed :

~~ The horse attached to the wagon of | the-court-room. and placed him in the | to. : ‘Aug 6-t€ =|
ep ‘ 4 , : i
(. Payne took another little Ft yester-| prigover’s sent. Mayor Athey stated to} Cont—O. P. Fairchild No. 16} East Fifth : rVoce

eee
—

Between Fifth and Mixth.

es

aCHOOL BLATHES, BEST QUALI’
EST PRICES

é stomach as DO other

day, on Russell street. A few galfone| the prisoner what he wai cbagged With, | street, takes orders for coal for Mr. U. Shinkle
; ; aud ea wae before Oi that if be corner of Second and Scott streets, at the sae,
F ‘ -Fation and not r: trial, and. that if he | ra tes per bushel an for the eawe cos! aa sol
see eermrenn faker ker wanted an attorney he would grant him at the main office. Lo jy Ul
‘ Feasunable time to. procure One. On| Fine Bathing Sponges jut re Re-ope

tree is Bch warn pasture yesterd Y*| motion of .Mr. Wilcox, | the assistant feeved, ‘gad sold at reduced prices af the
Model N.. Eq COFe

avd broke his right arms ; : ; 1 D si
° - Count Attorney, he was allowed until tore, NS.
‘The greecry of Mr. F. G. Manefield, pe A at balepast-9 efclock 10 pry Tenth na Madison Nireets. : ;
Fifth” aud raregie ge entered ie cure au attorney. The prisoner did nat ras suring from creat once ot ‘
thieves Saturday night by means 0 the | seém: to. think there. was "Any serivgs ald at once ap-
@ open transom vid $13 and ® box. of} charge ayaiust him, aud appeared to be ly goo ol EISSN rede i Female B |
cigars caftied: off. 4 Tei uiet.and nok much’ excited, but : : : The former Patrons
ry 4 : : Wi A. Evans, Genera! Engrayer, No./ . }
Kenton Lodge, I. 0, 0. F,; gives one eyed: the - prosecuting witnesses. VORY £. Third strect, Covington, Ky- jlybut Market, ag well 8 allot!
ju noted vid Highland House, Satur ath , 4 Vincon ans’—To purify foul
at the Higblan : : :
dey, Beptermber 16th. The Tend :will| oan whe captured him, be queanan £8 | Sure prevartion of contagion, Are Hereby In
oa start with, a geotle racket Se 4, Ma ee witoees mahichs wus. erapteds * ‘i of Heslth.: je2%
"aR, qontinué until the wee sma’ hours, | Which Mayor Atbey advised the ett sar New American Sewing Ma-| That this Store. having |
, through those preseut, A ce | elaime, 177 West Fourth: street, will give] ny the present vee? fre

of those enjoyable agaire, for wifich she\§ ens
' He: requested that Mr, Faget the} ans in ainsi ett sey a cal.

Ser 5 ewhet bh the. reel M use| you" bt!
when By sisted by Lilly Niles and ped aur gan, at 0 pe [ous - ier been
june20-tf. R E -0 v iL Ay

_ Sr Ae nea sy thou takea. back to jail # Looked
ant : “| UD. = Petras ad in@n.
morrow.” The Kentucky Central Rail-| © Qur- reporter called ou him io jail, ae ole mt
road bas made special arrangements 10 aid) fovnd Je Hell examining some oe Cross Aang Haley aA reat’ ‘
they.cao carry passengers direst’ to the | three or four wounds in bis back, that} Motch’, Jewelar 613 Madison street m20tf}-And the Proprietor, *
allentic te

~S

~Take” your i eer ens.
Nodler’s Drag Bte itihe a

‘\> grounds. The Fair promises. 00 excel | jc claims to have been jnflioved by® bis] = a ee eT

- poy fair that hes been held ia Kew: sm WS night he killed hiewife.. ba) bh = A — Ne daar et jus fs

«ales thie neers, and theaters) He aap the narder ye] Cypatlve Padsi: aig he es
Dee f

are numerous: there will ov doubt be ®

reir poe eee Ubreate ancord all Malaria from the Mretems | a kee

People, are apt to grambly: inggires med Heo be ‘rnéy pustsively chre the worst cases of 24 Complete sss
he He ‘ays that} if FEVER AND AGUE,. /

eo

fbr ' |
Laver. pe. Hear, Kidney, Spline, Me ten, i Ch ain n |
oi :


ip atte howe ca Eekeepan er bola,
wom! wis, Ou! ‘on the ?
cman named. Lewis, otto the, FN Cokes ay nee cum ot TEEP TOUR MONEY. AT 20
japce rei aoe, ; . Symon
KINDERGABT

“Gorden, Yagraney, to give
bond for $100 or 5°. to the Work-house
for 20 yt. we
Jobo Kaho, breach-of the peace, $28. Mine Kate Whitaker, of. Brookl:
‘Geo. Washington, larcenyy $3, and 30 , taking acom=|% Kindergarten at No.
spied lay bless | Eahicre piace mo
iving fall | The oe Coe, of New Yorks, wi

in the Work-huuse.’
names O'} cughly.carried oute

hk. roey Dvonelly, ‘drunk, $1. ms ° bis: .
to pay: for hate ;

es a sede | reg Te te acs rm 9

4—Gold cufl-button, on Pike streets applt spor pemtcmbee 3 i ;

5 et ; 7
pen aac mS AP RSP Pes ateon had beet at Mr. Los'
> Genie, 9, Fire flies, bey the Flats tha but Sider gentle finder will be rewarded by leaving at THE | ————_——-——
ors yeaberdsye a Tee es ped eviand the 000] EEE US Shea oe S h l B
20°" phis a payday. on the -Kestucky he might not be the ‘Wamted—Good German git! for reveral cnoo 00
*. . Central Railroad, Pee ee Wate. be mara ots imate una POS a2 = abd
: ee Oo BT eh ae eave & CO id, “That's old| ° For Feent—An oovreally neat) con”.
St ee Mr. Conrad Deisler,abnousecs & MY} Phil; Sows hi” Mtr. Winstoo and { fortable and convenient Trane house, with Retail at Wholesale Jobk
ate a ay gece his garden Thare his employes immediately gaye chase, betay an a etreely Bene Rowell | For’ the Next) Twenty
shee = y Sra oe ane but old Phil was_ too fleetfooted © for Ps ietaceet ;
+ © Constable Gillighan filed a pew bond| them 0 (eck ciel oe Chamois and Sper for houre-) ARE snyae
“his. morning, with ‘Thomas Kennedy} At half-paat seven Saturday. evening cleaning. purposes, cheap st fhe Model)’ ETE,
and Patrick Fe ron as eureties:-:-" -. - |Cspt Charles. Morgan, with “twenty Drag sions. 8.5. cor: Tents ant No. 531 SCOTT ST |
2 <0 oThe Creeceat Dancing Club has issued | 2) started furs te ‘Winstow firm: T= yqalts amar stan Cer edly dey oF f=" perween Fink one et ,
invitations for @ reception at’ Drexolius} 4 '6Y were conveyed ia & wagon to thE} night, Without dirt or mall, by I. Besenab, gre Be, “
~.> Hall on the 20th of ‘bis months cae ‘cabot Pete ere ere No. 487: River Rowl, Coviogten: * al4-1us Sonar CATES BEST QUALI’ 4
iy , < ‘i rom there a2 Mr. neton’s, where i z : IES.
é ica erst: eke ‘to Joc they guarded the hey mows from eleven eR AG ete of the Teeneeh tal weather poe
ecu ales Lerbi-we ovr Sipe “at an ne o'clock, the time. they reachell : there, | Kidney, Spinal -and_sll__orinary troubles
J day. rea: an acne = hes Maran ed Te colied: der’s Kidney Toit
‘ : eo icaaien si sock TI news 0 ns “ap Pi ERS nme
ight traid Heft’ on the The colored troops, then returned to DaCoats’s Radical. Cure -tovi “the fics
ee Ral this. mora~|*O"%™ reaching here about 7 o'clock. liver, nnd tones. op the stomach ex no DInER arr er
stock from) Paria to/the| “jv, ae game IN. COURT.” | . mad aap we As Ldn wert - Se
H ¢ rae Bd Court-room was cro’ iho! jor me— ree-etory ; ee i ‘
hea qek this smh rien to man of the wo. No m ae et Wes Fifth 4
} Grounds next congregation beiuig colored lato | eats a poly: 0. Sait ( %
Ne ath ; peek Shae can be found «at ee rie ct pte: fearg Kindle in and spilt ae and
4 ey mee : i . cord. wood, for Ba rear of No. ant
pbb lsh unret: ht the prisoner into | Ninth’ street. erat orders promptly. attended :
ug 6-t ,

n° of

The boree attached to the wag

Marshal Bolan broug
the court-room and placed him in the} to.. Tepe SS
privoner's beat. Mayor Athey stated to)” Gq_g—O. P. Fairchild, No. 16} East Fifth
hawged witb, street, takes orders oF coal for Mr. U. Shinkle| ;

G. Payne took another little run yester-
day, on Ruseell street. ‘A. few gallons] the prisoner what he was ¢
- of milk was the only loss.” 0 and that he was before bim for exami | corner of Second an Scott streets, at the same,
ho | ation ‘and not for’ trial, and:that if he} ra bushel and for the saune coal an cold
gravt him } at the main office. ~" : jy26ef -

A little son of. Mr: Weishous, ¥
On|) Fine Bathing Sponges just .re-|
the

“ |
no Peuselburg. fell from an apple | ern ble time to’ procure Cae:

resides i
tree in-Schwertmans pasture yesterdy, ‘cation of. Mr. Wileox, he ost FI rei raed wel us rd “r ss
j re, NS. Cor.
until | Modes ind Madison Streets.

County Attorney, he was allow

to-morrow at half-past 9-o'clock 10 pro
Ladies suffering from irregularities oF

and broke bis right arm.
should at once 8]

The grocery of. Mr. F. G. Mansfield,
1

‘The prisoner did nat

Fifth avd 1 . was, entered «by } cure au attorasy-
thieves Saturday. night by means of thelgeem to think there’ was .any serious weakaees [rom ay fac oe dat on
$13 .and & Dae, of charge against him, aud appeared to be A veke, ese) * Seal 20d tk oh
The former Patrons

open transom, and

cigars catiied off, very quietsand not moh: excited, - but " :
Oo eA aseek Covingt Engraret, No:| Market, as well, 08 all ot

eyed the prosecuting witnesses youy i, Thied Covi Ey. ily

Keaton Lodge, oi Scale
of those enjoyable affairs, —© Mein tee = -Yincentagitm'— To ify font
ja noted, at the Highland House, } He; seq’ ented that: Mr. Fogreni. the | are < aalie, sewers, all Fe nd collar. i
The band ‘will . da paren ge peace be: Sar pera a wert stone Endorsed by “Are Hereby
tess, : wan, granted, of Health. feral
That thie-Store, having

: day," September 15th. :
ket at 4 P.M.}® 3 :
which Mayor Athey advised: the ‘New ‘American Sewing Ma-

4 *atart with @ gentle rac

= + ——-and-oont il the wee a hours, Hey a exent, to let tb wer New Amer
+t will wind up with e “Sweet ae present, to let the| chine, eat Fourth street, will cive ‘
Tae ts aie IRE Biel pons win ape Fawr take 'ite course, aed hoe to URE yON- 4 ‘for C : “pnd Half hy the present owner fr

Hou Andrews. any” vio * ~The. sic p | Cash, ; apAl 2-6m ;CO.; bas been ~~

‘ : was then taken back to jail an lock ake. —your--Preseriptiens 19:
ached | VTane,. prug Store, Fitts sud yy |
june20-tf. RE-OP

up. ‘ oie :
l-| * Gar reporter. called on him in jail Madison.
: ju ae
and: found, Dei Hell. examining sowe “aagot the batt eos eley Aig bey any
three or four wounds in bis back, that | Wodkin’ Jeweler 613 Madison street-_m20 (tf) And the Proprietor, ba
it, “invites the attention

he claime to have been inflicted by his = ——— ER’ ———
He freely sdmits the nrarder; sayibg ; Ss of Covington to its faci
Curative Pads)i:»

The Lexington Fair comm
morrow. The Kentucky Cen’
road bas made special ‘arrangements 80
they can carry passen direct: ta the
grounds. : The: Fair: promises. to excel

fair tbat hed been: held in: Kea:

gon op the night he killed bigwife

air
"nicky this eces00, and as the attrachond
are numerous therd will no doubt be .4| he slapped ber firet and then-struck her
© Jarge stendance. ons ~ * with the hatchet bepause she threatened ‘Absord alf Malaria from the Hrstom~
gire,| to haves man named, Seowers, residing jo whret oases of = Complete Ass

‘They positively care the
Io woe lower part ofthe baker, 10.006) FEVER AND AGUE,

up and put him out. He says t
utairs, ha’ would | Wons Lang, Heart te Biniguenes ‘Reaareene: | Ch a
of Bt Dye Howala, Female Weaknos Hie
eadache, &c., bY

sach

; People are apt to: grambly. ing
dos’ i h

Stowers bad- come, Up:
have treated. hind Kore rhay be. dd bis | 35 nem Charities, Kick Nervous H
/ 7 | ana dng one of our Pada. Meany ot our best citiseus
thelr merita.

wife.” ‘
- After. the deed Wateon ran through{be| Liver and- Lung Pads, $2,
alley. between -Seott and ‘Madison to Liver oicod spinel P 3.

t Eighth to the: fivks of the} Womb Pad fer Female Weak- FRU
h he followed to Fifteenth, een is ee

“airudk over to the ‘[ode-| aurtaxe SO eT rose Ruyder Curative Soa:

he woods), He “s ¥ MNXDEL & U0-; Sole Proprictorss W eg © t

taking to the J
, melons god fruit). Cincum att, 0110
y &
Ly

eer phe pert the douatry three or fyurf;, mela.dy at  Dragxints. BM

atyowr got Jaate pnd santa Yor cana Pare be het ita
i - tthe Os -
Hees this side of Wal PETER NODLER,

ton, he encountered Mr. Jogtam, the Druggist & Apothecary! ‘GRO

cam attest ta

eos cOnUD: ent. ‘upon
¢ lary. .,Mer-
v the

\
i y,
toll. gate keeper. Who roohguized atid ar
rested him afters chase pat seer ARS; ;
Se telegram: summoned the Pr authori-} - \ “
RD. Gwyder has returned home 1} 4; ig snd the prisoner Was brought: into All medicines warranted _ strictly OF ALL
ime with his friends. We} iowa: , : ; WTS P UR p>. 4
avd satisfaotion guaranteed. 0 all. | And asaytes the F

i sore t didn
to walk dowa-
ut had bogive it up.

the atreet with

Rick ‘has}
fully compounded, | will be spared, to

Ne eer
‘ee LOCAL: PERSONALS.»
eee + | Prescriptions care
ht for Baltimore ’ ,
aac ota aN ABO DENS BEST OF EVERY


INTERESTS

~ ennee

3

.

Ga taspietectes.t.
gageretcg salle Soop at
9 ttre ote oat that thine, |
téetetiy ceeding

;
Eo awe
eh
thw
stag boril, aud he said he
foget Htyor mitherthat™
that he would not finch
le, net prvelve any one
nnonwealth’s -Attoriley,
forms ws that: the Stone
Bt oot about five. o'clock
mel if bail iS not then furs,
ret Will be’ Coniuitted to

fore te age first-

Ihe

qeosprets
prters}

yo nanny Tumors afloat

matter, some with and
fuindation“ Mr. Stone
obably caused many of
rttinate habit of talking

mnicler—exeitement,

Bi: Stephens. told a Com.
porter*this morning that
rk, and himself-had:been

‘wus short over since

hat they had endeay bred
hen. his funds were ata
heing the only time they
austen his guilt upon him,
A Vtwo days ot ¢atch-
ah At he” Roe uhend or}
“bout of their grasp. Mr,
ttexplain this hist remark,
+ he incant that the. June
ein two days before: their
vere conipteted. tie furs
Messis, Stone
book) purporting to. be a

Decentber taxes ‘collecteds

it nmounted- to Pit: Tittle
1 the aperegate,. and
solemly = aaverredh > that
oh every eollection
nade in June. on the De-
tes oo Mr. Stephens as he
mi “This thing has been
Alignant personal proseeu.
‘ople; until about 4 ycloek
Ve ite We thought not,
heen fonducted im aw hetter
put offachigher plane,
sPOSCCHTICHS,
eiiven has heen heard to
Stones se. ral davs singe,
into his toat-Liail poeket
fom wroll of tneney can-
SMM whirl he planked
esk, at the same lime re-
here's some: of the city's
them ®t it itt they can”
Notre of the rooms of. tha.
tnd comes (o> us) Second=
niormant hav ing gottent it
wud Poe
me atte hie state to
t Mry Stone
hep

af

; th

went into-the
“a onty threeor four
tlie pocket-hook,
A the counter, striiek
on il, sind exelaimed:
Vofthe city’s ‘money righit

Mheretnark was address
Hey

ily

Whose, uid

inteprit y
the que Stioned:
ED 86: Ga.

LMA TEER,

Nov EM BER

“The”
ie lt significant 2. The,
ae to hie beulth, and:

asked %
were!

and= Leary |

QF THE PEOPLE.

Se er a mmr sem

+ +n

R 22, 187,

,

ae

a a4

—— >. ea ol

i

U XORIC IDE.

/Trint. of Philip. AVatson. for the
s Murder of his Wife.

a3

“this Morning.

|HENTON CRIMINAL COURT.-

oR he followin eases were disposed of!
it the Kenton Criminal Court yester-
day afternoons © “diarry — Pendleton,
House-breaking, Gighteéen “months in
the penitentiary» Leo Rauni, keeping
ht ten-pin: alleys without: license, $100
and cost; lohn Roetke, earrying eon-
cealed Weapons; Was ably represented
hy Joo. Drexelius, Esq.) who made
hisanaiden speech, aud his client was |

acquitted, * .
This inorhing the ase of Phil. Wat-
son, colored, charged with’ the murder
of his wife Edith, occupied the court.
The following jury was impanneled;:
Pat Roony, Hoods trvin, J. FS Gillam,
J. ik Littell, Ree Stephenson, > Jolin
R.- Cooper, We Bye Robinson, W. G,
MeDonnolt, iene ‘FP Taylor, Herivan
Sehwartuan, Moho Sharp, Frank
Dressman. a aa oy ee
Dre Averdick: was the ‘first’ witness
mae and testified as follows: Ani
anid SOUCE of Ixenton

H

Edith wv atson; her death Was ¢ stuised
by three wounds inthe skull, one: of}
the wounds was caused by the pole of
the hatchet: going. clear: through. the:
skulland inte hedrain. Tteseemed: to
{bea avound froir-a blunt instrument,
makinga round. hole in the temple;
Fexamiined the wound: and: found that
the pole of the Hatchet fitted: exactly
into” the. wend. « Noticok two anore
wounds on the skull, which showed

of the words sould have produced
death ‘Phey wore Apparently intlicted
by some blunt instrament, Saw her
before. she died. She lived= from’ ba
O'Couk at nightantil the hext morning
Was not with ber when she died.= Saw
Watson the day after he was saplired,
haboul, woe weeks: after the “ing uest
Witness? and MroGray (the: attorney
forthe aeetiseds. Were present) con
versed with defendant ahout the Miue-
der: asked him’ how the hatchet exe
to be in the roomy adjoining -thatin
which the: murder owas committed,
Watson- answered © that (he > went
Tinto the next. room to get his coat and
Jaid the hiatéhet in the bed. Pe

Crovmcrumined=—Sold- Watson.
would be hung for it; held out ne
ducements to hits. 7 Rate
“Milton® Watson Aim - the of!
Philip Watson. © Lived on Seventh he-
tween Seott aud) Madison when omy:
mother dicd,. On “Tuesday evening
when I cnme heme found father sitting
in the door, and thother. sitting ina
chaic sewing. Went after my wife who
Was way; When. PF came. back lieard
something. fally father théne rin past

he
in

Son

inert | Smead oe

jane out of the oor

withhoa cont one his

night
, about the s

“She Was about 65 years-old,

The Testimony Given in the Case for onthe Tuesday morning before her
“death.

tliat
“There is going to be he to-night2%

S01).
der was with him. He told) me: “They

thatthe skall was tractured, and cithery

RES?

of murder... Hix son went uy
same time.
Wins Page—Knew

Bealith Watsire

Met Wat-

He said he was “goin to’ kill:
dd old hussy,? “and: added:

CVGSxi1 Paine (bo
| Watson. ©
Henry SeainiiciGiee Philip Wat-
On the Sunday before the mur-

ay SD to

-

haye robbed me of everything: My wife’
isaway. from home, sand Gd dl
iy um going to kilk her,’

19, Bolan—Anz Marshal of C avis <A
ton. ~ Made an etlort toarrest Watson,
Ile was--brought-in=hy-some -persons >
‘from another: countsjssome. three’ or”
four days after the murder. : The hateh-
ef has been in NYS possessiow since the
murder, '

The Commonwei uth’ salttorney rests
onl His ease at this point?

eae

nehert

¥
pak PESMERA DO: named” ‘Charles’ 7
Jones has: instituted such-a reign
of terror McAllister, Indian
Territory, iRat business of “all:
kinds:.is suspended.” “A: possé of:

fifty or sixty men has beensrgan= aie:

ized to capture him,
‘ Se ee
Personal Mention.:

“We are pained to chronicle the death of
Miss Mattio, the beautifal little daughter
‘of Maj ene M, Piatt.“ Miss Mattie wax
just eight yeats of, age, and« died: yester—
day morning, of congestion: of.the brain.
Maj. Piatt, Whoowas in Washington, was
telegraphed for, and arrived in the city
this morning, j

Mi.) Victor Ware; formerly a -residen
of this city, butdately of Tidianapolis,; re-™
turned home=-the other? day, afteria Att
“Nears sabsenee,

Ion Pi. Uallam leaves this atte ron: i
to attend the Court Gf Appeals:

, Mi. Neca \ Ne
risoncomnty
city. yesterday. oe

Mr7. Shelly. -Tindson® returned: home

vestercd: a frome it ye Une trip. ta!
Indianapolis. ee

Longmore, clerk ofthe Mitre
Cireuit: Court, was ie ait

- poem 4

Tobneco and: Whisky,
(Extract from Commissioner's Report. |

The total quantity of Mistilled spirits iu
taxable: yallons, at seventy and ninety
cénts’ taxed: placed in? distitiery. wrre-
houses, withdrawn< therefrom, and re-
main thareimat-the-t iming anid close’
of the fiscal year, ended June uO, 1877, is
given at 74, 1-434, 888.

Tho total collections fronitabaccd tor thie
liscal yearended June soe 1877, were. Hl,-
106,016.5 In- addition tothe: collection of:
Specific taxes from mantitactttred tobacco,
RNUIP and elyars in’ their Various forms,
thereare included iu the alioyo total col- ~
leetions from specials taxes upon the
minufacture ead silo of tobacco special
tAX?S Upon raw or leaftobaceo, anc from
the aaleof export stantps,

The following exhibit ‘pives the num:
ber of DOTHOUS engaged curing the last
fiscal yoarin the handling of} ribW.Or ait
tobueeos in tho mitaitiiweture Ae CO.

¥

shu ind vigars, A, tt phe ali UGH

kits


een te
bei ise: OW thet Dee
ates OM ry stephenssas te

gan ea,
ighantpeypsetinl prosecus

4 Pf : cf
rs Weetheniplit ateb,.

AS is aR
tretyi utmeuts, ein hee

*,
fia

There's somes or the cley’s
then Bee stir they can?

it) nit doe
wel PEER eet : %
ublernedt Slatted "te aK
oa. or went into the
Ar aroont ny: 4hroeeor four
ew forthe a {poeket-book, |]
Frist hé counter, struck |
i bit im ex elated:

ibys Jnoney right
‘nak Was nddress-

ot interity and

AMATTERS..

inthe Criminal
kA othe: Judge
priwealtlieasd ttornes, as
HE the statutes im-
the Jtiudge con-
d the Attorney }J

. $5ian
Ale alt’ the pools ‘sold
ommowealth had
We He won
abe of Carroll eoun- J
Hintare. petitionin bunks

ME Bostwick, Clerk

ras Caused by the par= :

"we frames shantyson
rast ofthe: bridge. “It
él witli a few buckets of

‘arelodds Of stock: ar-
blucky Central railroad

MUPELS EY filed, a seit in
y Court? yesterday after-
that the tands of matri-
rore existing between her:
‘phy Whitelsey be-aniuulled

le AL CL ENix, attorney,
‘OURT.~ Patrick Je Clancy,
hooks: .without leense, to
atrest,'$hi es

TOWED —George J. Mathi-
Covington, anyl Maggie
Mdtaw. First Marriage of

ep tiechiony worlds wy ths
that the Skabhwas tractured: und either,
Prof the wottuits Wout: dave produced bet (iis MCV, but Mitelyas Indianapolis, ree,
+ This ching as Dee tly. Cay
Phawesonie® bitae

before sig hed

“optit eft Teel 1 plate, t AVIS tote with ber AW lig ty he tied: Sai

would be htury for
ducemen {eto din,

mother died.
When Lcame home fotind father sitting.
inthe soor and mother Sitting inca
rs

over lier head.
us my mother’s; found: it that night,
Thereavas blood sand brains upon the

between ny
Monday night, it whieh tir
‘Pout and got the hatchet an
under the bed.

shi, which showed

"ee wth «
Phesy ye rempparenthy jutheted i
PAS TPO ALE,

t

deroasked hinechow the hatebet Game.
to becin the \rootrduljoiping that itt
Wiich= the anion was

eoniotitted, ;

( rors rami dal Witteon “she
ity held ant ie oing

Milton Witten Xin the oson. of
‘hilip Watton Lived on Seventh be=
Ween Seott aud Madison when my
On Tuesday ¢Vening

init sewing. Wentafter my wife who

Wits away; wheneT came baek heard
jSonrething fall: father the ran’ past
Ine out ol. theatoor with’ a voaton. bis
arm,
What. was Ure matter. “He replied ;
‘Nothing,’ and TD Jet hint go, ands he
ran up the alley und out’ ofmy: sight.
F then went up stairs and found mother
ying upon: the tMoor, with blood “all

Pran afterdtin? and asked hin

Lidentity the hutehet:

roll cot it. Wastpresent at in fuss
mother and father on
“he-went
threw it
Have often heard dim

hreaten- to’ kill’ niy mother. About

two weeks before the killing he thet:
ened to-kill her.

Ife was. drinking.
The cross examination did net mate-

rially Change the evidence, nore bring
outanyenew facts, ig

Atthis point the grand jarye filed in

and reported the folowing indictment:
“Comnionweath

vse. Jolin «Peake and

h

Chiseti Gr nie,

= Meroe Viet Ware. “tormerty a résiden

Tate Lome the ether dav. after ten

OM Shelly iindson relitnet hone

Spd hol peésterday trond a tying business bap te
fo VN Con- {Verse with’ defeidunt about the nytt}

Taianapolis, :
: a mgt

Tobneco and: Whisky.”

Lea truct fron Comulissioner’s Report.os

4 ae oa He | . ‘ .
: Pres : Watson. answered that She” went)» Thetotal quantity ef distilled spirits in
tnene of Chocroome of. bt : Pe eaerty dear: : :
Ay ate if “tito the next reom to get his cout and Ltexdble gallons, at Reventy aud ninety
Ati conies Loud seconds |e) Sok : -, vents, taxed phreed in’ distilierve ware-
: fie seat rin ic fdaid the hatcliet aye the hed: | houses, withdrawn therefrom, und re.

thai thereat the-heghining snd close

ot the tiseal year, ended une 30: ISTT is

HIVeDT at 74 1AS OSS.

Phe total collections fromitobaeco for the ;

Hisexah year ended une MW ISs To Wervost =
106,540. In addition to the: collection of
specie tixes fromomanutactured tobacco,

sil and cigars im their Various forms, ©

Chere are duelided im. the above total col-
lections. from: “Special. taxes upon the
Inanihicture aud: sale of tobacco special
tikes upon raw or leaf tobacco, and front

the salmof export stamps,= ‘
“The following exhibit-pives* the nun
ber.of persons: engaged: during othe dast
fiscal Vearin the handling of raw or leaf
tobuceo, in tho” manufacture: of tobacco,
“Snuthand cigars, and -in the distribution
of the manuthet ured products, ascertained
fron the amount of: collections trom: the
silo of special tax stumps: oLeat dealers,
S08; manufacturers’ of > tobacco,
Sto; Hun facturers of Cigars, 1h, 162; ped=
ders of manufactured toliaeco, $19,045,
There are three facts in this connection
which the Comfiixsioner deenis especially
(worthyofSnotice, “The first is that the
productionsof Manufactured tobacco. for
the last fiseal year was greater than for

any other fiséal years embraced. within:

the reports of this oflice, with the single
exception of the vearended June 25, 1875.

The second-is ‘that a larger. amount of >

mioney way collected” frem  manutac-
tured = tobacco put upoit. the mare
ket’ for > consnmption thin dur-

duringamy tiseal years and the third fact
isthe pleasing one that agreater ‘quantity
of manufactured. tobacco and: cigarettes
were removed directly fronithe manufac.
torics torexportation to foreign countries
‘during the Jast-yearthan during any one
wrevious voar Of Which an account has
Bets kept hy the Oice of Internal Rev
CNUs Sens :
An Interesting: ent.

(Evansville (indy Jourith|

Jos. Williams, house-bredking and Ire
ceny—a true. bilke :

The Watson case was then restuned,

and Rachel. Watson {examined: “Am
the daughter-in-law of Philip Watson:
de, Abandonment: is the I

Aved with bint Come home atcnine

jo'clovk that: evening)” The ‘hatchet’ is
Iny motber's; Saweit that night; the
pale was covered with blood and brains.
Hyd heard some qtinrreling between
them. soe ie, ee

Cross cramined.—Never head father

make any threats. “My husband © Mil-

oS ton was’ at home when I caine home

OUT Tom Ae COM Gg@ehuuse, i+
ante Theo, Levernian.

qualified:as’ administrator
ott, deceased, with “Win.
F..B.Vicketsias his sure-
Kennedy, Joseph’ Cleve-

that nights: They: bad ‘tuyo hatchets;
one was usuallyoup-stairs.*

“Amanda: Stowens.—T lived*in “the

same house ‘as the Watsons, Mrs. Wat:
son. was down stairs about: half-past
seven? She scemed troubled-and-went

Tancis, Kreylich ‘were ap- | upstairs, Shortly. after-this: heard’a
aiseTs,. = ——S — Nine, ferpte genus | a7 108 eet 6 =. "BB ae o

-

ras. yesterday evening! what he* had done:

“TisRed
father

~The

ublic the first: informa-|teplied, “Nothing.” Went up ‘stairs

the indictment and: ar:
G, Stone. A number of
sent up the Kentucky
the 9 pom. train. os

and saw’ Mrs. Watson. lying fon the.
floor.
about a month before the murder. ©

Heard. him. cursing his wife

Annie Chinn—Saw’ Watson * conie

~ A gentleman who was a passen- _

ger down on the»steamer’ Fashion,
Tuesday, related’ an interesting in-

cident ‘that happened during the —

trip.. A handsome young woman
came on-board from. some little
town up the river and took passage
to’ Henderson; where she was to
join her husband, who lives in that
vicinity... About 5 o'clock Tues-
day’ afternoon, wlien’ the jiassen-

gers: began: to cast-a weather eye.
toward supper prospects, a sudden -

commotion. was observed among
the crew in*the cabin, and then
settled down. Time rolled on and
no Supper was announced, but the
boat lay at. Owensboro some min-
utes, during which: a physician

was sent for andsmuggledon board.

to make the round trip. - Finally,

after waiting till very ate, supper

. oo 8 1 ares

pg see enscd he Uist

seryrce,.-the faint cry: of a babe

could be heard, and ‘it:was_ finally
anngunced that «the handsome
young woman had been delivered
of bouncing: boy: baby and both
were doing well. ‘The

down. staira in his shirt-sleeves, the]

uestion |
naturally arises, of what’ State in —
he a citizen, Kentucky or Thdiana?

*


NAME _, : PLACE — CITY.OR COUNTY DOE & MEA
William Van Dalsen Louisville, entucky hanizéd Janl 19, 1906
DOB OR AGE RACE OCCUPATION RESIDENCE GEN
23 White
RECORD
CRIME DATE | OTHER
Murder 9-19-190))

VICTIM

Miss Fannie Porter

AGE RACE METHOD

MOTIVE

SYNOPSIS

The following from LOUISVILLE COURIER-JOURNAL for Jan. 19, 1906, Photograph on page 3,
Convicted and coniessed murderer of Fannie Porter, Attorneys failed to obtain write of habeas core
pus from Judge Walter Evans of U, S, District Court on night before, When told last chance for

it é PONne, ‘ wed aLMLVv noK Tar and seemed ‘e 3 = =10 PY U day oer =: s)Hie aqae 0

get injunction to prevent the Sheriff zoe hanging on grounds papi Governor had no re fo eg

mo A pa abe ar 37 3 AY Aor ave = ATZTAYVNHAY? 3NNAMN re 2
= ¢ 5 o> ome ere abela S 2 . = AS int. - = waa Aone

On ‘jar batore asked to WEXKEE s see scaffold and was “taken to it. poe that trap be sprung ca when
> emarkeds i'M wha 2 0 n > makes," en ped ede e ooked down and asked: "Will
my feet touch the ground?" and when told that they would not, he laughed. Crime on afternoon of
9-19-190), Fannie Porter was his former mistress, She had left him several weeks before and he
sent her warning that unless she returned in one week, he would kill, She had confided this threat
to her sister, Mrs. J. B. Sadler of 723 Franklin St, On afternoon of murder, he met Miss Porter
and another woman near Jackson and Market Streets, He asked Fannie to accompany to room where they
could talk over troubles, At first she refused but then agreed, They left other woman on street
and went to room over Frank Echerle's saloon at Jackson and Market Sts. and went XMAKXAK there at
PM, He ordered several rounds of drinks which were taken up by chsteere ‘Rare anew wei - see

:
a Ve BX ~@ Va Ja 5 Cile o o- rele = Vou = ALI Vo GT Was 5 WOT]

hand, Van Dalsen had apes room othe 2 hrse At 7 0 tclock they were still in room 1 and iiesk ctor

scope. from body, practically. “Was kneeling on floor with head on pool of blood on ied Razor
her, Van Dalsen had washed blood from hands in wash basin and left by

rear stairway. Her sister told officers that he had an aunt living at New Albany, Ind,, and he

was arrested at her house next day, When taken into custody, told arresting officers: "I have been

expecting you fellows all day." Trial on 11-23-1904. Jury deliberated 2 hours,

The following from COURIER-JOURNAL of 1-20-1906: Went to gallows placidly eile Bore air

OL nconcern, ianged a {¢ AM and pro uncea aeaad a 139. rTLed O dea 0 itoved

to back of heat “hen voeP fell. cin aa ee execution, jail yard being packed and roof to

- z - o a 5 901 ras ry = fans BAN AN 2 es ra o =
& y, V Ce 3 Wood dA WV o, o OJ Oo J J var, , va bHOYVUSGAHG Doh

swarmed and pushed about jail, kept under control by 20 ns sc Before execution ate three

knew. Last words, a a whispered "Good bye." Fea nie Carroll, as adtaat od noose was standing with
one foot on trap door when it fell and narrowly missed falling through, One of spectators fainted
as trap fell and taken inside jail to be revived. Miss Porter was several years older than he was.
Over 1,000 people viewed body at mortuary, Buried in public vault at St. Michael's cemetery. No
relatives attended funeral but some of his friends did,

TRIAL

APPEALS

LAST WORDS

EXECUTION

SOURCE


}

VAN DALSEN, William, white, hanged Louisville, KY, on 1/19/1906...

TRUE DETHCTIVE, July, 1942. J hy PO
MR shi iesi¢yieaehatiiniaaee - ‘ i .

OFFEND
ELEPHANT |

"| By TOM O’'DWYER =

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er

SS


rRNA teh si

GMIVERSITY GE ALASAMA

470 Ky.

rebuttal says that at no time from ‘he
moment they went in the restaurant un-
til they started home, was Van Fleet out-
side of the restaurant; that he was with
appellant or in his sight all the time, and
he did not see the marshal strike appel-
lant; and that he had no opportunity to
strike him without his having seen him
do so. This was in substance all the proof.
Upon these facts the court submitted the
case to the jury giving them six instruc-
tions. The first, in apt language, was the
willful murder instruction; the second, a
correct voluntary manslaughter instruc-
tion; No. 3, a self-defense instruction;
No. 4, an instruction as to the quality of
appellant’s mind at the time of the hom-
icide; No. 5, the usual reasonable doubt
instruction, and No. 6, correctly defining
the words and terms “willfully,” “feloni-
ously,” and “malice aforethought.”

[1] While there were Six or seven
grounds in support of motion for a new
trial urged, all save those hereinafter set
out are waived. The first ground urged
is that an attorney representing the prose-
cution in his argument to the jury said:
“Gentlemen of the jury it is a matter of
common knowledge that a sentence to the
penitentiary for life only means eight
years, and if you give the defendant a life
sentence he will be back home in eight
years and will be, at the end of that time,
ready, to shoot some other man.”

Objection was made by defense counsel
to the statement, and the court sustained
the objection, but did not admonish the
jury not to consider the same. Counsel’s
contention seems to be mainly that the
court, though sustaining the objection,
failed to give the admonition. This con-
tention may be answered by saying that
our conclusion is that the language used
by counsel was not such as to prejudice
the substantial rights of appellant, hence
it was not error for the court to fail to
admonish the jury. In other words, the
matter may be treated as if the court had
overruled appellant’s objection. This con-
tention is fully disposed of by an excerpt
from Holmes v. Com., 241 Ky. 573, 587,
44 S.W.(2d) 592, wherein the language
used in argument, and which was there
the basis of complaint, was similar to that
here used and objected to. In that case,
denying a reversal, the court said: “This
and similar statements have so often come
under the condemnation of this court, it
is to be wondered that the attorneys for
the commonwealth do not refrain from

99 SOUTH WESTERN REPORTER, 2d SERIES

making them. However, our attention has
not been called to any case holding that
such statements, standing alone, will con-
stitute reversible error except the case of
Berry v. Com., 227 Ky. 528, 13 S.W.(2d)
521, where it was so held under the pe-
culiar facts therein. The cases of Chap-
pell v. Com., 200 Ky. 429, 255 S.W. 99,
and Postell v. Com., 174 Ky. 272, 192 S.
W. 39, in which similar arguments were
criticized and condemned, were not re-
versed because of the improper argument.
There are numerous cases which give ree-
ognition to the impropriety of such argu-
ment yet hold that it does not constitute
such prejudicial error as will warrant a
reversal. Bolin v. Com., 206 Ky. 608, 268
S.W. 306; Hall v. Com., 207 Ky. 718.
270 S.W. 5; Moore v. Com., 223 Ky. 128.
3 S.W.(2d) 190.”

To this list may be added most of the
cases cited and relied upon by appellant.
a casual survey showing (that they are
in the same class with the cases cited
above (excepting the Berry Case), hence
offer no relief to appellant on this ground.
See Estepp v. Com., 185 Ky. 156, 214 S.
W. 891; Seymour v. Com., 220 Ky. 348.
295 S.W. 142; Phillips v. Com., 227 Ky.
212, 12 S.W.(2d) 305; Tiernay v. Com., 241
Ky. 201, 43 S.W.(2d) 661. The case of
Crawford v. Com., 264 Ky. 498, 95 S.W.
(2d) 12, is perhaps in the class with the
Berry Case, supra, and the argument there
dealt with statements of facts not appear-
ing in the record, coupled with inflam-
matory remarks. We may add the fol-
lowing cases not cited by counsel for ap-
pellant, the reasonings and conclusions
in each of which are sufficient to com-
pel us to hold no commission of error in
this case on the ground of improper ar-
gument: Glenday v. Com., 255 Ky. 313.
74 S.W.(2d) 332; Tate v. Com., 258 Ky.
685, 80 S.W.(2d) 817; Lee v. Com., 262
Ky. 15, 89 S.W.(2d) 316.

[2] Counsel strenuously argues that
what may be admitted to be a technical
error in instruction No. 4 is a sufficient
ground for reversal. In that instruction
on insanity, which was given by the court,
on what appears to be rather meager €Vi-
dence, the court said (we interpolating the
word which should have read otherwise,
and one word which was inadvertently
omitted): “Although the jury may be-
lieve from the evidence beyond a reasoa-
able doubt that the defendant did shoot
and kill Wallace Van Fleet with a pistol,
yet if the jury believe from the evidence

UNDERWOOD v. COMMONWEALTH : Ky. 471
99 S.W.(2d)

that when he did so he was of unsound
iind, yet (you) should find him not guilty,
and state in your verdict that you find
him (not) guilty on the grounds of in-
sanity.”

The above paragraph was immediately
followed by an approved definition and
explanation of that degree or quality of
mind, which if found by a jury to have
existed, would excuse the wrongdoer for
his act. The court said: “* * * Be-
fore the defendant can be excused on the
ground of unsoundness of mind, the jury
must believe from the evidence that at the
time of the killing the defendant was with-
out sufficient reason to know right from
wrong, or that as a result of mental un-
soundness or a blow on the head he had
not then sufficient will power to govern
his actions, by reason of some insane im-
pulse which he could not resist or con-
trol.”

The word “yet,” as used secondly in the
instruction, should have been “you,” but
no one could say that a jury composed
of ordinarily intelligent persons could or
would be confused or misled by the use
of that word. The first part of the sen-
tence quoted, eliminating the second clause
which omits the word “not,” correctly
states the law when taken in conjunction
with the explanatory paragraph. Both
together constitute the whole law of the
case on the subject of mental incapacity.
When the first paragraph is analyzed, it
will appear to any reasonable mind that
the jury was clearly told that, if they
should believe appellant mentally unbal-
anced as per the explanatory definition,
they should declare him not guilty and
State the fact in their verdict. Section
268, Criminal Code of Practice.

[3] The whole of the instruction must
he read, and, when this is done, we are
of the opinion that it was not such as to
confuse or mislead a reasonably intelligent
jury. It will not be permitted for appel-
lant to select only a portion of an instruc-:
tion for criticism and overlook other por-
tions thereof. We have held that, in or-
der to determine error’ or no error, the
entire instruction must be considered.
Smith v. Com., 148 Ky. 60, 146 S.W. 4;
Connor v. Com., 118 Ky. 497, 81 S.W.
259, 26 Ky.Law Rep. 398; Dennison v.
Com., 198 Ky. 376, 248 S.W. 878; Hen-
drickson v. Com., 235 Ky. 462, 31 S.W.
(2d) 712; Howard v. Com., 246 Ky. 378,
56 S.W.(2d) 362; Tiernay v. Com., 241
Ky. 201, 43 S.W.(2d) 661.

In Shepherd v. Com., 236 Ky. 290, 33
S.W.(2d) 4, we said that something must
be left to the good common sense and fair
judgment of the jury. This instruction
in its entirety is clear and easily under-
standable to the average mind, and we
conclude that the omission and substitu-
tion complained of here were not such as
to be confusing, and that no prejudicial
error was committed in this respect.

[4] The final ground insisted upon for
reversal was the refusal of the lower
court to permit Mrs. Lillian Davis, a sis-
ter of accused, to answer an unasked ques-
tion. It appears that on the night of and
after the homicide appellant went to her
home. After telling of appellant coming
there, she was asked as follows:

“Q. What time in the morning was it?
A. I don’t know, it was after midnight.

“Q. What did he do? A. Well, he
didn’t do anything but come in and he
come in crying.

“Q. Had you gone to bed? A. Sure I
had at that time of night.

“Q. Describe (Objection to the witness
testifying as to the conduct and condition
of the witness after the commission ot
the crime; objection sustained by the
court; objection and exception).”

The error here was perhaps in the precip-
itancy with which counsel for appellant
objected and the court’s ruling on that ob-
jection before the question or any ques-
tion was formulated. No one can guess
as to what the unfinished question would
have been, nor can we guess what the
answer might have been. Assuming, how-
ever, that both the question and answer
might have had to do with his conduct, his
physical condition, or his actions, the
court cannot say there was error, because
no avowal was made by objecting coun-
sel. Both question and answer may have
been admissible, but as to error we can-
not surmise, nor can we conclude there
was error in the absence of avowal. Hill
v. Com., 191 Ky. 477, 230 S.W. 910; Hall
v. Com., 229 Ky. 646, 17 S.W.(2d) 751;
Harper v. Com., 255 Ky. 566, 74 S.W.(2d)
951; Tipper v. Com., 1 Mete. (58 Ky.)
. The case of Moore v. Com., 92 Ky.

630, 18 S.W. 833, is relied upon by ap-
pellant on this point. For obvious rea-
sons, it is not sufficient authority to hold
that there was prejudicial error in the
particular under discussion.

[5] We have reached the conclusion,
after a most careful review of the whole

we

“fer wr ermer ee

Were eC ererene «

SCHOOL OF LO ¥

if


“BAMA

ene

..

2SITY GE Bi

“NIVER

472 = ‘Ky.

case, that the appellant has had a fair and
impartial trial. His two defenses, as pre-
sented by him, were fairly submitted to
the jury. If the testimony of Hall and
others is to be believed, the homicide was
totally inexcusable. If appellant’s testi-
mony is true, he was not guilty. The jury
had the sole right of determination. They
evidently believed the testimony of the
witnesses for the commonwealth, which
under the law, was their province to so
do, and, since this is our conclusion on
review, we are compelled to affirm the
judgment.
Judgment affirmed.

The whole court sitting.

‘o wy KEY NUMBER SYSTEM

206 Ky. 565

APPALACHIAN STAVE CO. v. PICKARD.

Court of Appeals of Kentucky.
Oct. 20, 1936.

Petition for Rehearing Dismissed Jan.
14, 1937.

1, Appeal and error 1215

Instructions given on first trial should
be given ‘on another trial after second appeal,
since such instructions are law of case.

2. Appeal and error €=1097 (1)

Opinion on former appeal is law of case
and precludes all questions on subsequent ap-
peal which were presented on former appeal,
whether or not expressly mentioned, in ab-
sence of reservation in opinion.

3. Appeal and error €>1097(1)
Court of appeals will not re-examine on
second appeal questions decided on first ap-

peal,

4. Evidence €=314(1)

Hearsay evidence is not admissible on
ground that statements thus made are not
subjected to ordinary tests required by law
for ascertaining their truth, author not being
exposed to cross-examination in presence of
court of justice and his deportment not be-
ing subject to observation.

5. Evidence €=314(1)

In action arising out of automobile colli-
sion, testimony of witnesses concerning tire
tracks which were pointed out to them at

ee

99 SOUTH WESTERN REPORTEK, 2d SERIES

scene of accident on following day by occu-

pant of plaintiff's automobile, held inadmis-

sible as hearsay, notwithstanding that wit-
nesses and occupants were cross examined on
the trial.

ee

Appeal from Circuit Court, Knox Coun-
ty.

Action by Charles Pickard against the
Appalachian Stave Company. From a judg-
ment for the plaintiff the defendant ap-
peals, and the plaintiff cross-appeals.

Judgment reversed on original and af-
firmed on cross-appeal, with directions to
award new trial.

Golden & Lay, of Pineville, for appel-
lant.

H. H. Owens, of Barbourville, for appel-
lee.

; RICHARDSON, Justice.

[1] This is the second appeal of this
case. Appalachian Stave Company v. Pick-
ard, 260 Ky. 720, 86 S.W.(2d) 685, 687.
There is no change in the issues or facts.
In our opinion on the first appeal we point-
ed out an error in instruction No. 1 which
was corrected on the second trial, with this
exception—the instructions given in favor
of Pickard are identical with those on the
first. Those given at the instance of the
Appalachian Stave Company on the second
trial are not the same as those on the first.
It is unnecessary to point out the difference
between them, as the court on another trial,
if one is had, if it requests them, will give
those which were given in its favor on the
first trial, as they are the law of the case.

[2,3] Our opinion on the first appeal is
the law of the case and precludes all ques-
tions on this one which were presented on
the first, whether expressly mentioned or
not, in the absence of a reservation in the
opinion. Walker v. Walker, 231 Ky. 163,
21 S.W.(2d) 254; Collins v. Lemaster’s
Adm’r, 232 Ky. 188, 22 S.W.(2d) 567;
Lewis v. Kash, 239 Ky. 117, 38 S.W.(2d)
978. Therefore, we will not again re-ex-
amine questions decided on the first. Jus-
tice v. Justice, 242 Ky. 553, 46 S.W.(2d)
1080; Blackburn v. Murphy, 244 Ky. 370, 50
S.W.(2d) 957; Baker v. High Splint Coal
Co., 258 Ky. 786, 81 S.W.(2d) S77.

The case is stated in our former opinion.
It is unnecessary to restate it It was re-

APPALACHIAN STAVE CO. v. PICKARD Ky. 473
99 S.W.(2d)

verstd when first before us because of an
error in instruction A and the admission
of incompetent evidence.

In discussing this incompetent evidence,
we said: “The plaintiff introduced a num-
ber of witnesses who testified that they
went to the scene of the accident on the
following day and saw the imprint made
by an automobile tire in the dirt at the
point where the plaintiff claimed he drove
his car when the accident occurred. There
was evidence that a number of automobiles
had passed back and forth along the road
in the meantime, and there was also evidence
that at least one or two automobiles had
been driven along the extreme right side
of the road at this point traveling from
the direction of Barbourville. There was
no evidence to show that the conditions
had remained the same from the time of
the accident until these witnesses made
their observations on the following day,
or that there were any distinguishing marks
or circumstances by which the track seen
by them could be identified as one having
been made by Pickard’s car. This evidence
under the circumstances was incompetent
and should have been excluded.”

Johnnie Green testified in behalf of Pick-
ard on both trials. To circumvent our rul-
ing as to the incompetency of the evidence
discussed in our former opinion, Pickard
proved by Johnnie Green that on the night
of the accident or the next day, he pointed
out to Demps King, Bill Lundy, Parker
Hemphill, Johnnie B. Adams, Walter Mays,
Steve Newman, John Creasy, Herman
Green, Charlie Swafford, Henry Pickard,
and Riley Pickard “where the car was locat-
ed” at the time of the accident; “water had
run out of the radiator;” and “the tracks
leading down to the place along the bank to
where the car had stopped”—the point of
the accident; then proved by these witnesses
“that they went to the scene of the accident
that night or thle next day” and “they saw
the wet place pointed out as the place where
the water had run out of the radiator and
observed the tracks leading down to the
place along the top of the bank to where the
car had apparently stopped, and as pointed
out by Green as the place where it stopped.”
“They all described conditions identical
with the testimony of the witness, Green.”
Green was recalled and further testified
“that the conditions were the same then
as they were when the accident happened
that night.”

99 S.W.(2d)—23014

[4] The Appalachian Stave Company
objected to this line of testimony. The
court overruled its objection. To the testi-
mony of the witnesses who were introduced
by Pickard, and who were not present at the
time and place Green claims he endeavored
to point out to the above-named witnesses
as stated by them, the court sustained an
objection as directed in our former opinion.
But overruled the objection as to the above-
named witnesses who claimed they were
present that night or the next day when
Green proceeded to point out to them that
which they were permitted to describe. That
which they described in their testimony was
hearsay or secondhand evidence, within
the generally accepted meaning of these
terms. “Such evidence is inadmissible be-
cause the statements thus made are not sub-
jected to the ordinary tests required by law
for ascertaining their truth, the author not
being exposed to cross-examination in the
presence of a court of justice * * *
and his deportment is not subject to observa-
tion.” 1 R.C.L. 528.

[5] Under this rule, it follows that the
witnesses to whom Green pointed out that
which they claimed they observed were not
thereby qualified to testify as to what they
saw or observed. Their knowledge thus ob-
tained was derived naturally from the un-
sworn act or statement of Green, and the
recalling of Green and proving by him thar
the condition was the same as it was at
the time of the accident is no more than
a statement of his opinion, and brings their
testimony within the rule governing hearsay
evidence, as it is stated in Louisville & N.
R. Co. v. Murphy, 150 Ky. 176, 150 S.W.
79; Fidelity Deposit Co. of Maryland v.
Champion Ice Mfg. & Cold Storage Ca.,
133 Ky. 74, 117 S.W. 393.

The fact that they and Green were cross-
examined on the trial does not alter the case
or render their testimony competent. Louis-
ville & N. R. Co. v. Murphy, supra; Ken-
tucky Central Ry. Co. v. Smith, 93 Ky. 449,
20 S.W. 392, 14 Ky.Law Rep. 455, 18 L.R.A.
63; White Construction Co. v. Brooks, 222
Ky. 621, 1 S.W.(2d) 1076; Louisville &
N. R. Co. v. Moore, 150 Ky. 692, 150 S.W.
849.

Because of the admission of this incom-
petent evidence the judgment is reversed
on the original and affirmed on the cross-
appeal, with direction to award a new trial
consistent with this and our former opin-
ion,

SCHOOL OF LOM


von der HEIDE, 6tto, white, hanged 3helbyville, KY on 2-25-1881,

{ JUSS wy wenw BIULL A wews y «

ot ee ee cone

SMOKING ON THE GALLOWS. |

How a Mentacky Murderer Brevely
Met His Deom,

SHELBYVILLE, Ky., February 25.
| John Vanderheid was hung here to-day |
‘

|

j
ee wea ted

for the murder of Rebecca Johnston. |
The bloody deed was committed {n

Oldham county, -in this State, July 21, |.
1880. The prisoner was brought. from |.
the jail and went upon the scaffold at |‘ -
2:05 p.m. He was smoking a ciga l
the «ime. He wes accompanied. by | !
{Father Reed and two sisters. He |
apoke at length from the ecaffold and | !
protested his innocenée to the last. He :
read fromthe Shelby Sentinel of Fed. |
24, and eald that the paper reported the f
case wrong. He sald he was innocent. | ‘
During the reading he repeatedly call-
ed the attention of the spectators and | !
told them to listen to him. He sald |!
that he wasa criminal conylcted of a | !
crime of which ho was hot guilty. —_| !
At 2:40 he knelt in prayer with the | '
priest and sisters. After the prayer-he | ;
took a white handkervhjef in his mouth.|:
and wanted to keep It tnere. The | !
sheriff had it put in hte pocket. Ac |!
2:45 he floished bis speech and bid |!
Rood by to his numorous acquaintances
and asked the shertfl not to Ivt the drop
fall until the appointed hour. He
fal’) that he wanted to die at
3 o’clock and not untill then, x few
minutes before the drop fell, he Asked.
if it was good enough. Hoe sald that It
did not look suMficlent to make a good
job. Hethon sald:’ I have five min-
ulos to live. Loan think of heaven {tn
|that time. While there ts life there Is
hope.” He thon kloked off’ his nlippera
and sald,'f will give them to the poor,
The Courler-Journal cannot eny I died
_with my boots on.” At 2:50 ‘the rope
wae cut, and Vanderheld fell through | ¢
the trap door and died without a strug. | ¢
xle. He was plucky to the last. . :

ices Kieatebealt tte ae tne * tee ete co

= «~~

Manrehreter WV tt / (/ Lih.vorw
ol]. RE [G1 (Page ()

/
/


JOUN VONDERHEIDE MAN@ED DD KEWTOCK Y—
PROTESTING INNOCENCE TO TRE LAST.

[BY TELEGRAPH TO THE MERALD. ) |
RUELBYVILLE, Ky., Feb. 25, 1881,

The execution of Johu Vonderhaide here to-day
brought ont a large crowd of people. The acaffold
was erected in the jail yar aad was emelosed by a
twelvo-foot fence. About sixty people were in the
enclosure, but there were hundreds on the adjacent
housetops, who bad am good view of the execu.
tion. The condemned man was brought to
the seaffold abort two o'clock. He ‘moved
with a firm step, smoking a cigar, and was eco and
collected. He spoke over half an hour ine dincon-
nected manner, blaming some, praising a few,‘for-
giving all, He expected to go to heaven. He per-
sisted in his ples of innocence of the crime for which

be had to die, and anid thet if he had hed
money he would not have bees on the scaf..
fold. He referred to’ the soquittal of
Buford and other wealthy Kentucky murderers
and asked the young take wafnteg by
histate. After prayer by Priest he called the
names of quite s number of | per-ons and bade them
goodby. sie directed what diepesition should be
made of his body. He exhibited Very little |
and mo » ef ibelding tears at en time, Be died
bravely, the last words he Witered being that the
rope scratched hischin. He was pronounced dead
in éwelve minutes from the time the drop. The
crowd dispersed in an orderly manner.

DETAILS OF THE MURDER,

On the 2d of Jaty leet John Vonderheide robbed
end mardered a little colored oy named Rebeccs
Johneor, of Oldham county, Was arrested and
tried at Bhelbyville last September, He was found
guilty BGG sentenced to be hanged ou the woin oF

ebruary. The case was takem to the Court of Ap-
peals, which affirmed the’ decision of the lower iy
court.. The evidence against him was all cireum.- N
stantial,

Vonderbeide was a young man of German deecest,
and his earlier days were od im Leutaville as a
newsboy, He was cared for jn that city during boy-
hood by Mrs. Walters, bis fouter mother, aud about
the Grat crime of his wicked pareer consisted of rob-
bing his tenefactrese of her silverware, for which he
was scntenced tothe Honseol Kefuge. Afterward
he became somewhat no orjous as a burgler, and
foaliy, being convicted of that crime, he was com.
mitted to the pret ins oe Frankiort, Although
hiv character as @ skiliul jail breaker wee known
and a strict wateh was kept over his movemenns, he.
rosde hin escape trom thet institution on the 19th of
laat July by concealing himself in s threshing ma-
chine which was drawn away by hornes,

: A BARDENED VILLAIN,

When 8 mile out of Frankfort Vonderheide came
from his rate pings and struck out om foot across
the country. He at once renewed bis career of
crime by burglariously enteting the house of Dr.
Dowden, at range, the pext night, and Attio
himeelf out with a suit of clothing. On the secon
Gay after bis escape he committed the erime tor
which he died to-day. Vonderheide had the counte-
nance of @ hardened and illiterate villain. His face
Was sinooth, except a sprouting mustache, and his
hair wae an uncompromising red. Mis hands were
smoall, well shaped and {sir ana woman's. The COR-
demned man had been mtg pe attended by a Cath-
Olic pricst, and, although ell’ a Obg appereatly mn-
concerned an to bia spiritual welfare, had expressed
his determination to die in that faith,

—

fE/ (S-

A) aa Uk [X H ZRA_)D
ak tt
A-Ao/


d1Z 46 SOUTHWESTERN REPORTER. (Ky,

epurt; and consequently we cannot know
that any such error as that complained of
was committed. We have no power to look
into a bill of exceptions which the legisla-
ture has declared should not be allowed, or
into a general bill for matters not the subjects
of exception, and then to reverse for an al-
leged error thus improperly appearing in the
transcript. We must reverse for any error
of law appearing in the record to the preju-
dice of the appellant, but this only applies to
such errors as the party had a right to mani-
fest by bill of exceptions; and as a bill of
exceptions, not only not authorized, but ex-
pressly prohibited by law, is no part of the
record, an error in respect to any of the mat-
ters which, under section 281, cannot be
excepted to, is not an error appearing ‘in the
record,’ within the meaning of section 340.
And, for the same reason, we cannot consider
the alleged errors in not keeping the jury to-
gether, and permitting the attorney for the
commonwealth to go out of the record to
make statements concerning the character of
the appellant. Had the court been appealed
to, to stop that course of argument, and re-
fused to interfere, the question might have
been different. No such appeal was made,
and consequently the court made no decision
on the subject until it came to rule on the
motion for a new trial; and for error in that,
we have already seen, we have no power to
reverse.” And in Redmon y. Com., 82 Ky.
336, Judge Hines, delivering the opinion of
the court, stated that the doctrine laid down
in Kennedy v. Same was uniformly followed
until the case of Paducah & BH. R. Co. v.
Same, 80 Ky. 147, which decided a question
similar to the one presented adversely to a
long line of opinions. The Paducah & E. R.
Co. Case was expressly overruled in the case
of Redmon v. Com. Said Judge Hines in the
Redmon Case (pages 335 and 336), discussing
Code Cr. Proc. §§ 280-282, 340: “From these
provisions of the Code the jurisdiction of this
court to try and determine felony cases is
derived. The constitution confers no juris-
diction upon this court in such cases, but au-
thorizes the legislature to grant such juris-
diction as it may think proper. We have no
more right to depart from or to enlarge the
limits of the jurisdiction, as prescribed by
statute, than we would have to assume juris-
diction in case the legislature had seen fit not
to confer any appellate jurisdiction. Ruther-
ford v. Com., 78 Ky. 639. The Code, as
quoted, provides that we may consider and
reverse in criminal cases where the error ap-
pears on the record by bill of exceptions, pre-
sented in the manner prescribed, and also
provides that the error here complained of
(overruling a motion for new trial) shall not
be subject to exception. We can no more
consider an alleged error so presented than
we could a case in which there was no bill of
exceptions, for in fact a bill of exceptions not
authorized is no bill. We have nothing to do
with the policy or impolicy of conferring ju-

risdiction, in criminal cases, upon this Court,
whether limited or unlimited. That belong,
to the legislative department. Errors such
as that complained of here were left to the
discretion of the lower or trial court, whe;
the whole jurisdiction might have been left
if the legislature should have thought Drop.
er.” After careful consideration by the ep.
tire court, we think that the argument og
this opinion, which has been followed in py.
merous cases, construing section 281, Co
Cr. Proc., is unanswerable. Hunt vy. Com
(IKy.) 12 S. W. 127; York v. Same, 82 ky,
362; Com. v. Hourigan, 89 Ky. 305, 12 §, wy,
550. The judgment is therefore affirmed,

GUFFY, J., dissents from that part of the
opinion which holds this court has no juris
diction to review the error complained of,

ANDERSON v. LIKENS.1
(Court of Appeals of Kentucky. June 1%
~ 1898.)

APPEAL AND ERROR—SUPERSEDEAS Bonp—Ds
Facto OFFICER

1. A supersedeas bond prematurely executed
will be quashed.

2.A de facto circuit court clerk appealing
from a judgment awarding the oflice to another
is the proper person to take and approve a ss-
persedeas bond executed by him to enable hia
to hold the office pending the appeal.

Appeal from circuit court, Ohio county.

“Not to be officially reported.”

Contest between S. A. Anderson and G.
B. Likens to determine title to the office of
circuit court clerk of Ohio county. From s
judgment of the circuit court in favor of
Likens, Anderson brings error. Motion
quash supersedeas bond. Overruled.

W. S. Taylor, for appellant. W. T. Ellis
Ben D. Ringo, and S. M. Glenn, for appellee

LEWIS, ©. J. In this case, involving tite
to the office of circuit court clerk of Obie
county, the county board of convassers
awarded certificate of election to appellant
and he qualified and took possession of the
office, and subsequently the county board of
contest also decided in his favor, but, upos
appeal to the circuit court, judgment was
rendered in favor of appellee, Likens; snd
now, pending appeal in this court, a moves
is made to quash a supersedeas bond execut
ed May 5, 1898, and another executed May
16, 1898. The first mentioned was executed
prematurely, and the motion as to it is sue
tained. But the reason that the second 8
invalid, because taken and approved by sr
pellant, Anderson, after the judgment was
rendered, is not sufficient. He was still de
facto clerk, and, as the purpose of the s*
persedeas bond was to enable him to ©o®
tinue until decision by this court on the s>
peal, he and no other person could officially

1 Reported by Edward W. Hines. Esq. of tbe
Frankfort bar, and formerly state reporter.

gy) NIENADER vy. TARVIN. : 513

take and approve it. That bond is valid and
pinding, and the motion to quash it is over-

ruled.

gm Ky. 149)
NIENABER et al. v. TARVIN, Judge.1
(Court of Appeals of Kentucky. June 16,
1898.)

arrcaL aND Error—Contempr — Doty or City
to Furnisa Court House.

1. An appeal lies from an order imprisoning the
members of a city council for contempt in fail-
ing to obey an order requiring them to furnish
the court house, the legal liability of the city
being involved, and the order being for the
benefit of the commonwealth, which is the oth-
@ party in interest.

* Under Act Feb. 21, 1850, directing certain
terms of the Kenton circuit court to be held
is the city of Covington at such place as the
ety council “shall provide,” and providing that
“s soon as the council give notice to the
wige, that the court room, clerk’s office and

il are ready for said court, and the judge, up-
ea personal inspection, shall be satisfied there-
ef, he shall direct the clerk to remove the pa-
pers aforesaid, and open an office in said city,”
a legal obligation rests on the city to provide
and keep furnished a suitable court room,
derk's office, and other offices or buildings nec-
essary for conducting the business of the cir-
cuit court in that city.

8. The discretion as to the character and kind
e# fixtures, furniture, and improvements need-
ed, and as to the amount of money to be appro-
priated therefor, is vested solely in the general
council, to be exercised at its peril, and there-
fore the circuit court cannot, by summary pro-
ceedings, coerce performance of this duty.

Hazelrigg, J., dissenting.

Appeal from circuit court, Kenton county.

“To be officially reported.”

Rule against A. Nienaber and others, mem-
bers of the board of councilmen of the city
ef Covington, to show cause why they
should not be punished for contempt in fail-
fog to obey certain orders of the Kenton cir-
cult court. The court having adjudged de-
fendants in contempt, and committed them
& jail, they appeal. Reversed.

O'Hara & Rouse, Charles H. Fisk, and H.
C. Hallam, for appellants. O. J. & W. W.
Helm, for appellee.

LEWIS, C. J. A. Nienaber, Joseph L. Ruh,
HB. Haelefeld, M. Messingsheager, Charles
Avery, Fred C. Neimeyer, and John Dorsel,
seven of the twelve members of the board
ef councilmen of the city of Covington, ap-
peared before this court, and moved for an
order requiring James Tarvin, judge of the
Kenton circuit court, to grant an appeal
{rm, and permit them to execute a bond
Superseding, a judgment rendered in said
court February 8, 1898, whereby they were
committed to the jail of Kenton county, at
Independence, there to remain until such
time as they, or either of them, should indi-
fate to the court a willingness to at once
comply with orders of that court, hereafter

r, Reported by Edward W. Hines, Esq., of the
tankfort bar, and formerly state reporter,
46 S.W.—23

mentioned; and, the motion having been
sustained, the judgment is before this court
for revision.

Two transcripts have, by agreement, been
filed, one certified to by bystanders, the oth-
er by the clerk of the court, though they
do not materially differ in respect to any
matter we need consider.

January 10, 1898, Judge Tarvin addressed
a communication to the general council. re-
questing a committee be appointed to con.
fer with him in regard to alterations of the
court building, that more room might be
provided. January 14th a committee, con-
sisting of members of both branches of the
general council, met him, and arranged for a
meeting on January 17th, at the Globe Fur-
niture Company, in Cincinnati, at which
time and place, the committee, Judge Tar-
vin, and the circuit clerk being present,
Judge Tarvin, without conferring with the
committee, selected and ordered certain fur-
niture for the circuit judge’s room and the
master commissioner’s office, and the circuit
clerk selected the furniture for his office.
January 18th the court made an order di-
recting the general council to provide forth-
with for the payment of such furniture and
appliances as in the discretion of the judge
of the court are necessary and proper for
the rooms of the circuit judge, circuit clerk,
and master commissioner, and that a com-
mittee be appointed to confer with the cir-
cuit judge in reference to making some ar-
rangements giving more room to the offices
of circuit clerk and commissioner, It was
further ordered that the council make pro-
vision for the refurnishing of the circuit
court room, and for rearrangement of same
after conferring with the circuit judge, and
as he may determine. January 22d the fol-
lowing order was made: “The general coun-
cil of the city of Covington has not seen fit
to regard the order of this court. It ap-
pears to this court that certain records of
this court, belonging in the custody of the
clerk of this court, and consisting of order
books and papers and other books, are not
in the actual custody of said clerk, because
of lack of room and proper place to keep
them; and, it appearing that said records
are in immediate danger of destruction or
loss, it is now ordered that the clerk of
this court forthwith take all the steps nec-
essary to the secure keeping of said records,
at any expense necessary, at the cost of the
city of Covington.” January 31st the fol-
lowing order was made: “The city of Cov-
ington, the general council, and the mem-
bers thereof, are ordered to obey the order
of this court made January 18, 1898, on
or before February 1, 1898. The sheriff will
serve a copy of this order on the city of
Covington, president of the board of alder-
men, and president of board of councilmen,
to-day.” On the evening of the same day,
at a regular meeting of the board of council-
men, a response to the court’s order of Janu-

even the guards as” they: shuffle past. the

small, isolated

cells of t

: 7-4
‘guard stops at the
brates hats:

boon. several insinces in

Kentucky: in’ which the- State: apparently 2

overlooked. he: matter of carrying: out’ the
Appeals in : ifying

«Warner. was a strapping youth in his:
hen: he and‘a pal: wate ee °

"6€6T-OT-2 (AeseD) Ayanquey peyndozzoeTe 62 Seqtun SaeqseaTAs CUINE WN


232 Racial Violence in Kentucky, 1865-1940

prone to lawless activities: “For a successful hanging, artistically
done, I commend all criminals to the ministering officers of Washing-
ton county.’’?”

Public executions in late-nineteenth-century Kentucky were spec-
tator sports, drawing crowds that rivaled attendance at the Kentucky
Derby. All of the newspapers devoted extensive coverage to the execu-
tions. (The reporters thoroughly enjoyed writing that the condemned

had “expiated” for his crime.) This, of course, was part of the national #

fascination with death. The newspapers gave details about the last
meal, the state of mind of the condemned, and whether or not he con-
fessed his crime to local law officers and God before leaving the cell
for the last time. White reporters often spoke with admiration of how
blacks faced death. The highly racist Mayfield Monitor headlined
the execution of Bob Brown, ‘He Met Death in a Composed and He-
roic Manner After an Eloquent Talk to 3,000 Spectators.” Brown’s
“expiation” (for the murder of a white man) “was perhaps the most
remarkable hanging witnessed in this county for years and the mos
successful, as well.” According to the paper, Brown acted and looked,
as he left the jail, more like a man on his way to a marriage feast than
to his own hanging. With the noose around his neck, Brown spoke to
the huge throng for more than an hour, advising them “to let whisky,
gambling, and down fallen women severely alone.” Several years later
in Richmond, condemned killer William Taylor spoke for eleven
minutes to the crowd, concluding with some words of wisdom:

My advice to both young and old is to leave whisky alone. My advice to
friends that I leave behind is not to follow the steps which lead to where I
am going. I am twenty-six years of age and this is the first and only crime
that I ever committed. .. . Now that Iam about to be ushered into the
presence of death by the laws of man, I feel that the laws of society that

inflict the death penalty for murder are just, and the penalty I am about to, il
pay is merited. I am going home to die no more: ae

While executions for murder were on occasion held in carnival-like
environments, the execution of a black for rape often drew boisterous

crowds determined to lynch the condemned man because they be-

lieved that a simple hanging was too mild for such a heinous offense.

27. Louisville Commercial, May 3, 1874. The account from the Louisville Courier-
Journal, May 1, 2, 1874, is detailed but lacks the sarcasm of its rival’s version. if;
28. Mayfield Monitor, June 14, 1893; Louisville Courier-Journal, January 12, 1895-

a>

“Sacrifice Upon the Altar of the Law” 233

In late October, 1878, Charles Webster and George Washington were
charged with the rape of a young white girl in Louisville. Even before
their capture—much less their trial—the local newspaper had already
found them guilty and had called for their execution. Indeed, the paper
called Washington “the colored fiend who committed the nameless
outrage on the little white girl.” Given the uproar and the threat of
mob vengeance, it came as no surprise that both men:were quickly
tried, found guilty of rape, and sentenced to death. Even after the death
sentence was handed down, however, the threat of a lynching re-
mained. An estimated twenty thousand people came to Washington’s
public execution, and a riot nearly developed. The police resorted to
force to prevent the mob from seizing and carrying off the black man.
In an attempt to maintain control, Louisville authorities decided that
Webster would hang in private. On April 2, 1880, Webster and Robert
Anderson, a white man convicted of murder, died in the enclosed yard
at the Louisville jail with only a few selected people looking on.
From that point on, all executions held in Louisville would be done in
private, and those who wanted to witness the “event” would need
tickets. Before each execution, thousands of people applied for tick-
ets. Some who were turned down resorted to purchasing counterfeit
tickets sold by.enterprising con men. Lexington eventually joined
Louisville in holding private executions, while most of the smaller
towns continued public hangings, to the obvious delight of many citi-
zens. But even in the two larger cities, people still desired to witness
executions. Thousands of Louisvillians and Lexingtonians of all ages
paid for choice positions where they could look over walls or from
rooftops and observe the “private hangings.”

Many of the trials that resulted in blacks dying on the scaffold
were highly controversial, leading to the speculation that race had
been the deciding factor in these verdicts. As we have seen when
looking at lynchings, the word of a black man meant nothing when he
was accused of raping a white woman, especially if the woman identi-
fied him as her attacker. Tragically, this mentality carried over to the

29. For the capture of Washington and Webster, see the Louisville Courier-Journal,
October 22—~November 10, 1878. The Courier-Journal of April 3, 1880, discusses the
execution of Webster and mentions Washington’s death.

30. Ibid., July 31, 1889, March 23, 1892; for the execution of a black convicted of
Tape in Lexington, see the Morning Herald, June 2, 3, 1896.

re Le


WASHINGTON & W BBSTER,. hanged Louisville, Ky., 2/21/1879 & 4/2/1880

CABINET FOR HUMAN RESOURCES
COMMONWEALTH OF KENTUCKY

FRANKFORT 40621-0001
DEPARTMENT FOR HEALTH SERVICES
Vital Statistics: - ;
275 East Main Street -
NO. 42124

TO WHOM IT MAY CONCERN:

As custodian of death records compiled, under a local ordinance,

by the City of Louisville, between February 1866 and January 1911,
I hereby certify that said record shows:

NAME OF DECEASED: Charles Webster:

PLACE OF DEATH: Louisville, Kentucky AGE: Not stated.

DATE OF DEATH: april 2, 1880 SEX: Male COLOR: Black

CAUSE OF DEATH: Executed:

MEDICAL ATTENDANT : Not stated.

PLACE OF BURIAL:

Eastern Cemetery

Book No. nes 0 Given under my hand and seal
/ of the Department

Page No. 24

This 4th day of October , 1991

ree AUARLORLOTURLORUALURLC
ES AS, \ « \ SAAR Yt

Filed april, 1880

hi AN

_ F ‘ Ps A a teed Sy } |
Robert N.. HUTS \\bkdlsrion of vital srartsris
Registrar of. Vitall Stata'sinid

‘VS-24a (Rev.

The only other information given on the deatt
record of Charles Webster is as follows--

Single

Residence--Alley Brook & Floyd Mkt. «5 Jeff.
Undertaker--w. Wyatt


THE HANGMAN'S HARVEST.

Two.More Colored Angels~Exodust over |

“the—Dark River — Robert: Anderson
Joins win thé -Procession—A “Brutal
" TScene—Stone Betreaded-by~the Rope-

| “THE COLORED MAN’S CRIME. REO |
‘On the evening of Saturday, October 19, 1878, Fran-

ces Otte, the daughter of a thrifty German couple,
whose residence was on the eastern slope of the city
limits of Louisville, left home to seck several cows in.
an adjacent pasture. It was her habit to do 80 every
afternoon, and upon this occasion she went forth.
with unusual gayety. singing and playing. During
the several days preceding October 17, two: negroes,
who afterward proved to be George Washington and
‘Charles Webster, had called at the Otte House and”
begged for bread, one of the twain stating that he had
recently left the Penitentiary at F rankfort, Ky:, and,
being dogged by the police, found employment an
impossibility. Mr- and Mra. Otte gave them food on
several occasions, until at last their frequent visits
became a nuisance, and having discovered them, with’
some companions, holding a drunken revel and lay-
ing dice by the light o a candle stuck in the earth
one evening, Mr. Otfe bade them come no more,
Upon the evenirg in| question, little Frances ‘Otte
was entering the cent 1 part of the pasture alluded
to when, to her great astonishment, the two negroes
came upon her. The child subsequently dragged
herself home as best she could and told her’ parents.

co

the crime that had been committed. On the Thurr-
‘day after the crime, information was received-trém
deffersonville, Ind., that two negroes similar to Wash-
ington and Webster had made an unsuccessful at-
tempt to commit a similar dastardly crime four miles
from.the Ohio River bank. Louisville parties went
over to Indiana and, Washington and companion
having been arrested in the meantime, brought them
to Louisville. The heinous nature of the crime
stirred up the ‘whole poputace, and it-was- only with ~
difficulty that they were restrained from lynching ;
them. The presence of the white-haired father of the
child in the crowd and his remonstrances only saved
them. “Let the law have-its way, they are guilty”
and they will be punished,” said the old man. Wasb-
ington was sentenced and hung on the 21st of Febru-
ary, 1879. At the trial the child testified, The child,
|when identifying Washington, said, “That ia the ~
black dog; that is the dog we gave victuals to; he is
one of the men.” Charles Webster, the other mis-
¢reant, was tried some timo afterward, being _identi-_
fied by the gir], and sentenced to be bung to-day.

! a. tie ai

ey oo


WASHINGTQ y
February &

April 2,

ee ky
Lorin

_ GEORGE C. WRIGHT“,

Racial Violence in Kentucky
b 1865-1940

Lynchings, Mob Rule, and “Legal Lynchings’”’
§

LOUISIANA STATE UNIVERSITY PRESS

Baton Rouge and London

ya"

G em
oa
os
Fe
- . 2 4
UO SR Ripening, 24 Crit sia’ Cota aa; ia at a a at a ek Reese Satenennirs hn ES ation aga ie Hees a Wires. aaa Spine
‘ RD . , ey a A esr aias eee ears ss rome ab Sree Nee } :

ae

Sighs teas bape Spat me ger ce el AUG oe rate bakense a

640 KENTUCKY REPORTS. [Vol. 201.
therefore follows necessarily it can only have weight
where there is no other explanation of an act otherwise
incomprehensible to human understanding in the light of
human experience. Consequently it is the established
rule in this state and elsewhere that where one with a
proven premeditated determination arms himself and
takes intoxicants as a part of his preparation for homi-
cide, his drunkenness is of no weight to explain away the
malice,’’ ;

A similar contention was made in the case of Marshall
v. Commonwealth, 141 Ky. 222, and the court in rejecting
that contention said: .

‘‘The defendant determined in his heart to murder
the woman. He then sent to learn if her husband was
away from home, so as to be sure the coast was clear. He
then went and got his razor, telling the purpose for which
he got it, and to nerve himself for his desperate deed,
drank the whiskey referred to, before going to the house
of the defenseless woman and cutting her throat in bed.
The man who determines to commit a crime, and then to
nerve himself fills himself with whiskey is none the less
guilty because he makes himself drunk in order to commit
the crime.’’

There are two reasons in this case why the instruction
was properly refused. The first is that while there was
some evidence defendant might have been to some extent
under the influence of intoxicants at the time of the kill-
ing, there was no evidence of such an extreme state of
intoxication as would have deprived him of the mental
power and force to have the malice which was an essen-
tial element of the crime, and particularly in the light
of the evidence that he had such preconceived malice and
determination to commit the crime some time prior there-
to. Second, because every fact and circumstance in evi-
dence showed that he had a predetermination to kill
Oelke, and calmly and deliberately went about his pre-
paration to that end.

There are various degrees of intoxication, but that de-
gree of intoxication which the law recognizes as a defense
for crime is such intoxication as deprives the party of his
mental power and reason to such extent as that he is in-
capable of having the malice which is an essential part of
the crime. The evidence in this case shows that for some
hours before the killing defendant deliberately made his
preparations to that end. He sent his son to Oelke’s

* Weick v. Commonwealth. 641.

home to ascertain whether he was there, and receiving
the information he was not he gocs there and while there.
ihreatens to kill Oelke. After leaving there he returns
to his home, puts his pistol in his pocket, takes the rifle
and puts it into the machine, goes to the store or sends his
son to purchase cartridges for the rifle, he understands
fully the route which the man will take and the hour which
he will probably come. He places himself in concealment
at a convenient spot, taking the rifle out of the machine.
He directs his son to drive the machine down the road and
report to him when he sees Oelke coming, and when that
report is made he directs his son to drive the machine a
short distance up the road and wait for him, and then
when his unsuspecting victim comes along the highway
near him he fires upon and kills him. Are not all these
things wholly and utterly inconsistent with the theory
that he was intoxicated to such an extent as to be incap-
able of entertaining malice?

Not only so, there was ample evidence showing a pre-
determination to commit this crime many hours before its
commission, and the two cases cited are very explicit in
holding that one who gets drunk voluntarily in order to
nerve himself to the commission of a crime, which he
has theretofore determined to do, may not rely upon his
drunkenness as a defense. |

In the light of the ruling of the two cases quoted from,
and in the eases of Graham v. Commonwealth, 200 Ky.
161, and Blackburn v. Commonwealth, 200 Ky. 63% we are
of the opinion the lower court properly denied any addi-
tional instructions.

In the argument of the case by the county attorney,
he used this language:

‘‘Tn this ease the finding of insanity means an acquit-
tal. <A finding of insanity does not mean that he will go

‘to Central Asylum. It means that as soon as that ver-
dict shall be read, ‘We, the jury, find the defendant not

euilty on the ground of insanity,’ he stands up and is as
free a man, so far as moral responsibility is concerned,
as any one of you men.”’

It is urged for appellant that the trial court erred in
overruling an objection to this statement, and that such
action was prejudicial error.

We are not impressed with the contention. When
analyzed the words only state an obvious fact, and that
is so far as moral responsibility goes a verdict of in-

Vol. 201—22


KENTUCKY REPORTS. [Vol. 201.
Oelke’s body into some high’ weec
3 I gh weeds nea adw
ane rejoined his son in the machine mcethy, aa er er?
place. In some way, however, he dropped his pistol and
a short time thereafter he and his son returned to the
place of the shooting, presumably for the purpose
of finding the pistol. In the meantime, however, the bod
had been discovered, and several other persons had 4
gregated at the place, and appellant did not at that time
find his pistol, but it was found a day or two afterwards
by pes persons with two chambers empty.
nere is no evidence of any difficulty or differ
any kind between appellant and Oelke previous to the Lill
ing, but. the evidence points unmistakably to a great
friendship, if not criminal intimacy, existing for some
marie iver appellant and Oelke’s wife, i
Appellant did not testify on the trial, nor di 1
ti ae any witness except upon his def teae oe ne
and to show drunkenness at the time, and his excessi re
use of intoxicants through a long period of time a

renne® hes court instructed only on murder and the de-
of insanity, but declined to give a manslaught
instruction, or any instruction defini t of ap.
sprue ron, any instruction defining the effect of ap-
pe an s oe drunkenness at the time, or the effect of
is alleged excessive use of intoxi i
i oxicant
vs ot s for a long period
a arc for reversal are relied upon:
. le refusal of th iV an
edaacies al of. the court to give a manslaughter
a era. an instruction defining the effect of de-
eed s alleged eae at the time, or as to his
alleged excessive indulgence in intoxi
g intoxicants for
period of years. one
2 Shey Tent aren aveged improper argument of the
7 Tor the Commonwealth, to whicl
1 defen
the time objected. age
3. . : . . . ;
Because it was prejudicial error for the jury dur-

ing the tri mi
io rial of the case to be permitted to go to a picture

On the first proposition it is apparent from the evi-
dence that nothing occurred at the time of the killing au
thorizing the giving of a manslaughter instruction; there
was no difficulty, there was no altercation, there was no
word pasken leading up to the shooting, which on any
theory could have justified the giving of such an instruc-
tion. On its face the killing was cither a premeditated
murder for the purpose of getting rid of the decedent

1 ER SIMO ARIE Oe

aoe

sean manana

* Weick v. Commonwealth. 137

pecause he stood between appellant and his realization of

the enjoyment of the deeedent’s wife’s affections, or it
was the act of an insane man who was incapable of dis-
tinguishing between right and wrong, and therefore such
an act as the law will not hold him responsible for.

But the argument is that as there was some evidence
defendant was at the time under the influence of intoxi-
cants, and that for a long period of years he had habitu-
ally used intoxicants excessively to such extent as that it
might have affected his state of mind, there should
have been either an snstruction upon manslaughter or an
‘nstruction defining or setting forth the nature of the con-
clusions which the jury might be authorized to reach if
they believed he was intoxicated either at the time of the
killing, or that such excessive use of intoxicants through
a long period had affected his sanity.

Manifestly there is a distinction between what may be
termed acute intoxication brought about by over-indul-
gence in intoxicants shortly before the occurrence, and
such state of mind affecting sanity as might have been
produced by over-indulgence in intoxicants through a
long period of time before the occurrence. In the one case
the effect upon the nerves and sensibilities is only tempo-
rary, and will shortly pass away, while in the other a
permanent state of insanity might be produced by such
long continued and excessive use.

There is no complaint of the form or substance of the
instructions on insanity; they correctly informed the
jury that if they believed from the evidence that at the
time defendant was of unsound mind they should acquit
him, but were told in a subsequent instruction that de-
fendant could not be excused on the ground of insanity
unless the jury believed from the evidence that he was at
the time ‘‘without sufficient reason to know what he was
doing, or had not sufficient reason to know right from
wrong, or that as the result of mental unsoundness he
had not then sufficient will-power to govern his action,
by reason of some insane impulse which he could not re-
sist or control.’’

Tt will be observed that these instructions do not re-
quire that the insanity or unsoundness of mind shall re-
sult from or come from any particular cause, but author-
ize an acquittal if the insanity or unsoundness of mind ex-

‘sted at the time of the killing without reference to what
might have caused or brought it about. In other words,

t

638 - . KENTUCKY REPORTS.

[Vol. 201.

the jury was authorized by that instruction to acquit
the defendant if they believed from the evidence he was
of unsound mind, whether that condition was brought
about by long continued excessive use of intoxicants or
any other cause whatsoever. It must be apparent, there-
fore, that the instructions were sufficiently comprehensive
to, and in fact did, authorize an acquittal of defendant if

the jury believed he was insane because of the long con-
tinued and excessive use of intoxicants.

At common law voluntary drunkenness at the time of
the commission of a crime was regarded as. an aggrava-
tion rather than extenuation; but the rigor of this com-
mon law rule has been modified, in some states by statute
and in others by judicial interpretation. The modern rule
appears to be that while voluntary drunkenness is no de-
fense to the commission of a crime, if at the time of its
commission the defendant was intoxicated to such extent
as that he was wholly deprived of his reason, and had not
because of such intoxication sufficient mental power to
entertain the malice, or have the necessary intent re-
quired to constitute that crime, he should be acquitted

ahaa that essential element of the crime was nonex-
istent. ;

| He the earlier opinions in this state there was much
contusion in dealing with this character of defense, but

m the later cases the principles we have stated have been
ully recognized and applied.

_ he case of Harris v. Commonwealth, 183 Ky. 542, is
a its essential features strikingly similar. to this. In
: a - ie va atin who was separated from his wife,
: 0 alter the separation had behaved badly toward
ae pie he had been arrested and fined, sought her

» faving first purchased cartridges for his pistol, and
having waited and watched for her near her working
place. Finally when he came up with her he deliberately
shot and killed her, without apparent cause. In that case
as in this, there was no attempt to justify or extenuate the
commission of the crime, the only defense being insanity
or both insanity and drunkenness, the only difference be-
ing there the defendant testified he had no recollection
or knowledge of having shot his wife, while in this case
the defendant did not testify. There in substance the
same ground of reversal was urged as here, that is, that
defendant was entitled to a manslaughter instruction the
argument being that his state of intoxication at the time

Teele

E00

2 A RERUN ge

eee tnt AO ALLE A

-

Weick v. Commonwealth. 639

being evidence of an absence of malice justified the man-
slaughter instruction.

The court in that case denied the contention, and in
doing so held:

(a) That testimony by a defendant that he did not
consciously kill his victim, but against whom it was
proven he entertained malice or ill-will, has probative
value only in support-of the defense of insanity to show
the absence of any motive whatever, but is of no proba-
tive value to show the absence of malice in a sane person;

(b) That evidence of drunkenness of one accused of
murder, even where malice is proven, is admissible for
consideration of the jury in determining whether the pun-
ishment should be death or only life imprisonment, but
such evidence cannot reduce murder to manslaughter
where pre-existing malice toward the deceased 1s proven;
but may have that effect only where there is no prog’, but
merely a legal presumption of malice, and

(c) That an instruction upon manslaughter is not
authorized by evidence of drunkenness at the time by the
defendant, who without justification sought out and killed
one against whom he was shown to have entertained a set-
tled ill-will or malice.

In the progress of that opinion the court said:

‘‘Reason and human experience possibly justify the
injection of drunkenness to show an absence of motive,
under certain circumstances, as where a man kills a
friend or a stranger, rationally explainable only as the
result either of a presumed malice against mankind, or
from a drunken state that suggests no motive at all, but

this certainly is the limit of its reasonable application.
Where a man though drunk hunts down and kills, not at
random, but his enemy, drunkenness explains nothing not
perfectly comprehensible under the ordinary laws of hu-
man conduct. The very fact of selection destroys utterly
any reasonable deduction of a want of motive or of any
motive but malice, and the selection is explained beyond
a reasonable doubt by the normal state of mind, not in any
sense dependent upon or affected by intoxication; there
is left no possible place for any consideration or specu-
lation as to the effect upon the mind of the intoxicant. It
did not cause or deter or alter the pre-existent motive;
its only possible effect, if any, was upon the nerve or the
prudence, and being voluntarily assumed is no excuse for
a superabundance of nerve or the lack of prudence. It

« nd *
64. KENTUCKY REPORTS. [Vol. 201.
sanity by the jury would have resulted in freeing the
defendant from this charge, but it does not mean that if
he was found to be insane it would not be the duty of the
court, or of the authorities, to have him so adjudged and
properly incarcerated ina state institution.

The final contention is that appellant should be
granted a new trial because during the progress of his
trial in the lower court, and after the Jury was sworn to
try the case, and when the jury was in the custody of the
sheriff, they were permittcd tq and did attend a moving

picture show in Louisville, and that in going to and from

the theatre the jury came in contact with thousands of
people on the streets of Louisville, and that the theatre to
which they went isa large one and crowded with people
every night, and was on the night in question. These
facts are disclosed in almost the language used above in
an affidavit by defendant’s counsel. There is no claim or
assertion of any kind or description the jury was not at
all times kept together, or that there was any communi-
cation between them and outsiders, or that any one of
them was guilty of any improper conduct, or had the op-
portunity to be. Nor is it claimed or asserted in the
affidavit that at the picture show on the occasion in
question the picture given that night had anything to do
with a murder trial, or depicted anything that could pos-
sibly have had any effect upon the minds of the jury.

In other words, ihe only contention is that the mere
fact the jury in charge of the sheriff or his deputy at-
tended a picture show is sufficient ground upon which to
grant a new trial. The precise question has been twice
passed upon by this court, and in two cases where there
was at least greater ground to sustain it than is shown
here.

Considering the importance of the ease we might ordi-
narily go into this question in detail again except for the
fact that this court has very recently conclusively passed
upon the self-same question. Mansfield v. Commonwealth,
163 Ky. 488; Stamp v. Commonwealth, 200 Ky. 189.

We perceive no lawful reason why the judgment in
question should be reversed.

Judgement affirmed. Whole court sitting.

‘Lane v. Allen. 43
Lane, et al. -v. Allen.

(Decided January 22, 1924.)
Appeal from Bath Circuit Court.

Good Will—Consideration Held to Exist for Agreement Not to
Re-engage in Business——A deed from one of two persons engaged
in produce business, executed at the same time as a written con-
tract, whereby both persons agreed not to re-enter into business,
referring in terms to the deed, should be construed along with the
contract, and the agreement not to re-engage in business by both
of such persons should be construed as supported by a sufficient
consideration. ,

Cc. W. GOODPASTER and CHAS. D. GRUBBS for appellants.

OPINION OF THE CourT BY JUDGE MocCaxpLess—Re-
versing.

In the petition as amended it is substantially alleged
that T. F. Allen and Goebel Allen had been in the produce
business in Bath county for several years prior to De-
cember 21, 1921, and were experienced men in that busi-
ness; that on that date the plaintiffs purchased their busi-
ness, including certain real estate, store house, fixtures
and various articles used therein, these being sold and
conveyed to plaintiffs by 'T. I’, Allen in consideration of
¢6,000.00 then paid him; that in consideration of said sale
and conveyance and the payment of $5,000.00 to a5
Allen, it was further agreed by both T. F. and Goebel
Allen that neither of them would within the time of two
years from that date enter into the produce business in
that county, or act as agent therein for any other person;

that in violation of such agreement both T. F. Allen and

Goebel Allen had engaged and were then carrying on a
produce business in that county and diyerting large
amounts of business from plaintiffs that they would other-
wise obtain, and were threatening to continue to do so;
that neither T. F. Allen nor Gobel Allen,was. financially
responsible or had any property that co¥ld be subjected
to a legal demand, and other facts necessary for injunc-
tive relief, the prayer being for an injunction restraining
defendants from further engaging in such business.

The deed from T. F. Allen and wife and the written
contract of T. F. Allen and Goebel Allen were filed as ex-
hibits, the latter reading as follows:

‘This contract made and entered into this the
91 day of December, 1921, between T. F. Allen, party


with her after you separated?” he was

circus with her probably murdered her.

2 eRe or re mee ny

asked. | We're not taking any chances. in a case i
Porter was thoughtful for a moment | like this. Come along.” 4
; or two. “Yes,” he said, “there was a ‘Van _Dalsen protested, threatening to ee
9° fellow, but I don’t remember his last name. | sue the officers for false arrest. tt
Pe First name was Will. Seems tome the last ' The streetcar conductor said Van Dalsen. iy
is name was Van something or other, but | looked very much like the man who had f
a I'm not sure about that. Used to go out ridden with Mrs. Porter, except that he i
“a with her before I met her. She told me | wore no mustache. “I think this man is IS THE |
na - eng hr or - page: - _ a oy yoy ea +o conductor added,
at he ha reatene mself . “and he has darker hair.” !
a unless she married him. When she mar- | The circus had left Louisville for Lex- COMBINATIO. f t
= ried me she received a box of candy from . ington, Kentucky, so it*was not possible : ‘ i
ut him and a note of congratulations. She to have the animal trainer look Van wr }
bry threw the candy away. She was afraid | Dalsen over, without taking him to Lex- A b ,
if he might have put poison in it.” ington, and this the officers hesitated to I
; “How should we go about getting a do, in view of the streetcar conductor’s i
it line on this fellow?” Sexton asked. failure to identify him. {
rs “Wouldn't some of her ‘riends know who | The woman who had witnessed the \
er he was?” incident at the circus ground was out of a
8 “Yes, I expect they would. Tell you | town and could not be reached. he
he what you do, go and see Mrs. Harry Dorr. | Taken to some of the saloons where fi
NO Her husband’s an attorney. They're both .'| Mrs. Porter had been seen in company }
as old friends of Fannie’s. They'd know, with a strange man, none of the bartenders | ee
I’m sure.” || could identify Van Dalsen. He looked H
in The officers went to see Mrs. Dorr. || like the man, they said, except that he { q
sly “yes,” the woman said, “I remember had no mustache. i
en him all right. That man was Will Van | “Well,” Sexton said, “I guess you win. ‘a
ad Dalsen. He’s a cabinet maker and works Sorry we had to bother you, but you can 4
he for D. H. Kramer over on Preston Street. understand our position.” . hod
to He was determined that Fannie should, Much to the officer’s surprise, Van Dal- M
marry him. But I haven’t seen him in| sen took it all in good humor. “Sure,” he 1
fr Oi months, not since he quit calling on her.”|| said. “That’s okay. I won't have any hard 1
1p. “When was that?” | feelings about it.” ty
on ? ‘ in After he by gone and the two hag i
“WHY _ | tives were one once more, er i
rN a , WHEN she married Frank For | nudged his partner. “He was plenty sore }
in ter. He tried to see her the day before | bout’ it hin
ad the wedding and she threatened to call the i ut b when te ee . t come
police. He had the nerve to send her a long, but now he n’t mad at us any
He box of candy later.” || more. Now what do you think of that?
ter The detectives lost no time in paying a | — did a = ing gh Mee
visit to the carpenter shop on Preston presently he said ruefully, ell, there
rs. Street, where they ‘talked with D. H.- goes le Bes i - Bs. i we might RIGHT, BUDDY!
Kramer, who revealed that Will Van Dal- as well admit we're licked. 7
ff Half way to the station Maher suddenly
ait, sen still worked for him. had id “Say.” h id, “we didn’t
id- “What’s up?” Kramer asked. “What's ad an idea. y,” he said, “we didn THE NEW 6 MN, x ye
. Will been doing now? He’s béen acting ook Bale He nea wae a mustache. ; * ag
° ’ strangely for several days.” ‘ Ci MM i
he “Did Van Dalsen work for you on They headed back for the carpenter 0. BINA 710N \" |
iad 9” shop, hurrying to get there ahead of Van is fa
fe. ay en’ didn't remember and had to Dalsen. : PROOUCES ii
too consult his day book. They met Kramer coming away from 4
“Yes,” he said, after scanning the rec- the place, on his way to the bank. He |}
rid “ cs looked at the detectives in a strange sort ,
ords, “but only for a half-day. He got , i
ron off in the afternoon to go to the circus.” of way when they inquired if Van Dalsen if
aat Van Dalsen was called in. He was about had ever worn a mustache. i
= five feet, eleven inches sol ee dark
ou eyes and jet-black hair. But he wore no @ “SURE HE did,” Kramer said presently. ; |
be mustache. “It’s a funny thing, I never thought ‘ DOUBLE EDGE hd
ive The officers began by asking some rou- much about it when he came to work with- Pore nena mne ty Cre | q
tine questions, which the man answered out one the other day. But I can’t under- BLA fa) Jf | 4
readily enough. But suddenly he flared stand why that would interest you fellows.” ES U}
us- up. “Say, what's this all about anyway? Saying nothing, the detectives started \
iid, Why am I being grilled like a common back for Van Dalsen, who already had i j
ive criminal? I haven't done anything.” returned to work, but they thought bet- il | ie
“Did you go to the circus on September ter of it and retraced their steps, It y 1}
uts 19th?” ° wouldn’t do any good to arrest Van Dalsen i
of “TJ went to the circus, but I don’t remem- until he ‘had been identified, and without *
rry ber what day it was. It was one day the . his mustache no one could identify him. i
one latter part of the week.” The officers couldn’t force him to grow a t
ght “Did you attend the circus with Mrs. mustache. Me
ing Porter?” . : “Guess he’s got us up a stump,” Sexton we
“Tt went alone.” said. “We've got to get at him in some yes
the “But you knew Mrs. Porter, didn’t you?” other way. That conductor ruined every- i.
ery “yes, I used to go we ce a she __ thing.” “ ; sei
“I was married to Porter. But aven’t seen They went back to Police Headquar- ‘we
he her in months.” ters and talked matters over with Chief INTROD ucT ORY OFFE R! a
een “Would you be willing to let some of Detectives William Sullivan, who : 1 TEST BLADE FREE
in people take a look at you to see if you agreed that for the moment their hands
ow are the man who was seen with her?” were tied. Assistant Commonwealth TOTAL 5 FOR 10¢
ht, “And get myself mixed up in something Attorney Norton: L. Goldsmith was called 515g
r- that I know nothing about? No, thank in and the matter was explained to him. Money back if free test bladedoesn’t give you
ee you. I’ve heard about the wrong person He, too, saw no way in which the officers | the best shaves you've ever had in your life!
a being accused, simply because he hap- could force the issue. They would need ci
of pened to look like someone else. Why an absolute identification to clinch the : ’
he should I take a chance? I haven’t done case, and even then it wouldn’t be a cinch. INCLUDES 3 TEST BLADES FREE
anything.” They would have to offer more than a mere Star Division, American Safety Razor Corp.,
ig- “Then I’m afraid we'll have to take you identification. Even if Van Dalsen had Brooklyn, N. Y
he along anyway,” Sexton said, “whether you taken Mrs. Porter to the circus, there was ‘ tell
like it or not. You’ve been identified as absolutely nothing to prove that he had Perit ¢
ur the man who’ took Mrs. Porter to the killed her. ‘
yut circus, and the man who went to the More determined than ever now to get to
JuLy, 1942 71


Sa es ig ae Me pet gs

the bottom of the case, Sexton and Maher
worked on through the evening, and at
seven o'clock the next morning they were
at it again.

It was easier now to find out things, since
they knew where to look. They began
questioning acquaintances of Van Dalsen.

They were sent to a woman who knew
both Van Dalsen and Mrs. Porter. She
was reluctant to talk at first, but after
the detectives had laid their cards on
the table, revealing what they knew, she
became more friendly.

“I can tell you a lot about Fannie and
Will,” she said. “He was determined to get
her, and when she left her husband and
took to drink, he took advantage of her.
One night he found her at one of the
saloons drinking. Fannie was never one
to do a wrong thing when she was sober,
but with a few drinks she could be per-
suaded to do ’most anything. He finally
coaxed her to go to a hotel with him and
after that he threatened to write to her
husband and tell him what kind of a
woman she was unless she came to live
with him, or married him. Fannie didn’t
want Frank to hear what she had done
and kept trying to keep Will satisfied
with promises. She’d tell him she was still
thinking it over arid make him believe
she was about to come and live with him,
but of course she had no such ideas. She
was actually afraid of him. Poor Fannie!
She was between the devil and the deep
sea. She was afraid to move for fear Will
‘would follow her.”

@ THE WOMAN declared she had not
seen Mrs. Porter for four days prior to

the crime, so she could give no further in-

formation that would be helpful.

Sexton and Maher went back to the
carpenter shop only to earn that Van
Dalsen had not come to work that day.
He had sent word that he wasn’t feeling
good.

Going to the rooming house where he
lived, the officers were told that he had
gone to visit his uncle, W. S. Van Dalsen,
who lived on a farm near New Albany.

Hurrying to New Albany, Maher and
Sexton conferred with Chief of Police
Shutt and Sheriff Morris, who accom-

panied them to the Van Dalsen farm. ~

They found Will Van Dalsen sprawling
in a hammock, taking it easy.

When he saw the officers coming into
the yard he got to his feet, greeting them
with, “Well, what’s this all about?”

“You’re wanted for murder,” Sexton
informed him.

“For whose murder, may I ask?”

“For the murder of Mrs. Porter,” Sex-
ton said, producing a pair of handcuffs,
A few minutes later the party was on its
‘way to town.

But Van Dalsen was defiant. “T haven’t
killed anybody,” he said, “and you can’t
prove I did.” He refused to make a state-
ment, other than to say that he was being
railroaded for something he knew nothing
about.

The suspect was lodged in jail in Louis-
ville while the detectives made a further
investigation. They learned almost im-
mediately that he was a deserter from the
Navy. :

‘ As. soon as it was noised around that

Will Van Dalsen was in jail, Mrs. Belle
Cherry came to the police. “I wouldn’t
have told you this as long as Will was
free,” she said, “but now that he’s in jail
I feel more like talking.”

She revealed that Mrs. Porter had told
her, about three weeks before, that Van
Dalsen had once murdered a man. “She
told me that Will had committed a ter-
rible murder not so far from. here, and
that she was afraid he would kill her some
day because she knew about it.”

. The only murder in Louisville at that

72

time which had not been solved had been
the slaying of James Clark, known also
as Robert Blaire, a saloon keeper, who had
been found lying in a vacant lot on Fulton
Street. He had lived for two days with
two bullets in him, but had refused to
name the man who had shot him. Even
as he was dying, and officers pressed him
for information, he had said, “I will never
tell who did it because it might mean
trouble for someone else.”

This crime had occurred four years
previously and there never had been a
suspect.

From Mrs. Cherry, the police also’

learned how Mrs, Porter, then Mrs. Dalton,
had met Van Dalsen. It was after her
first husband’s death. There had been a
meat cutters’ strike at the plant of the
Louisville Packing Company. Mrs. Dalton
had been living with a family on Brady
Street, near the plant. Arthur McMahan,
a boarder at the house, had been acciden-
tally shot by one of the strikers. His wound
was not serious and he was taken to his

TO ALL STATE POLICE OFFICIALS

The Line-Up Department (pages
68-69) is for your use. We want to
help you catch your Public Enemies.
Send in photos and descriptions of

badly wanted criminals. When we -

publish a picture in TRUE DETEC.
TIVE, 2,000,000 readers immedi-
ately become your aides, So far one
out of every five fugitives published
in the Line-Up has been captured—
more than 300 captured to datd by
TRUE DETECTIVE and its associate
magazine, MASTER DETECTIVE!

room after a doctor had attended him.
But Mrs. Dalton had been so upset by
the affair that she was near collapse. She
wanted someone to keep her company
during the night. Van Dalsen, also a
boarder at the place, had volunteered to
sit up with her. |

That, Mrs. Cherry said, had been the
beginning. From then on Van Dalsen had
pressed his case, even after she had told
him that she didn’t care to see him again.

It also was learned by the police that

‘Van Dalsen had spent the greater part of

his ‘youth in reform schools,

“But we still haven’t a case,” Assistant
Commonwealth Attorney Goldsmith told
the detectives. “There are circumstances
that tend to involve Van Dalsen, but we
haven’t positively established a thing. He
can still say he didn’t kill Mrs. Porter
and we can’t prove he did.”

The detectives looked glum.

Suddenly Sexton had an idea. “Say,”
he said, “how about taking him over to
Lexington and having that animal trainer
look at him. He might identify him,”

The Prosecutor thought it would be a
800d idea, so they loaded the prisoner
onto a train and rushed him to Lexington,
where the circus was still playing.

Bligh, the animal trainer, looked the
suspect over. “Except that this fellow has
no mustache, .I’d say he was the man, But
it’s hard to be sure one way or the other.”

The detectives looked discouraged.. This
was the last straw.

“Say,” Bligh said suddenly, “how about
having Susie take a look at him? She'd
know whether he’s the man or not that
gave her the cud of tobacco.”

Sexton looked at his partner, then at
Van Dalsen. “You chew?” he asked,

“Sure,” Van Dalsen said. “Who doesn’t?
That don’t mean a thing.”

“We’ll see about that,” Bligh said. “Come
this way.”

Susie was dozing, dreaming perhaps oi
the days when she had been snatched from
the jungle.

“What's all this about?” Van Dalsen
asked suspiciously. ‘What's the gag about
the elephant?”

Just then Susie, aroused from her mid-
afternoon siesta, opened a sleepy orb.
Then she opened both eyes. She shifted
her weight from one foot to the other
Her ears suddenly stood erect.

With an infuriated squeal she lunged
suddenly at Van Dalsen, striking out with
her trunk. Only the nubbed chain with
which she was securely tethered saved
him from a mauling, *

Van Dalsen, handcuffed to Sexton, just
managed to leap back in time as Susie’s
trunk went by.

“He’s the man!” Bligh shouted gleefully
“He’s the fellow who fed her the chew of
tobacco all right. Susie never forgets a
low-down trick like that.”

Frightened by the encounter, Van Dal-
sen’s face had paled. His fingers were
trembling.

Even as the prisoner was being led away,
Susie was threshing her chains and blow-
ing blasts from her trumpet that had
jungle hate in them.

On the way back to Louisville, Sexton
said, “Well, Van, it’s all over now. We’ve
known all along that you killed Mrs. Por-
ter, but it took that elephant to put the
finishing touches on it, You took her to
the circus that day and then you had her

get a room herself so you wouldn’t be .

suspected. Later you went to the room
and killed her. Why?” :

“She told me she was going away. }
loved her and didn’t want to lose her.”

“Was it because you were afraid she
would eventually implicate you in the
killing of that fellow four years ago?”

“TI didn’t kill anybody four years ago.
Where’d you get that idea?”

“She told a friend of hers that you were
involved in that murder,”

“If she did, she lied. I never killed
anybody.”

“You killed Mrs. Porter.”

“Yes, but I didn’t kill anyone else.”

@ TAKEN TO Louisville, Van Dalsen con-

fessed in the presence of Harry Brenner,
chairman of the Board of Public Safety:
Assistant Commonwealth Attorney Nor.
ton Goldsmith; Chief of Detectives Sulli-
van and Detectives Moran, Sexton, Ahearn
and Maher. ‘

On September 20th, 1904, William Van
Dalsen. was convicted in the Circuit Court
in Louisville and sentenced to be hanged.

‘ After several legal moves which delayed

the execution of the sentenge, he was fi-
nally hanged: in the county jailyard on
January 19th, 1906,

After the hanging, another prisoner who
had known Van Dalsen in jail, said that
Mrs. Porter's slayer told him, while await-
ing execution, that he had shot Clark be-
cause he had threatened to turn him in
as a Navy deserter, and that he had killed
Mrs. Porter because he was afraid she
would tell the police he had murdered
Clark.

All persons who had been Suspected,
with the exception of the actual slayer, of
course, were completely exonerated.

Nore—The name Tom McCann is fictitious
to protect an innocent. person who was in
no way criminally involved in the case.

TRUE DETECTIVE


* 254

was continued for some time, it was ad-
journed over, and the accused remanded
to jail. The case was called up for further
examination from time to time, and con-
tinued; sometimes the continuance ing
had at the instance of the commo Ith,
and sometimes at that of the deféndants.
By this means the women werg detained
in jail some 24 days, during<Which time
Sallie Holmes made a confession that the
child did not shoot herseff;” but that she
(Sallie Holmes), while sifting in the room
carelessly handling a./pistol, exploded it,
accidentally inflictings the wound. Upon
final examination,: Sallie Holmes was held
over to answer; and appellant recognized
as a witness fot.the commonwealth. Where-
upon Rache}’. Stinson instituted this action,
as befo id, to recover damages for
false a sfand imprisonment, alleging that
it w ngfully and unlawfully done
wit probable cause. The defendants
ple probable cause, and substantially
setgbfit the facts as above detailed. A trial
reguited in a judgment for all of the de-
fendants, who are the appellees here.
Section 26 of the Criminal Code of Practice
provides that “a peace officer may make an
arrest without a warrant * * ® when
he has reasonable grounds for believing that
the person arrested has committed a felony.”
So much of section 46 as is pertinent to this
case is as follows: “If an arrest be made
without a warrant, whether by a peace
officer or private person, the defendant shall
be forthwith carried before the most con-
venient magistrate of the county in which
the arrest is made, and the grounds on
which the arrest was made shall be aa

to the magistrate. * * °°” Section $
“If the arrest be made in the “
which the offense is charged to,$@v
committed, the magistrate befgy

1 county in which a
fbeen committed is au-
fe the charge, and commit
oMF to ball the person charged
with its cogffhission, except as provided in

“A magistrate of
public offense hg

of charge, and Inquire of the defendant
whether he desires the ald of counsel, and
shall allow a reasonable opportunity for pro-
curing it. He shall also, if the offense
charged be a felony, give to the county at-
torney, if not present, reasonable notice in
writing, of not more than one day, to at-
tend and prosecute such charge.” Section
54: “For the purpose of procuring the at-
.tendance of witnesses, or for other suffi-
cient reasons, the magistrate may adjourn
the examination from time to time, not,

88 SOUTHWESTERN RHPORTHR.

(Ky.

however, exceeding two days at a time."
Section 64 provides that the substance of
the testimony shall be taken down in writ-
ing, and section 65 that “when the examina-
tion Is closed, if the magistrate be of opiniow4
that there is not sufficient cause for.-Dbe-
Heving that the defendant has comimitted
a public offense, he shall disctiarge the
defendant from custody, and meke an entry
thereof, on the minutes.” S¢ction 66: “If,

however, the magistrate fot opinion, from

the examination, that re are reasonable
grounds to believe he defendant guilty of
the offense charged, he shall be held for
trial, and committed to jail, or discharged
on bail, if the*offense be bailable. * * *”
Section 67,4 “If the defendant be committed
to jall, the magistrate shall make out a
writtgnorder of commitment, signed by
hi ich shall be delivered to the jailer
by the peace officer who executed the order
of commitment. * * *”’ By section 3147
of the Kentucky Statutes (charter of cities
of the second class) all power given by the
general law to examining courts is con-
ferred upon the police court of cities of the
second class.

We think the undisputed facts in this
record show that the chief of police had
probable cause to arrest the appellant on the
charge of murder. She and her companion,
Sallie Holmes, who knew the real circum-
stances of the tragedy, deliberately promul-
gated a falsehood as to the manner ofthe
killing. They stated that the little girl,
while scratching the back of ber head with
the muzzle of a pistol, accideritally dis-
charged it, inflicting upon herself a mortal
wound. This false story was doubtless in-
spired by fear; but, whethér it was or not,
it placed them in a falsé position with ref-
erence to the accident; and they have them-
selves to blame for all'the ill consequences flow-
ing therefrom. When the police authorities
ascertained, froth the evidence of a rep-
utable man whé witnessed the shooting, that
the child did“not shoot herself, but received
the wound from a shot fired from within the
house, which was occupied at the time only
by the,two women, they had a right to be-
lieve that these parties had promulgated this
delifefate falsehood from a sinister motive,
ari it was their duty under the c
stances to arrest them. Who would
that a mother would deliberate]

m-
believe
make a

had a sinister motive?
police ascertained that#
@Oncerning the shooting
f-a right to believe of her

oa: It is true,
was killed by an accident, but not
own hand. After being in jail some

wédy was the result of her carelessness ip

Ts.

ee

ware

ee eS Bone

nth

Ky.)

handling the pistol. The simple truth at the
time the investigation was begun would have
exculpated the parties. By their own false-
hood they cast suspicion upon themselves, 4
and furnished reasonable cause for their
arrest and incarceration, when otherwise it
would not have appeared. It is not unfre-
quently the case that persons charged with
crime convict themselves by making false
statements when the truth would have di-
cated them.

The evidence shows that the pojite officers
substantially performed their dufy under the
law by at once taking their,prisoners before
the judge of the police colirt, who had full
jurisdiction as an examining court. All that
thereafter happened’was done by his order.
The county attorhey was present and con-
ination, which was adjourn-
to time (presumably as by law
; the parties in the meantime being
ithout bail. There appears to have
mn no mittimus delivered to the jailer;
the order of confinement simply being entered
upon the docket of the judge. This was,
perhaps, irregular, and a practice not at all
to be commended; but we are not willing
to say, in the absence of statutory enactment,
the jailer was not warranted in holding the
prisoner under these circumstances. The
examining trial, it must be conceded, was lax
and irregular in the manner in which it
was conducted; but no substantial right of
the prisoners was sacrificed. They wer
represented by eminent counsel, who appetr
to have been satisfied with the manpér in
which the trial was held. They expressly
waived the issuance of a warrant against ap-
pellant. a”

At the conclusion of all tife evidence the
court instructed the jury_#8 follows:

“No. 1. If you shall Believe from the evi-
dence in this case t at the time complain-
ed of by plaintiff the defendants James Col-
lins, Henry Sirfgery, and Tom Evitts, or
either of theth, unlawfully, wrongfully, or
without ing any reasonable grounds to
believe aintiff had committed a felony,
plaintiff and placed her in the jail
of the city of Paducah, and deprived
er of her liberty for any time, then the law
is for the plaintiff, and you will find for her
such sum as damages as you may believe from
the evidence will fairly compensate her for
being deprived of her liberty, or for any im-
pairment of her health, or for any physical
and mental suffering, or for all of them,
which you may believe from the evidence
was the direct or proximate It of said
imprisonment, but not exceedipg the amount
Claimed in the petition, to” wit, $5,000.00.
But, unless you shall so befieve from the evi-
dence, you will find for’the defendants.

1 believe from the evi-
is to said arrest plaintiff’s
shot, or killed, and that de-
es Collins, as chief of police of

ehild had
fendant

VAN DALSEN v. COMMONWEALTH.
af

earer

formation as would induce a person of ordi-
nary prudence and discretion to believe that
F emnapiog: had committed a felony by shoot-

ing, or aiding or abetting in the shooting, of
said child, and that said Collins, relying on
said information, had reasonable grounds to
believe, and did believe, that a felony badd
been committed by plaintiff in the shoot of
said child, and, acting upon said information
and upon reasonable grounds he ordered de-
fendant Singery to arrest plaintiff, although

fact no public offense had beet committed by
the plaintiff, and that said defendants Col-
lins and Singery, or either of them, carried
plaintiff, after she was arrested, before D.
L. Sanders, judge,of the Paducah police
court, for an eximination of said charge,
and that said’’Sanders, after evidence was
heard on be charge, ordered plaintiff into
the custody of defendant Evitts, and plain-
tiff wg# then and thereafter confined in said
jail pase said order from said judge, then
the law is for each of defendants, and you
will so find.

“No. 8. Although you may believe from the
evidence in this case that the plaintiff was
arrested by defendants Collins and Singery
unlawfully and wrongfully, or without hav-
ing any reasonable grounds for believing that
plaintiff had committed a felony before she
was arrested, yet if you shall further believe
from the evidence that the plaintiff was

f ordered into defendant Evitt’s custody, and

to be confined in the jail of the city of
Paducah, and that defendant Evitts received
and confined the plaintiff in jail under

the law is for the defendant Evi
will so find.”

These, we think, prope
forth the law of the c
as favorable to ap

and fully set
, and were certainly
nt as she was entitled

VES

VAN DALSEN vy. COMMONWEALTH.
(Court of Appeals of Kentucky. Oct. 13, 1905.)

+ Sena Law—TriaL — SEPARATION OF
URY.

On a trial for homicide, the separation of
one juror from the others for not more than a
minute, in sight of many rsons and under
such circumstances as to indicate that the juror
did not talk to any one in regard to the case,
was not prejudicial to defendant.

[Ed. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 2039-2047; vol.
15, Criminal Law, § 3174.]

2. Same—ApPEAL— Matrers REVIEWABLE—
MorION FoR NEw TRIAL.

Under Cr. Code Prac. § 281, providing
that decisions of the court upon motions for a
new trial shall not be subject to exception, the
Supreme Court cannot review the action of the
trial court in passing upon newly discovered
evidence and the separation of a juror from his

the city’”of Paducah, had received such in-

fellows, when first assigned as grounds for a
new trial,

you may believe from the evidénce that in

ed. Death

t

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4


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Lad GUY

8. PRostITUTION—WHO ARE PROSTITUTES.
Evidence that a woman was living with a
man without being married to him did not show
that the woman'was a prostitute as commonly
understood.
[Ed. Note——For cases in point, see vol. 40,
Cent. Dig. Prostitution, § 1.]

4. HomicipE—EvIDENCE—HomIicipaLn MANIA
or DECEASED.
In a prosecution for killing an alleged pros-
titute, expert testimony as to a tendency among
rostitutes to commit homicide and suicide is
nadmissible to show such a tendency on the
part.of deceased, or an attempt on her part to
take defendant's life.
5. CrimInaL Law—CONFESSIONS.
In homicide, a voluntary confession made
~~ defendant is admissible in evidence against
im,

Appeal from Circuit Court, Jefferson Coun-
ty, Criminal Branch.

Wm, A. Perry and Edward Bloomfield, for
appellant. N. B. Hays and ©. H. Morris, for
the Commonwealth.

PAYNTER, J. The appellant, William

Van Dalsen, was indicted_and convicted for
the murder of Fannie(Porter) The offense
was committed in Louisville by the appellant

almost severing her head from her body with
Sutazor, A new trial Is sought upon the

following grounds: (1) Separation of the
jury; (2) discovery of important evidence;
(3) rejection of evidence; (4) error in instruc-
tions.

It appears that one juror was separated
from the others for not more than
but in sight of many persons. The circum-
stances indicate that the juror did not talk
to any one in regard to the case under trial,
and the defendant could not be prejudiced by
the separation. :

Aside from the above observations, the first
and second grounds for a new trial may be
considered together. By section 281, Cr. Code
Prac., rulings of the court upon motions for
a new trial are not subject to exception. The
first time the question was called to the at-
tention of the court that a juror had been
separated from his associates and that there
was newly discovered evidence was on the
motion for a new trial. Therefore this court
is not authorized to review the action of the
court in passing upon the grounds for a new
trial. In numerous cases the court has so
decided. It bas been so often decided by this
court that it is hardly necessary to cite the
enses. In Wilkerson v. Commonwealth, 88
Ky. 30, 9 S. W. 837, the court passed upon
substantially the same question as here In-
volved, and said: “No objection was made
or exception taken to the action of the court
as to the four jurymen. The question was
first presented on a motion for a new trial.
We cannot, therefore, consider it.” The con-
¢lusion we have reached is supported by Mer-
eitt v. Commonwealth, 11 Ky. Law Rep. 17,

89 SOUTHWESTERN REPORTER. Gy.

11 8. W. 471; Brown v. Commonwealth, 14
Bush, 898.

On the trial of the case the defendant In-
troduced Dr. Bizot as an expert to prore that

Prostitutes have-atendency to_commit-hayn!-
elde and suicide. In the first place, there

as no evidence that Fannie Porter was a
prostitute as commonly understood, although

there was evidence that she was living with
the appellant without being marr to bim.
ere may be a tendency,

among some prostitutes to commit homicide
and suicide does not prove that Fannie Porter
had such a mania, or that she attempted to
take the life of the appellant at the time he
killed her. In view of the evidence of the
case, if the testimony offered had been com-
petent, the rejection of it was not prejudi-
cial to the accused.

The evidence shows that the confession
made by the appellant was voluntary, and
therefore admissible as evidence against him.

We have been unable to find any error in
the instructions which the court gave the
jury.

We have not detailed the facts of the
homicide, because of their harrowing _¢har-

r; and it is not necessiry to do so in
order to pass on the questions arising for our
consideration.

The judgment is affirmed.

HOWARD vy. COMMONWEALTH.
(Court of Appeals of Kentucky. Oct. 17, 190

INtToxicaTIne Liquors—LocaL OpTion-+Ex-
TENT—SALE BY DISTILLER,
Ky. St. 1903, § 2558, in rela to local

option, enacts that the statute. not apply
to any manufacturer or wholesifer, who in good
faith and in the usual cow of trade sells by
wholesale in quantitied= of not less than five
gallons, delivered. it’one time and not to be
drunk on the.-premiises. Held, that a distiller,
who sold _five-gallons of whisky in the usual

(Ed. Note.—For cases in point, see vol. 29,

Cent. Dig. Intoxicating Liquors, § 180.]

Appeal from Circuit Oourt, Harlan County.
“Not to be officially reported.”
J. E. Howard was convicted of vigja
the local option law, and he appealg
versed.

H. C. Clay, for appellant.
©. H. Morris, for the Comm@p>W

sit

fMidictment charged
that the defendant.sfoelated the local option
law of Harlan _egfiz ry by selling whisky to
George Heltomgittd John Middleton in a less
Piive gallons. The evidence con-

4 w that the appellant is a dis-
“he Bold George Helton five gallons

PAYNTER, J. Thg

bod

Ky.) MALLON v. BUSTER & ALLIN,

Part of section 2558, Ky. St. 1903, reads as
follows: “The provisions of this act shall
not apply to any manufactyprer or wholesale
dealer, who, in good faith and in the usual
course of trade, sells/by the wholesale, in
quantities of not lpss than five gallons, de-
livered at one tinfe, and not to be drunk on
the premises.” By virtue of this provision of
e local option law did not apply
pellant in this transaction. The

Hetfon part of the money to pay for the whis-
y, and that he received part of it from Hel-
ton away from the premises of appellant, did
not constitute a sale of the whisky to Middle-
ton by appellant. There was no evidence
tending to show that the sale to Helton w,
not in good faith. Having reached this ¢on-
clusion, we do not deem it necessary’ to dis-
cuss the other questions raised by counsel
for appellant. <

The judgment ts vevediial ter proceedings

eonsistent with this nion,
—— So

(121 Ky. 879) ~~
LON v. BUSTER & ALLIN.
( t of Appeals of Kentucky. Nov. 2, 1905.)

~ Fraups, STATUTE OF — AGREEMENTS CON-
CERNING LAND—PARTNERSHIP PURCHASES.

A verbal agreement between bidders at a
judicial sale of land to buy the land in partner-
ship and divide the same is not within the stat-

ute of frauds.
[Ed. Note.—For cases in point, see vol. 23,

Cent. Dig. Frauds, Statute of, § 84.]

2. Contracts — LEGALITY — PREVENTION OF
COMPETITION AT JUDICIAL SALE.
An agreement between bidders at a

against each other to a price gb
value of the property, to stop-Competing and to
buy the land together, eget taking the part of
it that he desired, was 26t against public policy.

om Circuit Court, Mercer County.
officially reported.”
kétion by Buster & Allin against J. G.
Mallon. From a judgment for plaintiffs, de-
fendant appeals. Affirmed.

E. H. Gaither, for appellant. J. T. Wil-
son, for appellee.

BARKER, J. The facts out of which
grew this litigation are, briefly, as follows:
At a judicial sale had in the case of Mari-
mon v. Marimon, pending in the Mer

really consisted of two
separately, and then

Ss,
a whole; the bid
oney to be accepted.

When offered sepa-

a.

lot adjoining their own property; one lot
bringing $200, and the other $240. When
the property was offered as a whole, the
parties litigant here became bidders, and be-
tween them raised the price to $516. Some
little time before this bid was reached the
opposing bids had been gol up about a
dollar at a time. At this _p€riod in the sale
Mr. Allin, who had doing the bidding
for Buster & Alli id to Mallon, substan-
tially: “You watt only one of these lots, and
we want on Why not quit bidding against
each other and buy them together, paying
for th equally and sharing them equally?
You take the one next to you, and we the one

\Miext our mill property.” To which Mal-

lon responded: “All right; why did you not
say so sooner?’ Mallon does not admit this
conversation precisely as detailed here; but
what he does admit is substantially that.
The lot was knocked down to Mallon, who
afterwards procured the sale to him to be
confirmed by the court and executed bond
for the purchase money, but refused to di-
vide with the appellees, except upon a price
in excess of that which he had paid at the
judicial sale. Whereupon Buster & Allin in-
stituted this action for a specific perform-
ance of the contract. Upop-final hearing the
court adjudged that t erbal contract with
reference to the lot“was made substantially
as alleged by ster & Allin, and that they
were enti to the half lying next to their
property. From this judgment Mallon has
peated
Without stating the facts with any circum-
stantiality, we think the chancellor correctly
ascertained that the contract as detailed here
was made. Assuming this to be true, appel-
lant presents two legal defenses: First,
that the contract was verbal, and therefore
within the statute of frauds. This conten-
tion is disposed of by the opinion in the case
of Garth v. Davis & Johnson, 27 Ky. Law
Rep. 505, 85 S. W. 692, where it was held, af-
ter a review of a great many authorities, that
a partnership for the purchase of real estate
at an auction may be made by parol, and is

ntrary to public policy, as preventing free
and untrammeled competition at judicial sale
and therefore, although made, the parties
being in pari delicto, equity will leave them

the two. It may be conceded
proposition, that contract

tendency to destroy fr
bidding at judicial 8 are contrary to public
policy where are made for that pur-
pose; but general principle is limited

; each of these parties purchased the
89 8.W.—17 ;

and con

- sag 8 a aa pepe

a eon

mint is aR

are


1ey found
e detail to

deputies.
‘hose men
Let’s get
ight we’ll

the three
‘he crowd
o through
ise in a

an a half
letely cut
2es. And
1. murder

ouse, the
feet long
the club
ined and

peeling

ere’s the
1g to his

not ten
It’s got

3; hands
han one
“maybe
Let’s go

e house
‘s. They
rch had
rner of
ich had

q * one Wk
obviously been used in the murders, for it was covere
with blood and hairs. We EAC
Did the thre in S
murderers?

saw.
ing room-be
he floors.

tle before drawing their last breaths

ut what was the motive behind all this. terrible
carnage? Saat 8
How could such harmless old men have brought such:

a horrible doom upon themselves? ANSE :
While the deputies gingerly picked their way through
the debris, Sheriff Grubbs noticed an ar

y, Gr

clothing, sorte

Papers. Among the
Clay White.

Grubbs read through the letters hurriedly but found

nothing which threw any light on the deepening mys-
tery of the two murders,

“Ought to be a car.around here somewhere,” he told

3, deputie:
in “

“That g
the pa

garage thoroughly, but
as a man’s battered hat. The initials
were “C.W.” This meant that the hat
y White and was of no value to the

nvestigation.

_ One of the deputies sighed as the trio walked back to
the house of death. “« e haven’t a thing to go on,
so far,” he grumbled.
. . Grubbs-

«

Say that,”

y trunk in —

(he: Nceneal wumnes
title I found in the trunk.
out through the Kentucky state

|. “But we can’t sit around
ie 4 found,” the deputy growled.

€ gonna do,
besides trying. to’ trace the hammer and the iron
Weight? elo ews ee,

<p

om

ls

by

me
SSS ee
a
es
ne ene tere
een eee
—————
pecan
ns
cm

|

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Furthermore, Jeffries had spent al-
most the entire day before the mur-
der at Mrs. Carson’s house. _

Grubbs sat in his car while he puz-
zled over these facts and tried to fit
them into the crazy pattern of mur-
der. If Blanche Carson had loved Clay
White as much as she pretended; why
had she gone ‘out with Huston
Jeffries?

Suddenly, another thought flashed
through the sheriff's mind. Could the
attractive divorcée have had her mind
on the treasure reputed to have been
hidden on the White premises rather
than on Clay White himself?

The sheriff tried to get more on that
angle, but he failed. Then he went
looking for Huston Jeffries, but that
personable young man was not at
home. He went back to his office and
assigned one of his deputies to the
task of searching for Jeffries.

ppaen he began trying to trace the

hammer and the iron weight. He
went to every garage and blacksmith
shop in Casey County and asked
dozens of persons to attempt to iden-
tify the implements, But as the hours
passed he realized that he wasn’t get-
ting any place that way. —
He placed the weapons on display
in the lobby of the courthouse, then
went back out to the vicinity of the

| murder scene and:started canvassing
the residents again, He was. hoping’

to find someone’ who had. seen the

killer- or killers- arrive at- the-White-—~_

home on the night of the: murder.

‘He presently found two frightened .

youngsters who said they had seen

‘two men drive up to the White place

on the night of December 3rd.

“Who were these men? And what ’
kind of a ‘car were they driving?”

Grubbs asked excitedly. ~

‘The youngsters shook their heads.

vaguely. “We never saw those men
before,” one of them declared.

was.’
“What were you doing around the

White place at that time of night?”

Grubbs demanded. -
“Chasing rabbits,’ o ‘the boy ‘replied

-| promptly. '

“Did 7o8 see. these hen when they
left?” .the sheriff asked them. .

The boys shook their heads in the
negative. Grubbs questioned them at
length but soon decided they. had
told all they knew. |

-Grubbs’ mind went back to Blanche
Carson, Since he could unearth noth-
ing new on her dates with Huston
Jeffries, he decided to ‘question the
woman again. - ‘When she -was. once
more seated in- her living room’ he
asked her about going | out with young
Jeffries. -

' The woman ‘ooked | “surprised, then
bit down on her lips in. obvious em-
barrassment,

“Well?” Grubbs said finally.
did go out with him then during the
time you expected to marry Clay
White?” —

The woman Mhegitated=
then nodded.
him,” she pdt
“But I did it: t
I 1 atraneed it’ tha

a moment,

’a low voice.

ay with Huston.”

Bubb s persisted.

“And ;
we don’t know, what kind of acar it’

don’t think so.

“You

ees I. went out. with
a Clay jealous..

Grubbs looked at the woman sharp-
ly. “Odd that old John “didn’t live
long after that,” he said quietly. Then
he changed the subject. “What were
you and Jeffries talking about so long

on the day Clay and his Pa were

killed?”

As the woman hesitated, ‘the sheriff
reminded her that he had heard Jef-
fries had spent the day of December
3 in her home.

Finally, Mrs. Carson nodded.
“You're right, Sheriff. He was here.
I was trying to get him to go out and
talk to Clay. I wanted Clay back and
I thought if Huston told him the
truth about why I’d been going out
with him, he’d change his mind.” +

“And' did Huston go see Clay
White?”

“I don’t think so, because I saw
Clay pass the house early that night
with another man.”

“Who was this other man?”

“I don’t know his name, if that .is
what you mean,” she replied. “But
he looked like a-peddler who'd been
making the rounds that day.”

“Can you give me the peddler’s

‘description?” the sheriff asked.

Mrs. Carson gave this some thought.
“He was about forty,” she finally re-
plied. “He was dark and Hibep shoul-
dered, had a beak of a nose. I'd know

‘him if I saw him again.”

“But what would Clay White be
doing with’ a peddler in his car?”
Grubbs countered.

The’ woman shrugged. her. shapely
shoulders. ~“I wouldn’t ‘know that.
‘Maybe’ he and Clay were going to

town to get something to drink, Clay

struck up friendships quickly.”

The sheriff immediately circulated
the description Mrs. Carson had given
with orders that the peddler be
picked up and. held for questioning.
Then he again went to Huston Jef-
fries’ home and found that the young
man had not returned.

“Where ‘has Huston gone?” the
sheriff asked the young man’s moth-
er. “And! when will he.be back?”.

“T don’t think he’ll be back very

soon,” the woman replied. “He talked ~

of going to St. Louis to look for work.
He mentioned that - Carl Hardin. was
going with him.”
“Did. your son leave in a car?”
Grubbs asked, .

The woman shook her head. “I
At least, Huston
doesn’t. own a car. I don’t know
whether Carl Hardin has one or not.”

“J don’t suppose you’ve heard from
your son?”

“No. He never was much of'a hand

for writing letters.”

Grubbs © checked next at | Carl

-Hardin’s’ home where Mrs. Jeffries’

statement was corroborated by Carl

-Hardin’s mother. Mrs. Hardin stated

that her son had left with Huston

Jeffries and that she, too, thought they.

were going to St. Louis to find a job.
“Did they leave in a car?” the sher-

iff asked the woman.

| She shook her head. “I think they

were planning on hitch hiking,” she

said.

Grubbs contacted other: residents
of the Barger’s Ferry community.

‘Several friends of the two young men

jealous an ait stated that the pair had left for St.
ealo quit.

Louis on the day of December »3rd.

_ Furthermore, he found several wit-

-had actually seen them
ides out of town Jat that

habits of the two young Kentuckians.

Piiesticnataboutt the private lives and

And he }
of the pal
hard work:
sober, mc
clared. Th
kind

Po
was
Ever. iy 22
with the
no motive
his father.
son would
hand with

RUBBS
peddle:
scribed. B
The peddle
The sher

‘in Liberty

over the m
Casey Cou!
his desk.

“That ha
play,” he
belongs tc

Grubbs
gleamed w

“It belor
man replie
it I knew
took me
out where

“T don’t
with me tc
you?” Gru!

“Not at :
“And. if To
admit it be

“But if
John and
likely to <
weapon,” (

“IT don’t 1
murders,” ‘
killer eithi
hammer f!

Grubbs \

When th
arrived at
he was n¢
been seén_
fore >"

.G
mai 4
lr De
made the
Casey Cou
be. But i
was not
usual hau!

It wasn
that the sh
ver retur!
waiting
him to th:

Grubbs
ver about
fused to a

“T ain’t
ated, ‘An
doing not

“T can
Grubbs ri
about thi:
who says

Tolliver
weapon a!
a lawyer.

“Take }
Grubbs in:
“Then if
can have

A: half
brought T
fice. “I th
about war

‘said with

Grubbs
chair.’ “V

> the murc

~

A spectator points to the spot in Green River
where fishermen found dead men in fish traps.

had been brought to the river in a car or a wagon.

Two of the sheriff’s deputies arrived at this time with -

an. ambulance from Liberty, thé Casey County seat.

While the attendants loaded the murder victims into

the machine, Grubbs and his men began looking around
for clues.

“No chance of the killer or killers making footprints
on the river bank last night,’ Grubbs. remarked.
“Ground was frozen too hard. But he may have left
something else behind.” ti

“Like what?” one of the deputies asked. :

“Well, the murder weapon for one thing,’ Grubbs
replied.

“But how can we look for the murder weapon when
we don’t know what was used?” the deputy
objected. >

Grubbs cleared his throat. “Judging from the ap-

pearance of the wounds, the men were.killed with a

hammer, a heavy club ora similar instrument. The

killer may have discarded the weapon down here along ©

with the bodies.” : g !
“Tn that case,” the deputy said. ‘We'd find it in the
river.” ; :

“Could be,” Grubbs conceded. “One of you boys”
probe around in that shallow place where we got the -
bodies. As for me, I’ll give the bank a good going over.”

The officers worked diligently for more than an hour.

cee al

Their search, however, was fruitless. They found obviou

absolutely nothing which would add even one detail to ‘ with b
the picture of the fiendish crime. Did
“What do we do now?” asked one of the deputies. 4 murde
Grubbs considered. “It looks to me like those men
were attacked unexpectedly in their home. Let’s get RU!
someone to show us where that is. If I’m right we’ll ; was
find some clues there.” shudde
The deputies agreed. Two hours later the. three The
officers and a guide they had drafted from the crowd of blo
at the river picked their way up a narrow path through as if th
a woodsy undergrowth to a farm house in a There
clearing. table v
This. place, Grubbs observed, was more than a half had be
mile from its nearest neighbor and was completely cut open,
off from the outside world by acres of tall trees. And The
it was a perfect background for the fiendish murder conclu:
which had been committed. derers
As he approached the old fashioned log house, the ; But
sheriff spied a-heavy hickory club about five feet long carnas:
lying in the grass. He bent down, noted that the club How
had been sharpened on one end, was bloodstained and a horri
had several long white hairs caught in its peeling Whil:
bark. F the det
Excitedly Grubbs called to the others. ‘Here’s the one cor:
has weapon, boys,” he announced, pointing to his had be:
na, Wha
One of the deputies, standing under a tree not ten letters
feet away, said, ‘‘What about this hammer? It’s got Meth
blood and hair on it, too.” of clot)
Grubbs eyed the object in the deputy’s hands g papers
solemnly. “Evidently the killer used more than one Clay \
weapon,” he said. “Or,” he added grimly, ‘maybe cated t}
there was more than one killer in this deal. Let’s go i for thirt
inside and see what we can find there.” : title to ;
Before the party reached the interior of the house a of his di
they found other evidences of the gory murders. They . a Grub!
soon discovered that the flooring on the front porch had : @ nothing
‘been literally washed in blood. And in one corner of q tery of '
the porch Grubbs found an iron weight which had “Oug)

Ss

is

bs

Vhi shown with members of his |
beforé toh

untimely death came to é

4

sie ¢


Milan mts a “ | sien pore ST eer ge ee

¥ ‘ : 4 ;
a load off Z baat :
& {oud of —— | Thanks, ‘can eat Steak again!
eel Horror in the Rede
LU nem Fib-2ite
get away 7 cen ak
get away Fish Traps — ma kee
"as a los- (CONTINUED FROM PAGE 59) eli ghtl
vhich he
phiey be 3 | REFITS and
ened. “Tt enough to catch the killers before the know whether you'd call it love or! ¥ RELINES Ag
bitterly. trail gets any colder.” : not. But you know how small Liberty | DENTAL PLaTes! BX
ht home, is, and how scarce eligible men are, : NE Makes
ra drive. Gy BUBBS ordered one of his depu- especially for a woman nearing forty. _
I agreed, ties to take the information on She was determined to marry Clay F: | Te eth
re hight, Clay White’s car to the nearest state and I guess he got skittish of her a $e @
go fora ‘Police barracks while he and the at the last.” : TIGHT?
ng to pet. other deputy began checking resi- “But why?” Grubbs persisted. e
1 around dents of the Barger’s Ferry commu- _ “They tell me Clay White was fifty- Improved Newest
I gies nity in which the siusdsts had been ave rhage old. a I’ve seen pane Plastic Reliner —
uurt her, committed for possible eads, arson. e’s right attractive or her
iid she'd The sheriff soon learned that old Sa'5 | Lasts for Months!
: John White had called at the home The man shrugged. “Don’t know FIT-RITE quickly makes loose, slipping, clat-
ving the of his nearest neighbor on December why Clay quit, unless it was ‘because | @ tery dental plates fit snugly and comfortably.
a week 3rd to get a bucket of water. That she was s0 anxious. A man likes to Eat, talk and laugh naturally and confidently |
at time, anyone qast time he had been seen by doa little of ies chasing himself,” FIT-RITE you apply=at Home
rive the anyone except his son and, of course, The’ sheriff hurried out to Mrs. Simply squeeze FIT-RITE on your dental plate
got out. his killers. The neighbor .was horri- Carson’s home. Briefly, he told her and put it in your mouth, where it hardeng and
le ane te whet the sheriff informed him of +what he had found in the river that 2 plnliamp eon ig hight doe (ibdd cd
head, the old man’s dreadful fate. morning. late, ly i ‘
ally, to “Did old John mention having The woman’s lips tightened and her ae amanas ie nen Hh yoarnelt
i pulled trouble with anyone or being afraid face went white. For several seconds F IT-RITE iS 100% O.K.
dragged for his life?” Grubbs asked the elderly she fought for control, Presently she ON AMY DENTAL PLATE
farmer, spoke and her voice was shaking. piel Sta nd hte dial -ragal tw » Danae
ing any The hill man bit off a chew of plu “Did you come way out here just to Weetene thence havent wage
tr your en pd as he rare oipeatiear "No, he egy iat: soph she. asked. : " moray. mont com with eerubing
idn’t say anythin about in “Not exactly,” Grubbs replied. “ washing. E ICA y .
ring but afraid. Old John never hod trouble. want to ask you a few questions.” CEM a MONTHS or NO COST.
I sure with anybody in his life,”’ “Such as .°. ,” SEND NO MONEY po alt yp
n. Any- “But he Was murdered in cold “When did you last see Clay Use coupon below. Enjoy teeth like new again.
chen blood,” Grubbs reminded him. “The White?” Grubbs asked abruptly. i 100% satisfaction guaranteed or money back.
ae very fact that he and his son are The woman considered. “It was REE TRIAL Offer!
dn’t dead proves that one, or maybe both last week,” she finally said, “but only “
ind left Bi of .them, had morta enemies.” for a few minutes. He drove past here SPECIAL~ generous package of dental plate
ne and The neighbor shook his -head. on his way to Liberty, said he had brushless cleanser WOwieg reearaie instant,
- “T wasn’t an enemy did it,” he argued. some business to attend to in the will not harm any denture. Try Fit-Rore first.
left no “The killers probably believed all county seat.” FIT RITE CO. 2573 Mrwaunee avenve
rs that rs As pay about old John and “Was that the day he told you he 4 ~ Dept. 4-81  Chicage 22, mi,
ent to is hidden gold.” wasn’t going to see ou any more?” , ,
m. He - “You mean folks around here Grubbs asked her, 4 6 Mai Vhs COUPON ~~......
ted to et ~ was ibn A F r Mrs. nines Fee “He. didn’t |'§ FIT-RITE COMPANY, Dent. 4-21 i
n gar- “Yeah. Been a Sorts of tales about say anything like t at, Sheriff. Cla ga 72 Milwaukee Ave., Chicage 22, ser
ut her his having gold buried somewhere on and I loved each other) We were to U Zanrantee to cater tote Dental Place Lacie ang |
sibil- his land. But I never did believe be married in February.” | When pace eeit $1.00 plus postaye with postman |
body. them. Old John lived poor and when Grubbs cleared his throat, “I heard | 4 0 Sedead 6 ft bei bey pasing’: I
ether Clay came home, they lived Poor to- different, Mrs. Carson. I heard he’d | 4 I
-d his gether. All they had, outside of a quit at | you. Seems odd he was Sn tay oO Ea SE RD {
- little farming; ‘was Clay’s pension found dead so quick after. that.” 1 '
Peace from the government.” “You mean you think I had PPO), PA DORMER Aone ceeds occas !
was Grubbs’ mind flashed back to the thing to’ do with his—his murder?” t oiry STATE sien
st de- ransacked house and the broken lock . the woman demanded incredulously. |. 1 P.S.:— (RUSH THis ORDER Topayi ~~ I
as re- on the trunk. Had the murder motive “‘T’m not accusing you,” Grubbs re- Da ests ts tt a
on_ to been robbery? Or was the appear- minded her, “but since you put it
t Dis- ance of it a “red herring” cleverly that way, maybe you’d better tell me; &
m in- drawn acrogs the trail to obscure the everything you did and everywhere |' A
auser killer’s real motive? you went last night.” T
nd do | When he checked up on Clay “That’s easy,” the woman replied, | ¢
ra White’s movements during the last In a few minutes she had given Ss
irth~ few days of his life, the sheriff Grubbs a detailed +
that learned that the ex-soldier had been whereabouts the ey
oung seen in Liberty. on December first and resolved to have i
been that he had then cashed his monthly earliest possible m
immed pension check. The sheriff could: find he didn’t believe
no one who would admit having seen capable of the murders, i GLASSES 95
law him after that. that she may have b ‘ $ @
lence The sheriff then started digging into them, innocent or ot ment once Com-
send clay White's personal life, He paia Grubbs didn’t Dudmairce,
life, particular attention to his reputed woman had told hi If you're not 100% satisfied with glasses we make
velve Prowess as a ladies’ man. He soon about her relationship with Clay TAL Oe Fer cant youpay os, Rensics: 48
fate learned that Clay had kept company White. He firmly believed that White Ty yo MILWAUKEE AVENUE
wit 3 widow Blanche Carson, for had pies her and ae aces :
several months but ha ceased goin ing to hide the fact. .
used gut with her only a week before ais Her face or to cover up for someone | “ten TEMPORARILY Y
a death. ay else? Had White jilted the wore, END YOUR
fan “Blanche was sure sore at Clay for because he had discovered her flirting Tint-Rite Towch-Up Pemcti
quitting her,” one informant told the or going out with another man? a) GR colon H AIR
sheriff. “And. I -heard her. tell him With renewed resolution, Grubbs M cer mine SERA tS
she’d get. even with him if it took the went around town delving ‘into this pace § sn topes Won't rubof, WORRIES
rest of her lite.” ossibility, His e soon. bor i No waiting forresalis, Tint-Rite Touch-Up Pencil today!
SS ¥. His efforts soon bore fruit, Seibeelanden OBrown
himt? th te pare in love with. Hie hi Sadia more eg Poe source TY AU BUN ST ne italia Touch-Up Pon:
im?” the sheriff asked. that ‘Blanche Carson een step- | iisforoniy$1.00— that's pectoron doy Siphbekey even on
“ig The informant grinned. “Don’t ping out with young Huston Jeffries ever if x refered Four mane Wels sear!

- ening 1577 Mitwankee Av., Dept. 4-81 Chicage 22 B9


a

and asked Bill to take him to a said that we thought more of that
“ " ae ee wioctor.. They walked back toward dog than most people did of him.
; “BAD BILL” WATERS” ”* Lalu’s, and by the time they reached And he was buried there for 13-14
Eg ta the house Bill’s anger had cooled. years, until his brother Jim had him
Continued = eae He agreed to let the man be taken to dug up and moved to Williams’
‘ ‘Mount Sterling to a doctor, which graveyard on Hawkins’ Branch. He
i proved to be his undoing. never wanted to be buried up there
: “ » The doctor i i where so many people had been

“Billy thought a lot of Bertha but -sion as she recalls the Chillicothe Aimed the markings on Thompson’s against him,” said Gertrude.
couldn’t get along with her after she escape and the many “lies” told on Clothing as prison identification Lulu also hastened to portray Bill
started drinking I kept him from her good friend, Billy. “That pore numbers. The two men were arrest- as a kind, caring man, unaware of
killing ber twice. She'd get drunk - little feller iad walked all the way od and returned to Chillicothe. the inconsistency in her story: “I
and just wander around, and it from that prison,” said Lulu. “His. -. Bill had by now acquired a nick- had an old cat, and little gang of
made him so mad he couldn’! stand feet was a’ bleedin’ where he'd mame that followed him to the end chickens. Billy fed those little bid-
‘it. Billy and I came in late one night, walked through the briars, him and of his short life. “Bad Bill” — a dies, sat and played with them by
and Bertha was sitting on the side of that other feller. Swum the Ohio ‘volatile man, eminently capable of the hour. The old cat ran out from
the bed, drunk, with the little girls River, he said He said, ‘Lulu, | murder, as explosive as kerosene under the porch one day, grabbed a
standing around. Billy was drunk, don’t want to bring no trouble down on live coals; a man who would chicken and killed it. Billy came into
too. He said, “Bertha, I believe Fil on you,’ and I got rightdown on my ‘bear watching by friend and foe the house, got his shotgun, and
just kill you.’ He up and fired three knees and I said, ‘Billy, honey, . - killed my cat. I was mad! I asked
shots at her with a .38 before I could you're not leaving here. You're stay- -- When Bill was released from Chil- him, ‘Billy, why'd you kill my cat”
stop him.” ing. And if the law comes we'll fight _licothe, he had no home to return to. He told me he just couldn’t stand by
Jim doesn’t know to this day how _ it out with them right here on my Bertha, unable to cope after Bill was and sec his little chickens killed. He

*he missed her. “She never did raise “front porch.’ Would’ve, too,” she locked up, had put the four girls in was tender-hearted as he could be.”
her head up while he was shooting at added grimly. - an orphanage and had disappeared _Bill grew restiess, and when he
her. I wrung the gun out of his hand, For the first few days the two ‘© make a new life. Bill went to heard that a distant cousin, Charicy
pushed him down on the bed and escapees rarely left the confines of -Lulu’s, his haven in any storm. Neal, needed someone to heip at his

took his shoes off He went to moonshine still Bill went to East
sleep.” The next day Jim pointed Aan . Fork, near Means, and moved in
ala ne Sling Ba WARE METS Sesame ehcvanta
(  emembered nothing of the inci- uctn a Prariq] * bead of black hair and an infec-
ee sage Sha Og al do
“Another time she was on and took immediate te knew him as “the pretties
floor, drunk. He said the same thing, : man you ever laid two eyes on” and
“Bertha, I believe Pll kill you,’ and , “ “. @ man rumored to “have a way”
0,
leveled down on her with a Win- with women.
chester shotgun. Again I ran under 3, Sa In welcoming Waters into his
his gun, and he fired into the ceil- | — Charley's cabin __ Rome, Charley Neal unwittingly et
ing.” a a . a stage a three-cornered ro-
Bil] then moved to Ohio, a mecca mart) 21h aa and, presumably, -, ‘Mmance that led eventually to four
of opportunity for a man wanting to — ee wife.” alo: Niokent deaths.
work. But a state line did not cure Wn hi Th bh wo’ Charley Neal was 55. His second
what ailed Bill Waters: within a year foe ha wife, Carma (“Corny”), was 20 years

his junior, a good-looking woman

officer who came to arrest him and Lulu and her family were delight- who wore “paint and powder,”
was sentenced to a term im the ed to have him. “Billy was the most tweezed her eyebrows and danced
Chillicothe Federal Reformatory. A fun,” said Lulu, and daughter Ger- the “Charleston.” (Charicy had ear-
short time later he and fellow in- trude agrees. “We sang, iaughed and lier swapped one of his

mate Ebra Thompson tunneljed out talked,” Gertrude recalls. “He ters and a shotgun to Corny’s
of prison after first hiding in a drain - played the French harp and the first husband for Corny. Both men
pipe before lock-up. The two men “fiddle, and he'd take us to square were apparently satisfied, each hav-
hid out by day and walked at night, ‘dances and parties. We had an old ing obtained a younger woman in
heading for a refuge in the Kentucky «14-year-old dog that died of old age, the trade.)

hills that was always open to Bill: the “and we took him up on the hill to Charley was spending long hours
home of Lulu and Taylor White on him. We gave him a funeral, at the still while his helper spent
Science Ridge, a few miles from the flowers on the grave and cried more and more time with Corny
Menifee County line, in Montgom- ‘over him — you know how kids | Bill was badly smitten, says Lulu,

i
|
:

Lalu i ; Taylor's 96-year-old He aimed at Thompson's bead, but _ _And Bill, not averse

—
widow, lives in Dayton, Ohio, with Thompson ducked, ‘imstinctively “another human being, cried over
her daughter, Gertrude. Her ancient shielding his face, and took the dog’s grave. He told the chi who

body is bowed by age, her red.. bulletinhisarm =. tis ~ ‘that when he died he wanted his Lulu White) believe that Corny
rimmed - eyes .still bright with pas- ..Thompson was ‘bleeding badly “grave dug there beside the dog. “He. »-actively participated in the murder,
N ’ .



a aaa ila aaa sd —~ eee ay

Lutu. “But then so did the law. They taking Waters in; the reward money ~
watched our house day and night, would be used for Waters’ defense.

-. “BAD BILL” WATERS «+ but Billy was out in the woods, On July 19, 1932, Waters, accompe.

ileal ma watching them.” | nied by Wells, White and Shepherd,

Roy Williams and Menifee Spencer, describing the fears of at least one that Waters made contact with the W.B. White, a Mount Sterling

a neighbor, headed toward East member of the posse: family. “I went with Willard Shep- atiorney, agreed to handle his de-
Fork to bring Waters in. “I warned § Johnny Cox, he hid in the grass ‘herd to an apple tree up on the hill fense. The case would be tried in
them,” said Amburgey, still shaking And heid his breath until Bad Bill behind the house to knock down Montgomery County because of in-

—~

some applies. We heard someone tense feelings in Menifee. Three

imprudence. “I told them they'd And pess he did, out a beck door hollering, and it was Bill He was in murder indictments had been re-
eetter wait until just before daylight and into the rugged hills beyond. bad shape, his clothes nearly tom turned, but the commonwealth
the next morning to take him. |. Waters was no stranger to the forest off He could hardly keep his pants chose to try Waters for the murder
wouldn't go with them because I ofblack oaks, sweet gum, poplarand up because bis belt had been cutin of Stanley Helton, and he was
knew that Bill had that big old long, yellow pine in Menifee County. He two in the gunfight, but he wasn't moved to the Fayette County jail for
singie-barreied shotgun loaded with knew the hilly terrain as weil as he burt He asked us to bring him safekeeping until his trial.
knew he would use knew his own hand something to eat, and we carried A festive atmosphere prevailed in
was already mad at me — The stillness of death blended stuff to him in the woods several Mount Sterling when the trial began
I woukin’t loan him my with the acrid blue haze of gun- days.” - -@n Nov. 22, 1932. Families came in
day before. He was expect- smoke around Neal’s now deserted § But Bill started acting strange, wagons, on foot, on horses and
to come and get him, see, cabin. Their quarry had escaped, according to Woodrow. “He talked mules. Vendors hawked their wares
was going to be ready. But and Sheriff Back now took stock of about giving up, said that he’d gotto on street corners, and eager specta-
*t listen to me, went up__his casualties. Marion Stapleton had ‘seeing’ his mother out in the woods, tors tried to squeeze into the packed
that branch in broad daylight” been killed. Stanley Helton, who and it scared him.” courtroom. Waters appeared unruf-
The men found wha fied, relaxed as he greeted friends
feared they would find: before the trial. Witnesses for the
Chariey Neal, about 150 yards from prosecution testified that Waters
»*~ still He had been shot i - had told them he would kill any
| with a shotgun; his body had Officers who tried to take him into
been thrown into a ravine and custody. Back and his deputies relat-
covered with several burlap bags ed the activities of the posse when
and 4 inches of earth. The Helton was killed. Admitted into
face-down in the shallow grave. \ y, evidence was Helton’s dying state-
(Neighbors who later wi er ment: “I am Staniey Helton. I am in
gxcavation of the body serious condition and don’t believe |
“scald burns, where hot can get well. I was shot by Bill
had been poured over ~ Waters today, July 13, 1932.”
either before or after death. ’ The only witness for the defense |
The sheriff and hi
ly approached Nea!’s house, fanning firing at the officers. He didn’t know
Out into a knee-high potato patch the armed men in Chariey’s yard
and a heavy growth of weeds. Sheriff were law officers. He didn't believe
Back called into the house. He hada di at ital ~ i had that the slugs from his shotgun
warrant for Waters’ arrest; would he in Mount Sterling after issuing a approved a $500 reward for his ‘killed Helton; Helton was caught in
come out peaceably? deathbed statement, lay gravely capture, while rewards from indi- the crossfire and killed by his own

He would not. He punctuated his wounded. Constable Roy Williams viduals, including the slain men’s men. (A statement still accepted ss

_ answer with a blast from his shot- was biceding profusely. relatives, brought the total to gospel by those who knew Waters,

gun. The lawmen returned a salvoof “They wasn't up there more than $1,200, quite an inducement to his including his brother, Jim. Even

their own, and then 2 lull followed. an hour when they came back,” said capture in those days. Still, no one Boone Helton, Stanley's father, en-

Marion Stapleton decided Amburgey, “a lot worse off than seemed eager to become a hero. tertained doubts about the shooting

to creep up close to the house to peer” when they went in. Bill Waters was a It was former Menifee Sheriff Ben when Waters looked him in the eye

into a window. It was the last mighty dangerous man. ! told ‘em Wells, a man Bill Waters knew and during the trial and said, “Mr.
decision he ever made — 2a biast so, but they wouldn't listen.” trusted, who finally talked the fugi- Helton, I did not kill your boy.”)

almost sev- = Afier flecing Neal’s house into the tive in. Wells, certain that Waters The jury deliberated one hour, 25
: - woods on that hot July afternoon, was hiding somewhere near Taylor minutes. The verdict, guilty. The
indiscrimi- Waters made a circuitous journey White's, arranged a meeting be- penalty, death in the electric chair.

for cover, some through the briars and thickets toa tween himself, White, Waters’ Waters made no comment on the
face down in the potato thick clump of trees near Taylor friend Sam Shepherd and the want- verdict, but on his return to jail he
Others hiding in the c- White's. ed man. The details of the surrender observed: “This looks like they

“When we heard about the kill -were worked out: White and Shep- mean to get rid of me.”

saga later prompted a song, ings, we knew he'd come to us,” said herd would claim the reward for © Waters was to be taken to Eddy-

ANS Scope “et sos A RE RES ye ee i om Spee: eam mr a

ocean est “ene a peta tra

ville, where on March 9, 1933, according to

there to talk for Bill, and they never would
let me in to see the governor.”

ulu paused, dabbing at her eyes with her
apron. “Ah, chillern, it was an awful
time. Poor old Polly, Bill’s mother — she
‘was taking it so hard. She prayed every
night and day for them to save her boy.” —
‘In late October Waters wrote to Tayior
White and Bill Chapman, his “true”

friends of long standing, commenting upon .

the treachery of Sam Shepherd. He urged
them to write the governor in his behalf,
but he professed littie hope for a lasi-
minute reprieve. To Lulu, he wrote that he
had a lot of persona! belongings in his cell
that he wanted her to have.

“But I didn't get a thing Some girl Bill
had started writing to got it all, after all 'd
done for him.”

-Nov. 3 was a day firmly fixed in the
minds of Bill’s aging parents, who had
moved to Bourbon County. They waited
every day for a message seying thal a stay
had been granted. Instead, Ellis Waters was
summoned to the nearest telephone. When

he came back, his gray head was bowed. |

Polly screamed and then fainted. Millard,
who was shaving when his father brought

barn.
A even larger crowd assembied
Sunday for the funeral. Bill's grave
had been dug on the spot he had requested
— at the brow of the hill close to where the
White's aged dog reposed. “Billy preached
his own funeral,” said Lulu, triumphantly.
“He shore did. He wrote me a letter that I
was to give to Asa Little, the preacher. And
when it came time for the funeral he read

he said that, a little bird flew out of his
mouth and sung the pretties! song you ever

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454 Ky.

to his employment and was parked on em-
ployer’s private lot.

Judgment affirmed.

1. Automobiles €=28

An ordinance imposing an annual li-
cense tax of $5 on each automobile used by
nonresidents of the city regularly employed
therein was not invalid as a revenue meas-
ure as applied to a nonresident who drove
over specified streets maintained by the
state and parked his automobile on his
employer’s private lot, since the city still
had the function of policing such streets.

2. Automobiles €=28

An ordinance imposing an annual li-
cense tax of $5 on each automobile used by
nonresidents of the city regularly employed
therein was based on a reasonable classifi-
cation.

——_——>——_

L. B. Alexander, Paducah, for appel-
lant.
Adrian H. Terrell, Paducah, for appellee.

MORRIS, Commissioner.

An ordinance of the City adopted in 1940
required residents of the City to pay a tax
of $5.00 for using or operating a motor
vehicle upon and over the City’s streets.
The last clause of Section 1 provides:

“Such license shall also be required of
all persons * * * residing outside of
the city limits and owning and operating
or causing to be operated any automobile
or motor vehicle upon and over the streets
thereof in connection with a business con-
ducted, or regular occupation followed
within the city limits, or as a means of con-
veyance to and from a position, job or labor
for which remuneration is received from
such business or occupation in said city.”

The proceeds from the collection of these
fees are placed in the City’s general fund
“to be used for paying the expenses of
maintaining the City government.” A pen-
alty is fixed for a violation of the ordi-
nance.

Appellant lives outside the City limits
and is regularly employed in the shops of
the I. C. Railroad Company, which are lo-
cated within the City limits. He owns and

229 SOUTH WESTERN REPORTER, 2d SERIES

drives a car to and from his place of em-
ployment. In making these trips he drives
on Bridge, Broad and State Streets and
Kentucky Avenue, on which latter is lo-
cated the company’s parking lot. He does
not drive over any of the other City
streets in reaching his place of employment
and regularly parks his vehicle in the com-
pany’s lot. The railroad company also em-
ploys a private guard to look after the
cars of its employees.

The above facts are alleged by appellant
in a petition asking the Court to declare
that under the facts stated, the provisions
of the ordinance above quoted do not apply
to him. In support of his contention he
pleads that under an agreement between
the City and the Kentucky Highway De-
partment, the latter has taken over the four
above named streets for the purpose of
their maintenance and upkeep, hence the
City is “not at any expense in maintaining
said streets.” Further, that the City had
granted to the State Police Department the
authority to patrol the streetssand that the
City is “not put to any expense by reason
of the operation of his automobile on said
streets.”

The City in answer admitted each and
every fact alleged by plaintiff, but denied
all conclusions pleaded. It admitted the
agreement between the City and State
Highway and Police Department. It al-
leged that it was specifically provided in
the contract with the former that the De-
partment was obligated to construct, main-
tain and repair the designated streets, but
that the City should not be relieved of its
duty to light, sweep, sprinkle, keep clean
and police the streets, and to keep them
clear of ice and snow. These things the
City said it had done and was doing.

As to the arrangement with the Police
Commissioner, it was said that the officers
of that Department only acted when re-
quested by the proper City authorities ;
that notwithstanding the arrangement, it
had continued to maintain its police force
to the same number and strength as there-
tofore, performing the same duties with re-
spect to regulating and controlling traffic.
As to the result of both arrangements, the
regulating traffic and doing those things

WEBB v. COMMONWEALTH Ky. 455
Cite as 229 S.W.2d 455

which it was required to do in respect to
keeping the streets usable, there had been
no decrease in the cost. The City also al-
leged that it furnished police and fire pro-
tection to such automobiles of employees
while parked in the railroad company’s pri-
vate parking lot.

Proof was taken by way of depositions,
and without going into detail, it is gathered
that each party fairly proved all factual
allegations set out in the respective plead-
ings, insofar as they enter into the conclu-
sion reached by the trial judge, who upon
submission declared that the City had the
right to exact the license fee of the plain-
tiff, and dismissed his petition with appeal
granted.

Appellant does not attack the portion of
the ordinance in question on the grounds
of invalidity, and could hardly do so, be-
cause we held it to be valid in Johnson v.
City of Paducah, 285 Ky. 294, 147 S.W.2d
721. His only contention is that it is not
applicable to him because he only drives
his car over the designated streets and
parks it on the company’s private lot, and
because of the arrangements above men-
tioned, the City is not put to any expense
in “maintaining,” regulating traffic on, or
policing these particular streets.

[1] Appellant in brief contends that be-
cause of the facts stated and admitted by
appellee, the City “has no right to impose a
license tax on plaintiff’s automobile on ac-
count of his driving it over the state road
highways in Paducah,” and argues that the
present tax is “purely a revenue tax on ap-
pellant’s automobile.” It is assumed that
appellant means that since he has shown
that he is not liable because of non-use, the
tax amounts to a revenue to the City. As
to the cars and their use shown in the
Johnson case, we distinctly held that the
ordinance was one of regulatory nature,
enacted under the City’s police power, cit-
ing case, an applicable one being City of
Newport v. French & Bauer Co., 169 Ky.
174, 183 S.W. 532. The character and
purpose of the ordinance is not altered by

_ the facts alleged by appellant, in respect

to the use of his car.

[2] We held in the Johnson case that
the classification made by the part of the
ordinance here attacked, constituted a rea-
sonable basis for the imposition of the tax.
To follow appellant’s argument and up-
hold his contention, under the facts proven,
would lead to the approval of a reclassifica-
tion without any reasonable foundation.
The fact that the City is by the arrange-
ment with the State Highway Department
relieved of the maintenance of the desig-
nated streets, does not, according to proof,
relieve the City of its governmental func-
tion of policing these streets, or doing what
it is obligated to do as a City and under
the contract with the Department; the
same is true as to the effect of the arrange-
ment with the State Police Department,
which at most serves the City sporadically
and as shown by undisputed proof, does not
lessen the incidental cost or expenses, but
which no doubt have materially increased
since the passage of the questioned ordi-
nance.

We find nothing in the record, or in the
law which would justify us in upholding
his contentions, hence the judgment must
be and is affirmed.

ie
2 © E KEV NUMBER SYST

evs
b£-16-50

312 Ky. 684
WEBB v. COMMONWEALTH.

Court of Appeals of Kentucky.
Feb. 14, 1950.

As Extended on Denial of Rehearing
May 12, 1950.

Columbus Webb was convicted in the Cir-
cuit Court of Martin County, Edward P.
Hill, J., for willful murder, and he appealed.
The Court of Appeals, Cammack, J., held
that the evidence was sufficient to show that
the crime was committed within the county,
and found no prejudicial error in the admis-
sion of evidence or in the giving of instruc-
tions.

Judgment affirmed.

"OS6T“ST-9 (UTIJ4eW) ds “AY *OeTe feqTUuM fsnquntoo ‘agqy

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Ttilaiareem ueponnosaagpe almalebiei ante onicanananennoceoieibes


458 Ky. 229 SOUTH WESTERN REPORTER, 2d SERIES

the trial, and that there was other testi-
mony showing that he had been sick while
in jail. As we have said, however, it was
not contended seriously on the trial that
Webb was insane.

[7] There is the further contention that
an instruction should have been given pre-
senting the question of whether the witness,
Amy Jane Davis, was an accomplice. Sec-
tion 241 of the Criminal Code of Practice is
relied upon. This section follows: “Testi-
mony of accomplice must be corroborated.
A conviction can not be had upon the testi-
mony of an accomplice, unless corroborated
by other evidence tending to connect the de-
fendant with the commission of the of-
fense; and the corroboration is not suffi-
cient if it merely show that the offense was
committed, and the circumstances thereof.”

By agreement, counsel for Webb read to
the jury his statement as to how the crime
was committed. This statement implicated
Amy Jane Davis, but Webb was the one be-
ing tried. According to his own statement
he was guilty of murder. We see no basis
for an instruction as to whether Amy Jane
Davis was an accomplice.

For the reasons given we think the judg-
ment should be and it is affirmed.

gee

312 Ky. 688
HARVEY v. COMMONWEALTH.

Court of Appeals of Kentucky.
Feb. 24, 1950.

As Modified on Denial of Rehearing
May 12, 1950.

Dave Harvey was convicted in the Circuit
Court, Floyd County, Edward P. Hill, J., of
murder and he appealed.

The Court of Appeals, Latimer, J., held
that permitting the Commonwealth to intro-
duce evidence in chief after both the Com-
monwealth and defendant had rested was not
an abuse of discretion, that the asking of
questions by prosecuting attorney in attempt
to impeach a witness for Commonwealth

was proper under statute, and that state-
ments prosecuting attorney made in argu-
ment were not prejudicial to defendant.

Judgment affirmed.

1. Criminal law €=687(1)

It is ordinarily improper to permit evi-
dence in chief to be introduced after both
sides have rested.

2. Criminal law €—687(1)

Trial court has discretion to permit evi-
dence in chief to be introduced after both
sides have rested where good cause is
shown for failure seasonably to introduce
the evidence.

3. Criminal law €=1153(1)

Court of Appeals will not disturb ac-
tion of trial court in permitting or refusing
to permit introduction of evidence in chief
after both sides have rested and good
cause is shown for failure to seasonably
introduce evidence, unless trial court abused
its discretion.

—

wv

4. Criminal law €=687(1)

In murder prosecution, trial court did
not abuse discretion in permitting a pas-
senger of bus which stopped near scene of
fight which resulted in death, to testify in
chief for Commonwealth after Common-
weath and defendant had rested, in light of
avowal of Commonwealth that counsel for
prosecution had not known until just be-
fore adjournment of court on evening be-
fore, that witness was a passenger on bus,
and in light of cumulative character of
testimony which followed testimony of bus
driver and wife of bus driver who were al-
so on bus.

5. Witnesses €=323

A party may not impeach his own wit-
ness unless testimony was prejudicial to
party producing witness, or was clearly
favorable to adverse party, and it is not
sufficient to permit impeachment that testi-
mony falls short of expectations of party
producing witness. Civ.Code Prac. § 596.

6. Witnesses €=379(9)

Under statute permitting a party to
contradict his witness by evidence showing
witness to have made statements different
from present testimony, commonwealth

a memmeeneganiger rt

HARVEY v. COMMONWEALTH Ky. 459
Cite as 229 8.W.2d 458

could impeach testimony of its witness, as it
touched upon question of whether defend-
ant was an aider or abettor or was a princi-
pal, by showing that testimony of witness
before grand jury was different from testi-
mony of witness at trial. Civ.Code Prac. §
596.

7. Criminal law €>1171(3)

In murder prosecution, statement of
prosecuting attorney in argument that a
specified witness for Commonwealth was
from a specified place and knew no one in
case, although witness had testified to liv-
ing at another place, the location of which
was familiar to jury as being located near
town in which murder occurred, was not
prejudicial to defendant.

8. Criminal law @=1171(3)

In murder prosecution, statements of
prosecuting attorney in argument relating
to slapping of deceased before death and
throwing of a pop bottle by defendant,
which statements were allegedly distorted
and not supported by evidence, were not
prejudicial to defendant in view of fact
that a distortion would be calculated to
create suspicion in minds of jurors towards
views of prosecuting attorney.

—_—__~--——

Joe P. Tackett, Prestonsburg, Hayes &
Wellman, Prestonsburg, for appellant.
_A. E, Funk, Atty. Gen., Zeb A. Stewart,
Asst. Atty. Gen., for appellee.

LATIMER, Justice.

Appellant, Dave Harvey, was jointly in-
dicted with Billie Barnett for the murder
of Clifford Branham. They were also
charged in the indictment of entering into
a conspiracy to commit the crime, and in
furtherance thereof, one of the defendants,
but which one was not known to the
Grand Jury, did the cutting and wounding
from which Branham died, and that the
other unlawfully, willfully, and with malice
aforethought, aided’ and abetted therein.
Appellant was tried separately. He was
found guilty and his punishment fixed at
confinement in the penitentiary for life.

In prosecuting this appeal a number of
grounds are listed, only three of which are
discussed and urged as grounds for re-
versal, namely: (1) Admission of incom-
petent evidence. (2) Error of the trial
court in allowing the Commonwealth to in-
troduce evidence impeaching its own wit-
ness. (3) Improper argument of prosecut-
ing counsel.

The evidence shows that Dave Harvey
and Billie Barnett had been together prior
to the alleged killing; that they had been in
Flannery’s Restaurant in the town of Mar-
tin in Floyd County, at which time Dave
Harvey had flourished a knife; that they
were both under the influence of liquor;
that as they left the restaurant, Dave Har-
vey had an open knife; and that Marie
Spurlock, an employee in the restaurant,
and also a second cousin of appellant, fol-
lowed them to the door and begged them
to go home. This witness also testified
that when Branham got out of his car,
which was parked on the same side of the
street as the restaurant, and was approach-
ing the restaurant, she saw Dave Harvey
hit Branham twice, once with the left hand
and once with the right hand, but she didn’t
know Branham had been cut until she saw
the blood.

A number of witnesses testified that im-
mediately after this altercation both de-
fendants ran from the scene. The wound
inflicted on Branham was described as a
“stab wound” on the left side of his neck
which cut the jugular vein and the trachea
and came out on the base of the tongue on
the left side.

In his defense, Harvey testified that he
and Barnett came to town together and got
a half-pint of liquor, and with A. B. Crisp
went to a picture show; that Barnett left
the show and got mcre whiskey, after
which they went to the Flannery Restau-
rant where they drank two bottles of beer;
that both he and Barnett had knives; and
that they had shown these knives to each
other. He said that as they came out of the
Flannery Restaurant, Barnett and Branham
got into a quarrel and that Barnett asked
Branham if he had seen “his woman”.
Branham replied: “No, but I guess you


§. Criminal law €=564(1)

Evidence was sufficient to show that
homicide was committed in county in which
prosecution was begun.

2. Criminal law €=564(2, 3)

Slight evidence, either direct or cir-
cumstantial, is sufficient to sustain venue of
criminal prosecution since that does not
affect question of guilt or innocence.

3. Homicide €>158(3)

In murder prosecution, testimony of
woman to effect that defendant took gun
from her saying he was going to kill some-
one shortly before he did shoot decedent
and rob him was competent to show de-
fendant’s state of mind.

4. Criminal law €=1137(5)

In murder prosecution, admission of
evidence showing that witness was living
in adultery with decedent and had not been
divorced, if error, was not prejudicial in
view of fact that substance of evidence was
brought out by defendant’s counsel when he
examined witness as one of his own.

5. Homicide €=300(3)

In murder prosecution, instructions
were not objectionable as failing properly
to present questions of self-defense to the

jury.

6. Homicide €=294(1)
In murder prosecution, evidence was
insufficient to justify instruction on insani-

ty.

7. Criminal law €=780(2)

In murder prosecution, where defend-
ant’s counsel read defendant’s statement as
to how crime was committed, and statement
showed that defendant was guilty of mur-
der but also implicated a witness, there was
no ground for an instruction presenting
question whether witness was an accom-
plice. Cr.Code Prac. § 241.

a

Jasper H. Preece, Inez, Edward L. Al-
len, Prestonsburg, for appellant.

A. E. Funk, Atty. Gen., Zeb A. Stewart,
Asst. Atty. Gen., for appellee.

456 «Ky. 229 SOUTH WESTERN REPORTER, 2d SERIES

CAMMACK, Justice.

Columbus Webb was convicted of the
crime of willful murder and sentenced to
death. On November 22, 1949, we reversed
the judgment because the indictment failed
to include the words, “against the peace
and dignity of the [Commonwealth],” as
required by Section 123 of the Constitution.
On December 9, 1949, the Commonwealth
filed a motion to withdraw the opinion and
set aside the order of submission of the
case. It also tendered a supplemental rec-
ord certified by the Clerk of the Martin
Circuit Court showing that the indictment
was prepared on a printed form which con-
cluded with the words, “Contrary to the
form of the statutes in such cases made and
provided and against the peace and dignity
of the Commonwealth of Kentucky.” The
affidavits of William R. McCoy, County At-
torney of Martin County, and Luther
Fields, Clerk of the Martin Circuit Court,
were filed in support of the motion. We
sustained the motion and withdrew the
opinion handed down November 22nd.
After a careful consideration of the case
on its merits we have concluded that the
judgment must be affirmed.

Shortly before his trial in December,
1948, Columbus Webb was found by a
jury to be of sound mind. He did not tes-
tify at his trial. According to Webb’s con-
fession, he went to the home of the de-
ceased, Elijah Davis, on September 28,
1948, when told by a small boy that Davis’s
wife (Amy Jane Davis, a woman with
whom Davis was living) had asked him to
come up there. He found the couple up a
hollow sawing wood. After helping Davis
a while he returned home and the same boy
came down and asked him to come up to
Davis’s place early the next morning.
When he reached Davis’s home, Amy Jane
said that Davis was up in the hills getting
his horse. Amy Jane gave him a gun and
told him Davis had $450.00 in his pocket
and for him to take the money without kill-
ing Davis and meet her over the hill.
When he found Davis he told him, “Elijah,
I don’t want to hurt you, don’t aim to kill
you, but me and your wife only wants your
money.” He made Davis walk up the hill

WEBB v. COMMONWEALTH Ky. 457
Cite as 229 S.W.2d 455

to a haul road and Davis took some change
out of his pocket and said that was all the
money he had. When he told Davis he
knew he had more money in his shirt pocket
Davis said he was going to kill him and
broke off a limb. As Davis advanced to-
ward him he shot him three times and snap-
ped the gun twice. He kicked Davis in the
stomach and then got the money. When
Davis started to get up he hit him with the
gun. As he was walking away Davis said,
“Columbus, if I live and get over this I will
kill you.” The statement continued, “And
that made me kindly mad, and I went back
and hit him another lick or two, and told
him to lay back down on the ground, and
he layed down. * * *” He dragged
Davis’s body down by a log and covered it
with bushes and then went on over the hill
and into West Virginia. When Webb was
arrested in West Virginia he had the
money on him.

Davis’s body and the pistol were found
where Webb said he had placed them. Amy
Jane Davis said that, when Webb first came
to the house, he asked for a saw. He then
forced his way into the house and made
her give him the pistol, threatening to kill
her if she refused. He threw her on the
bed and put a pillow over her head. He
made no attempt to attack her. According
to her testimony, Webb said he was going
to kill someone, and forced her to go up the
branch with him some distance. She then
went to the home of M. T. Davis for as-
sistance. While there the shots were
heard. The bullet wounds in Davis’s body
corresponded to where Webb said he shot
him.

[1,2] The principal ground urged for
reversal is that the Commonwealth failed
to show the crime was committed in Martin
County, or even in the State of Kentucky.
Officials of Martin County went to the
scene of the shooting and found the body
and pistol where Webb said they had been
placed. In addition, other testimony placed
Webb near the scene of the killing and
shots were heard at about the time he said
they were fired. A deputy sheriff, when
asked the following question, “This body
and pistol handles and iron wedge found
there—were they in Martin County?” an-
229 S.W.2d—2914

swered, “Yes, sir.” According to Webb’s
own statement, he hid the body of the de-
ceased only a few feet from the spot where
the homicide occurred. We think the evi-
dence was amply sufficient to show that the
crime was committed in Martin County,
Kentucky. As pointed out in the case of
Rounds v. Commonwealth, 282 Ky. 657, 139
S.W.2d 736, it takes only slight evidence,
either direct or circumstantial, to sustain
venue, since that does not affect the ques-
tion of guilt or innocence.

[3] The second complaint is that it was
error to permit Amy Jane Davis to testify
as to what transpired at the house before
Webb went up the hollow with the pistol.
Of course, Amy Jane denied all that Webb
said about her telling him that Davis had
$450.00 on him and that she and Webb had
planned to go away together after he got
the money. However, her testimony was
competent to show Webb’s state of mind.
According to what she said, Webb took the
gun from her, saying he was going to kill
someone. Actually it was only a short time
thereafter until he did shoot Davis and rob
him,

[4] Complaint is made as to the admis-
sion of the evidence showing that Amy
Jane was living in adultery with Davis and
that Davis had a wife from whom he had
not been divorced. This fact was brought
out by Webb’s counsel when he examined
Amy Jane as one of Webb’s witnesses. But,
in any event, we fail to see how this evi-
dence could have been prejudicial to Webb.

[5] One complaint of the instructions is
that the question of self-defense was not
properly presented to the jury. This con-
tention we believe to be groundless, be-
cause the usual self-defense instruction was
given, and this was all to which Webb was
entitled.

[6] It is contended also that an instruc-
tion should have been given on insanity.
We have already noted that a sanity hear-
ing had been held for Webb shortly before
the trial. Furthermore, no evidence as to
Webb’s alleged insanity was offered at the
trial which would have warranted an in-
struction on that question. It is true that
counsel said he was not able to testify at

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THE STORY OF CATO AND
THE FIRST CHRISTMAS

This is Cato Watts, slave of Captain John
Donne, one of the original settlers on Corn
Island. Cato was the only negro in the
small community, and apparently he was
the only musician—or at any rate, he could
play the fiddle. It is supposed that he was
very much in demand to play the Virginia
reel, Highland fling, and Trish jig—for
dancing was one of the few amusements
possible in that primitive settlement.

As Christmas approached and the “‘Fort-on
Shore” neared completion, a big Christ-
mas party and dance was planned as a
“house-warming”. Cato, of course, being
the only fiddler in the settlement, was ex-
pected to put on a big show—but alas, he
had worn out all his fiddle strings!

Just in the nick of time, according to the
old story, a Frenchman (named Jean
Nickle, incidentally) happened along. He
was going down the river and stopped to
§ct some repairs made to his boat. Louis-
villians, being hospitable even then, asked
him to spend Christmas and come to the
~ housewarming. When they apologized for
no music for the dance, Monsieur Nickle
said that it just happened that he had
brought his fiddle down the river with him.
He was of course asked. to play, and re-
sponded with some light French _ airs,
which no doubt sounded rather “sissy” to
the settlers who were used to the loud-
and-fast hoe-downs.
Then some one called on Cato to borrow
the Frenchman’s fiddle and play some real
Kentucky music, country style. Monsicur
reneged on lending Cato his violin, but
he gladly gave him a set of strings, and the
dance began in earnest!
It’s heart-warming to think of this little
band of pioneers, a spark of life and light
burning in the dark primeval wilderness,

celebrating their first Christmas with gusto
and with good humor,

It is the historian’s sad duty to add a
lugubrious footnote to this happy story.
Cato, who was the property of John
Donne, was hanged 8 years later for the
murder of his master, though he claimed it

was an accident. He therefore has the
dubious honor of being the first man in
Louisville to be tried and hanged. The
gibbet was the limb of a large oak tree

which stood Opposite the jail, then on
Jefferson Street.

THE FORT ON CORN ISLAND 13"

The corn was for camouflage, they
said; but there have bee

planations. Gen. Clark
his “corn-squeezins,”

n other ex-
himself liked


mee
f ;
*
t

ae

VENISON, Harold Van,

A Se Re Ee AR enn ee

black, hanged Covington, KY, 6-3-1938

GEORGE C. WRIGHT «>

Racial Violence in Kentucky

Di Shae ae ma ot inate ee

1865—1940

Lynchings, Mob Rule, and “Legal Lynchings”

LOUISIANA STATE UNIVERSITY PRESS

Baton Rouge and London

ya"

*.
s ;
$ ‘
HM
if
it
q by
Res
4 ;
He

opening of the trial. ‘ a t: é
“Bo intense ig the agal o

that.several were around the Coy-
ington City Building
&.m., the Post repo ,

“Jadge Northeutt, bant on seeing

order maintained, instructed Sher- - é 5

ose under | e influence
area eg Vinny Sees a: Ee ee

of liqgor.% a an oS
PY wearing Witdt was dle-'
seri wearing long side-'

burns,” sat and clutcited a Bible. .

Actually, Venison didn’t want to
be in the courtroom. Ag a harbinger
of the famous Gary Gilmore case,
Venison did not want an attorney to
represent him and he didn’t want
the trial date Postponed. He issued a

“1fession and told police, “I would

_ to get it over with.”

f % trial lasted two Gays. After
d «i minutes of Geliberation, a 13-

: tho. ; me 3
who have read of the alleged slices] ees

ah.

as early Bs O90

age in thre room and not | es

a

beaming. But the |
s4cotten wasn’t high
€nough and |
couldn’t crawl
gQway.?
ae Miapa Van Venison

‘Venisan’s feet. Both prayed ang
sang. Venisen took communion.

y+

in his cell. He appeared unwervied.

At ong point he scolded his wife,

maytag, “Bert, here, stop crying. I'm
4e Heaven.”

ay ““¥Ou fellows are doing me a
“he vor,’?

Rearby. “I Wouldn’t want coglenn

i my life i@ the pen and I

ps freedom now.”

* Before leaving his cell on the

Peteful day, Venison took ae)

- #@ligtous ceremonies with Rey,

_ Gem and two officers with sme

*; Milva@on Army. Venison, clad te

" White shirt, white trousers end

bedroom slippers, joingg im

ging, “On a hill far away stoed aa
rugged cross, the emblem of amg-

fering and shame.”

| More prayers followed. 8
after Richard T. Von Solis Meat
adviser to the sheriff’s Office, paad
the death warrant, Venison’s ares
were strapped and he was led om Als
last walk through the jail hallway.
The strains of “Stea! away, steal
away to Jesus, steal away,” could be
heard. Rev. Vandem accompanied
Venison to the scaffold. The hearse
waited outside the courtyard with
about 100 of the curious.

The trap was sprung. Sixteen
minutes later, Venison was declared
dead. His body was placed in an
undertaker’s basket and carried
away.

Venison’s last meal consisted of
porterhouse steak and gravy, french
fries, sliced tomatoes, hot biscuits,
coffee and ice cream.

“Gosh, if I'd known it would have
been like this, I could have died six
months ago,” Venison said.

7”

RGU Straub became familar with
the story of Harold Van Venison
during his study of the history of
Kentucky’s death penalty. Straub
covers courts for The Kentucky
Post.


1933
si peer at VENISON, Harold, black, hanged Convingeton, Kentucky, June 3, 30 «
ins mt Ny 9 dans a 4

pease whe we Caeiin, tra-
velbag Temaqeseecee and Geor-
gia before arriving in Aiken, S.C.,

where he sought work as a cotton .
picker. :

By that time he was the subject
of a huge manhunt. Outgoing trains °
and buses were Searched, as well as
ali black sections in the Cincinnati
area. .

Venison finally was captured
Oct. 9. Venison had sent a letter to a

{rlend in Covington, asking the
‘ Kentucky’s his . ffend to send clothes to another
. 1988, with God in his heart and a frtend in Aiken. oe ay
_hymm on his lips. r who came to Covington Two decoy packages were sent,
;___At 5:38 am. Venison stood on a Lduisville. ; a out Venizon’s suspicion was aroused
‘scaffold in the closed courtyard of » The crime that led to Veniesst's ~ and he didn’t clafm. either. Police «
. the old Kenton County courthouse tiknging was not his first brush with Venison. ad left the area,
|@ black mask around his hpad e law. He was convicted of

; d & noose around his neck. As
: Sheriff Henry A. Berndt gave the

‘order, @ trapdoor opened beneath
. Venison’s feet.

t Aiken police setermined Veni. —
was

& four m . may
his death, Venison confessed te * ‘Three heavily armed Aiken po-

another shooting for whtch he we n and a sheriff's @eputy sur-

*

not convicted.

Venison fell. Sixteen minutes
later he was declared dead, the last
-Man to be legally hanged in Ken-

“Tm guilty;” Venison said before
the trap was sprung. “The Lord gi-
‘veth and the Lord taketh away.
Blessed be the name of the Lord. I
/ &m ready, sheriff.”

Since those fateful words, 61
criminals have been executed at the
hands of the state — al] in the elec-
tric chair at Eddyville State Penj-
tentiary. Six of the 61 were conviet-
ed for rape — the same crime fer
which Venison paid his life.

At the time of Venison’s death,

' rape was the only crime that called
' for execution by hanging. The 1998

session of the General Assembly re-

lows, which were to
Kenton County from Mt. Sterling.

The rape occurred on Aug. t@,
1937, on Charter Oak Road, whieh
now is part of Edgewood. ie

According to newspaper reports
about the case, Venison and & com-
panion, “Thin John” Lattimore, had
been drinking beer and were riding
in a car on Dudley Pike when Veni-
son, the driver, crowded a car driven
by Robert Steidle, of Covington. A
25-year-old Covington stenographer
Was & passenger in Steidle’s car.
Steidle and his passenger were
$rhite.

*. Venison blocked Steidle’s car
~gmd accused Steidle of wrecking his
r. Bteidie gave Venison all the

Venison, who had a knife.

r awhile — turning around at
Bummit Hills Country Club — be-
. fore heading down Dudley Pike and
rents onto lonely Charter Oak

ad.

. Venison struck Steidle with an
auto crank and forced the woman
Out of the car, striking her and
threatening her with a knife. Veni-
son took the woman behind a@ bush
and attacked her while Lattimore
watched over Steidle.

The couple was left along the
roadway. They walked to a nearby
abandoned house and weren’t
found until about 5:30 a.m. the next

y by Kenton County policemen
Noxoll and Otto Froelicher.

| Lattimore, then 25, was picked up.
that night at Third and Court

streets and signed a confession,
Wentifying Venison as the attacker.
He subsequently was sentenced to
10 years in prison for aiding and
abetting the attack.

But Ventson diganneared A Wat

Oney he had — about $7 — to ap-

ed the cotton field in which —
Verrison was working.

“Isaw them coming,” Venison
teld The Kentucky Pest upon his
return to Covington. “But the cot-
ton wasn’t high enough and I ecould-
mt erawl away.”

Vemison’s extradition did not
prove t© be an easy task. A $1,000 re-
werd had been offered for his cap-
ture. Covington Detective James
Higgins, one of several officers who
went to Aiken to take custody of
Venison, said Kentucky authorities
had to sign a promise to use their

e to see that the reward
went to Aiken police. :

Things moved quickly after that.
Venison was returned to Covington
in early October 1937 to face swift
justice. Kenton Circuit Judge
Johnst Northcutt earlier was quoted
as saying, “To dally with an offense
of this kind indicates too great a
tolerance with one of our worst
forms of crime. The character of the
offense warrants prompt action.”

On Oct. 14, Venison was arraign-
ed before a packed court. Northcutt
said he would appoint an attorney
for Venison on Oct. 18 if the singer
failed to hire one.

Trial was set for Oct. 26 — less
than two weeks after the arraign-
ment and just barely more than a
week after the date set by the Judge
for the appointment of legal coun-
sel.

258 Racial Violence in Kentucky, 1865—1940

clothes, as well as the hangman’s hood, for souvenirs. The editor of
the newspaper in nearby Henderson had some criticisms of the hang-
ing as well: The hour of the execution, he wrote, should have been
more convenient—perhaps about 2:00 in the afternoon—so more
people could have attended. And it should have been conducted at the
high school so that everyone “could sit and be comfortable and see
the ghastly spectacle.”

Rainey Bethea’s execution drew nationwide attention to Kentucky
as the last state in which public hangings were conducted. Not sur-
prisingly, several organizations, concerned about the state’s image,
lobbied for an end to the practice. As the execution of John Pete
Montjoy approached in August, 1936, the ASWPL and the Courier-
Journal urged the governor to have the execution moved to Eddyville.
They achieved a partial victory when Covington officials agreed that
Montjoy would die in private, though the execution would still take
place on the gallows. In reaching his decision, the judge expressed
concern about the Roman Holiday atmosphere that had occurred in
Owensboro. Because of appeals, Montjoy’s execution was delayed un-
til December 17, 1937. Several months later, on June 3, 1938, Harold
Van Venison, also a Covington Afro-American, died on the gallows
after being convicted of rape. Within a month after his death, the new
law went into effect, calling for “all executions of the death penalty
by electrocution ... [to] take place within the walls of the state
penitentiary, ... and in such enclosure as will exclude public view

thereof.”® While white reformers were pleased that they had ended a .

particularly gruesome practice, they never questioned that for more
than two decades virtually all of the men who had died on the gallows
were blacks who had been convicted by all-white juries.

This willingness to publicly execute alleged black rapists under-

9. See the Louisville Courier-Journal, December 12, 1937, for an article, “To Hang
in Private,” in the Sunday magazine; see also the paper’s editorial of June 6, 1938, and
its praise of the ASWPL. Efforts of the organization to end hangings have also been
praised in Wilma Dykeman and James Stokley, Seeds of Southern Change: The Life of
Will Alexander (New York, 1962), 146. Acts of the General Assembly of the Common-
wealth of Kentucky (Frankfort, 1938), 640—41. Information on the execution of Ven-
ison was obtained from Perry T. Ryan, A Legislative History of Hangings in Kentucky
(Frankfort, 1988). I am grateful to Mr. Ryan, an assistant attorney general for the State
of Kentucky, for sharing his research with me.


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Sa AL i?

River Riddle of the Sunken Bodies

[Continued from page 65]

I'm positive both old John and Clay were
killed at the house.”

When he was certain there was nothing
more to be found, Grubbs and his depu-
ties traversed the tortuous road back to
Liberty. The sheriff's first move was to
phone the Louisville police headquarters
and ask them to broadcast a description
and license number of Clay White’s ma-
chine.

Next he paid a visit to Mary Hawkins.
The woman, a divorcee, still in her 20’s,
readily admitted that she and Clay White
had talked of getting married, “But
what’s that got to do with Clay’s getting
killed?” she asked as she twisted her
handkerchief into a ball.

Grubbs ignored the question “I heard
that Clay called off the marriage,” he said
smoothly.

“Whoever said that lied,” the girl re-
plied hotly. “Clay and I were to be mar-
ried this coming February.” She touched
the handkerchief to her eyes.

Grubbs waited patiently for her to
finish. Then he said, “I heard Clay spent
a good deal of time with several women
besides you.”

She twisted around angrily, “If he had
other girls I sure didn’t know anything
about it. And if that’s all you’ve got to
say you can leave right now.”

Grubbs’ face suddenly became rock-
hard. ‘Girlie,’ he-said, “I know you
couldn’t have had anything to do with
the actual commission of this crime, but
I also know you were jealous of Clay
White. And I’ve heard of murder by
proxy. If there are any self-appointed
avengers around who killed Clay to curry
favor with you I’m going to find them.”
He waited for this to sink in and then
asked, “Did you ever tell any of the
young bucks around here that you’d like
to get even with Clay?”

ALE but defiant, the girl shook her

head. ‘No,’ she said. “There was
nothing to get even about. I loved him.”

The sheriff questioned her a few min-
utes longer but seeing that direct
methods were bound to be fruitless he
departed, leaving the young woman rag-
ing behind him.

Returning to his office he ordered his
deputies to learn the names of other
women in whom Clay White had been
interested and to question them.

They were found easily enough and in-
terviewed in quick succession, All the
women questioned confessed their inter-
est in White but none would admit any
knowledge of why he had been murdered.
Grubbs released them—under observa-
tion,

He next examined the iron weights .

found on the bodies and near the White
house, the hickory stick and the blood-
stained hammer. He showed them to
numerous residents of Casey county in
an effort to learn who owned them. One
witness stated emphatically that the
hammer and the weight tied to the body
were not part of the White’s property.
This witness, however, was unable to
state who in Casey county owned similar
items.

Grubbs placed the death instruments
on exhibit in the courthouse corridor,
ordering a deputy to watch them and to
note reactions of spectators who viewed
them. There was a slim hope that a clue
might be unearthed in this manner.

In addition he assigned two men to

check garages, blacksmith shops, sheet-
metal works and individuals in Casey
county who might own a hammer similar
to that used in the murders. He suggested,
also, that the men check the larger farms
for such an instrument. If they could find
someone whose sledge-head hammer was
missing they would have a suspect.

The sheriff also attempted. to trace the
movements of the slain men on the day
before their death. He canvassed their
nearest neighbors, finally found one who
said John White had visited in his home
during the afternoon of Dec. 3. He pro-
duced a number of witnesses to prove
that White left around 4 p. m., alone.

He found no one who had seen Clay on
Dec. 3. A bank teller in Liberty stated
that he had cashed a pension check for
the man on Dec. 1. Considerable probing
revealed that the teller was the last man,
except for the killers, to have seen Clay
White alive.

Days passed with little event. Then a
hobo displaying a large amount of money
was brought into the sheriff’s office by a
deputy. A swift check-up revealed that
the hobo had been in Casey county the
night of the White murders, He claimed
he was asleep in a jungle camp. When the
suspect described its location, Sheriff
Grubbs realized that it was not more than
two miles from the death scene.

He ordered the man remanded to a cell
in the county jail, holding him on a charge
of vagrancy while the hunt for clues in
the baffling case continued.

Grubbs had not forgotten Mary
Hawkins, but how to find a connection
between her and the still unknown killers
seemed impossible until more could be
learned about the ‘latter.

Thus far no progress had been made
with the death weapons. No one admitted
owning the hammer or the iron weight.
Furthermore, no one could remember
having seen these two items anywhere
before.

Had they been imported from another
county? If so, the killers were not Casey
residents, making the case even more
dificult to probe. Grubbs quickly con-
tacted officials of adjacent counties, ask-
ing their aid in checking on possible
suspects.

Meanwhile, no reports had filtered back
on the license number and description of
Clay White’s car which had been broad-
cast over a five-state hookup.

The situation seemed almost hopeless
when unexpectedly the deputy guarding
the death weapons in the courthouse cor-
ridors burst into the sheriff’s office. “It’s
happened,” he said excitedly.

Grubbs glanced up, startled. “What’s
happened?”

“T saw a man’s eyes bug out big when
he saw the hammer. Then when he saw
me noticing him he skittered away in a
hurry.”

“Do you know his name?”

“Yes. It was Josh Harper.”

Grubbs started. Harper was a particular
crony of his. Surely he could not be in-
volved in the death of the Whites. How-
ever, it was his duty to check even his
friends. He hurried out to the Harper
residence and talked idly for a while, as
if his purpose were a purely social call.
Adroitly he led the conversation around
to the murders.

Harper’s eyes clouded. “Too bad about
old John and Clay,” he said. “They come
from mighty good stock.”

Grubbs gfanced casually around the

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113


rowd
at the
Idenly

John

Vhites
) men
berty.
years

n the

RING

United States Army, retiring only re-
cently to live with his aged father. In
spite of his graying hair, he looked young,
handsome. He had never married. Al-
though the White farmhouse was not pre-
tentious, many felt that some wealth was
secreted in those plain, unpainted walls
—wealth garnered over a lifetime by sav-
ing, penny-wise old John White.

All these facts made Clay White a
“sood catch” in the minds of many

DETECTIVE

Separsensitr satis «a. haem ee od OREN TAMA TET

unmarried women of Casey county.

These things flashed through the sher-
iff’s mind as he again kneeled to exam-
ine the bodies. He glanced up at the
fisherman. “Sure you didn’t notice
this pole in the river before this morn-
ing?”

The fisherman’s expression was one
of mingled horror and wonder. “That's
what makes it so hard to understand,”
he said slowl “That pole belongs to

me, Sheriff. I had my traps
struhg on it only yesterday.”
,..As the sheriff fell silent,
digesting this information,
the man added, “When I first
saw the pole this morning it
was about ten feet away from
whete I’d left it.”

Gtubbs turned back to the
bodies. They were in an ex-
cellent state of preservation,
he observed, as if they had
only been dead a matter of
a few hours. They probably
had been killed in bed the
night before and _ hustled
down to the ‘icy river before
dawn.

Ordering the fisherman to
summon an ambulance and
his deputies from Liberty,
Grubbs turned to the wide-
eyed crowd. “Anybody know
anything about this? Can
‘you think of any reason why
these men were killed?”

HEAVY silence fell

over the group. Finally,
one farmer drawled, “I guess
you knew Clay was pretty
popular with the ladies.”

Grtibbs nodded. “But that
doesn’t mean anything unless
he was fooling around with
someone else’s wife or sweet-
heart.”

“T heard tell he was going
to marry Mary Hawkins,”
the farmer told the sheriff.

Before Grubbs could an-
swer, however, another man
spoke up. “He gave Mary
the air. She’s going with
another guy now.”

Grubbs quickly squelched
the tide of speculation he
knew was about to rise
among the crowd now that
“the woman angle” had been
aired. But he made a mental
note to see Mary later.

Diverted from the inter-
esting subject of woman,
someone mentioned the ru-
mor that John White had
been a wealthy miser, Sev-
eral men declared that they
had seen old John with large
Meee, suis of money, but had never
ees seen him spending any of it.

phe
Baud.

i Another man declared that

old John had possessed a deep
hatred of banks because he
had lost a considerable
amount in a bank crash.
“Then everyone in Casey county thinks
old John was rich, eh?” said the sheriff.
Several of the men nodded their heads
in unison. One replied, ‘“That was the

: general opinion.”

The ambulance and Sheriff Grubbs’
deputies arrived simultaneously. After
the bodies were removed, the deputies as-
sisted their chief in sending the crowd
about its business.

When the river banks were cleared of

63

Spear

ree

Se SE a ees

i io Nag APSA APS BEI

OE ie ES

spctin seston nT te
ase

eae AB see

geen

bolle

all spectators except the fisherman, Grubbs looked at
the ground disconsolately and said, “If the killer left interest in White but none would admit
any footprints in this frozen mud, the crowd has any knowledge of why he or his elderly
obliterated them.” father had been murdered.

The fisherman shook his head. ‘I’m certain there
were no footprints, Sheriff. This ground has been
frozen solid for a week.”

One of the deputies said, “Think they were killed
right here ?”

“No,” Grubbs said. “TI hardly think they were alive
when they got this far. Nothing but a gun could
have forced them out in this weather with only their
underwear on. They weren’t killed with a gun, that’s
certain. They must have been murdered at home
then brought here afterward.”

The men searched the river bank for considerable
distance on both sides of the point where the bodies
had been submerged, but could find nothing resem-
bling a murder weapon, nor any clues which might
be useful in identifying the killer or killers.

Since the pole was accounted for, the iron weight
was the only piece of evidence which could possibly
figure in the solution of the mystery. Putting the
weight in his car, Grubbs and his two deputies left
the scene, and drove to Liberty. There they located a
man who said he would guide them to the White farm.

All the women questioned confessed their

Rai 24

<40<

CORE

T THEIR guide’s direction, Grubbs drove out a
+ narrow, rocky lane which became more deeply
rutted and narrow the more distance they covered.

Gradually the car left all signs of farm life behind
and entered a lonely, wooded part of the country.
Finally it stopped in front of an unpainted, weather-
grayed cabin in a grove of shadowy pines and cedars.

One of the deputies shivered. “This place gives
me the crceps,” he said.

“A perfect spot for a murder,” the other agreed.

Grubbs was silent, staring grimly at the deserted,
forbidding-looking place as the trio climbed out of
the car. Then he nodded. “A perfect spot indeed.
So far from the nearest farm that it’s certain nobody
could hear any commotion.”

Keeping his gaze on the ground in a steady search
for clues, he led the way up a path through the dead,
sear weeds. Ten feet from the front porch he stopped
short. Stooping quickly he picked up a four-foot
length of hickory.

He pointed to the splintered bark. ‘Bloodstains
and hairs,” he commented. “This was the murder
weapon.” He paused as he suddenly remembered
something. “Anyway, it’s one of the weapons,” he
amended. “Look around for another, perhaps a
hammer.”

Although mystified, the deputies obeyed. A mo-
ment later, one of them shouted, “Here’s the other
one, Sheriff, under this tree.” A moment later he
handed Grubbs a huge bloodstained hammer.

The deputy asked, ‘But what made you think there
were two murder weapons, Sheriff ?”

Grubbs looked up from the hammer and smiled.
“It took something a lot heavier than that stick to
make those wounds in Clay White’s head,” he said.
“This means there was more than one killer. There
were two, possibly three men in on: this.”

Once more Grubbs examined the spot where he
had found the length of hickory, The ground was
bloodstained for a considerable area. He noted that
a trail of blood drops led away from the spot), He
followed them to the house. Here he stopped short,
and drew in a deep breath.

The splintered pine flooring of the tiny front porch
was stained crimson. The pattern of the stains indi-
cated that a terrific struggle had taken place here.

At this moment one of the deputies, who had been
exploring the yard around the porch, shouted : “Here’s
an iron weight which looks like it was used in the
murder too.”

64

SMR

ee!

LAK

SEE CEE Re ne

AAS


The sheriff examined all
three weapons carefully, then
nodded. ‘This means there
were three killers,” he said.
“No wonder the two Whites
couldn’t hold out against
them.”

The three men stepped gin-
gerly upon the porch, opened
the door and entered the dimly
lighted house. There was only
one room, looking as though
a tornado had struck it. Two
bloodstained beds occupied one
corner. Near the beds were an
overturned table and two
chairs with shattered legs. A
number of pictures which had
hung on the walls lay in pieces
around the room. The drawers
of a small dresser-chest were
standing open, their contents
spilling over the sides.

Opposite the beds was a
trunk, its lock shattered. It
bore every sign of being thor-
oughly ransacked.

RUBBS and his men
searched the room for let-
ters, legal.papers, calling cards
or other articles which might
serve as clues. But there were
none. -All Grubbs found was
an automobile certificate of
registration. It bore the
license number of a car regis-
tered in Clay’s name.
Grubbs ordered, ‘‘Go see if
the car is gone.”
One of the deputies hastened
outside. A moment later he
returned to the scene of car-
nage and shook his hea d
dolefully. “I’ve looked every-
where. There’s no car on the
place.”
The other deputy glanced up
quickly. ‘‘Apparently the
killers took Clay’s car. Of
course it’s possible that he
loaned the machine to some-
one but I doubt it. Looks like
a robbery motive to me.”
“Everything points that
way,” Grubbs agreed. “But
we've got to keep an open
mind on that score too. The
killers may have purposely
messed up the room.to mislead
us.”
Grubbs and his men again
searched the house, but finding
nothing further, proceeded to
the building used as a garage.
There, in a dark corner,
Grubbs picked up a felt hat
marked with the initials °C.
“That’s Clay’s hat,” one of
the deputies exclaimed.
Grubbs nodded. “Either he
dropped it there at some time
previous to the murder, or one
of the killers stole it, then lost
it while backing the car out.
[Continued on page 113]

65


°

JURIER. JOURNAL MAGAZINE

Dbute

'

WATERS, William, Jekeek, elec. Ky. (Montgomery) 11-3-1933.

“Bad Bill” Waters

The Scourge of Menifee County

His hot temper and violent, impulsive nature were nourished by a taste for

the juice of mountain stills. But he always
when he said, “I believe I a just kill you.”

By Mary Lou Brown

t was customary; he could have

anything he wanted to eat, the
warden told him, but the con-
demned man ate an unusually light
last meal of fried oysters, sweet.
milk, biscuits and coffee. Oysters
— a coveted food highly touted as
an aphrodisiac, a rich man’s food
not readily available to a mountain
man in the lean, hungry 1930s.
Was the choice symbolic? He ate
his oysters and spent his few te-
maining hours writing letters to

At exactly 12:03 a.m. on Nov. 3, .

1933, “Bad Bill” Waters, scourge

.of the Menifee County hills, «hi

stepped into the death chamber of
the Kentucky State Penitentiary at
Eddyville. Waters nodded to news-
men and to others gathered to
witness his execution. No, he
would have nothing more to say,

‘except to deny that he had killed as

many men as reputed. He had said
all he wanted to say in his appeal,
which was denied.

He acknowledged Fioyd Willis, a
Montgomery County farmer.
“Well, Floyd, is this the first execu-
tion you’ve ever seen?” Willis
nodded. Reporters later described
Waters’ tone as “bantering.”

The current was applied at 12:06
and “Bad Bill” Waters was pro-
nounced dead at 12:09, ending a
career of crime unparalleled in the
history of Menifee, a Cumberiand
foothills county infamous in its
earty days for moonshine stills and
a general climate of lawlessness. «

The road that Bill Waters trav-

MARY LOU BROWN is 2 free-lance writer who
fives in Nicholasville, Ky.

ra J

13 men, but when pressed for

over it. He liked guns: always had a
gun handy. That’s what happened
ee

It has been rumored for 60 years
that the itinerant peddler was Bill
Waters’ first murder victim. Bill,

_.then 14, confessed the murder to
Jim, but not to his parents, Polly
and Ellis Waters.

sounded calm and deliberate

é
5
ql
FR

pity
rt
if
Hs

Fg
a
#5
if
ee

geet

World War I was in progress; the
“long toms” were booming in
France when the raw recruit ar-
rived at Fort Knox for basic train-
ing. The restrictions of Army life
soon palied on the impulsive
mountain man, more accustomed
to squirrel hunting in the early
dawn than standing reveille. He
simply walked away one morning,
home to Menifee County. When

‘the Army sought to reclaim him he

turned himself in voluntarily, but

“in a few weeks he was home again.

Military police came for the recal-
Ccitrant soldier that time, but his
third attempt at becoming a civil-
ian succeeded.

“Never knew if the Army turned
him loose that last time or if he had

-deserted. He didn’t say. Anyhow,

drinking and gambling, only one

at Chambers Station, Bill was

With Bill away from home so
much Bertha was lonely and “took
to drinking,” according to Jim.

Continued


eu LT ae Ve

pineisnmome
LLIN ait

(3 SUNDAY, JUNE 8, 1908


-

20% “ Ky 74 SOUTH WESTERN REPORTER, 2d SERIES
‘ZB °

the river where they would put the bodies,
carried a heavy piece of iron for weighting
them down to a convenient place, and other-
wise perfected the scheme. That evening
about 8 o’clock they took a hammer from the
defendant’s, home and went to the cabin,
where they found the Whites had gone to bed.
Jeffries went in and woke them up, and the

STANLBPY, Commissioner.

The appellant, Sylvester Warner, twenty-
four years old, freely confessed to commit-
ting a deliberate, premeditated, and ghastly
murder, and upon his trial offered no de-
fense. The judgment condemns him to death.
When Sherman Richards went to see about

his traps, his attention was attracted to a three of them went in the house and talked
white cloth just under the surface a ad awhile and also did some drinking. Jeffries,
river in Casey county near Liberty. - dis. Who had been most intimate with Clay White
deavoring to pull it out with a pole he dis- and had been accustomed to driving his ma-

ysl slags = vane sb ma chine for him, suggested that he go outside
wrapped in a sheet. en a

for a private conversation. When they got
come the body was lifted from the water and him in the yard, he (Warner) and Jeffries

it was found that there was another man 1/1) upbed him to death. The old man had

wired to it. The heads of both men were stayed in bed. They went back into the house
crushed and presented a most gruesome Spe 4 beat him to death with the hammer. Aft-

tacle. They were identified as the bodies of er ransacking the place and taking two rings
John White and his son, Clay White, who +11. Gay White's fingers, they ticd up the
had lived alone in a cabin in the neighbor- 1 o:4, with wire and took them in the auto-
hood. The father was about eighty years old mobile to the place where they were found
and the son, a retired soldier, was about six- the next morning. Taking Warner’s wife,
ty. At their home a bloody club and a shot- they went to the home of her father in Ohio,
gun were found in the yard ~ asvggl el near where they were ee as red

ences of the tragedy were scattere mblance of an excuse, as stated in -
poe the premises. Within the cabin was a Eaulox is that they were drinking and but

bloody mechanic’s hammer; everything waS +,. tat fact would not have committed the
in great disorder, and very gory. crime.

Three young men of the neighborhood, Byl- [1-3] It is submitted as a ground for re
vester Warner, Huston Jeffries, and Carl versal of the judgment that it was error to
Hardin were missing, and other circumstance 4 414i: evidence of the killing of John White,
es, including the ownership of he Rammer particularly of the ghastly condition of his
and gun, pointed to their guilt. Tuy pipe body, and as well to permit the introduction
soon arrested in the southern part of Ohio of the meager clothing taken from it, since
in possession of Clay White's automobile, the defendant was on trial only for the mur-
and each of them was ghoulishly wearing a der of Clay White. It is argued that this
portion of his clothing. They also had some evidence tended to arouse the passion oa
rings and other things belonging to the dead prejudice of the jury and to magnify the
man, When the county judge and sheriff of crime, causing a verdict which otherwise
Casey county went for them, Warner freely might not have been returned. It isa ve
told them about the crime and admitted bis just, and fundamental rule that an accused
guilty participation. The prisoners were person will be tried for one offense ata oo
brought to Lexington, and there in ne Comite and that the introduction of evidence rie
diction that Warner there freely related all ing, or tending to show, his commission of oth-
the sordid and shocking details of the brutal er separate and independent crimes will a
tragedy. His statement was transcribed and, be permitted. However, there are several
after being read by the accused and its ac- distinct exceptions to that rule which =
curacy confirmed, was signed and sworn to i+) gemands in aid of detecting and oon

ing crime. Among those exceptions is where
"a too te onstituent parts of
The substance of that confession, read 0 two hed Loci piper ses ‘ peng erie
i rink- one f

in ek ead to a wee proof of the other, or where the Mirena
gone waite for a trip and to tie him and other crimes is to complete es ips * ra
his ies up until they could get away and The murder of John oar tee te
dispose of the car. On Saturday they agreed of his body qty = cane pon ese
the best thing to do was to kill both of the brought about in . . oe a aiaad Kae
men and put their bodies in the river in order way at the same tim ot thap etiind tome 0
to accomplish their purpose. On Sunday, blended with the pie wt ody ante

December 8, 1933, they selected the hole in to form an indivisible c

|

Se RY

JEFFRIES v. COMMONWEALTH Ky.
74 8.W.(2d)

Full proof of one crime could not be given
without showing the other. Morse v. Com-
monwealth, 129 Ky. 294, 111 S. W. 714, 33 Ky.
Law Rep. 831, 894; Thomas v. Common-
wealth, 185 Ky. 226, 214 S. W. 929; Keller
vy. Commonwealth, 230 Ky. 815, 20 S.W.(2d)
908; Jordan v. Commonwealth, 240 Ky. 391,
42 8.W.(2d) 509; Hudson v. Commonwealth,
249 Ky. 845, 61 S.W.(2d) 874.

[4,5] In the closing argument the common-
wealth’s attorney stated: “No one has taken
the witness stand and denied anything said
by the Commonwealth.” It is claimed that
this violated the proprieties of argument asa
reference to the failure of the defendant to
testify in his own behalf. The accused, of
course, had the constitutional right to rely
upon the commonwealth to prove him guilty
and to take cover behind the “shield of si-
lence.” It is in recognition of that right
that the courts hold it prejudicial error for
counsel of the commonwealth to comment up-
on a defendant’s failure to testify. But in
many cases this court has held that a refer-
ence such as that made here as to the absence
of testimony refuting the evidence of the com-
monwealth is not regarded as a comment up-
on the failure of the defendant himself to tes-
tify. Ridner v. Commonwealth, 242 Ky. 557,
46 8.W.(2d) 1102; Hanks v. Commonwealth,
248 Ky. 203, 58 S.W.(2d) 394, 895. Upon this
trial the court admonished the jury to dis-
regard the statement of the prosecuting at-
torney, and specifically repeated the admoni-
Uon In the written instructions,

(6] The only other ground upon which re-
versal is asked is that it was error to permit
the Casey county officers to testify to the ad-
missions and confessions freely made to them
at the jail in Ohio, because the commonwealth
had not introduced the Ohio officers to prove
that there had been no Sweating or coercion
of the accused before he was interviewed by
the Kentucky officers. Aside from the fact
that the subsequent confession, signed and
sworn to in Lexington, was freely and volun-
larily given, the claim of Sweating is a de-
fensive one, and where an admission is sought
to be avoided because involuntary, it is in-

cumbent upon the defendant to establish that
fact.

There is no mitigating circumstance in this
case. The accused has been accorded a fair
trial. A jury of his countrymen have, under
(he authority of society and organized justice,
decreed that he shall pay the extreme penalty
for his brutal crime. It is the duty of this
court to affirm that judgment.

203

In accordance with chapter 54 of the Acts
of the 1934 Session of the General Assembly,
the judgment of affirmance will fix the day of
execution as the fifth Friday following the
date of the mandate of this court,

Judgment affirmed.
Whole court sitting.

255 Ky. 365
JEFFRIES v. COMMONWEALTH.

Court of Appeals of Kentucky.
June 19, 1934.

Rehearing Denied Sept. 25, 1934.

1. Criminal law €=956(4).

In murder prosecution, motion for new
trial on ground mob in courtyard made
threats and influenced jury in finding accus-

ed guilty held properly overruled, in view of
affidavits refuting contention,

2. Homicide €>162, 231.

Proof of conspiracy to commit homicide
is merely means of establishing malice, which
must be premeditated, and conspiracy, if any,
would be conclusive proof of such malice.

3. Homicide €=305.

Indictment charging named persons as
principals in commission of willful murder
held sufficient to authorize giving of instruc-

tion on conspiracy, even without allegations
of conspiracy.

4. Homicide 127.

Allegations of indictment charging nam-
ed persons with commission of willful murder
held sufficient to charge commission of willful
murder by named persons as principals, with-
out allegations relating to conspiracy,

Indictment in accusatory part named the
crime “willful murder,” and in the descrip-
tive portion charged that named persons
did unlawfully, willfully, maliciously, fe-
loniously conspire and agree to kill and
murder deceased, and in pursuance of the
conspiracy the named persons did will-
fully, unlawfully, and feloniously and with
their malice aforethought kill and murder
deceased by beating, bruising, and wound-
ing deceased with hammer, irons, and oth-
er hard substances, and from which beat-
ing, bruising, and wounding the deceased
died.

5. Criminal law €=807(1).

In prosecution for murder, wherein ac-

cused pleaded guilty, instructions on malice

€=>For other cases see same to

pic and KEY NUMBER in all Key Number Digests and Indexes
Ky.DEc.73-75 S.W. (2d)—6


200 ° Ky.

Sugg was employed under section 4472,
Kentucky Statutes, controlling the appoint-
ment of principals and teachers of graded
common schools. It reads: “Boards of trus-
tees shall appoint for the schools under their
respective jurisdiction a principal and all
teachers, fix their compensation and dismiss
them for immorality, misconduct, incompe-
tency, insubordination, or wilful neglect of
duty. Provided that in each case the charge
be made in writing and that the principal or
teacher be given an opportunity on not less
than ten (10) days’ notice to be heard in per-
son or by counsel and to present witnesses
in defense. Provided further, that no princi-
pal or teacher shall be employed who does
not hold the kind and grade of certificate re-
quired by law and issued by the state board
of education.”

{!] The statute, as will be noted, does not
contain any provision as to the length of the
term for which principals or teachers may be
employed. Neither does it refer to a “super-
intendent.” While it is true that Sugg is de-
nominated in his contract as “superintend-
ent” of this graded school district, yet the du-
ties which the petition as amended charges
he had to perform are those of a principal.
As conceded in the brief for appellee, the
board undoubtedly could legally employ a
person to discharge the duties of a principal
even though he was mistakenly styled super-
intendent. The contention that there could
not be two principals of this school and that
Jackson was at the same time appellant was
employed as superintendent employed as
principal cannot stand the test of the allega-
tions of the petition that Jackson was princi-
pal of the high school department only and
that Sugg had charge of both grades and
high school. It is thus clear that, though
mistakenly styled “superintendent,” Sugg
was employed as principal of the entire
school,

[2] The statute being silent as to the length
of time for which principals and teachers
imay be employed, it follows, unless the ques-
tion is controlled expressly or impliedly by
some other statute, that the board of trustees
is lodged with a discretion as to the length
of time for which it may employ principal
and teachers. In 56 C. J. 385, the rule is
thus stated: “In the absence of an express
or implied statutory limitation on the length
of term for which the board is authorized to
make employment contracts, it may itself fix
the term, provided only it be for a reasona-
ble length of time and the reasonableness of
the contract is determined in view of all the
circumstances surrounding it.”

74 SOUTH WESTERN REPORTER, 2d SERIES

Whether the argument that teachers ave
state officers and that state officers cannot
be employed or elected under the Constitu-
tion for a longer period than four years and
that hence the board could not have elected
Sugg for a longer period than four years is
sound or not we do not deem it necessary to
discuss or decide, since Sugg was elected for
a two-year period only, and, on the record as
before us, there is no showing that the elec
tion for such a period is unreasonable or any
abuse of discretion.

[3] We are then met with the question
whether or not section 4472, which covers the
election of principals and teachers in the
graded common school districts of the kind
and character of the Glasgow graded school
district is controlled or modified expressly
or impliedly by any other statute. It is ar-
gued that graded common schools are a part
of our common school system, and that, this
statute in question being silent as to the
length of time principals and teachers may
be employed, we have a right to look to that
section of school laws providing for the se
lection of teachers in the common schools of
the state for guidance, and that, when we do,
we find that teachers may be elected in the
common school for the period of one year
only. See section 4399a-7. This section re-
fers entirely to county boards of education,
and has no express reference or application
whatever to graded common schools. It is
trie that both county schools and graded
common schools are part of the common
school system. But that does not warrant
the application to the graded common school
system of laws clearly and manifestly meant
to be applicable only to common schools.
Such are the provisions of section 4399a-7.
It was enacted by the Legislature to apply
only to schools under the jurisdiction of the
various county boards of education. It is
not a general provision applicable to all the
schools that compose the common school sys-
tem of the state, but is a special provision
applicable solely and exclusively to county
schools under the jurisdiction of the various
county boards of education. The case of
Jeffries v. Board of Trustees, etc., 135 Ky.
488, 122 §. W. 818, does not militate against
these views. In that case, the special provi-
sions concerning graded common schools did
not contain any provision concerning the
qualifications of voters in the graded com-
mon school district elections. It was held
that the general provisions of the law per-
taining to the qualifications of voters in com-
mon school district elections were applica-
ble. The statute being silent as to what were

WARNER v. COMMONWEALTH . Ky. 201
14 8.W.(2d)

the qualifications of voters, no qualifications ~

were prescribed by it, and necessarily the
statute covering qualifications of voters in
common school elections had to be resorted
to. But we encounter no such difficulty here.
Section 4472 of the Statutes, not prescribing
the exact term for which teachers and prin-
cipals could be elected, did not leave a hia-
tus, for, as we have seen, such a law means
that the board of trustees may elect princi-
pals or teachers for a reasonable time. Sec-
tion 4399a-7 of the Statutes does not express-
ly or impliedly refer to section 4472. This
latter section is complete in itself, and hence
we do not have to resort to any other statute
to fill in a fatal omission. There was none.
The board had a right to elect principals and
teachers for a reasonable time.

[4] It is urged, however, that section 4481
of the Statutes, providing for an annual bud-
get for these graded common school districts,
by implication restricts the employment of
principals and teachers to one year. The co-
gency of this argument is not apparent. The
annual budget can take care of the situation
where principals and teachers are employed
for a period longer than one year as well as
where they are employed for a period of one
year only.

[5,6] It is lastly arguea that the employ-
ment of a principal or teacher for more than
one year would violate section 157 of the Con-
Btitution, which prohibits a taxing district
to become indebted in any manner or for any
purpose to an amount exceeding in any year
the income and revenue provided for such
year without the assent of two-thirds of the
voters thereof. This case is before this court
on a demurrer to the petition as amended,
and it does not disclose that the contract in-
volved violates that constitutional provision.
Further, this argument is a matter of de-
fense, and must be asserted by an appropri-
ate pleading. City of Louisville v. Gosnell,
61 S. W. 476, 22 Ky. Law Rep. 1524; Streine
v. Commissioners of Campbell Courthouse
District, 149 Ky. 641, 149 S. W. 928; Galion
Iron Works & Mfg. Co. v. Bullitt County, 184
Ky. 805, 213 S. W. 200. The court erred in

sustaining the demurrer to the petition as
amended.

Judgment reversed for proceedings con-
sistent with this opinion.

RICHARDSON, J., took no part in the de-
cision of this case,

265 Ky. 361
WARNER v. COMMONWEALTH.

i
a

Court of Appeals of Kentucky.
June 19, 1934.

Rehearing Denied Sept. 25, 1984.

1. Criminal law €=369(1).

Generally, evidence showing commission
by accused of other separate and independent .
crimes is inadmissible.

2. Criminal law €=365(1), 369(2).

Evidence showing commission by accus-
ed of separate and independent crimes is ad-
missible where both crimes are constituent
parts of one transaction and proof of one ne-
cessitates proof of other, or where evidence
of collateral crimes completes res geste.

qseaThs SunNuW

TUM fio

3. Criminal law €=369(3). é.
In prosecution for murder of gon, admit- --
ting evidence showing murder of father, «
ghastly condition of his body, and clothing ~
taken from him, held not error, where son
and father were killed at approximately same ©
time and in same manner.

4. Criminal law 1171(5).

Comment by commonwealth’s attorney
upon accused’s failure to testify constitutes
prejudicial error,

5. Criminal law @=721 (5).

In homicide prosecution, statement by
commonwealth’s attorney in closing argu-
ment that no one had taken witness stand
and denied anything said by commonwealth
held not improper as comment upon defend-
ant’s failure to testify, especially where trial
court admonished jury to disregard state-
ment, and specifically repeated admonition in
written instructions.

6. Criminal law @=531(1).

Where admission made by accused is
sought to be avoided on ground that it was
involuntary and made under coercion and
sweating, accused has burden to establish

such facts.
a

(A9S@y) UOSTdg 94840 “AY %OOET

Appeal from Circuit Court, Casey County.

Sylvester Warner was convicted of mur- _
der, and he appeals. =
Judgment affirmed, “3
Ransom L. Bryant, of Liberty, and ©. C. ws

Crabtree, of Tompkinsville, for appellant.

Bailey P. Wootton, Atty. Gen., H. Hamil- fs
ton Rice, Asst. Atty. Gen., and Charles H.
Fair and Charles F. Montgomery, both of
Liberty, for the Commonwealth.

6t

@=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

74 S.W.(2d)—13%

WEICK,

~ at: Eddyville ‘Prison; Slayer

elec,

George, white,

eres
Fee

oe gh

* ee mye: F
Bro

“NIE Hi

. as
r* fad?

First: Triple ‘Execution ‘In: the
-. State’s History ‘Carried: Out

of Arbeguist® Issiies: State-
ment’ Giving “Advice © ‘to
-. World;””-. Asks : Mothers to

Send d Cldrén to: Church.

‘BULLETIN °
LOUISV TLE, May 9.—A special to
The Times from sg. ‘staff correspondent
at Eddyville today sald that after
George Weick had malntalned hie In-
nocence: of the cflme foc ‘which he

jthree men,

waa convicted, he. confensed a few
minutes before he was executed. “I
shot and Luge that man, but no one
saw me t oe
having nal. Fidaacseea In quoted as
© 019 @ ©

WESTERN STATI PENITEN.
TIARY, Eddyville, Ky., May 9.—Ken-
tucky's’ first triple execution by elec.
trocution was completed in Eddyville
Prison this morning, when Frank
Thomas, George Welck and Charles
Miller dled in the electric eed In
the order named.

Thomas died at 12:39 o’clock.

Weick died af 12:58 o'clock.

Thomas, 72 years old, slayer of
One of them his best
friend and nefactor, Lee Arbeguent,
was the firs( to pay the penalty: Hin

march to the death hous» just a few
feet from the cell in w a he spent

hin last hours, began a ‘few minutes
after midnight,’ ar

Quickly he was strapped in the
death chair, the electrode was applied
to head and ankles, the attendants
stepped back and, as ‘Chaplain A. FP.

‘ficial elecutioner threw ‘a switch, a/|

Hanberry muttered a” prayer, the of-|:

convulsive ‘tremor passed. thru . the
aged man’s body and he was atill.

‘The current was turned off for half
a minute and. then reapplied. Prison
physicians then. “stepped forward, 1
Netened for: heart betas,’ felt for hia

pulse and, ‘finding no ion ‘of -Hfe
pronounced him ;dead,

Ky. SP (Jefferson) May 9, 192k

_eweew vu JIT) GCead,
Welck’s Death March

Thomas: execution completed, his
body: removed and the death march
for George Welck,.convicted of mur-
dering from ambush William Ocekle
in Jefferson county, began. He met
| his fate as had the other, except that
he continued to declare his innocence
of the crime for which he died.

Within a minute .or two after his!
[body had been removed from the;
death house the third of the three
murderers to pay the extreme ‘pen-
alty of the law, Charles Miller, Negro,
who slew two ‘railroad guards in
| Breckinridge county, marched Into
‘the death house.
The same procedure, followed with
machine-like schedule as Jn Thomus'

case, Was gone thru.
‘ Thomas" Last Advice
Thomas, as one of his last: acts,
} wrote the following: “advice to .the
world’’ and gave it to Chaplain Hun-
berry, with the reqieat that ft be

made public: ° - (

“As I have BDut'a fee more hours
on this earth, and, sitting jn the
death cell at Eddyville penitentiary,
1 wish to give the following advice

o

‘to the. world: .@
“I came from ‘one: of the.. best

families jin the State of Kentucky.
Young people, keep out of bad carn-
[’pany and obey your mother dnd
‘father and co to church and work
for Jesus. For, Jf we all would, we.,
‘would have .no, need for: peniten-
aries. and electric chalra.'
Mother, watch your children and

see what.kind ,of company they.
keep. . And ©’ ‘gee that. they go to
-church~ instead of | golng.to road-
‘houses, “and ‘other: places of! sin.
‘The devil with his cunnning amilles
‘tella them to.7 come -On = “and Jet's .

‘have a times eg eh
2 > “By -

ving. the experience :: “of
' ‘those things,.I. feet like Iam able.
to" advise ; you™ ‘about them. {To |
“those who read ‘this last statement -
ot mine -on- this: earth,.I want to,
“pay sto: all: that ;I: am prepared. ‘to;
hic ie my God and a hg thatyall
swt ~will strike glad hands that celes, *
‘/tlal city,: Whoes | ‘Ddullder and: maker.
ia God,” eoyg: aha Sees cep bits 4 58 Pt
“The: ‘thkee', ‘Then’ "were. “baptized Sby
Immersion ‘ -Jate. Thursday * afternoon
in 4 bathtub In ‘{n sThomas’+ cell; by
mea eats a
‘and. the iNegrot con elr
‘guilt,: ‘byt Walk, maintain thie ojné

even
nocegte. “fo \bim: Oy Warden: 2: Be

oii

ete Gen mom +

Chiltén. oe eae PAE wks ath IS


. ’ és & 4
: ‘3 . ag , Cow - 4
; * ; : : Say?
. * ’ ° , Fscxd ae .

‘ WBICK, George, white, elec. Ky. SP (Jefferson) May 9, 192h.
de | : : |

DOE & MEANS

RECORD

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pt bt The Panes Ahat he had 4 gpetare tet bbte.. Ke had het
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r

634 KENTUCKY REPORTS. [Vol. 201.

There Was no contradiction in the evidence as to any
material fact involved in the killing, but defendant in the
trial court and in this court relies exclusively upon the
defense of insanity, and incidentally, of drunkenness at
the time of the killing, as well as long continued exces-
sive use of intoxicants which produced a state of insanity
as claimed. i.
. The admitted facts show a flagrant case of assassina-
ticn, as well as a preconceived determination by appellant

to kill decedent, and plainly disclose the motive back of
that determination.

_ Prior to the 7th of October, 1922, the parties all lived
Ju the same neighborhood in Jefferson county, a few miles
from the city of Louisville. Some two or three years be-
fore that time appellant’s wife had died, and for several
months next preceding the killing there had sprung up be-
tween appellant and deccdent’s wife at least ‘a close
friendship. It appears there had been some dissension
or dissatisfaction in the Oelke household, and the wife had
determined to bring a suit for divorce, and on the day be-
fore the killing appellant had taken the wife and her
daughter to Louisville, and had gone with them to the
office of a lawyer who was consulted about the bringing of
the divorce action, and the petition was actually prepared
on that day. It appears to have been contemplated by
Oelke’s wife that during the pendency of the proposed
divorce action she would return to her father’s home at
some point in Indiana, and she expected to make that trip
ina day or two. Accordingly in preparation for her de-
parture she, through appellant, arranged with a neigh-
bor to. keep her cow during her absence, and she also
sent to appellant’s home, to be kept for her by him, a lot
of bedelothes; but the record fails to disclose that Oclke
had any notice whatever of her plans for a visit to Indi-
ana, or the bringing of the divorcee suit. The evidence fur-
ther discloses there were two entrances to the Oelke home

one called the front entrance, and the other the back on-
trance, and that when Oclke was at home appellant in
going to that place always used the front entranee, but

when he went there in Oclke’s absence he used the back

entrance, presumably for the reason that it was not so
publie.

On the very day of the killing, only a few hours before,
appellant desiring to know whether Oclke was at home,
sent his young son to the Oclke home to find out, and upon

aa “os
Weick v. Commonwealth. 635

the latter’s report that Oelke was not there, he visited
there, using the less frequented route, and remained for
some thirty minutes. While there, in speaking of Oelke
to Oelke’s wife, he said, ‘‘I have a notion to kill him,’’ to
which she responded, ‘‘ You-are so drunk you don’t know
what you are talking about, you had better go on home.”’
The wife further testified that upon another and previous
oceasion Weick had said that if Oelke hurt her or any of
the children he would ‘‘lay the road for him;’’ but the
wife testified Oclke never did hurt her or any of the chil-
dren. After remaining at the Oelke home for some thirty
minutes defendant left there and returned to his own
home, and thereafter he and his young son got into a Ford
machine and he either put in the machine himself, or re-
quired the boy to put into the machine, a small 22 rifle,
and in addition he had in his pocket a pistol which he
owned. They drove to several places, but among others
they went to a store nearby, or at least the boy did, and
bought some cartridges for the rifle. Oclke was at work
some distance away, and ordinarily came home from his
work between half-past five and six; and about that time
appellant caused his son to drive him to an old school-
house along the road where Oelke would pass, which
schoolhouse was either abandoned or not in use at the
time, and there appellant left the machine and stationed
himself in or about the schoolhouse near the road. He
then caused his young son to drive the machine back in the
direction from which it was thought Oelke would come,
and directed him when he saw him coming to return in the
machine and notify him. When appellant left the ma-
chine he not only had his pistol with him, but he took the
99 rifle. The boy in a short time came back and notified
him that Oelke was coming, and he then directed the boy
to drive the machine up the road a short distance, which
he did. Oelke came along shortly riding a bicycle, and
defendant from his concealment in or near the school-
house first fired at Oelke with the 22 rifle and struck him
in the arm, whereby he was caused to fall from his wheel;
it appears that after the first shot with the rifle it
jammed, or for some reason would not work, and he then
threw it down, ran out into the road in front of Oelke, who
was trying to get away, and shot at him with the pistol,
but missed him the first shot. He then shot at him a second
time with the pistol and the bullet reached a vital spot,
and he died almost instantly. Appellant then dragged


couy require the plaintiff to file with his petiti
coutM@@% and bond referred to therein, and i arn
the affidavit that the defendants had no copies of these
papers. The alfant also says that he had that day dis-
covered for the first time that no order had been entered
in the case showing his motion at the September term
and that the defendants had a valid defense to the action,
but in order to plead the same must have access to the
contract and bond which are the basis of the plaintiff’s
action. The answer filed for Leech and Campbell appears
to present a good defense to the action, but in our view
of the matter it 1s unnecessary to determine that question
The two exhibits were the basis of the action, and the
petition does not purport to copy or use the language of
either of those exhibits, and the plaintiff has neved filed
either of them: In as much as the exhibits were the basis
of the action, and it was the duty ofthe plaintiff to file
them, it appears that the only default, or at any rate the

first default, was upon the part of the plaintiff in failing -

to file them. It is easily understandable that the defend-
ants who had no copy of them would be at a great disad-
‘antage In undertaking to plead any defense they had
before they were filed.
_ Under the facts as presented, the lower court abused
its discretion in overruling the motion to set aside the de-
fault judgment. The obligation, so far as we may deter-
mune without the exhibits before us, was a joint one and
as the default was upon the part of the plaintiff in his
failure to file the exhibits, the motion should have been
sustained. Southern Ins. Co. v. Johnson, 140 Ky. 485;
hompson v. First National Bank, 183 Ky. 69. ; .
No other question is decided.
The judgment is reversed with directions to sustain
the motion, set aside the default judgment, permit the de-
fendants to file answer, and for further proceedings.

Weick v. Conmonuesuk

(Decided January 18, 1924.)

Appeal from Jefferson Cireuit Court.

J. Homicide—Facts Held Not to Authorize Giving of a Manslaughter
Instruction.—In a prosecution for homicide, where there was no

difficulty, no altercation, and no word passed leading up to the

F geen atd While pa
e4eyr Wilde

shooting, court did not err in refusing to give instructign on
manslaughter; :

Homicide—Court Did Not Err in Refusing to Instruct Upormm@ifect
of Intoxication—Where the court instructed generally that jury
should acquit defendant if they beleved from the evidence he
was of unsound mind, without reference to what might have
caused or brought it about, defendant cannot complain that court
refused an instruction defining the effect of defendant’s alleged
intoxication at the time of the killing, or as to his alleged exces-
sive indulgence for a long period of years.

Criminal Law—vVoluntary Drunkenness as Defense.—At common
law, voluntary drunkenness at the time of the commission of a
crime was regarded as an aggravation rather than an extenuation,
but the rigor of this common law rule has been modified, and,
while voluntary drunkenness is no defense, if at the time of its
commission the defendant was intoxicated to such an extent that
he was wholly deprived of his reason and had not, because of
such intoxication, sufficient mental power to entertain the malice
or have the necessary intent required to constitute that crime, he
should be acquitted, because that essential element of the crime
was nonexistent.

4. Homicide—Getting Drunk to Nerve Self up no Defense.—One who

gets drunk voluntarily, in order to nerve himself up to the commis-
sion of a homicide, which he has theretofore determined to do,
may not rely upon his drunkenness as a defense.

5. Criminal Law—Argument of County Attorney Not Improper.—In

a homicide case, argument of county attorney that a finding of
insanity “does not mean that he will go to central asylum; at
means that as soon as that verdict shall be read ., <>. he stands
up and is as free a man, so far as a moral responsibility is con-
cerned, as any of you men,” only stated an obvious fact, and did
not mean that if defendant was found to be insane, it would not
be the duty of the court or the authorities to have him so ad-
judged and properly incarcerated in a state institution.

6. Criminal Law—Mere Fact Jury Attended Motion Picture Show Not

Ground for New Trial—The mere fact that the jury, in charge of
the sheriff or his deputy, attended a picture show, is not sufficient
ground upon which to grant a new trial.

HUGGINS & OLDHAM for appellant.
THOS. B. McGREGOR, Attorney General, and CHAS. W. LOGAN,

Assistant Attorney General, for appellee.

Oprxion of THE Court sy TURNER, COMMISSIONER—
Affirming.

Appellant was indicted, charged with the murder of
Wiliam Oelke, and upon his trial was found eullty and
sentenced to death.


i

Clue of the Offended Elephant

(Continued from page 33) employer that
on the day of the crime he had taken the
afternoon off to attend the circus.
Questioned, this man admitted he had
gone out several times with Mrs. Porter,
but denied he had seen her the day he
went to the circus. He claimed to have
taken another woman, but she could not

‘be found. The suspect declared he had

not known her name or where she lived,
that he had stopped for a beer at a down-
town bar and it had been a chance pick-up.
He had asked her to go to the circus with
him because, he said, he wanted company.
After the performance he had left her on
a downtown street, since she told him
she had a date to meet another man.

They took the carpenter before the
streetcar conductor. “No,” the conductor
said, “I don’t think this is the man. He
looks something like him all right, but
he’s not the same fellow.”

@ THE ANIMAL keeper at the circus

looked the carpenter over and shook his
head. “I don’t believe he’s the man,” he
said, “but why not let Susie decide? If he is,
she’ll remember him and she won't hesi-
tate.in showing it.” ©

“That’s all a lot of applesauce about
an elephant remembering,” Maher said.
“It’s been disproved more times than
once.”

“Maybe so,” the keeper said, “but not
‘with Susie. She was mad at me once for
a whole year.” 4

Maher agreed to make the test, but

pooh-poohed the suggestion as a: waste
of time. '

Susie stood motionless, docile as a kit-
ten, while the suspect stroked her trunk.

“No, Susie says he’s not the man who
gave her the tobacco,” the keeper said.
“That settles it.”

The carpenter was released.

“How about the bartender, McCann?”
Maher said to his partner later, “Why
not look him over again? He could have

‘done it.” -

“I’ve been thinking that same thing,”
Sexton agreed. |

“What could his motive have been?”

Sexton shook his head. “You got me
there,” he replied. “He didn’t rob her,
unless he took some big money and left
the nine dollars.” ; :

“He could have attacked her. She was
forcibly undressed.”

“Then' killed her afterward so she
wouldn’t have him arrested, that the
idea?” 2
' Maher nodded. “That’s the way it
might have happened.”

“Then what are we waiting for?” Sex-
ton said. “Come on.”
~ It developed that McCann had been the
only one on duty in the bar from 4PM.
until he had gone off shift at 9 p.m. He
had been very busy and could not have
been away from his duties for more than
afew minutes at a time. Eckerle had
Telieved him but McCann: had hung
around for some time. He had still been
there when Eckerle discovered the body. :
- “Was there anyone around here during
the evening who might have gone upstairs

without being noticed?” Maher asked.

“George Remus came in to collect his
pay,” McCann said. “He’s the porter that
quit.” :

It developed that Remus, a colored man,
had quit the day before the murder, saying
he had another job. Eckerle had hot been
at his place of business at the time and
Remus had said’ he would come back later
for his money. .

“He came in about six o’clock,” McCann
said, “and I gave him his wages... I didn’t
pay any attention to him after that, [

70

guess he left. I didn’t see anything more
of him.”

The officers found Remus at a hotel in
the neighborhood, where he had been
hired as head porter.

“No, suh,” he said, “Ah walked right
out uh dat place soon as Ah got mah
money. Ah didn’t kill nobody.”

Remus had been on duty at the hotel
at the time he had gone to collect the
money due him from Eckerle. He could
not have been away long, for his employers
had not even missed him.

“Here’s a funny thing,” Sexton said to
his partner suddenly, after he had been
thinking for a time. “Look, the circus
isn’t over until about four o’clock or a
little later, yet Mrs. Porter rented that
room at four o’clock. She must have

James Clark. His mysterious death was

believed solved with the arrest of Mrs. :

Porter's slayer ,

left the circus grounds before she saw
all of the performance, I wonder why?”

Just to be sure, they checked with the
circus management. The afternoon per-
formance was over at 4: 15, which meant
that Mrs. Porter had quit the circus
grounds at least a half hour before, during
thé aerial trapeze acts, billed as the feature
of the show. —

“That’s funny,” Maher said. “Something
important must have caused her to leave
just then. Seems to me she would have
remained for the best part of it.”

“Maybe the fellow she was with had to
go to work at a certain time,” Sexton
ventured, “and they decided to leave.”

“You might have something there,” his
partner conceded. “But that doesn’t help
us to find out who he was.” ;

“If we could uncover some friend. of
Mrs. Porter’s who works on a-hight shift
somewhere, maybe that would help.”

The victim’s past life was sifted in an
effort to discover the identity of the
man with whom she had been seen at the
circus. Perhaps he was an acquain-
tance of long standing, the officers rea-
soned. Somewhere’ along the line they
hoped for a break.

The detectives made a. round of the
drinking places. They were told in one
place that the woman had been there the
night before she was murdered and that
she had been with a man whose descrip-

‘tion matched that of her companion : at

the circus. He was a total stranger to
the bartender, who was certain that the

woman he had in mind was Mrs, Porter. .

He had seen her in there before.

Trace of this man was picked up at
two other places, where he was said to
have been Mrs. Porter’s drinking com-

panion, but no one knew him. He ap-
parently was a stranger in town.

After two days of hard work, the de-

tectives listed five more possible suspects.
One was a policeman known to have been
friendly with the woman; another was a
hotel clerk with whom she had had some
drinks at a downtown hotel bar; while a
third, a former neighbor, was suspected
because he had bragged one night in a
bar that he could take Mrs. Porter out
any time he wanted to. The fourth and
fifth of the new crop of suspects were bar-
tenders.
, As the new suspects were located, it
became more and more apparent that Mrs,
Porter, in the two weeks prior to her
death, had gone pretty much to pieces
morally, due primarily to the fact that she
could not handle her liquor. After two
or three drinks she lost her head and was
easily swayed. ,

How many men she had met when in
this condition no one could say. Probably
more than she herself would have been
able to remember, her friends declared.

_| And it was all due to the fact that she

| Was too headstrong to make overtures to

| her husband, whom she still loved. —

| The two detectives were at Police Head-

| Quarters one night summing things up,
Sexton fingered a piece of note paper on

_ Which he had written the names of nine
men. The officers had done a lot of in-

|| vestigating during the afternoon and had
| Questioned six of the suspects,

}

Sexton checked off the policeman. He
had been on duty the night Mrs. Porter
| was slain. :

Next he eliminated the two bartenders.
| They had been at work that night.

The hotel clerk also was checked off,
because he had been‘on duty until mid-
night.
|. The neighbor who had done a bit of
bragging confessed to the officers that he
had been talking through his hat, and had
never taken Mrs, Porter out in his life.
He blamed his former Statement.on too
many drinks, :

“I think he told the truth when he said
he’d never been out with her,” Sexton
said, “because he couldn’t tell me what
color her eyes were, or how she wore her
hair. So he’s off the list. McCann’s out
of it, too. He had no opportunity to be
away from the bar long enough to have
killed her.”

@ “WE’VE ALREADY eliminated her hus-

band and the carpenter,” Maher said,
“so that leaves only the man who gave
the elephant a chew of tobacco.”

“Yeah,” Sexton said ruefully,” that puts
us right back where we started. Out of
nine suspects, we've still got him to worry
about. If we could only find someone

. who had some idea who the fellow might
be, then maybe we could find a starting
point.” ’
|| They had another long talk with the
dead woman’s.husband, who was still very
much broken up over the tragedy. “I
blame myself for what happened,” he
said, “I’m sure my wife would have been
well and happy today if I had given in
and offered to compromise, I heard how
she. was going to pieces and I thought,
Well, if she wants to make a fool of her-
Self, that’s her affair.’ But now I see
where I was wrong. She was as good a
woman as ever breathed the breath of
life until we separated. That’s when she
Started to go wrong.”
| The fireman could offer no helpful sug-
gestions, He had not known any of the
men his wife went out with, he said.
| “Was there anyone she knew before your
marriage who might have been going out

TRUE DETECTIVE

sftfieaion

1
\
:
}
t
}


Rabie aT aie aS MSE?

There were some who felt sorry for
her and blamed her husband for her
downfall. It was the case of a woman
So0ing to pieces over a man, they said,
whose pride overcame his better judg-
ment.

Mrs. Porter had had pride, too, but
that apparently was all gone now. She
was at loose ends and there didn’t seem
to be any way to pull those ends
together,

When anyone tried to remonstrate
with her, she would break out crying
and blame her husband for the whole
thing. It got so that these emotional
outbursts became a barrier between
Fannie and those trying to reason with
her, for no one cared to reason with a
woman who wouldn’t listen,

* * *

@ FRANK ECKERLE, owner of a
saloori and rooming house at the
corner of Market and Jackson Streets
in Louisville, had just come on duty.
. At night he relieved the bartender, Tom
McCann, who had been on duty since
1 P.M. It was now almost 10 p.m, .
The saloon was downstairs, the room-
ing house occupying the two floors
above. The business was mainly tran-
sient; although two or three persons
roomed there steadily. The guest regis-
ter was kept in the bar, ;
Eckerle glanced at the register to see
how business had been that evening,

' then stopped to examine an entry that

seemed a little out of the ordinary. In
the line where the guest should have
signed his name appeared the notation:

1 woman—wants to be called at 10 P.M. sure.

Eckerle asked the bartender why the
notation appeared. :

“Sorry, boss,” McCann said. “I was
too busy to! ask her to register when

HATFIELD |!
DRUGS

i
{

\

i

LUNCHEONE

in SER

FOUMNTA

she came in. I was all alone and cus-
tomers were waiting at the bar. J was
going to attend to it later but forgot to.
That reminds me—she wanted to be
called at ten o’clock without fail.”

The boss nodded. Then he turned
and mounted the stairs, going to room
12, where he knocked on the door, He
got no answer and knocked again. Stil]
there was no response,

“Guess that woman in twelve must
have gone out,” he said a little later to
McCann. “She’s not there now. Who
was she, anyway?”

“Dunno,” McCann said. “Stranger to
me. A nice looker, though,” he added,
grinning.

Some time later Eckerle registered
another guest. On his way back to the
bar he stopped at room 12, and inserted
& pass-key he had brought along. Push-
ing open the door he received the shock
of his life,

Lying on the floor, with her knees

awn up under her so that she seemed
to be half kneeling, ‘was a nude young
woman. The sight of white flesh did not
frighten Eckerle so much as the pool of
blood on the foo: . The bed also was
bloodspattered.

A frantic cali to the Police Station
brought Major Patrick Ridge, Lieu-
tenant Bright and Patrolmen Powell
and Lee. They were followed to the
scene by Detectives Harry Maher and
John Sexton.

Chief Deputy Jailer
Mueninghoff (. above)

spot where the killer
was hanged. He ex. -
hibits the death rope

Pe OLAS # -_ used on that occasion

Frank Eckerle's hotel
and saloon was locat-
ed in this building
(left) now occupied
by a drug store. The
arrow points to the
room where the secret
rendezvous took place

stands on the exact |

The woman was dead, her head
almost severed from her body. A phy-
sician called in from the building across
the street declared she had been dead
for three or four hours. Her throat had
been slit with a sharp knife,

A search of the room disclosed no
weapon. On a stand was a basin filled
with reddish water, indicating that the
slayer had carefully washed his hands
before departing. A soiled towel lay in
a corner of the room. The dead woman’s
clothing was draped over a chair. Her
hat and purse were on the dresser,

The purse contained nine dollars and
a diamond ring, indicating that the mo-
tive for the crime had not been robbery.

The bartender said the woman had
come in about 4 p, M., and had asked if
there was a room vacant. When told
there was, she left, but returned a few
minutes later saying she would take the
room, paying McCann the rent in ad-
vance. She had asked to be called at
ten o’clock that evening, saying, “Be
sure to remember, because it’s im-
portant.”

About a half-hour later, McCann
said, the buzzer for room 12 sounded
and he went to answer it. On the way
up the stairs he heard a man’s voice,
but when he knocked the woman came
to the door and he Saw no one else in
the room. “I am sure there was a man
in there, but he must have been stand-
ing back of the door, or lying on the bed.
Anyway, she ordered two highballs and
I’ brought them. On ‘the second trip I
didn’t see any man, either, but I’m sure
I heard one.”

The first round of drinks had been
ordered around five o’clock, he said,
and a second round an hour later. After
that, all was quiet.

Throughout the evening there had
been patrons in the bar, so that it was
difficult to fix suspicion upon anyone
who had been in the place, The police

| centered their. efforts on trying to
_ identify the dead woman. -

By midnight her identity had been

| positively established, Joe Bush, a bar-
| tender, said she was ‘Mrs.: Fannie

| Dalton. Mrs, Belle Cherry identified
| her as Mrs, Dalton but revealed that
| she had been married since, Her name
| NOW was Porter,

| @ THE NEXT day Detectives Maher

| and Sexton took up where they had
‘left off shortly after midnight. —
learned that Mrs. Porter was

rated from her second husband and had

far. I heard she was going to the dogs,
‘but I was too headstrong to try and
Save her from ruin,”

| After he had Partly recovered from
ithe shock, Porter established beyond
any question of a doubt that he had
been at work between 4 p, M., when his
wife had gone to the rooming house,
and 10:30 p.m. when her body had
been discovered. He said he had not
seen her since the day they had sepa-

TRUE DETECTIVE

aH we rite eH A Hay

om Me ada sewn tn. ma]

a

PBB sh 5

—)

Fannie, were happy durirg, the

first few months after their mar-
riage. It was Mrs. Porter’s second matri-
monial venture, her first husband,
James Dalton, having died a year after
their wedding. Two years after that she
had married Porter.

She was twenty-five and attractive,
with blonde hair. and a pleasing smile
that won her many friends. She was
of a sunny nature,and everyone said
that Frank Porter was a very lucky
man to have a wife who would put up
with the long hours he spent at the
fire station.

Frank was a member of the Louis-
ville, Kentucky, Fire Department and
was on duty nights a great deal of the
time. As a result he saw little of his
wife, for as much as a month at a time.

Then, after eight months of wedded
life, something happened to the Porters’
happiness. Fannie became discontented
and the couple quarreled frequently.
The bride’s friends said she was tired
of staying alone. :

Mrs. Porter, the daughter of a well-
known merchant, had been reared in
Louisville. As a girl she had enjoyed
dancing and was a member of the
younger social set. After her first mar-
riage she had continued the activities
with which she had occupied herself as
a girl, enjoying the same social con-
tacts. But with her marriage to Porter

Frannie PORTER and his wife,

all this had changed. Her husband
didn’t have time to take her to dances,
because he put in long hours at the fire
station. Then, too, being a fireman’s
wife was somewhat of a handicap to
social ambitions. It would have been
the same if she had been the wife of a
sailor or any business man who was
obliged to he away from home for days
at a time.

The quarrels eventually ended up in
a separation, Mrs. Porter packing her
things and moving out. She went to
live at the home of a woman friend.

She was sorry the day after she had
left her husband, but she was too head-

‘strong to ask him to take her back.

“He'll have to come and beg on his
knees,” she told her friend, but anyone
could see that she was ready to go back
to him on a moment’s notice.

-The unfortunate part of it was,

Porter was just as stubborn. “She's.

made her bed, now let her lie in it,’”’ he
told his fellow firemen. “I won’t move
a finger to get her back. When a wo-
man pulls out on a man like that, the
man would be'a fool to go out of his
way to get her back.”

And so that’s the way matters stood
for several weeks.

Mrs. Porter was far from happy in
her new-found freedom. She. would
sometimes burst out crying and hurry
off to her room, only to revolt later
against a condition that she knew she

could not control. “I’ll show him,” she
said. “I’ll have a good time and maybe
get acquainted with some men. That
will bring him to time.” |.

But Porter was too occupied, and saw
too few of their mutual friends, to know
what his wife was doing. He did not
know that, for the first time in her life,
his wife had tasted liquor and that for
the past week she had been visiting
saloons and drinking with strangers.

The first thing her friends knew, she
was going to pieces at an alarming pace.
But always she would say, “I’ll teach
Frank to ignore me. Wait until he hears
I was drunk last night.” . :

@ FRANK, HOWEVER, did not hear
these things. His friends hesitated to
tell him. He would find out sooner or
later, they said, so why meddle in some-
thing that was none of their business.
Not hearing anything from her hus-

band, and having gone so far that she -

didn’t care much any more what hap-
pened, Mrs. Porter went from bad to
worse.

Even in a city the size of Louisville,
such things eventually get around, and
in time Frank Porter did hear of his
wife’s misbehavior. He was as much
shocked as had been some of her closest
friends, who now were completely os-
tracizing her. So far as the old crowd
was concerned, she had become a social
outcast.


V2. |

i, her head
ody. A phy-
ilding across
d been dead
r throat had
fe

lisclosed no
basin filled
ing that the
i his hands
owel lay in
ad woman’s
chair. Her
iresser,
dollars and
at the mo-
n robbery.
oman had
id asked if
Vhen told
ned a few
\d take the
ant in ad-
called at
ying, “Be
it’s im-

McCann
: sounded
| the way
n’s voice,
2an came
ie else in
as a man
-n stand-
. the bed,
dalls and
id trip- I

I’m sure

ad been
he said,
r. After

2re had
t it was
anyone
2 police
‘ing to

d been
a bar-
Fannie
‘ntified
d that
name

Maher
y had
They
sepa-
d had
eorge

had
ouse,
orter |
” he
30 so
logs,
and

om
nd
ad
is
ea,
d

rt

Sle ge ree ye ew oo eee

Se eo

rated and did not even know where she
had been staying.

But in spite of the fireman’s unassail-
able alibi, the detectives learned some
other facts that left him on the suspect
list.

Two acquaintances of Mrs. Porter’s,
John Dolan and John Rosenbaum, said
they had met her on the streetcar the
day of the murder and she had told
them she was going to sue her husband
for divorce. Then she added, “I expect
I'll be in a lot of trouble before the day
is over.” No divorce proceedings had
been filed, however,

™ FROM THE streetcar, Mrs. Porter

was traced to the home of a friend,
Mrs, Amy Harper on Shelby Street, and
from there she had gone directly to a
circus which was playing that week in
Louisville, |

Questioning persons of the neighbor-
hood who had attended the circus that
afternoon, Detectives Maher and Sexton
located a woman acquaintance of Mrs.
Porter who had seen her at the circus
with a man about thirty years old, He
was described as attractive, with a small
dark mustache, and well dressed, |

“Do you think he was from the cir-
cus?” Maher asked. {|

The woman said she didn’t think he
was, because he had seemed too inter-
ested in the animals to have been a
circus employee. “One thing I remem-
ber,” she said, “he gave a chew of
tobaeco to an elephant. It made the
elephant angry. The keeper admonished
him and they had some words.” |

The detectives talked with the animal
trainer, Charles Bligh.

“Yes, I remember that fellow,” Bligh
said. “The elephant he gave the tobacco

' towas Susie. She’s had that trick pulled

on her before and it always makes her
good and mad.”

Bligh’s description of the man who
had offended Susie the elephant was
similar to that given by Mrs. Porter’s
friend who had witnessed the incident.

“If this fellow had been a member of
the circus troupe, you would have rec-
ognized him, I suppose,” Maher said.

“No, he wasn’t with the circus,” Bligh
said emphatically. “He was a stranger
to me.” ; |

The detectives returned to the saloon
and rooming house. The room in which
the murder had occurred was located
directly ovér the bar. While Sexton re-
mained downstairs, Maher went to the
room and walked back’ and forth, stop-
ping now and then to do a jig step or
two. The movements of his feet could
be heard clearly in the bar. |

But McCann, who had been behind
the bar for five hours after Mrs. Porter
had gone to her room, said he had: heard
nothing. There had been no scuffle or
other sounds of violence,

While looking around the floor of
room 12, Detective Maher had picked up
a button. It was soon established that
it had come from the dead woman’s
dress. In the garment where the button
had been was a hole, showing it had
been pulled out by the threads. Consid-
erable force would have been required,

Maher thought, to have dislodged the
button. There apparently had been a

JuLy, 1942

. ever to return to him

Pride kept Fannie
Porter (right) from.
the love of her hus-
band until it was
too late for her

Detective Sexton
(below) knew some
powerful motive
must be back of
the terrible crime

violent scuffle, yet McCann said he had
heard no unusual sounds.
The detectives picked up a hot clue

when they talked with the conductor of -

the streetcar on which Mrs. Porter had
ridden from her friend’s house to the
circus grounds. A little girl of the
neighborhood rémembered seeing her
get on a “B” car and when the con-
ductor of that car was questioned he
remembered Mrs. Porter, having known
her.when she was Mrs. Dalton. He said
she boarded the car alone but that be-
. fore they reached the circus grounds a
man with whom she apparently was
acquainted got on and sat with her,
getting off with her at the circus.
This man was described as about five
feet, ten inches tall and weighing about
170 pounds. He wore a mustache and
his complexion was dark.
“Was he well dressed?” Sexton asked.
“Yes,” the conductor said, “he wore
a gray suit with pin stripes and a brown
hat.”
The man who had offended the ele-
phant by offering it a chew of tobacco
had been described similarly, but no

one could remember, it seemed, whether
his gray suit had pin stripes or was of
plain cloth. The animal trainer was

‘certain the suit had been gray and that
‘the man wore a brown hat, but he

couldn’t remember the pin stripes.

“Looks like we’re on a hot trail,”
Sexton told his partner. “Now all we’ve
got to do is identify this fellow who gave
Susie a chew of tobacco.”

. They went back to the corner where
the conductor said the man had boarded
the car and from there they began
checking the neighborhood. But they
had'no success. No one whose descrip-
tion fitted that of the suspect lived in
that locality.

After two days of searching, the
officers gave up and went back to where
they originally had started—the saloon
and rooming house. They talked with
everyone who was known to have been
in the place on the day of the crime,
but got nowhere. Only McCann had

seen and talked with Mrs. Porter, no ©

one else had noticed her. No one had
seen the man who was later believed
to have been in the room with her at
the time she ordered the drinks, ~

Obtaining a list of the dead woman’s
friends, so far as they were known,
from Mrs. Amy Harper and Belle
Cherry, the detectives set out to inter-
view them one by one.

They were told of a man with whom
Mrs. Porter had gone to a ‘dance a few
nights before she had been slain. Ex-
cept for the fact that he did not wear a
mustache, this man fitted the description
of the killer suspect. He was employed
in a carpenter shop and it was learned
from his (Continued on page 70)

33


spinere in which the State” apparently”
verlooked the matter of carrying .out: the:
mandate of the, Court of Appeals i i :

“There was the cas © Sy este: Warne
hoe instance. = S

eocyeaieolde
d other outh were sentences
ear of: Ruby Latonn tattoo of


WARNER, Sylvester, white, elec. KYS (Casey) Februaty 10, 1939

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DAs: a)
LOCALE: CASEY COUNTY,’ KY.
€

or

ie

The two mer
hard. Their |
Surely a bods


j

4, 1933, Sheriff Grubbs arrived at
a point on the banks of the Green
river, near Barger’s Ferry. The
fisherman pushed his warmly clad
form through the jostling throng of
farmers gathered there and led the
officer down to the water’s edge.

The overcast skies, the dull ripple
of the wind on the water, the muted
whispers of the watchers on the bank,
created a strangely menacing atmos-
phere.

Sheriff Grubbs nodded briefly as
the fisherman pointed to the pole
sticking up above the surface of the
water. The pole had floated closer
to the bank, within arm’s length.

Together the two men gripped the
net and pulled hard. Their first effort
met with failure. They tried again.
Still the pole would not rise any
higher above the surface of the
water. Surely a body could not be
that heavy.

Grubbs turned to the crowd. “You
men line up for a tug-of-war. Maybe
with all of us pulling together we
can get this done.”

The fisherman locked his arms
around the sheriff’s waist, a farmer
did the same to the fisherman and
so on until a dozen men were linked
together. At Grubbs’ command, the
men started tugging.

ECONDS later, the sheriff
shouted, “You’re right, it is a
body. Heave again.”

Although the dead man’s head and
shoulders were now floating on the
surface of the river, the pole still
would not come entirely free. Grubbs
and his helpers paused, then heaved.
After a moment’s strained tugging, the
pole rose slowly to the top of the water.
The spectators gasped in astonishment.
Caught on the end of the pole was another
body !

During the next few moments nobody
spoke. Grubbs and his helpers were busy
disengaging the gruesome pair from the
fish nets and the pole, stretching the forms
on the frozen banks. Grubbs could see
at once that both men had gray hair,

62

though one appeared considerably older
than the other.

One glance at the injured foreheads of
both told Grubbs that they were victims
of murder, Further proof was provided
by the heavy iron weight he found tied
to the underwear-clad bodies.

He stood up, wiped his hands on a
handkerchief and shouted to the spec-
tators: “Anybody here recognize these
men?”

One by one, members of the crowd
stepped forward, gazed intently at the
masklike features of the pair. Suddenly
someone exclaimed, “It’s old.man John
White and his son, Clay !”

Grubbs stiffened. He knew the Whites
fairly well by reputation. The two men
lived alone in a farmhouse near Liberty.
The old man was reputed to be 83 years
old, his son about 55.

Clay had spent most of his life in the

DARING

United St:
cently to |
spite of his
handsome.
though the
tentious, m
secreted in
—wealth g
ing, penny

All thes
“good cat

DETECT


' ‘The two men gripped the net and pulled

hard. Their first effort met with failure.
Surely a body could not be that heavy.

“=

SSBB
a

Ly

HE first thing the fi§herniatignoted

as he stepped gingerl¥igoyer
frozen mud of the Greeff®tayer

bars was that the pole which moore
the off-shore end of his net in the rushi z
water@had moved downstream about ten
is left the net between the pole

ni ling.on the bank at a decided
of straight across in the

stfeat, A pole leaned over crazily,
alm@st “‘eguching the water instead of
stand erly.

The figher tepped into a flat boat,
pushed t t leaning pole and

attempted to strafgMten it. But the pole
refused to budge, a8@if heavily weighted
down, The man also Wiscovered that its
nether end was not @&pbedded in the
river’s bottom, but floatit® free.

The fisherman tugged “with all his
might. The more he tugged the more he
was cettain that something heavy had
caught in the fish net, possibly wrapped
itself around the pole. But what could it
be? A dead animal? A capsized boat ?

Angrily he pulled at the pole again.
This time the current helped buoy up
whatever was clinging to the pole, or
fouled in the nets. Seconds later, a
strange object appeared above the surface
of the turbulent water. The fisherman
gasped.

He was looking at a human head!

Dropping the pole as if it were hot
iron, he pushed back to the bank and ran
with all speed to his automobile. A few
motnents later he was at a telephone,
blurting out his story to Edward S.
Grubbs, sheriff of Casey county, Ky.

Grubbs hunched over the phone and
tried to separate fact from possible fancy
as he listened to the caller’s almost
hysterical voice. “Maybe what you
caught was a jug of white lightning in-
stead of a head,” he replied cautiously.

“Tt was a head, I tell you, tied to a pole.
Come out and see for yourself.”

An hour later on that morning of Dec.

An investigator points to the spot in the

Green river, Casey county, Ky., from

which the weighted bodies of two mur-
der victims were dragged.

ware

SRR Ta TIN ARS GREE ES Ae

ape
a erm


i

Waters Was led to the chalr ata
-i'-| He entered the death «heuer a
12:03. Noticing Ployd Wills, a Mot
gomery County farmer. among the
Witnesses, he said. “Well Ployd, ws
this the first execution youve ever
seen?” in a bantermg manner Wills
nodded. The current Was applied at
12:06 and Waters Was pronounced
dead at 12:09

Scott was serious when he entered
the death chamber at 1212 He nod.
ded to the crowd and aaid. ‘“Good-
bye, boys—everybady Tro shocas
were required for Scott’ The first wag
at 12:14, and hts Pulse wag sti!) beat.
ing when he was examined The eee.
ond was administered at }2 18 and he
was pronounced dead at 12°22.

City Negre Gets Stay.

Allen. Gray, Negro, cany ‘@.
Loutsvitie of slaying his common Ti
wife, was to have gone to the chate

the two white men, but was
granted a reprieve yesterday
- | by Gov. Ruby Lafroon who stayed hts
execution until November 10. The
Governor said he aTanted the stay to
allow Gray time to file additional
Papers in support of hig plea for
clemency.

Clemency also was sought for
Waters and Brott but the Governog
failed to intervene In their behalg.

Waters was convicted in Montgom-
ery Circult Court in December. 1938,
The conviction was affirmed by the
Court of Appeals Jast April. zi

In Sentencing Waters, Circuit Court
Judge Henry R. Prewitt of MIL
Sterling called on a minister to ame
plify with a player the customary
“and may God have mercy on your
soul.” The case was tried In Monte
gomery County on a change of venue,
Waters claimed he had been called
“Bad Bill” in his home es and
that the report was circulated faleety
that he had killed a umber of men,

2 Slain Seeking Waters.

Helton and another deputy sherise
were slain July 13, 1932, when they
and other Officers,’ seeking to arrest
-|Waters in the Neal slaying, sure
rounded a house in which was
living. Waters claimed he did not
know the men who surrounded , the
house were officers and that he fin,
believing an attempt was ra made
on his life. Helton wag struc a
ey the|charge of buckshot and died a few
me New/|days later in a hospital at Mt. S&tere
= has/ ling. Besides Stapleton. who was
‘cam-/|killed, Roy a @ constable, was
Zareful| seriously wo ed.

-~aking| Scott whe-convieted at the Decem-
rbinet | ber, 1932, term of Floyd Circuit Court
~ tional/ His conviction was affirmed by the
: Court of Appeals last June. Scott was
-—~i8 de-| alleged to have gone to the home of

with; Stephens, suspecting that his wife,
with whom he had quarreled, wag.
it ap-|Staying with Mr. and Mrs. Btephens
re to| Stephens was shot fatally while seated
ninis-{{n @ rocking chalr with his infans

child in his arms, according to roe
Ports of his trial.

con- Eat Light Meals.

keep} Both Waters and 8cott ate the
Dem-/|lightest meals requested by cone
t has/demned men in recent years. As is
at “ajcustomary, they were granted thedr
toose-|choice of kind and quantity of foad
d injfor their last meals, but Waters |
licans|asked for fried oysters, sweet
ticket; biscuits and coffee, and Scott said he ‘
as a| Wanted cnly fried eggs, milk. biecuits |
and coffee.
The condemned men appeared is,

(Continued on Page 18.)

TT ee)

rr

Tes paacmantan sua
=
m&

z

es
2
a3

as
a

a aed


log |
a
r

at and Store Debate N.R.A.

”
|
j (
. i ; ; ' ‘
\ eae ln Fall-Page Advertisements.
|| Kitleg of Policeman Fails In}{ ,
; ash From we ‘ ,
‘| i ih o Court. | | {Looks Like Recovery to Us,} Is Reply to Publish- '
uk: qae gat Pe a r’s Indictr : :
"| Chiedgo, |Nov. 2 Bl Anal hot ers jones. |
attempt a a
| [ability (to te an elevater, John!) New York, Nov. 2 (William which his advertisement reprinted.
| - aE for the murder of o pallce- olph Hearst—he says begs Tees teatdine te the eA
H execu as ‘ ry Allo 00 sas
man in| court room, tonight |might mean “No Recovery of the business...
mlres beck ih his cell in the eounty|snd a department store—it says the ‘ ao eeolt » see
| yrogramme * nie of betterment, nothing iW
gr brief period of freedom |1s"—today. discussed the national re") 114 iinqustry can sceept and endure|,
| he Crimi-|Sovery policies in full page newspaper |; i, om large scale only|,
sands hog bmg y at-| advertisements. it has recovered. not before” = |
tempting tg make it “Dlighting effect of the N.R.A. policy” \eo
Nl ten futile minutes he opened the door| ‘blighting effec Conn Bicoming-| “ttt by two days and whwh also)
*€/ and em with his hands uplifted er this question wast in the edvertiarment,
meet : an }
PD adhe: ob h threw the| “Now. honestly, Mr. Hearst, don’t) in. ‘neck track notwithstanding the
ay}. The daring break which threw oO) ,ou think that at » critical time Uk@| Jogeniabiy beneficisl results of the!
de| building info turmoil occurred & this we should all pull together? sumptuary legislation, the farm relief|;
‘of| bery clare, Batt he courtroom| “Frankly, Mr. Hearst, Bloomins-|biiities latent in the inoperative un-
‘1d| was leading him from the c dal’s doesn’t like that statement, nor 0 ment progremme.” rr
4. toward Bi 1 sae aa connects do we like the tenor of your edl- “In. fect, ‘fo blighting effect of the |
pe “Econ : e elevator empty, Scheck —— et dune brig | NRA|NRA. policy has bern go. Completes
a-| proke fram [Wing's side, kicked chair] | pa rg de Fag Biv that _,iustifianle interpretation, of
b rio Ofna c beat ne cue dow. but pen in a hg hg a read appropriately, ‘no recovery ai-
: i “ merican, a Hears on .
| evidently did not know the lift would Hearst organisation. also had two of gh ed after ng authort. |
until the inner door was ; The editorial quot! !
g| ROt opere the publisher's recent statements On! 110 4, conditions in England. sald.’ |
& ine aw and while|the N.R.A. reprinted in a@ full page “There ta no sarialelie revotution in).
me arm. y n-|advertisement in one newspaper. England, no dictateremip . . . 20),
q| Ruards were gathering at clevaltreck| “William Randolph Hearst” thel win, ~
frances an tne ct the mechanism in|Heading of the Hearst advertisement |" -ingiand J still the home of free-|
¢|° After ‘Spheck’s gurrender Chief enroll his papers po proncgei rietly fr of gudiication end beiguierig
+| Bailiff James Z. Gabriel suspended |the N-R.A., and operaise thee othe. (of action... . Perhaps after alt
a] ‘Wing on alcharge of negligence. , |sccording to ye bamian that) (orn eee, OF ening nee
hl! gcheck had attempted to escape|lrss has come to the conc F inj Jellermon and Linesin are supertor to}
Bltwice befare. The first time he the N.R.A., in the militant manne pe the fanciful theories of Marx and
ie| wounded @ [policeman at the ects prea Rb ohare ae menace) wiadn
st! bureau. few weeks ago hp i recovery. i ) anes
n| Policeman | John Sevick inh dash| (MT Mere sdvernement. Waant) BAD BILL WATERS DIES
f riminal court room. e ‘
© captures t d sentenced to death for|it just a week ago dn pf oce'ng the | EDDYVILLE CHAIR
Ni the murder. Last Saturday was | President of the United . bea 1
*|gorices in filings bankrcauhe |; 0 whe ort soeee of 6,08) | FOR MENIFEE KILLING)
; ous ee | 4,000,000 have a given oe __ i (come Mawe trem Pires Pege)
t|. Scheck’s mother was fecently(¢r saying it another way, 40 per cent ein. Wek emaeetes 100 nel
g| acquitted bf a charge of smuggling | qf those seeking work have found yi one e newensper men, saying (hey |
f|to him thh gun with which he killed|: “Pour million unemployed back (| / 0) (la inete iaat words om
8| the policeman. fe | work—looks like recovery to ua. ithetr reapective cases r
i ” i “We ourselves are employing many meth were vielied last night by
-| OVERFLOW CROWD. tore people and are paying out many’. iain W & Bailey Deputy Wer-
+} MARKS DEMOCRATS mgeo—lools like serevery 30. Ue. ‘exequtions Watden Tom Lagan dese
t ' “Bloomingdal'’s business, each month | ut attend exeruimas ef t).°
ARMORY RALLY |iince July, nas steadily increased over: "petit y 1 Maoh, Menifee ¥.
. the corresponding month of last year|, a 4, Woeters’ overu-
(Continued frem Page 7.) Perhaps, aa you say. tt’a not all dué,, Hetten, father of
claus we looks ik Seraph totus ai
¢|tion became too strong for these Re- N.R.A. but— @ FPCOVETY tne officer Waetore wee eanrivted
-! publicans.|(Three years ago they made | {© Us. ‘ slaying sheril( Rarh said Neha ~~
‘the first Abtack and it was pepulsed.|. “We know other good stores 100; ,1.14 enon a perty of wfficene ovat to

| It’ was rely a feint. A year \ater
:|they madé another attack ° because
t the nubile anathy would

e period-~-looks like recovery io us.

fm have shown gains during the.

“It waa only a fow months ago that.

atrep, Watere on a tharge af singing
Chai len Meal whe the eheriff ens
wan Watrre ,estner im (he ogperelies

sm and Overflow ‘Crowd FLOYD CO

mocrats’ Armory Rally x |i [ER ALSO
TS EXECUTED

denitee Man Forfeits Life
for Slaying Deputy Seek-
ing Him In 2d Killing.

A DENIES HE SLEW 10 MEN

‘Ishmael Scott, 2d to Die,
Slayer of Martin Stephens;
City Negro Gets Stay.

Eddyville, Ky. Nov. 3 (Friday)
(P)—Willdam “Bad Bill’ Waters,
denying to the last that he had killed
ten men during a career of lawless-
ness in the mountains, and Ishmael
Scott, another mountaineer, went to
their deaths in the electric chair at
Western State Penitentirry ai few
minutes after 12 o'clock this morning.

Waters was convicted of slaying
Deputy Sheriff Stanley Helton of
- |Menifee County in a gun battle tn
‘s'which Deputy Sheriff Ma:ian Staple-
, jton also was Slain. The killings ote
,curred when a party of officers ate
tempted to arrest Waters on w charge
of slaving Charlies Neal, his alleged
La : Partner in moonshining activities
“OF CROWD AP DEMOCRATIC KALLY AT ARMORY. oe crane ak ic, Jae
Before he died early today, Scott dee
nied that Stephens was holding his
infant child in his arms when he
was shot fatally, as had been ree
ported

Waters denied that he had ten or
more notches on his gun, as was re-
puted, and said he seldom carried a

gun.
Waters First to Go.

Waters was led to the chair first,
He entered the death chamber a
12:08. Noticing Floyd Wills, a Monte-
gomery County farmer, among the
witnesses, he said, ‘Well, Floyd, %&
this the first execution you've ever
seen?” in a bantering manner. Wills
nodded. The current was applied at
12:06 and Waters was pronounced
dead at 12:09.

Scott was serious when he entered
ithe death chamber at 12:12. He nod-
ded ta the crowd and said, ‘‘Good-
hye, hovs—everybody." Two shocks
were required for Scott. The first was
at 12°14. and his nulse was still beat-

Eee a RUN Auge OSE,

Fine ate A cede uses. we NE Ee Mt comer (etBbinde Saas


f

countries Benator Norris, however, objecting

- wae wriveni tuo jet one and te-,

eRe tg Ee uihet :
ck ode thothe cAowe of which to muilid, and
Rhee EE ete RIN Ne rejected all bids
<a Si the Edmonson project, pecause it

ci e hat been Mnished last year, and was
wiviceable He jet the Warren Coun-
eer ee ey Koad which wag badly in need of
atk. Seeman. 18) Bi gee: . expects, he told the com-
‘ *b9 rey ipaheins to readvertise the Edmonson
te Mita a BRENT Te © oping lo get materially low-
1 SOS © ee nave Gent time, and then to
- 1S award the project if the cost does not
16 8b eaveeg Dudget allowance.
«i & Vo Members of the commission, said
| 2 OM" foiowing the meeting that many bids
Oe ee been rejected this year. Garrett
ae eae ging the Second District, has
rejected Bids on five or six projects,
he sald = Readvertised. lower bids were
oe MM develved ale saving of thousands of

eed

‘et With Goilere he said) A. P Palmer, com-
& aa; hiait
(oo aahed  (Centineed en Page 3, Column 2.)

LITS GLASS OFFERS —

TINA WET RESOLUTION

;escape. Water fired at Hogg as he

rrenciourg, my., July 13.—Posses of
Menifee County officers and residents
sooured the wooded hills along the

east fork of Slate Creek, about eight
miles north of here tonight, for Wi}l-
fam “Bad Bill” Waters, about 35 years
old, who ts alleged to have slain a
Deputy Sheriff and wounded two
othera, one _ probably fatally, this
morning when they trieq to arrest
him on a murder charge.

Deputy Sheriff Marion Stapleton,
35, was killed when Waters is alleged
to have opened fire from a window as
several officers approached the home
of Charlies Neil. where Waters had
been living.

Deputy Sheriff Stanley Helton. 23,
and Constable Roy Williams were
wounded.

After the officers had answered the
fire, Deputy Hogg ran to the rear of
the house as Waters was making his

ran. according to the deputy, who ex-
pressed the belief that his return fire
wounded the fugitive. Waters escaped
in the hills

Deputy Sheriff Helton, member of
a prominent family here, is in thé
Mary Chiles Hospital in Mount S8ter-
ling, where his condition was reported
to be critical. Constable Williams also
is in the Mount Sterling hospita) with

Zecause Action On Measure Outlaw-

|

Stand ing Saloon Blocked |
*y By Norris. 3
“Par Ata: Washington, July 33 (P)—A_ reso-

relations jition Proposing a new Constitutional
Ivering a

‘tine Am. ,*Mendment, repealing the Eighteenth
Amendment but outlawing the saloon,
veld (hat Was introduced tn the Senate today
Uruguay: Ov Senator Carter Glass of Vir-
ne Argen- | @inia
le orecent| For years he has been one of the
“guay to: leading Congressional supporters of
i , Prohibition,

‘teamed; He asked for immediate considera-
‘r to the; thon of Als resolution, but this wags
) for the| blocked by Senator Norris. Nebraska,
“ay cele- | Republican. Glass then said he would
« hdente-| call it up again.

an Ar- The amendment Proposed by the
fed the} Virginian would allow States that
‘ a visit.| Want NMquor to have it, but would

resulted | keep the saloon unconstitutional. It
racorting | &ho would prohibit transportation of
1 waters| liquor into Btates where it was for-
| bidden.
tine re. The amendment would have to be
\» power | ratified by State conventions within
jouru ea| seven years or it would die.

@ revolu- Glass told the Senate his amend-
¢ headed | ment was in conformity “pty
took of-; prohibition plank adopted t

ry Democratic national convent and

Uriguay| was a “proposition which no Repub-
Of exiled! Mean who is Glsposed to be guided

sought! by party declarations can resent or
resist.”

* mutual) to its immediate consideration, gaid:
tons for “I can hardly understand how
© Argen-| anyone would favor amending the
slled re-| Uniteg Btates Constitution by unani-
rlegation; mous ‘eonsent.”

1 repeat. Weald Test Sincerity.

Urugusy Glass replied he would call the
' Argen.' fesolution up Jater to “test the good
1 Intern-| faith and sincerity of the Senator
ets aod! from Connecticut (Bingham) and
abortive | other Republicans who have engaged
ne Gov-!in ‘testing the sincerity’ of the
‘Democratic Party.”

™e2) . Off the floor later, Glass said his
‘amendment would permit the sale of

. liquor in hotels and restaurants un-
*t ‘teas State laws interfered. He said
‘ ‘Introduction of the resolution did not
nin commit him to repeal and added, “J
g g am merely submitting the question.”

i stable Williams, had a Warrant ac-

wounds that are not expected to prove
serious.

The officers, including Sheriff J. L.
Back, Deputies Stapleton and Helton, |

Scenes down

John Cox and Hogg and _)

cusing Waters of killing Neil snd |

were sworn out by a married daugh-| of
ter of Nell, after she had elicited the fig
information from Earl Nolan. The
youth w&s arrested and questioned|
anything about the disappearance of

Waters had n_ stayin at_ the, to

home, three miles from Muse's Mill, | ¢Te
at 7 o'clock tonight,
Leslie Becket, about 40, a neighbor, |
said he killed Btacy tn self-defense.
Becket furnished $5,000 bond, and

the third effort on Stacy's part to
start a quarrel and he was unable to

viously.

children’s Quarrel resulted in the kill-

him,

4

Another attempt to odtain action
Reaa-k On a general resolution waar then made

burying his body in the woods on the: Two Cob
Neil farm last Monday. 1 one

Neil's wife,. with her son and, Fierce Ba
daughter by a former marriage, were
arrested on a murder conspiracy war- aie ey
rant and lodged in jail here. deg 11-Foot 5S)
son, Ear! Nolan, about 14 years old, 5 t
was reported tanight to have in- | umatra
formed officers where Neil’s body had | Aggi
been buried by Waters. Search for Si
the grave has not been made, ;

Officers re the warrants New York, Jul

the zoo, witt
bting fiercely |
.& decision for

the New York &X
here yesterday, but denied he knew Beeslebub, fou

Nell, officers reported the cage unti!] th

the Sumatra

Neil hom i Ua teT ee wes ari
_ pees Oo months, it was Swaying and 1

Deputy Sheriff Stapleton is survived |##O polson fang

his wife a .| Writhing coils at
+ nd tree young daugh Raymond L. Dit

ters.
explained jo ape
‘Cyan . r Surrenders, (are immuné to tt

Ne |
fift
Bpecial t e) Courjen-Jaurnal. :
cnt FS A wl
bert Stacy, abcut 40/veare old. 'w ;

‘hot and killed on a road near his| et newcomer,

d with a growt

In the eastern end of Fleming County. flercer aadane bts

ner. Then the

ace.
James Evans and was brought hare, ahs Ditmars said

diet is smaller sry
was released. He said tonight marked retell ge ey suas be

comfortable meal o

who surrendered to Deputy Sherit;| P'#ved hose on tf

avold a meeting as he had done pre- Church Cont ‘
Officers were told a dispute over a To Sue for L

ing. Becket said Stacy was advanc- Beloit, Wis, July
ing on him in a threatening manner Branigan, majority k
with a hoe and he was forced to shoot Council, today said bh |
a the Second Congrega.
get back @ dollar he

‘Ww ! : church service. ,
ant It Wet? | |22: Mh wen

G ato Watts Continued

the Danville court for that period. As a
result, whether Cato Watts was actu-
ally convicted and hanged is specula-
tion.

But the discovery of the ancient
Jefferson County court record of the
case of a black man is in itself
intriguing. Two hundred years ago,
black people were the property of
others, with only the rights their
owners might bestow. A slave was
sometimes killed for stealing as little as
a spool of thread. It didn’t take much
provocation for a slave to be severely
flogged or to make a brief and fatal
appearance at the nearest stout tree.
Given those conditions, it’s amazing
that Cato Watts’ s case made it “to the
Bar.”

Because of this rare record of a black
man’s court case, the following hy-
potheses seem as plausible as Durrett’s
story that Watts was tried and hanged.

The Donne family may have be-
lieved (or known) Watts’s master’s
death was accidental and supported
Watts in legal proceedings. It is known
that family status was accorded some
slaves in early pioneer settlements, and
this may have been the case with
Watts. In “Slavery Times in Ken-
tucky,” historian Coleman writes:
“Master and slave, in the early days,
worked together in the fields, marched
together against the Indians, and slept
side by side in family cemeteries . . . .”
The support of the Donne family and
possibly others who had enjoyed his
music would explain how the case of an
accused black man reached a frontier

court. That support also might have

helped him win acquittal.

‘ That brings us to another mystery.
Where is Cato Watts buried? If he met
his end at the hands of a vigilante
lynching group, there is no end to the

possibilities of his final resting place,
He might even have been tossed into
the Ohio River. But if the Donne

family did indeed believe Watts’s story *

and supported him in legal battle, he
may be buried in the Donne family
plot.

No Louisville cemetery in operation

today. existed in 1787, the year Watts ‘
was reportedly hanged. But many

early settlers were buried in Western
Cemetery, which, although no longer
in operation, still exists on Jefferson

Street between 15th and 18th streets. ”

No records are available, but it is

possible that John Donne and Cato ~

Watts were buried there. However, no |

stone still standing and readable in the

decrepit and vandalized cemetery ~

bears the names. The cemetery had a
separate section (along the present
18th Street) for “Affricans,” but no
stones exist there today.

ge

of the
Loultsyille
Greve Jaras

Circa (6352
Velie by elu DLHEeALS,

Louie canst D - : J
prey =a [renner pear

|

Lowsuilie

[

| Zeudreine |.

Pwblic

Public

ct From the
Records ~

\ Of ERC. ss:

AL Filson Club

Seale of ‘soosect) oy

Cli Sure-cyor

The monument, above, at the “Louisville Grave Yards,
plot for “Affricans.” Right: The grave of Dr. William Donne,
grandson of the owner of the slave, Watts. Below: Two “unidenti-
fied” graves in the Donne plot in Cave Hill Cemetery in Louisville.

es oe ousman es \

” shows the


(ca do Watts 4

/
y -

a | A Visual History of Louisville

Compiled, Written, and Designed by R. C. Riebel

PUBLISHED TO COMMEMORATE THE 100th Anniversary
OF LIBERTY NATIONAL BANK AND TRUST COMPANY
LOUISVILLE, KENTUCKY - 1954

Merle E. Robertson PRESIDENT
AND CHAIRMAN OF THE BOARD


m9

Ba

=

AN TEE

ba

a < Ne “ Rives 1 Se
TR be ete AE Es at

i A historian described Cato Watts as “having a charcoal face with ivory teeth.”
This sketch in Louisville’s Filson Club collection is the only known picture of Watts.

- .
—

was hanged to the limb of a large oak =—years ago by Sam Thomas, Jefferson
tree which stood on lot No. 275, County archivist, shows that Watts’s
_ opposite to the present jail on Jefferson —_ case was transferred during a proceed-
Street. This lot was then a part of the ing July 26, 1786, td “the Court of
public square on which the court-house = Ayer & Terminer for the District of
now stands. The hanging was in 1787, Kentucky at Danville on the first
and much to the sorrow of the young Monday in September next and he is
people who enjoyed his music at their _ not bailable.” :
dances.” The handwritter: document, signed
Durrett recorded a great deal of the by “Willm. Pope,” one of the four
existing history of Louisville’s first “gentlemen justices” ’ presiding over
pioneers, and is credited with discover- the court, is on page 20 of the decaying
ing and substantiating the actual date —_—court book. The court record discussed
— May 27, 1778 — that Clark and his “the examination of Cato Watts,
band landed on Corn Island. But charged with the murder of John
Durrett sometimes gave little evidence Donne.”

to authenticate his versions of events. The record continues: “The above

” On the subject of the hanging of Cato named Cato Watts was led to the Bar,
Watts, Durrett offers no details, men- and _upon Examination says that he

_ tions no witnesses. This undocumented knocked said Donne down but that it
account leaves many questions unan- _ was not with the intention to kill him.”
swered. Other evidence was heard, although
But this much is known: A little- there is no record of it. But it was

known record in Book Number Twoof — enough for the case to be continued.
Jefferson County Court indicates that The record lists “Benj. Reeder & Ths.
legal action was taken against Cato M. Winn” as being present as wit-
Watts, and that Watts’s master died at —_—nesses. They were ordered to appear at
Watts’s hand, accidentally or inten- the Danville courthouse. Unfortunate-
tionally. The record, uncovered several _ly, there are no existing records from

Continued

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Burial records for Cave Hill Ceme-
tery before the 20th century are
sketchy at best. However, there is a
Donne family plot there. The ceme-
tery’s card file contains only the name
of Dr. William T. Donne, buried in
1862, but other cemetery records show
the site holds six graves. One of them is
the grave of John T. Donne, moved
there May 3, 1856. In fact, all of the
bodies in the plot except Dr. Donne’s -
were moved there on that date, the
same day that Dr. Donne, John T.
Donne’s grandson, purchased the plot.
Two of the graves contain two bodies
each, cemetery records indicate. And
two bodies in the plot are marked
“unidentified.” Could one be Cato
Watts, buried alongside the master he
served?

Headstones in the plot (lot 143,
section F, row 24 on Elm Avenue)
provide no new information. Only Dr.
Donne’s modest monument with a
carved rose — the largest of the six
stones — has a readable inscription.

Because of Watts’s prominence in
Louisville black history, locating his
grave would be a significant discovery.
Perhaps black leaders and historians
should lead such an effort, for the site
could well be the location for a black
“time capsule” to be unearthed 100
years hence. Such ‘a capsule could
contain artifacts of black history,
which were conspicuously absent from
the time capsule buried at the site of
Fort Nelson two years ago.

Tuat same effort also could lead to
a plan for the compilation of historical
documents and artifacts relating to the
history of blacks in Kentucky, and
housing them in a special depository.
The public library at 10th and Chest-
nut streets, with its already good
collection of black history, might be a
likely site for the archives. Another
possibility is Louisville’s Museum of
Natural History and Science on Main
Street — where there is no data at all,
not even the Kentucky Commission on
Human Rights’s textbook, “Ken-
tucky’s Black Heritage.”

It’s been 200 years since Cato Watts
stepped onto Corn Island and into
Louisville history as the first black
settler. But how little we know of him.
Like many other blacks who contribut-
ed to Kentucky’s heritage, his life and
deeds are shrouded in mystery. oO

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E 2 . ng eee ; 7:
H NILLING WALLAGE VAN FLEET |

|: George’ Underwood mist er “he
‘}@eath penalty in the electric chair

f }murder of Wallace Van Fleet, night

aK

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& person convicted of murder and

of a mandate by the court. ‘* i
When the appellate court overraled
Underwood's petition for & Tehearing, }~-

Court of Appeals, issued the mandate

penalty.

Sa RE

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DF fee. ae ee re


“BAMA

ea

1
i

AIVERSITY GE A

466 Ky.

of September, 1935. Please remit to this,
Chicago, Office, without delay, the amount
called for, returning this whole sheet in
the enclosed addressed envelope. A copy
of the important conditions of your pol-
icy referring to payment of premium will
be found on the back of this notice.”

At the bottom of the notice appeared
the printed signature, “F. H. Cornell,
Manager,” and the provision of the policy
heretofore quoted was printed on the back.
The figures, $13.62, the amount of the
premium due September 1, 1935, were
typewritten on the face of the notice. Ap-
pellee admitted that he received that no-
tice and also a letter written by H. T.
Gardner, the local agent, dated September
10, 1935, which reads in part:

“We have been notified by the Home
Insurance Company of New York, that an
installment of premium amounting to $13.-
62 due September 1, 1935, under the above
captioned policy has not been paid.

“As a personal favor to you we urge
you to promptly remit the amount of the
installment to the company at Chicago, I-
linois, or to this office, Failure to pay an
installment when due suspends the policy
and relieves the company of liability for
damages while an installment is past due
and unpaid.”

[2] it appears that after September 1,
1935, the company sent to H. T. Gardner,
its agent at Owensboro, a list of names of
its delinquent policyholders in that terri-
tory, and appellee’s name was on that list.
Appellant insists that the alleged letter, if
written, did not contain an unconditional
demand for payment of the past-due in-
stallment of the premium, and therefore
did not constitute a waiver of the condi-
tion contained in the policy and the note.
The contents of the letter, as narrated by
appellee in his testimony, were merely a
notice that the installment due September
1 had not been received and a request to
remit without delay. Nothing was said
concerning the suspension of the com-
pany’s hability during such time as the
premium was unpaid. A less imperative
notice was held to be an unconditional
demand for payment in Clifton v. Hart-
ford Fire Insurance Company, 203 Ky.
779, 263 S.W. 338. To the same effect
are Walls v. Home Insurance Company,
114 Ky. 611, 71 S.W. 650, 24 Ky.Law
Rep. 1452, 102 Am.St.Rep. 298, and Home
Insurance Company v. Smither, 199 Ky.
344, 251 S.W. 169.

93 SOUTH WESTERN REPORTER, 2d SERIES

Appellant next insists that the evidence
is insufficient to show that the alleged let-
ter was written. Appellee testified that he
received the letter about two hours before
his property was destroyed by firg, and
that a week or two after the fire he took
the letter, with other papers pertaining
to his insurance, to Mr. Miller Holland,
an attorney at Owensboro, Ky. He never
saw the letter again, though, at the trial,
he had in his possession the other papers
which he had taken to Mr. Holland’s of-
fice. He stated that the last time he saw
the letter it was in Mr. Holland’s pos-
session. Mr. Holland was not introduced
as a witness.

[3] Before evidence as to the exist-
ence and the contents of a lost letter can
be introduced, it must be satisfactorily
shown that the letter has been lost with-
out the fault of the party desiring to prove
its contents. Chilton’s Adm’r v. Shelley,
243 Ky. 576, 49 S.W.(2d) 305; Mutual
Life Insurance Co. v. Louisville Trust Co.,
207 Ky. 654, 269 S.W. 1014. In Nutall’s
Adm’r v. Brannin’s Ex’rs, 5 Bush, 11, evi-
dence of the contents of a lost letter was
offered and one of the questions consid-
ered was the character and quantum of
proof necessary to authorize the admis-
sion of secondary evidence. The court
said:

“The proof of the loss of the letter ad
dressed by Nutall to Brannin was insufh-
cient to admit secondary evidence of its
contents. Brannin proved that he had de-
livered the letter to one of his attorneys,
who had it the last time he saw it; that
the attorney said he could not find it, and
that it was lost. It is not suggested that
said attorney was not living, and he was
not called as a witness. The paper was
traced to his hands; but he was not called
on, to show what had become of it. The
paper, therefore, had not been sufficiently
accounted for to admit the evidence.”

[4] In the instant case, the plaintiffs
cause of action rested wholly upon the
alleged lost letter, and it was incumbent
upon him to make out its loss satisfactori-
ly and show that he had exercised reason
able diligence to obtain the original. Un-
der the circumstances, Mr. Holland, the
last custodian of the letter, should have
been introduced as a witness, oF his ab-
sence should have been satisfactorily eX
plained. 22 C.J. p. 1046, § 1344. airy
proof of the loss of the letter was not sul
ficient to authorize the admission of sec

UNDERWOOD v. COMMONWEALTH Ky. 467
99 S.W.(2d)

ondaryyevidence as to its contents, and it
follows that the trial court erred in sub-
mitting the case to the jury. We express
no opinion on the sufficiency of the evi-
dence as to the contents of the letter, if
its loss had been satisfactorily established.
The judgment is reversed, for further
proceedings consistent herewith,

266 Ky. 613
UNDERWOOD v. COMMONWEALTH.

Court of Appeals of Kentucky.
Oct. 9, 1936.

Rehearing Denied Jan. 15, 1937.

!. Criminal law G@1171(1)

Failure to admonish attorney for prose-
cution, although sustaining objection to at-
torney’s remark that it was common knowl-
edge that life sentence meant only eight years
and if jury should give accused life sentence
he would be back “ready to shoot some other
man,” held not reversible error.

2. Criminal law €=822 (2)

Incorrect substitution of word “yet” for
word “you” and omission of word “not” in
instruction held not prejudicial error, where
instruction read in its entirety was clear and
understandable to average mind (Cr.Code
Prac. § 268).

3. Criminal law €=822(1)

Instruction must be read and considered
in its entirety in order to determine whether
it is erroneous.

4. Criminal law €1036(2)

In murder prosecution, refusal to per-
mit witness to answer unasked question
which was objected to after only first word
in it was spoken held not reversible error, in
absence of avowal by objecting counsel as to
what answer would be.

5. Homicide €=276

In murder prosecution of accused who
allegedly, after being told by proprietor of
restaurant who was also town marshal to
leave town, proceeded to his home, obtained
gun, returned and shot proprietor, guilt of
accused who contended that proprietor
struck him severe blow on head which dazed
him and that at time of homicide proprietor
Was advancing upon accused, threatening his
life, held for jury.

Appeal from Circuit Court, Bullitt Coun-
ty.

George Underwood was convicted of
murder, and he appeals.

Affirmed.

C. M. C. Porter, of Shepherdsville, for
appellant.

B. M. Vincent, Atty. Gen. and W.
Owen Keller, Asst. Atty. Gen., for the
Commonwealth.

MORRIS, Commissioner.

Tried under an indictment which charg-
ed him with murder, appellant was found
guilty and given the death penalty. Mo-
tion for a new trial was overruled, judg-
ment entered in accord with the verdict,
from which this appeal is prosecuted.

The homicide occurred early in the morn-
ing of April 29, 1936. The man killed
was Wallace Van Fleet, proprietor of a
railroad restaurant in Lebanon Junction,
in which place the homicide took place.
Deceased was also the night marshal of
the town.

On the day immediately preceding the
killing, Jasper Metcalfe operating a truck,
his son, and Underwood went to Louis-
ville. Metcalfe testifies that on his return
he had some empty drums to deliver to
some one in Lebanon Junction. Before
he got there he had trouble with his truck
and went for a wrecker. He left appel-
lant with his truck, but when he came
back he was gone, but came up in about
15 minutes with a man named Brashear.
They then went on to Lebanon Junction,
parked the truck, and proceeded to the
railroad restaurant, as witness says, to get
something to eat. .They went into the
restaurant and appellant drank a glass of
beer, then walked back to the kitchen,
“but didn’t stay long.” It seems that he
went into the kitchen a second time and
when he came out Charlie Hall, a clerk,
ordered him out, telling him that he was
not allowed in the kitchen, “it was against
the rules,” and an argument arose between
Hall and appellant. At this point some
one went outside and told Van Fleet of
the argument, and he came in and told
appellant that “they couldn’t allow him back
in the kitchen; they had a town ordinance
against it.” Appellant then said, “Well”;
walked out on the steps of the restaurant
and asked, “Is this all right?” and Van
Fleet replied, ‘“‘That’s all right with me.”
On the outside appellant then began to

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468 Ky. 99 SOUTH WESTERN REPORTER, 2d SERIES
say “some pretty rough things about the appellant had driven up and parked. A
hoy who was working in there.” The boy few minutes thereafter he went back to
picked up two or three empty Coca-Cola the restaurant and called Van Fleet; re-
bottles, walked to the door and stopped. ceiving no answer he went and got a
Appellant tried to get him to come out- neighbor and they went back. They found
side, but he went back in and behind the Van Fleet dead on the floor, eight or ten
counter. Witness also says that some time feet away from where he had been stand-
during the argument Van Fleet advised ing when the first shot was fired. He
him to take appellant home, else he would had been shot twice, one charge taking
be compelled to arrest him, and finally effect in the arm and the other in the
witness persuaded appellant to leave, and head. Witness says that at the time when
he took him as far as his (the witness’) Van Fleet came into the place he had
home on his truck. a piece of fishing pole in his hand. He
On the way out appellant said, “Now did not see Van Fleet have, draw, or at-
Wallace Van Fleet has run over me as tempt to draw any weapon. When his
long as I’m going to let him; I am go- body was removed, the undertaker found
ing home and get my gun and load it and 4 pistol in the holster on Van Fleet’s left
coming back down here to-night, and me Side, and a blackjack in his hip pocket.
or Wallace Van Fleet one will die tonight.” The telegraph operator at the railroad
He was advised to “forget it” and go home station says he saw Van Fleet shortly be-
and go to sleep, but said, “No, I am go- fore midnight; that he had on a zipper
ing to do what I said and you'll hear about sweater-jacket and had a revolver in the
it in the morning.” Witness says that holster on his left side. He went over
appellant had been drinking beer at sev- to the restaurant about 10 minutes after
eral places during the day and night. He the shooting and saw his pistol in the hol-
estimates the time he let him out at his ster just as he had seen it before 12 o’-
home to have been between 10 and 11 clock. The sheriff was apprised of the
o'clock, and says that at that time “he tragedy shortly after midnight, and Jat-
could walk all right and had a very good ¢F some woman called over the phone and
memory.” He did not see any gun on or said that appellant was at her home and
about appellant, but several times during wanted to surrender. The sheriff went
the day he saw “two .32 cartridges.” = paki ae oAlige tl eS
Chatlie Hall the only witness who saw e had two pistols on his person, Lint
what occurred just prior and up to the was fully loaded and the other had three
time the shot was fired that killed Van empty shells pS.
Fleet, testified in substance to what had Virgil Underwood, a brother of appel-
occurred in the restaurant up to the time lant, said that he was living with appel-
when appellant left, as was recounted by lant; that, after 11 o’clock on the night
Metcalfe. Witness says that about 10 of the homicide, appellant came home “ery-
minutes atfer 12 o’clock appellant came ing and cussing” and wanted witness to
back in a car, drove up and parked back 8° to town with him and he did start
of the restaurant, and Van Fleet came in back with him, but before they got to ws
the front door and stopped by the coun- witness jumped out of the car and “ran
ter. Appellant came in and ordered a Off and left him.” He says that appel-
“big beer” and Hall turned to draw it for lant lit a lamp when he came in, and said
him, and the “next thing I heard George he was going to get his gun and go back
Underwood said, ‘stick ’em up Wallace.” to Lebanon Junction; that he got two
I looked around and George had a pistol, 8uns and said he was going back to shoot
and he walked around to the end of the Wallace Van Fleet. “He carried one gus
counter and repeated his command, and ap- in his hand and one in his pocket.” The
pellant had a gun in each hand and shot boy said appellant had the appearance os
Van Fleet in the arm. Hall, believing as having had “plenty of whiskey.” ;
he said, that appellant would shoot him, Appellant testified for himself and gives
turned and ran through the kitchen door in detail testimony as to what occurred dur-
and as he got halfway through the kit- ing the day on the trip with Metcalfe, pat
chen he heard another shot. The wit- ticularly on the return trip, and it was
ness jumped off the back porch, hid in substantially as Metcalfe had testified, ex-
a field and remained there until a car cept he says that during the day he hac
passed going away from the restaurant, taken several glasses of beer and two oF
which he recognized as the one in which three drinks of whisky out of a half-pint

’

UNDERWOOD vy. I
oo a _ COMMONWEALTH Ky. 469
. Coming to the poi i

Se, Metts tad sReksiae wet ee tee er oe ee Teas ek ee
restaurant, he says he drank a beer and he “i Sette ne oe ee
one of the party had something to eat. oo
After drinking his beer, he went back in-
to the kitchen. He was under the be-
lief that “they had been selling whiskey He says that after that he had a head-
in the back of the restaurant. I want- ache, “just commenced walking and turn-
ed to buy a half pint of whiskey to give ed up at some house and asked a man
Brashear to get rid of him.” He says to call the sheriff.” The sheriff came
the boy ordered him out of the restaurant and, as appellant says, found him with
saying, “That's the orders I got.” aes two guns. He says that ever since he
Fleet then came along, and appellant says received the lick on the head he has had
that he told him that he and Metcalfe Headaches and earache. On cross-exam-
wanted to go home and asked Van Fleet ination appellant was put to a thorough
to keep Brashear in conversation “until ‘St of memory with regard to every de-
we get away,” and that Van Fleet re- tail beginning with the morning of the
plied, “It don’t make any difference wheth- 28th, up to and after the time of the ex-
er he goes home or not.” Appellant then amining trial following the homicide.

left the restaurant, but came back and Lilli i i
bought some cigars, and started out of tifi dae eal oc te ae er a
} ed that early on the morni i
ee a ite Van Fleet said, “I 29 appellant came to her <a n pi
lant says he den started pes sata 2 few d . befor peer ee ciel
i a ays before the trial i
Lg a = pep herding er some = blood from one of poop
sreinet eMood She h i Bd ae # Moore, a general practitioner,
ee cede ap nl ceeds te ade a p ysical examination of appellant
sbi _ Up y the while he was in jail. He testified
eres Laid fos oan been ss = rid saa had an enlargement of the ope
' I eant for tal bone over the left ear; i
eg Rig aie that Van Fleet aim- the size of a 25-cent pieds: irs rips
pigeon a the head with a black- ed to have been caused by a lick from
a 7 ves at pri and that blow some blunt instrument, the effect of which
aes ie shoulder, and he struck he said in answer to a hypothetical ques-
needle ea , and from that lick I re- tion based on the assumption that appel-
tae gate ggering on; outside of that I lant had been struck on the head with
pean cee . anything else that hap- @ blunt instrument, in his opinion, “would
pang pt through a haze, until I come have affected his mind at the time.” That
ich y senses in“ EEardin County.” He a blow such as described by appellant to
ase hs ot remember riding with his him “would serve to daze any one’s mind
tects he ant. He then relates that for some length of time; that blow pos-
pet ee wanted a glass of beer Sibly dazed him, and he was possibly in
el a me to the restaurant”; that 4" unconscious condition; that he would
Mss Ware Sete leaning over the counter, Know in part what he was doing. He
be <— he eer and Van Fleet turn- would only have partial remembrance.”
el map pa said, Why did you come Asked if such a blow as described would
lh hese and I said, “I came 4aze one so that he would not know what
Vas Pe ee beer.” he was doing, he said, “If I could have
a Teas then said, Didn't I run you seen him immediately after he was hit I
eg vhile ago, vand I said, “Yes sir, could have told you. * * * It might
me went home.” Van Fleet Malieal have done that in part, but to say that
= a ae corner mumbling something it dazed him so that he did not know what
ey Nhe be got around the counter and he was doing is a difficult question for me
au! Ge you . am going to let you to determine, not seeing him for thirty
are hing, said wait a minute, days after it happened.”
e reached for his gun; I told him

to keep hi i
Whee. Aad signs off his gun, and I start- all the day of the 28th except about 15
m I would go on home and minutes early that night, and Who went

Ne cursed me again, the b i

again, est I remember, with hir
” . 2 i ;
and I told him to keep his hands off his io

Ky.Drc.99-102 SW. (2d)—6

reaching for his
gun, and I remember firing through a haze.
Outside of that, that’s all I remember.”

Metcalfe, who had been with appellant

him px: ifyi :
part of the way home, testifying in

wee

SCHOOL OF Liv’


SAMA

a

INIVERSITY GF A038

j

¥

“54. ‘Ky.

There is no claim that the court’s order
omits any detail which is required by either
code or statute, to constitute a valid judg-
ment, There is nothing in the law with re-
spect of the naming of a particular place in
the county for the exectition, of in limiting
the persons or classes of persons who may
be present at the time of execution. If the
mode, manner, or place of execution had
been fixed otherwise than as prescribed by
jaw, a different question might be presented.
We find nothing contained in, or omitted
from, the judgment as written, which tends
in the least to deny to appellant, any right
guaranteed him under the Constitution or
laws. Section 353 of the Criminal Code of
Practice provides that this court shall re-
verse a judgment “for any errors of law
appearing on the record when, upon con-
sideration of the whole case, the court 1s
satisfied that the substantial rights of the
defendant have been prejudiced thereby.”
If it could be conceived that by the entry
of the judgment in the form, appellant was
deprived of any substantial right vouch-
safed him under the law, we would not hesi-
tate to reverse the judgment, but we have
no such impression.

Due to the fact that the penalty inflicted
here is the severest known to the law, we
have carefully read the proof, the entire pro-
ecedings, including the indictment and the
instructions of the court, and have reached
the conclusion that appellant has had a fair
and impartial hearing. We therefore can-
not disturb the judgment below.

Judgment affirmed.

_ The whole court sitting.

¢

273 Ky. 122

WILLIAMS et al. v. COLEMAN’S ADM’X.

Court of Appeals of Kentucky.
March 4, 1938.

Rehearing Denied April 22, 1938.

{. Automobiles ©=242(6)

Death ©=58(!)

A plaintiff suing for injuries sustained
by motorist killed in collision with truck
driven by defendants’ servant had burden
of proving that death resulted from injuries
sustained in collision, and that truck was
negligently operated by servant in further-

115 SOUTH WESTERN REPORTER, 2d SERIES

ance of defendants’ business and within the
scope of servant's employment.

2, Automobiles €=245(13)

Evidenee whether driver of truck col-
liding with approaching automobile negli
gently drove truck to left of center of high-
way was for jury, as respects liability of
truck owners for injuries sustained by driv-
er of automobile.

3. Evidence €=588

Where the only eyewitnesses to collision
between truck and automobile were truck
driver and his companion, and the physical
facts furnished conflicting circumstantial ev-
idence as to happening of accident, owners
of truck sued for injuries sustained by driv-
er of automobile were not entitled to have
question of the truck driver's negligence de-
termined solely by the testimony of truck
driver and companion. Ky.St. §§ 2739¢-35,
2739¢-39.

4. Appeal and error = 1064(1)

In action for injuries sustained by driv-
er of automobile colliding with approaching
truck, instructions imposing on truck driver
the statutory duty of keeping on right side
of highway and common-law duty of exer:
cising ordinary care to avoid colliding with
and injuring persons on highway were re
versible error, where only the common-law
duty to exercise ordinary care for his own
safety and the safety of his automobile was
imposed on driver of automobile. Ky.St. §

739g-39.

—_—~o--

Appeal from Circuit Court, Pike Coun-
ty.

Action by Miles Coleman’s administra-
trix against Robert Williams and another,
partners doing business under the name of
Williams Feed & Transfer Company, to
recover for personal injuries suffered by
Miles Coleman, deceased, in an automo-
bile accident. T'rom a judgment, the de-
fendants appeal.

Reversed and remanded for new trial.

Andrew E. Auxier and w. A. Daugh-
tery, both of Pikeville, for appellants.

J. E. Childers, of Pikeville, for appel-
lee. ;

PERRY, Justice.

There were two separate actions, one
brought by Mary Coleman, as the admin
istratrix of the estate of Miles Coleman,

e

hed

WILLIAMS y. COLEMAN’S ADM’X Ky.
115 S.W.2d , 585

and the other by Louisa Farmer, as a com-
panion case, administratrix of the estate of
Sherd Farmer, in the Pike circuit court
against Robert Williams and G, C. Call,
partners, doing business at Ashland, Ky.,
under the title of the Williams Feed &
‘Transfer Company. See Williams v. Far-
mer’s Adm’x, —— Ky. —, 115 S.W.2d 589.

By these actions they sought to recover
for personal injuries suffered by their hus-
bands, Miles Coleman and Sherd Farmer,
respectively, in a collision of an automo-
bile, owned and driven by Coleman and
in which they were riding, with a truck
of the appellants, then in charge of and
driven by appellants’ servant, Jeff Owens,
in the performance of their business and
within the scope of his employment.

A separate verdict and judgment for
damages in the sum of $5,000 was return-
ed and given in each case.’

These two actions, both arising out of
this collision, were tried together before
the same jury, on the same evidence and
under substantially the same instructions,
which are here brought before us for re-
view, seeking a reversal of the judgment
upon a multifold assignment of alleged
errors committed on the trial by one Dill
of exceptions, but with a separate tran-
script of the clerk’s record in each case.

The deceased, Coleman and Farmer, the
petitions in these actions respectively alleg-
ed were killed in the car and truck collision
here involved, which occurred about the
noon hour of August 6, 1936, at a point on
the Mayo Trail about ten miles east of
Pikeville on which Coleman with his neigh-
bor, Farmer, were ,then traveling in a
northwestwardly direction to their work,
from their homes at Draffin to the Wheel-

wright mines some miles distant where |

they were employed, while Jeff Owens, the
appellants’ colored agent and driver of
their truck, accompanied by a colored
woman companion, was traveling over
the same highway in an opposite or south-
eastwardly direction, engaged in making
deliveries of dressed meat for his employ-
ers, the defendants, to certain of their mer-
chant and mine customers in Pike county.

The plaintiffs in’ their actions rested the
asscricd liability of the defendants for the
fatal injuries received by their husbands in
the collision upon allegations of negligence
upon the part of the driver of the defend-
ants’ truck, as being the proximate cause of
the collision and consequent injuries sus-
tained by the deceased.

115 S.W.2d—374%

The defense was a denial of the negli-'
gence alleged, with the further pleas made
that Coleman and Farmer had-been guilty
of contributory negligence in the operation
of their car, which contributed to bringing
about the collision in question; also that
the sudden’ emergency had been created
by Coleman’s negligence as the driver of
his car, which served to excuse any alleged
negligent driving of the truck by Owens
or mistake made by him, when confronted
with the sudden appearance of Coleman’s:
car on his left side of the road, and, fur-
ther, that Farmer was, when riding with
his friend, Coleman, upon this occasion,
engaged in a, joint enterprise with him,
serving to make the latter’s charged con-
tributory negligence imputable to him.

[1] Under such issues joined, the duty
rested upon the plaintiffs (here appellees)
to establish not only that Coleman’s and
Farmer’s deaths resulted from and their
injuries were sustained by the collision of
Coleman’s automobile and the defendants’
truck, but also that the latter was at the
time of the collision negligently operated
by their agent in the furtherance of their
business and within the scope of his em-
ployment.

However, as to this, there is here no is-
sue made as to Owens being the agent of
the appellants, and also being at the time of
the collision then engaged on his employer's
business, but it is admitted that the colored
driver of the truck was at the time of the
collision the agent of and operating the
truck in such capacity and manner.

It is further here obvious that Coleman,
the owner and driver of the car involved
in the collision, and his companion, Farmer,
then riding with him, having both been kill-
ed in the collision and there being no other
eyewitness of the accident than the driver
of the truck and his woman companion, the
plaintiffs of necessity had to resort, in
meeting the burden of proof assumed by
them, of showing that the defendants’
driver’s negligence was the proximate cause
of the collision and the injuries sustained
therein by the deceased Coleman and Farm-
cr, to the available circumstantial evidence
furnished in the physical facts, evidenced
by the condition and position of the car
and truck upon the road, immediately af-
ter the happening of the collision upon
the highway.

The testimony of the plaintiffs’ witnesses
as to these matters is that the car and
truck in question were both found jammed,

popes ners 4

“aier =

ji tient ran PERS

Vv

SCHIOL OF LE

ay


352

leaden ball or other hard substance. It ap-
pears that on the 19th day of May, 1897, the
prosecution was called for trial, and appel-
lant moved for a continuance, and filed an
affidavit in support of same; and the com-
monwealth admitted the truth of the state-
ments contained in the affidavit, or, in other
words, admitted as true the testimony which
the affidavit disclosed could be proven by the
absent witnesses. The motion for a contin-
uance was overruled, to which appellant ex-
cepted. The trial resulted in a verdict of
guilty, and fixed the penalty at death; and,
defendant's motion for a new trial and motion
in arrest of judgment having been overruled,
he prosecutes this appeal.

The grounds relied on for a new trial are
as follows: “The defendant, Clarence Vine-
gar, moved the court for a new trial for the
following reasons: (1) The verdict was
against the law and evidence. (2) Since this
defendant went into trial, and since the ver-
dict, the defendant has discovered important
evidence in his favor. (3) For error of law
upon the part of the court in the admission
of incompetent testimony during the trial,
and to the admission of which the defend-
ant at the time objected, and to the rul-
ing of the court in overruling the objection.
For the aforesaid reasons, this defendant be-
lieves that he is entitled to a new trial, and
he prays this court to grant this motion.”

There was some evidence conducing to
show the guilt of appellant; hence the first
ground relied on is not well taken. Nor does
it appear that defendant produced any evi-
dence to sustain the second ground. It does
not appear that any error was committed by
the court in giving or refusing the instruc-
tions sufficient to authorize a reversal in this
case; nor is it necessary to pass upon the
question raised in the brief, but not in the
grounds for a new trial, as to the failure of
the record to show that any plea was enter-
ed by the defendant, or that the court failed
to enter any plea for him.

It is, however, earnestly insisted that the
court erred in permitting evidence to be in-
troduced contradicting the facts admitted by

the commonwealth to be true. Section 189

of the Criminal Code provides that, if the

commonwealth admit the truth of the state-
iments proposed to be proven by the absent
witnesses, a continuance shall not be grant-
ed on account of such absence. It is mani-
fest that the commonwealth in such a case
could not by law introduce proof contradict-
ing the evidence which it had admitted as
true.
quire citation of authorities.

follows:

“he affiant says he is not ready for trial
nt the present term of this court, because of

42 SOUTHWESTERN REPORTER.

This principle is too well settled to re-
The only ques-
tion necessary to determine in this case Is
whether the commonwealth was permitted to
introduce proof contradicting the admissions
as heretofore stated. The affidavit reads as

(Ixy.

red to, and whose testimony is material to his
defense. He says that said witnesses are
absent without his consent or connivance,
and against his wishes. He says, further,
that on the 10th day of May, being the 7th
day of the present term, he had issued from
the office of the Scott circuit a subpcena in
this case for James Jackson and Mollie Hick-
man and Sallie Salyiers and Henry Cham-
bers, directed to the sheriff of this county,
and placed same in the hands of said sheriff
at once for service on said witnesses; and
the subpcena has been returned by said officer
to this court unexecuted, although each and
all of said witnesses reside in this county,
and are now, and have been all the time, In
this county. He says that he can prove by
the witness Sallie Salyiers the following
facts, and this affiant says that he believes
the facts which he can prove by her to be
true, viz.: That the affiant is, and was when
the killing of which he is charged was done,
and during all his life has been, a peaceable,
well-disposed, law-abiding citizen of this coun-
ty, and the separation between him and his
wife was without his fault, and that said
separation was caused by one John Frazier.
He can prove by James Jackson and by Hen-
ry Chambers, and this proof will, as aftiant
believes, be true as a matter of fact, that
on several occasions after the separation be
tween this affiant and his said wife, that the
affiant frequently had interviews with his
said wife, in which he besought her to return
to him, and live with him, and that he was
very much devoted to her. These witnesses
will also state, and the testimony will be
true, that one John Frazier, who had caused
the separation between affiant and his wife,
was carrying a pistol for the purpose of at-
tacking this affiant and killing him or greatly
{njuring him, and that this fact had been
communicated to this affiant, and for this
reason the affiant was compelled to carry a
pistol in his own defense, and for this rea-
son, and this being the only reason, he had
a pistol at the time of the killing. Ben
Thomas will say that he saw the shooting,
and affiant says that he can prove by Mollie
Hickman that said Ben Thomas told her 00
the evening of the killing, in the front yard
of Sim Hensley, that he was not present at
the killing, and did not see what took place
there, but was asleep at the time, and knew
nothing about the facts. He says that tbis
affidavit is not made for purposes of delay,
but in order that he may have a fair trial.
his
“Clarence X Vinegar.
mark

“witness: J. W. Samuels.

“Subscribed and sworn to by Clarence Vine
gar, before me, this 19th day of May, 1897.

“J, W. Samuels, D. C.”

The testimony objected to is upon cros*
examination of the defendant by the common:
wealth, and reads as follows: “I shot Etta

the absence of witnesses hereinafter refer-

because I loved her, and she was not trealng

“HAS SRE

(Ky.

me right.
ed away and came back and shot her again.
My mind was coming and going was the rea-
son I shot her, and that is the reason I walk-
ed off and came back and shot her again. I
did not know what I was doing. I went down
the pike,“ home, after I shot her the last
time. The marshal from Stamping Ground
come out and arrested me.” “Q. Didn’t you
beat your wife with a stick?” This question
was objected to by the attorney for the de-
fendant, on the ground that it contradicted
the facts set out in the affidavit, which facts
were admitted as true. The objection, being
heard by the court, was overruled. The ob-
jection being overruled by the court, the wit-
ness answered as follows: “No, sir; I hit
her three or four times with a switch.” *Q
Didn’t you beat her with a stick instead of a
switch?’ This question objected to by the
attorney for the defendant, for the same rea-
son set out above. The objection, being
heard by the court, was overruled. The ob-
jection being overruled, the witness answered
as follows: “No, sir.” “Q. How big was the
switch?” This question objected to by the
attorney for the defendant, because it was
irrelevant. The objection, being heard by
the court, was overruled. The objection be-
Ing overruled by the court, the witness an-
swered as follows: “Just a little switch.”
Q. How big, can’t you tell?” This question
also objected to by the attorney for the de-
fendant, which objection, being heard by the
court, was overruled. The objection being
overruled, the witness answered as follows:
I don't know just how big, but just a little
one. ‘Q. Ain’t it a fact that you beat her
with a stick, and bruised her back, and swell-
ed up her wrist, and was not that the condi-
ton she was in when she went to her moth-
er’s and is not that the reason she left you?”
This question was objected to by the attor-
hey for the defendant, on the ground that it
Was contradicting the facts set out in the
affidavit, which facts were admitted as true
The objection, being heard by the court, was

VINEGAR v. COMMONWEALTH.
I shot her twice, and then I walk-

353

the court, he was compelled by‘
=igoshihe which he aia as iy Sie elke
e ale Some her with a stick or bruised her
It will be seen from the aff
which was admitted to be ie eel ae
fendant had always treated his wife kindly
and well; but from the cross-examination it
appears that the object of the commonwealth
was to contradict and disprove the admis-
sions already made, and it in part succeeded
in doing so. The appellant was required to
answer the question whether or not he had
whipped his wife, and admitted he had. It
also appears that quite an effort was made
to prove by him that he had beat her and
bruised her severely, which effort was un-
successful. This testimony was in direct con-
tradiction of the facts already admitted by
the commonwealth, and it was error to re-
quire the witness to answer any questions on
that subject. The fact that he was a witness
in his own behalf could in no wise change the
rule that when, for the purpose of trial, the
fact is admitted as true, no evidence can be
heard to contradict or disprove it, and it is
immaterial whether that testimony be given
by the defendant himself or by a stranger. It
mInay be said that the evidence was sufficient
to show the guilt of the appellant, independ-
ent of the testimony elicited by the cross-
examination; but it cannot be doubted that
the testimony brought out tended materially
to show malice upon the part of the appel-
lant, and doubtless did have more or less
effect on the jury. It will also be seen that
this trial was had within a few days after
the finding of the indictment, and it appears
from the affidavit that due diligence had been
used to procure the attendance of the absent
witnesses; and it is no more than fair to
hold the prosecution to a rigid compliance
with the law respecting the admission. For
the error indicated, the judgment is reversed
and the cause remanded, with directions to
set aside the verdict and judgment, and
award the appellant a new trial, and for pro-

overruled. The objection being overruled by
s

ceedings consistent with this opinion.

° _ penses; and, second, the value of appellee’s

ser™.ces. The first issue was decided by the

‘Jury in favor of appellee, the evidence being

directly contradictory. Upon the second is-
sue, as to the value of the services, there was
also considerable conflict of testimony; and
the jury, by their verdict, appear to have
given due weight to the testimony upon both
sides, and to have reduced the amount

‘awarded to appellee considerably below the

amount claimed by him. A number of wit-
nesses engaged in the same business fixed
the value of his services at considerably
more than the amount he claimed, and we
think the jury might have been justified in
adopting the views of those witnesses. They
seem, however, to have struck an average
between the estimates made by the wit-
nesses upon both sides, and this court can-
not say that their verdict was contrary to
the evidence. The judgment is affirmed,

(104 Ky. 106)
VINEGAR vy. COMMONWEALTH.1
(Court of Appeals of Kentucky. June 11,
1898.)

INDIOTMENT—AVERMENT OF TiIME—CONSIDERATION
OF ForMER VERDICT BY JURY—SEPARATION
or Jory — ReversisLe Errors.

1. The averment in an indictment for murder

-of the time of the commission of the offense is

not material, and need not be proved as laid.

2. While the jury should not be permitted to
take the indictment with a former verdict in-
dorsed thereon, it will be presumed that they
did not do so where the second verdict is not
also indorsed on the indictment.

3. The fact that the sheriff permitted the jury
to separate in a capital case is not ground for
reversal where it was first brought to the at-
tention of the trial court on the motion for a
new trial, the decision on a motion for new
trial not being subject to exception.

Guffy, J., dissenting.

Appeal from circuit court, Scott county.

“To be officially reported.”

Clarence Vinegar was convicted of murder,
and appeals. Affirmed.

For opinion on former appeal, see 42 S. W.
351,

L. L. Bristow, for appellant. W. S. Tay-
lor, Atty. Gen., for the Commonwealth.

DU RELLHE, J. The questions presented by
this, the second, appeal of this case, are
few. It is urged that in a case of murder the
time at which the crime is charged to have
been committed is material, and must be
proved as laid. But the rule was universal
at common law that the venue of time laid
in an indictment was immaterial, except
where the time of the commission of the act
formed an ingredient of the offense, as in
the case of Sunday offenses. Bish. New Cr.
Proc. § 399 et seq.

It is further urged that the indictment as
it went before the jury upon the second trial

1 Reported by Edward W. Hines, Esq., of the
Frankfort bar, and formerly state reporter,

510 46 SOUTHWESTERN REPORTER. (Ry,

was the same indictment which had been
presented to the former jury, and had writ.
ten upon it their verdict, finding appellant
guilty, and fixing his punishment at death,
and that the action of the former jury thug
displayed must have prejudicially influenced
the minds of the jury who rendered the last
verdict, and was in violation of section 270,
Code Cr. Proc., which provides: “The grant.
ing of a new trial places the parties in the
same position as if no trial had been had.
All the testimony must be produced anew,
and the former verdict cannot be used or re-
ferred to in evidence or in argument.” But
while it is true that the verdict of the for-
mer jury should not have been displayed to
the jurors, and they should not have been
permitted to take the indictment with the
former verdict indorsed thereon, there ts
nothing in this record to show either that the
jury had the indictment, or that, if they had
it, the appellant objected thereto. The in-
dictment as copied in the record shows the
first verdict indorsed, and presumably the
jury did not have the indictment, or the sec-
ond verdict would have been also indorsed
thereon, which does not appear.

The principal ground urged for reversal {s
that the jury were permitted to separate. It
appears from the affidavits filed upon the
motion for new trial that the jury were
separated without any order of court, about

‘half the number being taken in charge of 4

deputy sheriff to their rooms at the hotel,
while the remainder went for a walk in
charge of another deputy, visited a drug
store, where one of them obtained some
medicine, and a livery stable, where an-
other juror made some arrangements about
his horse. Both officers make affidavit that
no communication was had with the jury
while they were so separated, or at any
time, upon any subject connected with the
trial, or upon any subject, without the
knowledge of one of the deputies. It further
appears that, on the night after the submis-
sion, the jury were lodged in four rooms of
the hotel, Nos. 40, 42, 43, and 44, which
were not connecting rooms; that an unoc-
cupied room (No. 41) was between room 4,
in which the deputy was lodged, and room
42, to which some of the jury were assigned;
that the room which the deputy occupled
was that one furthest away from the en-
trance to the hotel. The officer makes affi-
davit that, save himself, no one was in or
out of the rooms occupied by the jurors, ex
cept upon two occasions, when he accom-
panied a juror to the water-closet; that no
one during the night had any conversation
with any of the jury; that there was no Op-
portunity for any juror to have been 4p
proached upon any subject; and that fre
quently during the night he visited the
rooms where the jury were lodged.

It is manifest that the officer, in his aff-
davit, testifies to some things which were
beyond his knowledge. He could not know

Ky) VINEGAR vy. COMMONWEALTH. 511.

what went on In the rooms while he was
absent at the closet, nor could he know
what took place in the other rooms when
he was asleep in his room. It is manifest
that, admitting to be true all his statements
of whose truth he could have knowledge,
nevertheless the members of this jury might
have been improperly approached 20 times
over. This record discloses no ground for
even a suspicion that such was the case;
but the statute was designed to prevent the
possibility of tampering with the jury, and
also, as we think, to secure to the accused
in a capital case an unbiased consideration
of the facts by the whole jury, and to pre-
vent, as far as might be by legislation, a
few jurors conferring together, agreeing up-
on a verdict, and endeavoring to force their
conclusion upon the rest of the jury. For
the attainment of these purposes, the stat-
ute is imperative. It not only requires the
jury to be kept together in such cases (Code
Civ. Proc. § 244); but in section 245, as if
to show the importance attached to this re-
quirement, it is further provided that, “when
a jury is kept together in charge of officers,
the officers must be sworn to keep the jurors
together, and to suffer no person to speak to
or communicate with them on any subject
connected with the trial, and not to do so
themselves.” Failure to administer this
oath, when properly excepted to, is ground
for reversal. Com. v. Shields, 2 Bush, 83,
Section 246 provides for the admonition of
the jury at each adjournment as to speaking
with one another, or permitting any one to
speak with them, on any subject connected
with the trial. Section 247 requires “a suit-
able room” to be provided for their use.
Section 251 authorizes the court, by order,
to permit a juror temporarily sick to be sep-
arated from the other jurors. These provi-
sions secure to the accused, as well as to
the commonwealth, a valuable right; and,
while we see no reason to believe that any
undue influence was attempted to be exerted
upon any juror in this case, it is evident
that such negligence as that displayed here,
where the officers, with the oath to keep the
jury together still fresh on their lips, took
half the jury for a walk, and the other half
to the hotel, will, if indulged by the courts,
80 impair the right as to render it valueless,
As well said by Judge Hazelrigg, in French
vy. Com. (Ky.) 47 S. W. 269, speaking of occa-
sions when a separation of the jury was re-
quired by accident or other cause of such
an imperative character as would be the
sickness of a juror: “Certainly, the mere
convenience or comfort of a juror ought not
to be held to furnish such a cause. This
safeguard of the ancient law, alike vitally
Important to the state and to the accused,
must not be impaired or frittered away.
Manifestly, the occasion here furnishes no
cause for the separation within a fair con-
struction of the law; and, if it did, it must
yet, in all cases of separation, be shown

—_

4

clearly by the state that no opportunity has
been afforded for the exercise of improper
influences on the juror.” In that case the
juror was allowed, with the assent of the
judge, and in company with the deputy sher-
iff, to go to his place of business for the
purpose of closing his house, and was ab-
sent some 20 minutes, having gone in the
meantime to his house and to the Pendenis
Club. In that case proper exception was
taken, and the judgment was reversed.

But we are confronted here with the ques-
tion whether we have jurisdiction tv con-
sider this error, which was for the first time
presented upon the hearing of the mution
for a new trial. It is urged that in Mc-
Dowell v. Com., 4 Ky. Law Rep. 354, it was
held by Judge Hines (according to the ab-
stract, the opinion not being obtainable)
“that exceptions first raised on motion for
new trial cannot be considered by this court,
save in exceptional cases where the court
has ruled erroneously, and the accused had
no opportunity to except earlier than on mo-
tion for new trial.” In the first place, while
it may be inferred from the affidavit of coun-
sel filed upon the motion for new trial in
the case at bar that he learned for the first
time of the separation of the jury after the
verdict had been rendered, it is not definitely
so stated. Moreover, the doctrine there laid
down, if applicable to this case, has been
subsequently overruled in several opinions,
and notably in an opinion by the same
judge, which will be referred to. It may
be also remarked that the exception as
shown by the abstract was evidently obiter
dictum, for the case was affirmed.

It is also urged for appellant that this court
has, in more than one case, considered this
question when raised for the first time upon
a motion for a new trial, namely, in Blyew v.
Com., 91 Ky. 201, 15 S. W. 356, and Minor v.
Same, 5 Ky. Law Rep. 176. This question
was presented and considered also in Holly
vy. Same (Ky.) 36 S. W. 532. But in each of
those case it was decided that the action of
the lower court in overruling a motion for
new trial was proper, as the statutory re-
quirement had not been substantially violat-
ed. But in Kennedy v. Same, 14 Bush, 344,
in a carefully considered opinion by Judge
Cofer, it was said: “The decision of the
court upon a motion for a new trial is not
subject to exception. Section 281, Code Cr.
Proc.; Terrell v. Com., 13 Bush, 246. An
exception in a criminal case ‘shall be shown
upon the record, by a bill of exceptions, pre-
pared, settled, and signed, as provided in the
Code of Practice in Civil Cases.’ Section 282,
Code Cr. Proc. As the appellant had no right
to except to the order overruling his motion
for a new trial, he had no right to have a
bill of exceptions exhibiting anything brought
into the record for the first time on that mo-
tion; and, as he had no right to have such a
bill of exceptions, it constitutes no part of
the record, and cannot be considered by this

850 42 SOUTIWESTERN REPORTER. (Ky,

his conduct, to mistreat passengers. This
would, perhaps, be a rational conclusion, un-
less it further appeared the conductor, or
those controlling the train, knew of the white
passenger’s presence in the colored compart-
ment, and took no steps to require him to
leave. Here the conductor assented to his
remaining in the car until he dispatched his
business with the old negro, and the com-
pany should be held responsible for his con-
duct so long as he remained; and any other
construction of the duties of corporations and
their agents, arising from the passage of this
law, would nullify its provisions, or amount
to a disregard of the manifest purpose of the
legislature in enacting it.” Under this ruling,
instruction No. 4, to the giving of which ap-
pellants excepted, was erroneous. That in-
struction is as follows: “The defendant is
not liable for any annoyance or insult sus-
tained by a passenger of which the employés
had no knowledge, and which the defendant
used reasonable care to prevent.” The court
should have instructed the jury that, if appel-
lee’s agents permitted the white men to re-
main in the compartment set apart for col-
ored people, appellee was responsible for
their conduct so long as they remained there,
and was liable for the annoyance or insult
sustained by the colored passenger as a re-
sult thereof, although its employés did not
know what was taking place. Upon no the-
ory borne out by the facts appearing in the
record can instruction No. 4 be reconciled
with the rule laid down in the Quinn Case,
to which we adhere; wherefore the judgment
is reversed, and the cause remanded, with
directions to set aside the judgment, and
award the appellants a new trial in conform-
ity with this opinion.

(101 Ky. 664)
CITY OF HOPKINSVILLE v. BOYD.
(Court of Appeals of Kentucky. Sept. 29, 1897.)
FinEs—IMPRISONMENT IN CiTY WORKHOUSE.

1. A workhouse erected by a county and city
jointly is a “‘city workhouse,” within the mean-
ing of Ky. St. § 3528, which provides that, upon
a judgment for a fine issued by a city court, a
capias may issue, requiring the imprisonment
of defendant in the “city workhouse,’ if there

one. ;

2. Under that statute the keeper of a city
workhouse may be compelled by mandamus to
receive for imprisonment women as well as men;
such imprisonment of women not being inhibit-
ed by Ky. St. § 1877, which provides that “when
punishment for a crime is a fine or imprisonment
in the county jail or both the jury may in their
discretion, if the defendant is a male, provide
in their verdict that the defendant shall work at
hard labor until the fine and costs or imprison-
ment is satisfied or until both are satisfied,” as
that section applies only to counties where no
workhouse been erected, and imprisonment
must necessarily be in the county jail.

Appeal from circuit court, Christian county.

“To be officially reported.”

Petition by the city of Hopkinsville for a
mandamus to J. W. Boyd, keeper of the work-
heuse. From a judgment sustaining a demur-

’

rer to the complaint, plaintiff appeals. Re
versed.

John Feland & Son, for appellant. O,. H.
Anderson, for appellee.

LEWIS, C. J. Eve or Effie Bacon having
been by the police court of Hopkinsville tied
and convicted of the offense of keeping a
bawdyhouse, a capias pro fine was duly issued
and placed in the hands of the proper oflicer,
directing him to take her body and deliver her
to superintendent of the county workhouse of
Christian county unless she satisfy the judg-
ment by paying the fine of $20 assessed, and
costs taxed, there to be keptat labor for20 days.
But though, in pursuance of the writ, the of-
ficer did arrest and offered to deliver her to ap-
pellee, Boyd, superintendent of the workhouse,
he refused to receive her because she, being a
female, was not by statute made subject to
such punishment. Thereupon appellant, city
of Hopkinsville, brought this action for a man-
damus requiring the superintendent to accept
from the officer custody of the prisoner, and
keep her at labor in the workhouse, as directed
by the writ. But the lower court sustained a
general demurrer to the petition, and dismissed
the action.

Section 3528, Ky. St., provides: “Upon all
judgments of fines rendered by the city cour,
whether in favor of the commonwealth or for
the city, it shall be lawful for the city attor-
ney to cause a fieri facias to be issued, to be
levied on the estate of ihe defendant, or to take
a capias pro fine, requirmg the imprisonment
of defendant in the city workhouse ff there
be one, or the county jail, or confined at work
upon the streets of said city, or in said work-
house at the rate of one dollar per day until
the fine and costs are paid, unless such raie
of wages shall be changed by the board of
council. And when any fine and costs shall
be paid by labor the city shall not be liable
to any officer for any part of such fine or cost.
The defendant may at any time replevy sail
fine for three months by executing a bond with
good security thereon for amount of fine and
costs and six per cent. interest thereon. That
section is part of chapter 89, tit. “Municipal
Corporations,” and of article 5, relating to we
ies of the fourth class, to which the city ;
Hopkinsville belongs. And by the sper
it the appellee, as superintendent of the w
house, was authorized and required to recel¥e,
and confine therein at labor, the prisoner, Ba-
con; for though the workhouse in question ”
not appear to have been erected by the lly .
Hopkinsville alone, and placed under Sts ¢
clusive control, the petition of appellant ih
tains a statement, to be taken on trial of ra
demurrer as true, that by authority of 3
the city of Hopkinsville and county of ie.
tian made an agreement to jointly erect & si :
house on a lot of ground near the city, W oa
was done. So the workhouse of which afore
is superintendent may be properly trea ae he
city workhouse, in the meaning ones
purposes of section 3528, and be regard

etnies nian Ns

a RE DOA ble ICI a oN

Ky.) VINEGAR vy. COMMUNWEALTH. 351

thonzed and required to receive and confine
therein at labor the prisoner, Bacon, in satis-
faction of the judgment referred to. But it
may be contended that section 1377, being
part of chapter 36, the title of which is “Crimes
and Punishments,” is inconsistent with sec-
tion 3528. The former is as follows: ‘When
punishment for a crime is a fine or imprison-
ment in the county jail, or both, the jury may
in their discretion, if the defendant is a male,
provide in their verdict that the defendant shall
work at hard labor until the fine and costs
or imprisonment is satisfied or until both are
satisfied.” That section was manifestly in-
tended to apply to counties where no work-
house has been erected, and imprisonment as
punishment for a crime must necessarily be in
the county jail, and work at hard labor be
necessarily on a public street or highway, ex-
posure to which it seems to be policy of the
legislature to exempt females. But it certainly
has not so intended, nor does it in terms in-
hibit the imprisonment in a city workhouse,
and confinement there at work, of either a
female or male who has been convicted of a
misdemeanor or violation of city ordinance,
as section 3528 expressly provides may be
done. Wherefore the judgment sustaining the
demurrer and dismissing the action is reversed,
for proceedings consistent with this opinion,

————

OWENSBORO GASLIGHT CO. vy. HILDE-
BRAND.

OWENSBORO ELECTRIC CO. v. SAME.

(Court of Appeals of Kentucky. Oct. 5, 1897.)
Licat Companizs—RiGHT TO Impose CoNnDITIONS
—DIscRIMINATION.

_ Gas and electric light companies, which are
siven the use of the streets of a city for their
pipes and wires, and the right to acquire the
use of lands for their business by writs of ad
quod damnum, being quasi public corporations,
must furnish the city’s inhabitants with light
upon conditions common to all, and cannot, there-
fore, require a particular consumer to make a
deposit of money as security for the future con-
sumption of gas and electricity, when no regula-
ton of a general character requiring such a de
posit has been adopted.

Appeal from circuit court, Daviess county.

“Not to be officially reported.”

Actions by J. J. Hildebrand against the
Owensboro Gaslight Company and the Owens-
boro Electric Company. Judgment for plain-
tiff, and defendants appeal. . Affirmed.

J. D. Powers and W. 8. Morrison, for ap-

pellants, C, 8S, Walker and G. W. Gates, for
appellee,

_HAZELRIGG, J. The Owensboro Gaslight
Company and the Owensboro Electric Com-
pany are not given, in express terms, exclu-
sive right to manufacture and furnish gas in
the city of Owensboro, but the companies are
siven the use of the streets and public ways
of the city for the purpose of laying the
mains and pipes and other appliances in the

also acquire the use of lands for their busi-
hess by writs ad quod damnum. Their busi-
ness, therefore, is affected with public interest,
and they are quasi public corporations, and
practically they have a monopoly of the busi-
ness of manufacturing and furnishing gas
within the corporate limits of the city. It is
therefore their duty to furnish the city’s in-
habitants with gas, and to do so upon terms
and conditions common to all, and without
discrimination. They cannot fix a variety of
prices, or impose different terms and condi-
tions, according to their caprice or whim.
They may, however, fix reasonable rules and
regulations applicable to all the consumers alike,
In these cases the companies undertook to
compel the appellee to deposit the sum of
$20 as security for his future consumption of
gas and electricity, and, upon his refusal to
do so, withdrew their pipes and wires from
his building. This suit by appellee was to
compel them to furnish him light, and the
court, on final hearing, granted the relief
sought. It is conceded by appellee that ap-
pellant may prescribe reasonable rules and
regulations, and impose reasonable conditions
upon the consumer, and require proper secur-
ity for the payment of their bills, and may
even require deposits in advance; but his
contention here is that the companies have
adopted no such rule or regulations as they
have attempted to enforce against him, and
such appears to us to be a fact. No rule
or regulation of a general character is relied
on or exhibited by the companies, and to al-
low them to select this or that consumer
against whom to enforce special rules would
put the consumer at the capricious humor of
the agents and employés of the companies,
The judgment below is affirmed,

Kew v. COMMONWEALTH.
(Court of 3 8s of Kentucky. Sept. 28, 1897.)
CriminaL Law—Apmissions To PREVENT Con:

TINUANCE—EVIDENCE TO CoNTRADIOT
STATEMENTS ADMITTED.

Under Cr. Code, § 189, which provides that,
if the commonwealth admit the truth of the
statements proposed to be proved by absent wit-
hesses, a continuance sh not be granted on
account of such absence, the commonwealth
cannot introduce evidence to contradict state-
ments which it has thus admitted to be true,
for the purpose of preventing a continuance.

Appeal from circuit court, Scott county.
“Not to be officially reported.”

Clarence Vinegar was convicted of mur-
der, and appeals. Reversed.

John L, Scott & Son and Ben T. Quinn, for

appellant. W. 8S. Taylor, for the Common-
wealth,

GUFFY, J. On the 4th day of May, 1897,
the grand jury of Scott county returned an
indictment against the appellant, Clarence
Vinegar, charging him with the crime of mur-
der, committed May 4, 1897, by shooting Etta

maintenance of its work, The companies may

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WASHINGTON, George

washington, alias George Washington Young, was a black man anproxie
mately Ol-years-old, who had served a sentence for theft in the Ken~
tucky State Prison at Frankfert, Early in Ocbober, he and a compan
ion, Charles “ebster, also. black, were encamped onthe eastern edge
of Louisville, Ky., near the home of a German farmer named Otte.
On several occasion, they appeared at the Otte residence and asked
and were given food, Finally, Mr. Otte considered then a nuisance
_ and told them not to return to his home again, Late off the after-
_ ~noon of Oct, 19, 1878, Otte's Ll-year-old daughter, Frances, went —
| +9 @ pasture on his land to drive home some cattle, She was wayleid
_ by Washington and Webster, both of whom raped her, In order to 2
' accomplish their purpose, it was necessary for then to cut her geni-
tals with a knife and after they had finished, they left the uncon-
_ scious girl at the scene of the attack, When she regained conscious -
_ hess, she dragged herself home and reported the incident, A posse .
-was formed which combed the countryside, On the following day, they
located the two fugitives and fired pistols at them. One of the
bullets s truck Washington,’ inflicting a slight wound, but both he
and webster managed to escapes They were captured near Jefferson-
ville, Ind,, on Oct. 2lf after they unsuccessfully attempted to rape

te:

sie ia aac ea ee aR

}

i a ! st

- — ———____—-- —-— . Saat enable
| @hother woman, When they were returned to Loulavile, a determined
| attempt was made to lynch them, but the mb disp ersed after Mrs Otte”
_appeared and implored them¢o*let the law tak e_its_natural course, _"
| Washington was tried first and both his victim and his accomplice
“testified against him. He was convict ed and sentenced to- die and,

--as_th re_was_no_appeal, he was_hanged. from a _scaffold_erected inthe |
jail yard at Louisville on Feb, 21, 1879, Prior to his execution, he
- told the jailer that he*had dreamed t hat the rope would break twice —
that_itwould_be_necessary_to_hang_him three times_before he was
_ dead, - when the trap first fell, the rope did break and he fell into
‘the mud beneath the scaffold, Physicians found that, even though his"
—neck-was—broken—and_he-was_coneonsc Lous,._-he still_lived, and he was
carried byck onthe scaffold, The rope was removed from his neck
with some difficulty before a new one could be applied and while this
—was-taking-place,—-somedne-int he-crowd-of witnesses-yelled_"Cut_his
throat." After the new rope was in place, he was dropped again and
allowed to hang for 30 minutes after which the crowd rushed on the ~~
—seaffold-in_an_effortto_obtain_pieces.of the rope for souvineers,
| | to some physi-

shington's last request was that his body be given

et ky
“eS vt

ian ogous astempt to restore lifes... 7

rie

POLICE GAZETTE, 11-16-1878(2-l); 1-4-1879(6-l;)s 3-8-1879 (11)
WEBSTER, Char es 78(2-) 5° 1-L-1879( 3. 3 8 jb At)

ge be aah en aed ;
Re : : mcs | Se ee a Y a ee EES EN eS

a

va) “i

es


A FITTING 4 FAREWELL.

To « a Bratal Black, re Fiscr, Morally as
Well. that he will Lose pons by
ia oe bins s

-{s bject of it tration: eps:

Lou ILLE, Ky... February . 21.—To-day
Washington, the negro rapist, expiated his horribi
crime om the scaffold: “He had becn notorions as :
thief long before. he committed. the deed for which hi
life hag paid the forfeit, and has served aterm in the
se sateentiary at Frankfort. © The outrage. for which he
was executed was so hidcous in its details thi
dccided—and‘fhe community approved the decision—
that death alone could be a fitting punishment, His
victim, Frances Otte, is a bright, intelligent little
German girl, about eleven years of age, healthy and
rosy-looking, and in ‘manner pretty and attractive,

He confessed nothing, speaking pleasantly to all
who addressed him. His last request was that physi-
cians who had promised. their aid in restoring life
after hanging be given his body. : The Catholic pricate
presont used their influence. to the last to. prevent
this, and it was gencrally supposed they had yained
their point. Washington, however, preferred the be-
licf his ignorance gave him that the physicians would
restore his life to the certainty of being blessed with
religion. At a quarter to eleven ‘A. M., Sheriff Hamil-
ton asked. if all was ready and signaled tothe deputy
in the box, when the ropé, was: cut which held. the
drop and Washington’ was shot downward for four
fect, and, with @ vicious snap, the slender cord broke
‘and the culprit lay upon his back in the mud bencath
the scaffold. An exclamation “of horror. broke from

those on the scaffold and

(quickly as possible he was brought up egain ih
arms of the-sheriff's assistants and laid on® the:
form, the Fathers rapidly repeating prayers: as the
physicians felt his pulse to know if he were yet dead.
The nock wax broken and only ht Puleatio
found. ae re
Great difticulty: w war, nekpoblened 4d removing the
Novee, and during the attempt to do #0 @ brute in the
crowd yelled, “Cut his ‘throat? ft I :

the drop, the noose readjuatad and at a quarter to
twelve a. m., the drop fell a second time, and George
. Washington swung between heat
the penalty of his arcat c1 c
th first 1

“6 d abricked :
Wis aeopped the necond ein “and ‘cla:
midi tee pene while 10

os ca ‘Moment: 4,3
Parakey Graff says that ‘Washington told him a few
days since that he had dreamed that the rope would
break -three times be ‘fore he would die. It was 8
dream not unexpec ted from ® man in his position, but
the breaking once was sufficient to horrify every man
of any Sensibility in the crowd.

On the evening of Sat urday, October 19, last, Frances
Otte, the daughter of 4 thrifty German couple, whose
residence is on the eastcrn edge of the city limits of
Louisville, left home to 6¢¢k several cows in an adja-
cent pasture. It was her habit to do #0 every after-
noon, and upon this occasion ‘she went forth with un-
usual gaycty, singing and playing with pepples and
‘shrubs on the route. The day had been bright and

‘beautiful, and perhaps was not equalled in ita splen-

dor during the Indian summer’ of last season in thix
section. _ During the several days preceding October
17.two n“yrocs had called at. Mr: Otte’a. house and
begyed for bread, one of the twain stating that ‘he

recently left the Penitentiary at Frankfort, Ky., and,

being dogged by the police, found employment an

impossibility: Mr. and Mrs. Otte gave them food on

several occasions, until at last their frequent ‘visits

became a nuisance, and, having discovered them, with

some companions, holding an orgie. over. his victuals

end playing dice by the light of a candle stuck in the
*th-one evening, Mr. Otte


a ||) BADE THEM COME NO MORE. es
The game in question ia of niegro origin aud they
alone'can play it. For them it has a fascination of
the strongest ‘natuge, and no white man wan’ over
called on tour aces with more regret than these’ sable
devotees of dice sce a fortunate fellow throw a win-
ning dice. The game ix played entirely with dice,
and the ante agreed upon, which is very small, is
lumped into a “ pot,” the highest throw winning the

aggregate amount. : Negroes ‘in’ the southwest play |

this game very generally: but those who are. its

Warmest friends arc seldom: youd for suyht cise, |
This Me. Otte knew, and determined, therefore, to no |
longer give his visitors food. Upon the evening in |
question little Frances Otte: who was then a child of |

eleven: years, was entering ‘the central part of the

pasture alluded to, when. to her ureat astonishme ats)

the two negroes she had noticed around the house. of
her parents suddenly contronted her, A -fecliny akin
ty fear had come over her bnt a moment before and
shar wide “hyn wy WUPSary rhvine te phakic it-off, as it

were, when the black fellows appeared. before. her.
Her alarm waé 80 great that she could not speak. nor
try to.-esCape. The: negroes: seized the trembling
child, and, throwing her upon the ground, an outrage
followed, One of the-scoundrels held the little gir}:
by her long brown hair, her screams, the look of terrot
in her eyes ‘as whe placed themonhis, #4"
oo .) FINDING NO MERCY IN RETURN, © nee
To accomplish the part he had determined. to play,
‘the other negro.was compelled to use a knife. The
‘child fainted, and when consciousness had again re.
turned each had executed his design.
', The child dragged herself home aa best. she could
and told her parents the crime comrhitted. . Father
and son stérted in pursuit of the negroes and 8, score
of men joined in their aid. . They pi to find them
that night. Next morning, Sunddy, the search was

kept up, mounted police fyom thé: city joining the

father’s volunteers. During the day the black écoun-
drele were often heard of but never seen by this party.
The country for miles around was alarmed and hun-
dreds wore on the lookout for the ‘criminals, One of
them, he who had first committed tho outrage; | was
George Washington, the other was unknown. On
Sunday, J. A. Hamilton, a Louisville officer, who pre-
viously arrested Washitigton, joined. the pursuing
posse.’; The same day hé~éapicd the two eyroes.
Lieutenant Stcllcr was with Hamilton wearing citizen's
clothes. They-were ehabled-to come within -eliooting
distance before being recognized. When they were
recognized the negroes fled in opposite directions, the
two officers, however, both making for Washington,

| Washington ran with fearful speed, hopping over logs

! them at his gui with remarkable precision. He ran

AT. WHOM THEY EMPTIED THEIR RIFLES. -

and large pieces of stone with wonderful agility. The
fring brought others to the scene, the pursuers rush-
ng to the road-sids singly, in twos, threes and fours.
Washington picked up pieces of. stone as he ran, and
the moment a man made ready to fire on him threw

the gauntlet almost without a single. turn from a
straight path until he saw before him a party of four,
with young Otte, a brother of the. child he had out-
rayed, at ite head: Redoubling his-exertions, he made
off in another direction, but the brother's aim was |
upon him, and the quick crack of his, rifle, followed |
by the n°gro’s tottering, showed that he fired with
“ffect.” His companions fired also, but Washington,
who had almost stopped, again sped on.» They saw
him no more, but during the day picked up a. bloody
coat marked with four bullet-hotces, "Neveral days

| passed, and nothing. more ,was heard of. the two

negrocs. On Thursday, information was received by
the authorities of Jeffersonville, Ind., a town opporite.
Louisville, that two ‘negroes, similar to Washington |
and his. companion, had |’made an unsuccessful
attempt to commit-an outrage four miles from the
Ohio River bank. ‘Louisville parties went. over to
Indiana, and Washington, with bis companion, having
been caught in the meantime, brought them to Luuis-
ville. . The heinous nature of the crime stirred up all
Louisville, and the day after his incarceration’ Wash-
ington could hear the yells of a mob before his prison
>. BAYING LIKE HOUNDS FOR HI8 BLOOD, © >”
The. presence of the white-haired father of the
child in tho: crowd was the signal for rencwed demon-
stration; but the parent asked the people to diaperac.
*“ Let the law have ita way; he is guilty and he will be

} punished,” said the old: man, and the populace dis-
persed. Washington was convicted and. sentenced to

1 be hanged to-day. At the trial, the:c tif
Her appearance excited much sympathy. From a

healthy, rosy-cheeked, bright-eyed little child, she
had been transformed into one witha face of ashen
Paloness, her eyes were sunken and she was a little
wreck... Washington was placed among a dozen other.
Can you point out the prisoner?’ anked - the
Court rs ea ee Rie acai

"* Yea,"" spoke the child, in accents that rang out:
through the entire court-room, “ this is the black dog;
this is the dog we gave victuals; he is the “man. who
did it.” RES OEE arg, pier
oi Washington's companion in crime was Charles Web-
ster. His trial is yet to take place. ‘Washington is aa
black as ebony, and bears signs of the brute: in every
Part of his body.” His age is not known, but he fa not
yet out of his twenties, nt


about Louisville's

sr exists. But in this
3, blacks seeking
vant to know more
pdary slave-musician.

HNSON and BEN JOHNSON.

go, we _Ville’s. Afrikan Heritage Weekend
1 some celebration, under the theme of
people “Strength in Unity.” One of the week-
\meri-  end’s organizers, Seretha Summers
notion _ Tinsley, said the study of black history
)years _ intensifies black people’s sense of iden-
Black __ tity and provides reasons for unity and
sroper- sources of strength.
as one Such study can lead to the story —
day. something of a mystery story — of the
contri- slave and musician Cato Watts, first
‘thand black settler in Louisville.
on the There were blacks in the region
eover- before Watts. A black man anda black
orthat | woman were among a group of early
tion to _ settlers who came to Kentucky with
enum- Daniel Boone in 1775. Pioneer Felix
“Walker wrote in his diary kept during
hen we _ the trip that the black woman saved
200th the settlers when she warned them of
tucky’s an Indian attack.
vances. Another black man, Monk Estill,
Louis- | won his freedom for his courageous
stors of deeds during an Indian attack on the
ir slave’ Kentucky settlement Boonesborough.
is yoke, Later, he was to supply Boonesbor-
ard-to- | oughand Estill’s Station with gunpow-
dshow der made from saltpeter he discovered
acks to. in a Madison County cave. He is
le and thought to be the first Kentuckian to
produce gunpowder, without which the
black __ settlers could not have survived.
ays and Richard Hind, a free black man, was
Louis- noted for his successful experiments

with crop cultivation at Boonesbor- |

ough. Hinds Bend on the Kentucky
River is named for him.

A list of the 198 settlers at Fort
Nelson, believed to be the first ‘“‘cen-

This painting of a black violinist from the pioneer era hangs in a Louisville club.
Could it be Cato Watts, Louisville’s first black settler? Nobody knows for sure.

sus” taken in Kentucky, showed about

10 percent of the residents were black,
all of them slaves. (The first official
USS. census wasn’t conducted until
1790, and it showed 17 percent of
Kentucky residents, or 12,544, were
black; 114 of them free.)
Unfortunately, historians have
cheated us of a complete and accurate

accounting of black achievement of
two centuries and more ago. Mention
of blacks by pioneer journal-keepers is
rare; usually found only as a notation
of a particularly brave deed by “a
negro.” Thus, it takes some searching,
but scattered bits and pieces of infor-
mation have survived.

What clues can be found to solve the

Continued

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WATTS, Cato, black, slave, hanged Louisville, Kye,

The mystery of Cato Watis

Little certainty about Louisville’s
first black settler exists. But in this
bicentennial year, blacks seeking
pioneer roots want to know more
about the legendary slave-musician.

By MARY ESTHER JOHNSON and BEN JOHNSON

COUPLE or so years ago, we

were discussing with some

friends reasons black people
should or should not celebrate Ameri-
ca’s bicentennial. A prevalent notion
expressed was that black life 200 years
ago was nothing to celebrate. Black
people had been other people’s proper-
ty then — to be used or abused as one
would a lawn mower or a car today.

But we began talking about contri-
butions blacks made in the growth and
development of America, and soon the
list of accomplishments became over-
whelming — from the slave labor that
hastened the Industrial Revolution to
the brainpower evidenced by the num-
ber of patents issued to blacks.

The same subject came up when we
were considering Louisville’s 200th
birthday this year and Kentucky’s
various bicentennial observances.
Should black Kentuckians and Louis-
villians be proud of their ancestors of
two centuries ago? Not of their slave
status, certainly, but despite this yoke,
a quick perusal of sometimes-hard-to-
find historical documents would show
important contributions by blacks to
the development of Louisville and
Kentucky.

Many of these reasons for black
pride will be noted in the displays and
performances this weekend in Louis-

BEN JOHNSON is weekend city editor of The
Courier-Journal. MARY JOHNSON, his wife, ma-
jored in history and Afro-American studies at Lincoln
University, Jefferson City, Mo., where they met.

ville’s Afrikan Heritage Weekend

celebration, under the theme of
“Strength in Unity.” One of the week-

- end’s organizers, Seretha Summers

Tinsley, said the study of black history
intensifies black people’s sense of iden-
tity and provides reasons for unity and
sources of strength.

Such study can lead to the story —
something of a mystery story — of the
slave and musician Cato Watts, first
black settler in Louisville.

There were blacks in the region

before Watts. A black man and a black

woman were among a group of early
settlers who came to Kentucky with
Daniel Boone in 1775. Pioneer Felix
Walker wrote in his diary kept during
the trip that the black woman saved
the settlers when she warned them of
an Indian attack.

Another black man, Monk Estill,
won his freedom for his courageous
deeds during an Indian attack on the
Kentucky settlement Boonesborough.
Later, he was to supply Boonesbor-
ough and Estill’s Station with gunpow-
der made from saltpeter he discovered
in a Madison County cave. He is
thought to be the first Kentuckian to
produce gunpowder, without which the
settlers could not have survived.

Richard Hind, a free black man, was
noted for his successful experiments

with crop cultivation at Boonesbor- |

ough. Hinds Bend on the Kentucky
River is named for him.

A list of the 198 settlers at Fort
Nelson, believed to be the first “‘cen-

sus” taken in Kentucky, showed about

10 percent of the residents were black,
all of them slaves. (The first official
U.S. census wasn’t conducted until
1790, and it showed 17 percent of
Kentucky residents, or 12,544, were
black; 114 of them free.)
Unfortunately, historians have
cheated us of a complete and accurate

Could it be Cato Watts, Louisville’s first black se

accour,
two Ce:
of blac
rare; u:
of a c
negro. °
but scr
matica

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Cato Watts Continued

mystery of Cato Watts? Who was he?

What happened to him? How did he

die? Where is he buried? Definitive

answers are locked in the graves of

pioneer settlers. There are gaps in the

information available about Watts, the

slave owned by settler John T. Donne,

but there is enough to give him a

distinctive place in history. He was not

only the first black settler in Louisville,

he also is said by some sources to hold

another dubious first — the first man.
hanged in the city. But was he? A

little-known court record confirms
Watts was charged with killing his
master, but there is no official record
that he was convicted or that he was.
hanged. :

Historians didn’t record much about

the kind of man this first black settler
was. We know he was one of the ragtag
bunch that George Rogers Clark
brought down the Ohio River in 1778
to Corn Island, the first permanent
settlement of what would become the
city of Louisville. There was a comple-
ment of soldiers — about 150 men —
and some civilians, including, accord-
ing to at least one historical account,
11 married couples, 26 children, four
bachelors and one slave — Cato
Watts. =

Within a month, Clark and most of
the soldiers were on their way to attack
British forts. The settlers on Corn
Island had Indians to worry about and
the harsh winter of the “Caintucky”
frontier was at hand. In an 1852 book,
“History of Louisville,” Ben Casseday
wrote of wild animals “starved and
frozen in the forests, while the domes-
tic ones fared no better in the settle-
ments.”

Before the first winter on Corn
Island, however, the pioneers began
moving to the mainland. A 200-foot by
100-foot stockade was started, with
cabins built along its walls. By the
approach of Christmas, according to
some accounts, the settlers were under-
standably ready for some merriment.
Christmas festivities were planned,
and they centered upon Cato Watts.
He was to provide the fiddle music, as
he had done at other moments of
leisure. A large table of food was

prepared — roasted wild turkey, veni- _

son and bear meat, hominy grits, cake
made with raccoon-fat shortening,
pumpkin pie and cornbread.-The abun-

was Cleared on
tall backwoods
hunting shirt:
stockade girls
stout brogan
awaiting the f
But the nur
his fiddle —
violin — were
settlers. The t
time in Frenc
consternation
teach them th
branle and tl
neers were no
dancing. Inst:
for the minu
their heads
succession lik
of stones,” C
So Nickle
light, refusin
borrow his fi
deal with Nic
exchange for
soon Watts
home music
ing that firs
merry one.
Cato Wa
man’s book:
with ivory te
was “grinn |
reappeared
with his res
black pudgy
(A fiddle
the one ow
Louisville’s
pioneer sec
members d¢
ownership,
head carve
simply, “m
single strin
had played
The mo
Watts’s lif
the hangin
is an acco’
after Wa‘
persists. 1
ville,” pu O)
T. Durret
_ Filson Cl
“This n
of John
ever hun
owner as
was tried

dance of corn provided another re-
freshment — whiskey — according to
one historian.
There was “much merriment,” it
was reported, with visitors from other
~ Kentucky settlements joining the fun.
After consuming all that food and
drink, the settlers made ready to dance
to Watts’s foot-stomping music — the
“Virginia Reel,” “Highland Fling”
and “Irish Jig.” But, alas, the strings
of Watts’s fiddle had become worn and

useless.
One account indicates the resource-

"Richard Nugent
Watts’s fiddle?’ Louisville’s Filson Club
labels it merely *“'musical instrument.”

ful Watts tried some substitutions,
including hair from a horse’s tail and
deer sinew. The results were hoarse
moans “like the melancholy hoots of
an owl, sad as the hearts of old and
young alike as they anxiously wit-
nessed the results of Cato’s patient but
futile experiment,” according to J.
Winston Coleman Jr.’s “Slavery
Times in Kentucky.”
It so happened, the story goes, that a
Frenchman, Jean Nickle, who had
stopped at- the settlement for boat
repairs, was a fiddler. It didn’t take
~ much coaxing, after the revelers
learned of the Frenchman’s talents, to
get him to play.
“Almost within the twinkling of an
eye,” Coleman wrote, “a large place


be to Watts Continued

ery of Cato Watts? Who was he?
Lt happened to him? How did he
Where is he buried? Definitive
vers are locked in the graves of
cer settlers. There are gaps in the
mation available about Watts, the
2 owned by settler John T. Donne,
there is enough to give him a
inctive place in history. He was not
- the first black settler in Louisville,
iso is said by some sources to hold
ther dubious first — the first man.
iged in the city. But was he? A
te-known court record confirms
tts was charged with killing his
ster, but there is no official record
t he was convicted or that he was.
nged. ‘es

Historians didn’t record much about

. kind of man this first black settler

s. We know he was one of the ragtag

nch that George Rogers Clark

ought down the Ohio River in 1778

Corn Island, the first permanent
ttlement of what would become the

y of Louisville. There was a comple-

ent of soldiers — about 150 men —

d some civilians, including, accord-

g to at least one historical account,

1 married couples, 26 children, four

4chelors and one slave — Cato

atts. a)

Within a month, Clark and most of

e soldiers were on their way to attack

british forts. The settlers on Corn
sland had Indians to worry about and
he harsh winter of the “Caintucky”
rontier was at hand. In an 1852 book,
‘History of Louisville,” Ben Casseday
wrote of wild animals “starved and
rozen in the forests, while the domes-
ic ones fared no better in the settle-
ents.”

Before the first winter on Corn
Island, however, the pioneers began
moving to the mainland. A 200-foot by
100-foot stockade was started, with
cabins built along its walls. By the
approach of Christmas, according to
some accounts, the settlers were under-
standably ready for some merriment.
Christmas festivities were planned,
and they centered upon Cato Watts.
He was to provide the fiddle music, as
he had done at other moments of
leisure. A large table of food was
prepared — roasted wild turkey, veni-
son and bear meat, hominy grits, cake
made with raccoon-fat shortening,
pumpkin pie and cornbread.:The abun-

dance of corn provided another re-
freshment — whiskey — according to
one historian.

There was “much merriment,” it
was reported, with visitors from other
Kentucky settlements joining the fun.
After consuming all that food and
drink, the settlers made ready to dance
to Watts’s foot-stomping music — the
“Virginia Reel,” “Highland Fling”
and “Irish Jig.” But, alas, the strings
of Watts’s fiddle had become worn and
useless.

One account indicates the resource-

“Richard Nugent
Watts’s fiddle?’ Louisville’s Filson Club
labels it merely “musical instrument. "*

ful Watts tried some substitutions,
including hair from a horse’s tail and
deer sinew. The results were hoarse
moans “like the melancholy hoots of
an owl, sad as the hearts of old and
young alike as they anxiously wit-
nessed the results of Cato’s patient but
futile experiment,” according to J.
Winston Coleman “Jr.’s “Slavery
Times in Kentucky.”

It so happened, the story goes, that a
Frenchman, Jean Nickle, who had
stopped at the settlement for boat
repairs, was a fiddler. It didn’t take
much coaxing, after the revelers
learned of the Frenchman’s talents, to
get him to play.

“Almost within the twinkling of an
eye,” Coleman wrote, “a large place

{

was cleared on a smooth dirt floor, and
tall backwoodsmen in fringed buckskin
hunting shirts and moccasins, and
stockade girls in linsey dresses and
stout brogan shoes stood eagerly
awaiting the first sirains of music.”

But the numbers Nickle played on
his fiddle — he probably called it a
violin — were too sophisticated for the
settlers. The tunes were popular at that
time in French salons. Nickle saw the
consternation of his hosts and tried to
teach them the dances to his music; the
branle and the minuet. But the pio-
neers were not cut out for French salon
dancing. Instead of bowing gracefully
for the minuet, the settlers “bobbed
their heads up and down in quick
succession like geese dodging a shower
of stones,” Coleman wrote.

So Nickle bowed out of the lime-
light, refusing Cato Watts’s request to
borrow his fiddle. But Watts made a
deal with Nickle: a few fiddle strings in
exchange for four raccoon skins. And
soon Watts was playing the down-
home music the settlers enjoyed, mak-
ing that first Louisville Christmas a

merry one. Be

Cato Watts is described in Cole-
man’s book: He had a “charcoal face
with ivory teeth between thick lips;” he
was “grinning ear to ear” when he
reappeared that Christmas Eve night
with his restored fiddle, and he had “a
black pudgy chin.” ea)

(A fiddle some think to have been
the one owned by Watts is displayed in
Louisville’s Filson Club second-floor
pioneer section. The Filson Club staff
members don’t substantiate the Watts
ownership, and the fiddle, with a dog’s
head carved in the curl, is marked
simply, “musical instrument.” It has a
single string, very worn, as if someone
had played many a Virginia reel on it.)

The most puzzling aspect of Cato
Watts’s life is how he died, although
the hanging story, the basis for which
is an account written nearly a century
after Watts was said to have died,
persists. In “The Centenary of Louis-
ville,” published in 1893, Col. Reuben
T. Durrett, the first president of The
Filson Club, wrote:

“This negro fiddler was the property
of John Donne, and was the first man
ever hung in Louisville. He killed his
owner as he claimed by accident, but
was tried and hung for the crime. He

nscale ptacnndaicsasanonceetia weretantianmdnntntiats iD A,

oy peer ee btsln bs Mile oe
‘

al tte Rp nny natn
‘

existing
pioneers,



The’ electrocution date 9 was ect
for August: 28th.

erane are to sear. canind 251,787.70
a8 their. ‘part of the $2,000, 000,000

ing the bonds is expected. to be
completed in the next few daye.

ia denonsieatinas at” $50: will be!

sent by registered mail for delivery
The veterane.of the rural districts

may not art their bonds until a}


Nino Wag ee tn GN oye

on

~fand bass soloist.took | part. in the
BS State Music. Festival [held at the
af University oo. Thursday ‘and Fri-|.
; | day of this week.
“| the trip to Lexington | were Betty

ay =) Swann, H.
hrobert Deacon, C. Le. Troutwine

m companist.
/ ] part io the district contes & at So-

< of their ratings in the district con-

a been installed bythe United Sta-

bare very proud of the new curtains.
|| This work was done through the|
P aplendid cooperation of ghe busi-
}aess men of Shepherdaville and a
few business houses in Louiaville.

: who a tend the achool: plays and

1 “Yticulag attention ‘to the new
{equ pment...

[ih all who helped to make. possible

Fiesta re A ee amet

betel naa ali yao ain obs

Henney icp tt, Sateen annie

Shepherdsville

By" William FF, Rusecll

The Shepherdsville. feet achoo!
male quartette, mixed quartet le

Those making

Maraman, Juanita Patierson, Har-
Evan McKinley,

y4od Miss Mary Alta. Hudaon, ac-
These “pupile-- took

gora some time. ago and by’ Virtue

tests were entitled © tO ‘participate
tt Lvxington. oe

‘Our pew btage equipment ae.

, 8 Equiptoent Company and we

The red ‘velour front cuftain and
blue eyclorama add much. to our
stage and it is expected that those:

commencement programs. will. pay

We are very grateful

addition | to o our. auditorium.

sie. Mice

“School Notes |

Town Pla shal ws £

Tuesdey ti
‘2 oelock, i
Fieet of Lebason Jet.

gut, Apri
Town A

waa kit

a short distance out of thet: Lowa

caused from an old gtudge. ‘Sever.
a! days ayo. Underwood .
Lebanon. Junction, -druak,
VanFieet, othe’: Marshal.

him and ad vieed bm to leave
town.

brother, ‘entered. . . As’:
young men eeicred the door: Van

Underwood | eeeing -him ordered
bim to put up -his bands.-

him fires in the: arm. °

kifling bim instantly.

in the darkness. He fled to Har-.
dis County ; and 9 o'clock Wed-

ed.

a

) Brooder House Burns

L ahandh Junction — Ho

Aayatal,” Van-

by George. Underwood, whe E ies oe

~The killing. acemed. to have been : on oe

ane in :

and”

se molded

‘Tueeday . night. VanFieet
was in the kitchen of ‘the. Rail-
Road Restaurant when George
Underwood” accompanied | shy bis cs
the: two”

Van--" es
Fleet started for his guo and. Un- eo oe
derwood fired. his . pistol hitting aoe ee
Vank leet aoe 2 “ ane
ducked bebind the counter and the ae la me
second shot hit bim io the head)

“ Underwood ran and stole: wae eee

nesday morning he called the Har- | ‘ ca
din County officers and surrender- ee Fhe

Fleet walked cut of the kithen. — es


|

ERWOOD, Gorge BY, white, alao. Ky

+B? pi nia3 2n19-1 9316

COURTER -JOURNAL, LOUISVILLE, FRIDAY, MORNING. FEBRUARY 19, 1937,

‘stor and Third Husband

Lebanon J unction
Marshal’s Slayer

j utes Juter,

; Underwood Wis convidted ?)

» Slaying Wallace Van Fleet

Lebaron Junction Marshal. The

‘Court of Appeals on January 15

affirmed the death sentenc.
Underwood entered the death

jrent Woes apphed at 721) wm

“nounced Under wood dead,

aie pig Ct Pyke. U8 .
Jensen, Carl Stivers, Deergttsy
KRothelis, (omas Noor Miuatgar
Priieitpe Bethes Dus man, Bvebogat
Larnoy Ubeormtias Woereats at, Getto
j beat btieete Wosspedtnvoe ¢ i >
lawitne
7A.
Albvtaliam Ddonris Geer gherty  Dyctige es
oe A ir Coos geuan Lange te
Aivter Mus Pbaeth each Ue.
Bhieifedad bial Vea un Pre derce
Miac wm. Starter Mat Novtew Jean
Meo start. Pati A Veg Maty
Thos cd, Gutetlves Phare oct Nloe
toyesta Dada D ee y He erry 6 |
Cutiett. Hetty ee ee RE
cornmert Pabward i ae | oe |
Crawford AY ree Nta.v
Cop pryretietes, “Ddve cr dorte Ndoe ate 1’) age ¥
Dutwylet Nut ery
Pleoserisai ie My ug fhe Notnoat
Poe data, dears Vos: ene ms btaril, ss
| Cerne Viargeret Pb didee
Bi eritetged, Vor tyy Dhar tte y
? Cytheriuse Sits Ate
i - AAP Wireptotay Pate! Htelen Nhe getye rsa Crifee
aired film star. and Manuel del Campo, Verican B Uuaeel oy ne nee ee ‘ sare
. . ° ‘ i fa) Magret te
1, who were married Thursday in a surprise Gaiie Myttle Wilber Nig sew

Aris. The photograph, by courtesy of Photo-
s made at a recent dinner party given by

Miss Astor.

Glenn, Mary Jane Wise: Wenigtts

-“H. '
Pee Huth) Marker, Pitwgral
Biriefeid, Maotewst Martins  Lewia

a

Eddyville, Ky., Feb. 19 (Friday) the

‘chamber smiling and after sitaskad :
iing hands wath prison afficrals
and bidding them  poodty, Was
‘strapped anto the chai. The c¢ur- An Bnglieh novelist of U

“Two minutes lates: fies (dap og.
Travis,  plison  plioyosiiany  pre-

| Fellowshi p
\Of Prayer

Executed In Chair Daily Lenten Devoti

pha eee by Dr Willard I. Sp
ederal Council of Chure
America

(#)—George Underwood of Bullitt The Sympathy of Chri
County, Kentucky, canvicted Friday, February 19. “Hee
murderer, died in the electric] what was
chuir at the State Penitentiary] 9-)3.95,

here early today. He entered the We thitik at
death chamber at 12:05 a.m., and
;was pronounced dead sevan mine.

in man.” Read

religion f
exclusively os a matter ¢
; knowledge of God. Its als
cam much greater part, his }
eae of us. In Christian
: _ become aware of this) kno:
6: Pas the sympathy and comy
,of Jesus The former. of
* PES comes fiom the Gree
atter from the Taatin. Both
tive same things sharing tl
perience of another

century tedis ous that the gg
comes toous from one wh

quite simply, Ub base exper
wb that pene. pectbeps, os

Nw we read the goopeb. we
Cdycot Wwe ue Qroet wlhieohly

' cviges. S&eto Uber icdens tiasids

epieiat deal of Tite
Daath e  fande at berry tne a
Tt ee tor uebbiens We
pou veloes fo Peang only be
baderr Dever if othet ompasurnder
| rook cepmery Phare ees pe

tepahrono.. thboatate dd “Par thie
ef we toy tdentify ou
vob. Cb beye expercenc
Mh!

teat ee 0) Grab our Pafteet

oat ed foemm our Jone tines
rat on Wis ry impattey th

| - a ne a a

Sy reget Th bets 1A
Biev Hen oy Hyarer tere vt
For one weer the rrevut:
"hree men and ov weotman
Bleed ote che ai Ue ete tree
potter tycaberge st ten gil

help we get im time of te

to the course Of The pawerl-
thie Cipttase of Testis tha. ON
feted Pad oye “wee Feet

TR 8 tedioy”

hiss an the hours when we a
piderstand ourselves and are
HPineterstood by others the fe
V plete of Chried that pecs \
hod apprehended by tam we

fle tas Corti tae Lerd Ame:

| 4 Eaecutions Stave

a

[becian” Ralph Merklein Meden
Is, Reel, | : | craw Plone Jean 0) Neel Mary
Be, rane : 3-B. Jenssoyer Jonn Pf trary lip beew hs
ta. Margaret , Abbott Warda Jvinch Wiluam Dunn, bees J PM Wf =
fer, Betty | Lag ers. Beatrice Mathenes  Altred | oT ~ Geeorge Drrsstdsper MM vehe ah
Darwin ‘Bauncrolt, Joe. Maver, LaVerne areal) Ann Payee. Precta
Chhrles ' Bott. Jack ; Miller, Wolitain fenrs Biel Vivre Feet
Jitumoie Burk Carter Morgan. Gene fooneman, Walter Mhaw Jha
. Walhiam | CampPel!l Dorr Neadiow, Dorts Hugber Lorraine Lerrypie, Pathger
Ch. hauvene “Chaney. Fveisn Qwets, Nuns Jones dean Porter teeotace
Rabbeit ‘Clark. Viole Jrotert Mildred | Joseph Jack Witte Pbas de
Babby Coldiuem Marre Mesd Baral Matin Anne Wyner Mae Ain
Use, dary Collon, Shure fieritraw Drvewatd ; Siar hos Warlare Se fee ee |
d Dorothy Conder Sheldon Riddell, Doria H
Bettys Cranmer Jarnes Hate Jobe
Riissell f. Probe Masry
Dale Martina Beciter ey Chittoor
Decker, Mars A | | Ata
Janes \ Rehetle JaVerne Perce therm Dee ergaby
if | Birvvetsatiy Gear ete | a Hreitoerrt
8 to. . RO ecco oes bene Prt ard

oe

IrnAne VaALIr


Ne

abs

76

Harold Van Venison

entertainer’s job, singing, at Springfield,
Ohio. The reason I rec’lect it, was I said
to myself the next day: ‘It’s a good thing
this nigger was out of town on the night
Miss Brady was shot. They mighta had
me down there in the line-up!’”

“All right. About this Willie Brad-
shaw; do you happen to know what he
was doing that night?”

“Well, I oughta. Willie lives right
across the street from me.” Suddenly, the
darky’s eyes widened: “Before God, gen-
tlemen—I believe you’re right! I believe
you're right! It comes back to me now;
something Willie said the. next morning.
I'd just got back from Springfield—

“You see, Sheriff, Willie and a friend
of his, Rudolph Haynes, sometimes got out
and pulled a holdup or a robbery when they
wanted some extra cash. I knew it, and
everyone else in the neighborhood knew
it. But we didn’t want to turn them in,
because those boys are plenty tough.

“Well, that morning when I saw Willie,
he said something about being on a job the
night before with Rudolph. And_ then
Haynes spoke up and said: ‘Yes, and I
had to use the trigger.’ ”

“Did you know what they meant?”

“Well, yes. But I never connected it
with the Brady case. And anyway, Willie
and Rudolph used to brag so much about
the big jobs they pulled, I just thought
they were trying to impress me by lying,
as usual.”

From that second on, the Brady case
went into high gear. The two negroes
whom Venison had named had moved to
Cincinnati—across the river. The Cincin-
nati police were called and instantly Chief
Weatherly dispatched a squad of his ablest
detectives to ferret out the suspects from
Cincinnati’s “Little Harlem.”

HE men were soon located and speedily

taken to Covington for questioning by
Chief Putthoff and Sheriff Vogt. Mean-
while, Cincinnati detectives learned several
damning things that unerringly tied Haynes
and Bradshaw to the Brady slaying.

Residents of the neighborhood related
that the negress in question head heen
friendly’ with Bradshaw,

Ben Rowe, a negro friend of the pair,
came forward with.‘the information that
the two suspects had borrowed his machine

-

AMERICAN DETECTIVE

on the night of the crime and had kept it
out all night. When he made a trip to

Haynes’ house to get it, the latter declared °

he had “been afraid to bring it back” until
daylight. :

ND last but not least, Cincinnati detec-
tives found a .32 calibre revolver
hidden: in Bradshaw’s bedroom. This
weapon, when shown to acquaintances of
the negro, declared it was his property and
that he was in the habit of carrying it
with him wherever he. went. Taken to
headquarters and tested by Lieutenant
Schattle, the gun proved to be the same
one that had fired the fatal shot into
Frances Brady’s breast on that unforget-
table night of October 2nd, 1936!

The time consumed by Venison’s earlier
trial had brought the date to October 30th,
1937—when he made his first startling dis-
closures to Chief Putthoff and Sheriff
Vogt.

In the week that followed, Cincinnati and
Covington police speedily drew all the
loose ends of the mystery together.

With the discovery of the death weapon
in Bradshaw’s possession, the case was

i. * es N

aaa}. ae
Willie Bradsha

Ww
practically closed—more so when Brad-
shaw, himself, admitted the gun belonged
to him. The negress was re-arrested and
grilled for hours, but she firmly refused to
say that she had been intimate with Willie
Bradshaw or even so much as knew him.
Both prisoners, on advice of counsel, said
nothing, but were content to await grand
jury action.

Roughly, the case was: Bradshaw,
knowing the Brady girl was being married
soon, had anticipated a rich haul in wed-
ding gifts. He persuaded the hired girl to
steal one of the keys to the front door in
order to give him a_ perfect entrance.
Haynes, given the gun by Bradshaw, was
the “trigger.” The two negroes had then
driven to the house, found it dark, and
entered. But before they had time to start
the robbery, the girls had returned, sur-
prised the negroes, and the tragedy had
resulted,

Only one strange thing arose out of this,
though—and that was a’ persistent rumor
that Van Venison, himself, had been in on
the job!’ It was never conclusively proved
and officers did not press the charge, but
-several negroes related that Venison had

a a mone are

Rudolph Haynes

often borrowed Bradshaw’s gun; one wit-
ness even testifying that Venison possessed
the weapon on the night of the killing. If
this were true, then Venison would oc-
cupy the peculiar position of an unknown
murderer catching himself in his own trap.
But evidence in this direction was -slim,
whereas it piled higher with every passing
hour against Bradshaw and Haynes.

Murder charges were placed against the
two and they were ordered held at the
Kenton County jail. ‘

On December 2Ist, a preliminary hear-
ing was held and a large number of wit-
nesses added details of the case which had
long been lacking.

Margaret Brady related how the key.

“would not work” for her or her sister,
Ella Celene, and how she had then handed
it to Frances. “It felt as though someone
might have been holding it on the other
side,” she concluded.

This bore out more strongly the possi-
bility of robbery than had the first version
of their stories. The burglar, frightened
at being discovered, had attempted to hold
the door closed. When this failed, he had
apparently fired his gun at the one nearest
the opening—who happened to be Frances.

Was te took the stand and repeated
the information’ he had earlier given
Sheriff Vogt and Chief Putthoff, further
clearing himself of any connection’ with
the crime by supplying proof that he had
been in Springfield, Ohio. Venison added
that Bradshaw and Haynes had asked him
to go along on the Brady holdup, but he

‘had refused. His- reason for not talking

sooner, he stated, was that he had not
guessed Haynes and Bradshaw had meant
the Brady home when they discussed the
shooting next morning,

And so, for the present, this astounding
case: halts. The curious incidents could
almost be made into a fiction best-seller:
A stool-pigeon with the blood of a mur-
dered girl on his hands has the temerity to
“squeal” on a friend; later, that same friend
turns the tables and unwittingly gives the

‘information which brings the first

“squealer” to justice, for a crime which
no one dreamed he was connected -with!
Truly, God moves in mysterious ways,
His wonders to perform... .
The End

A
inte
sho;
two
his <
K, *
Came
of Cx
darm.
admit
He wy
State
year \
Said h
the ge

The)
and th
Prints,

Pirts
James
Sympath
an OQhic
escaped
with a {
his finge

This {
so he yw;

boose,

James
D.C, do
in fact, }
security,
he stole 2
of liquor ;
Cases for \
for his car
Cases, On
Into a teleg

another frie.
wreck unti]
transferred ;
NO sooner st
whizzed awa
Case of bitte;
found his ¢
wrecked car.

ae


é
a

Sloe i

UNIVERSITY OF 2. SANA

115 SOUTH WESTERN REPORTER, 2d SERIES

tion. Ky.St. §§ 1127, 1137-1 et seq., 1154;
Cr.Code Prac, §§ 294, 353.
fener =

Ky.

580

requiring a hearing on trial upon charges
preferred against members of the depart-
ment; hence that his dismissal was in vio-

lation of the law. ares. Appeal from Cireuit Specie ashing
aughter stn , Common .

win pig aged ieset enforced for near- ty, Crimina

ly two years, and, as held in the Davis

; ilty of such
Case, above, he, too, was gul Se  adtheasea:
aoe as bars his right to recover oe 7
1 The circuit judge having refused both = Robert C. Simmons, of Covington, F M.
men any relief, the judgment is affirmed p,acy of Cincinnati, Ohio, and Stephen
as to these appellants. L. Blakely and Orie S. Ware, both of Cov
z

rt sitting. ington, for appellant. ;
=. ° Hubert Meredith, Atty. Gen., and A. E.
Funk, Asst. Atty. Gen., for the Common-

wealth.

vision.
Harold Venison was convicted of rape,

o §& KEY NUMBER SYSTEM,

anme

MORRIS, Commissioner.
On September 30, 1937, the grand jury
of Kenton county returned a true bill, charg-
ing appellant with the crime of rape, atteee’
to have been committed August eae
The defendant was arraigned at gente :
1937, entering a plea of not guilty. Uj a
showing of a lack of funds with which
employ counsel, appellant was renee
ae ;
counsel and his trial set for sehen
1. Criminal law €520(2), 781(5) fos- On this day both parties sage =
The reading to the Jury of “ ie in the court — — a hain
i. jose ; the trial proceeded;
sion of accused, who was appr . ‘ment; the . ] y te
South Carolina and was not Lacneany a turning a verdict of guilty fixing the p nal
‘ ss h. Motion for new tria s
til he was returned to p : nia at death. n as over
he signified willingness to make a state alae valed: and judgment entered in acce a ;
after he was advised that the SS. the verdict, and from which this ap
i ss t as another ac- : d
-ould be to make a statemen ; rosccuted. .
oe had done, and the submission to the P check hails. siaxed hac seperaat 4
—" ae yhether the confession PEN Hi ie That the court cok
jury of the question ¥ 4 neans, was not er- the judgment are: q) Yl en
was obtained by unfair a : me or promise mitted prejudicial error in pet oe bie
ror, where no threat of i ecially where fession of appellant’s to be ee ~ pi
ee ae ak sstenilak ample because same was — - pare
there was, without the confes odin of Stances as brought it wit un ae Xe
proof on which jury could base a ve aie aaah nth bolic of pecdarl 6490-1, ks
“Bullt. Ky.St § 1649-1 Stats., commonly known as the “anti-sweé

i : 2 2 judgment enter
z act.” (2) Because the ju
on Sener ms : wie intent and put:
: sel prosecution, judgment, based ed was ina form, ste ee ad fs vie
j v¥'s verdict of guilt which omitted no pose not authorized by e1 a
on jury’s ve ease fe
i sti valid judg- provision. :
»tai quired to constitute a va pou
ee roy directed the accused to be execut- The facts dgestoped by ~~ wpe
' i verdict and fixed show that on the evening of August. 10,
1 rdance with the verdict an 7 a
- ge gee place for the execution and prosecutrix, a Roce. "ee
aaa in Covington, in c Z
: d class of personS mother in gton, 8 a
psig aregend ven) attended an entertainme
ent, was not erroneous young man, nde a —
ee tae yas no me sort in Cincinnati, just ac :
ause of fact that there wa some § : Presper
Seo ne law with respect to naming of Ohio river from Covington. A
ovisio spec Jhio 1
ane place in county for execution or Cincinnati, ee cage
i. iti number of persons or classes of per- the river, they ve u ppl deen
= rae might be present at time of execu- Dixie Highway. After ig
sons W ‘

278 Ky. 83
VENISON v. COMMONWEALTH.

Court of Appeals of Kentucky.
March 11, 1938.

Rehearing Denicd April 29, 1938.

about 11:45 p. m., and crossing
e out the

his high —

VENISON v. COMMONWEALTH Ky. 581
115 S.W.2d

way some distance, they decided to drive compelled her to remove her underwear, and
into Dudley Pike, which, if followed, would proceeded to, and did beyond question, ac-
lead them back to Covington, After they complish his design. Prosecutrix complain-
had driven about a half mile on this pike, ed of pain and appellant replied: “TI ought
they noticed another car following, which to hurt you, you dirty b——.” After he
finally overtook their car. Thinking the had accomplished his purpose, he required
driver was attempting to pass, the driver of prosecutrix to watch him while he respond-
the car in which prosecutrix and her com- edtoa call of nature.

panion were riding pulled to the right, but Appellant then took prosecutrix back to
the other car came in close, “sideswiped” his car, saying: “I think I will throw you
their car, and blocked its way. in the river now.” She was put in the car,

At this point some one (who proved to be and after driving a short distance, both
appellant) got out of the blocking car, came _prosecutrix and her companion were let out
directly to the other car, wielding a knife, of the car on the Charter Oak Road. Pros-
and asserting that his car had been wrecked, ecutrix and her companion then started to
and demanding that the damage be settled at walk to the point where their car had been
once. At this point appellant’s companion, left, and on the way came to a house and
who it later developed was Lattimore, ap- concluded to telephone, but were unable to
peared. The prosecutrix, and particularly arouse any one and started on. Some
her companion, thought it was a holdup, and vicious dogs impeded their progress, so
upon demand for payment for the damaged they sat on the front porch of the home un-
car the young man handed over all the mon- til near daylight, when some one in a pass-
ey he had; this being passed to Lattimore. ing car picked them up and took them into
Appellant and his companion appeared to be Covington. When they arrived there they
dissatisfied with the sum, and one or the first advised police officers as to what had
other of them struck the young man over occurred, then procecded to the office of the
the head with an instrument, thought to be family physician, and thence to the home of
a@ pistol. prosecutrix.

At this stage appellant and Lattimore said The mother of prosecutrix testified that
they would take prosecutrix and her friend when the daughter arrived home the next
to the police station, and at once undertook morning, her arms were “black and blue”
to drag them from their car. This attempt and she carried definite marks of finger
met with decided resistance, and appellant nails on her arms; she was a “pitiful sight;
struck the prosecutrix in the face with his her face was bruised and swollen, and her
fist. She and her companion thereupon got throat bore marks as from a knife. Her
Out of their car, appellant conducted them clothing, both suit and underclothing were
to his car, and forced them to get in, placing badly soiled.”
them on the back seat with Lattimore be- : :
tween them, still insisting that he intended The —- of Proseciitren SOrrobor
to take them to the police station. Appellant ated her testimony in ead particular, =
drove to Charter Oak Road, then turned [CPt as to what occurred out of his sight.
beck into Dudley Pike, thence to the en- He testified to noises heard from the point
trance of the Summit Hill Golf Park, where where appellant had taken her, and says he
¢ drove in, stopped, and turned out his Ws being held in the ara by Lattimore. He
lights. Appellant said: “Are you ready to (as did prosecutrix) exhibited no hesitancy
WY | 2 Berusticn wns had as to the sub- # identifying appellant, which, as we ob-
ject of the “talk,” and appellant said: “[ S¢TVe from the record, was done just after
think I will kill you both right now.” He #PPellant was reticnes 1 Covington. Ap-
faid to the young man, “Start praying,” pellant admitted at that time that he had
and the young man did mumble some words, Seen witness on the night of the occur-
and appellant said, “Pray louder,” and struck 7e"Ce:

‘mon the head, saying to Lattimore: “If Two physicians testified, one the family

Starts anything funny, you know what to physician, and the other called for con-

_ Appellant then opened the back door sultation. The family physician says pros-
of his car and forced Prosccutrix out, hold- ecutrix came to him early on the morn-
™g her with one hand, displaying a knife ing of the 17th, at which time he made
ba the other. He then forced her to go with examination and found she was then going

™ some 25 or 30 feet distant into the park, througha naturally recurring period (which
- 9d among some shrubbery. He, still hold- she stated was her condition at the time of
Mx the knife, forced her to lie onthe ground, the assault), and he advised her to come

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§

Coe

ag man who
the story of
front steps,
iring a shot
| seeing the
eet. People
hey had not
ie or heard
house prior

man’s state- 4
, Chief Putt-
irning to be
th or small-
ciously.

at additional
ng a possible
iss Margaret
had been ab-

vhich pierced
ve the heart,
who fired it
+t above the
door hi he de-
by the fact
ching to the
it door. The
n these stairs
window there,
itered. Then,
oor, he prob-
bullet slanting
odged in her

the front hall-
to agree with
) this, the man
so, the window
ruth; standing
gotten a clear
they ascended
e bright moon-

Beg ee

jar,” Putthoft
cy fact that he
yuld have made
- was seen. In-:
re, calmly, until
Then he shot
ick door, which

had: ever made any enemies, to which ques-
tion they unanimously agreed she had not.

Handsome, slightly greyed John J,
O’Donnell, Passenger agent for the Louis-
ville and Nashville. Railroad, was next
questioned. He gave a detailed descrip-
tion of the day preceding the murder, stat-
ing that he and Frances had spent the
whole day together, looking at furniture
and apartments for their home, following
their wedding—scheduled to have taken
place the day before the inquest was held.

HEN he, too, was asked if his slain
WY BEN he had had any enemies, he
emphatically shouted:
Frances did not have
world. No one had a grudge against her
€nough to shoot her. And for that reason
I am positive the murderer was a burglar !”

Once more, the evidence was reviewed
which had pointed so Strongly against the
burglary theory—and as it piled up alarm-
ingly, spectators began to feel the tension
in the air,

Joseph P, Goodenough, legal adviser for
the Brady sisters, sensed the explosive pos-
sibilities in allowing these half-voiced sus-
Picions to go any further, Already, like a
forest fire, many names of past beaux who
had courted Frances Marie .were being
mentioned as Suspects in her death. Such
hints, flamed into open accusations by
strong southern tempers, might ultimately
lead to’ embarrassing incidents, There-
fore, Attorney Goodenough declared that
day at the coroner's inquest :

' “My~ clients know—and [ know—that
many tongues in our community are wag-

“Of course not.
an enemy in the

_ ging. We know that some individuals are

|
‘ed on the night =.

was the 8th be-
fargaret Brady a
th anyone, On
est was held in

Citizens,”

wont in this case, as in all cases of this
nature, to spread the scandal that this or
that person may have perpetrated this cow-
ardly offense.

“We cannot, and must not, indulge in
theories that would mar the unblemished
reputations of good, substantial, Covington

ee

So it was on this semi-antagonistical
strain ‘that. the coroner’s inquest drew to a
close. The authorities had learned little,
aside from the fact that two keys were
missing and that Miss Frances Brady had
been killed by a ;32 caliber weapon “at
the. hands of parties unknown.”

A short burst’ of activity resulted when
Chief Putthoff learned that the Brady sis-
ters had once employed a hired girl. This
girl, Putthoff reasoned, might have had

4 about the un- 4 an opportunity to steal the missing pair
lowy slayer env + of keys and give them to a confederate
sisters declare who desired to burglarize the house. How-
lost out of an 5 ever, this new line of research was soon
iths before. ‘™ quashed when the Bradys unhesitatingly
s the keys your- declined to suspect the maid of doing such
vas asked. i ? a thing. | :

part of it,” the .. 4 The girl was employed at another home
“The keys were" joy her record was

de and we took
Ve each carried
purses so they
hen, two or three
then another dis-
knew what had
that, we always
less we were all
Frances was out
one of us would
ould have to stay

i if the slain girl

without blemish. She

was discarded as a Possible suspect in the

case,

+

Three weeks later, the Covington police
department was thrilled by a report which

‘came from Cincinnati, Ohio—which lies

directly across the Ohio. River, to the
north, and is connected with Covington by
three huge bridges, é

Chief Eugene T. Weatherly, chief of
the Cincinnati police, had ordered his men
to cooperate fully with the Kentucky au-
thorities on the Brady case. As a result,

for a small loan.

AMERICAN DETECTIVE

two detectives—after

an intense investiga-

tion of all locksmiths and key shops—dis-
covered a shop owner who declared he
had made a key exactly like the type used
on the Brady front door !

“A white man came into my shop about
two months ago and had one key made,”
the locksmith related. “I remember. the
incident, because he got angry’ when
commented on the peculiarity of the key’s
construction. He said he’d take the work
somewhere else and we had a few words.
After that, he cooled down and waited until
I’d completed it. He paid me and left.”

Asked if the man had given his name,
the locksmith answered that he had not.
However, he described the man as middle-
aged, tall and heavy. Shown a photo of
various men mentioned in the case, he
shook his head; the mysterious key-buyer
was a total stranger. And his identity was
destined never to be learned. . . .:

October ended, with no new develop-
ments in the Brady murder; November . . .
December. . . . Citizens of Cincinnati and
Covington were beginning to forget the
case which had so horrified them Octo-
ber 2nd.

On the 10th of January, 1937, however,
the Brady case opened again with a bang.
The Covington police were instantly on the
alert—hoping that here, at last, was the
break that would solve the mystery.

A sixteen-year-old youth was arrested
after a chum of his phoned Chief Putthoff
that he knew “something about the Brady
killing.”

“We were discussing the Brady murder
the other night in a pool room,” the in-
formant Stated, “and this fellow said:
‘Don’t tell me anything about that mur-
der. I was there when it happened!’ ”

An order went out immediately to pick
up the boy. It was not an easy task, for
it developed ‘the youth lived mainly by his

wits. He had a pretty unsavory record
for a juvenile, and was a known trouble-
maker,

Cornered at last, he snarled to Chief
Putthoff: “I hate coppers! I’ve always
hated them and always will!”

Questioned about his statemént that he
had_ been. Present at the Brady killing—
which fact tied up with the testimony of
the neighbor who had seen a youth loiter-
ing near the house shortly before the mur-

der—he refused to answer questions. a

Additional investigations by Covington
detectives in places where the boy hung
out, revealed the information that the lad
had possessed a .32 calibre revolver—the
same calibre as the weapon which had so
ruthlessly snuffed out pretty Frances
Brady’s young life! The gun was located
at last at a Licking Pike, Kentucky, tavern,
where the youth had left it as collateral

But, to the dismay of everyone, the gun
was not the death weapon! Lieutenant
George Schattle, Cincinnati police depart-
ment ballistics expert, proved again the
oft-proven fact; scientific police research
not only helps convict a Person guilty of
a crime, but protects the innocent from
being involved, as well!

ITH the proof of the boy’s inno-
cence, the Brady case once more

slowed to a standstill. As the weeks piled
up ‘into months,

there was very little ac-

complished, save

for an apparently hope-

75

less theory that Sheriff Louis Vogt, of
Kenton County, had, He explained it Chief
Putthoff, :

“I believe that negress who worked for
the Bradys could tell us something. Any-
way, my deputies and I are making a
thorough investigation of all her men
friends. So far, we haven't a thing against
any of them—but we know just about who
they are, and when one of them makes a
false step—”

Sheriff Vogt’s hunch was given a chance
to prove its worth six months later, when
a_stout young buck named Harold Van
Venison was arrested and later convicted
on a charge of criminally assaulting a
young Covington stenographer. Venison
was handed. the supreme penalty; he was
sentenced to hang in December.

Indirectly, Sheriff Vogt learned that
Venison, while not a friend of the negress,
was well acquainted with a man who ap-
parently was her lover 3 Willie Bradshaw,
one of the men under surveillance.

Vogt informed Chief Putthoff and As-
sistant Chief Schild:

“This fellow is up against a stiff jolt.
It’s my idea that if he knows anything—
even remotely connected with the case—
he’ll talk now.”

* * *

When the officers first began to ques-
tion Venison jn his cell, he was too de-
spondent to talk. Too, his memory was a
bit foggy concerning events which had
transpired in October, 1936.' But at men-
tion of Willie Bradshaw’s name, he
brightened. For Bradshaw had tipped off
the police and given them the information
that had led to Venison’s arrest on the
rape charge,

“Oh, yes—I know Willie,” Venison
rumbled.

“Did you know he went with a girl who
used to work at the Brady home?”

W Ries condemned man was thoughtful for
a moment, then said: “Yes—I believe

so.” .
Sheriff Vogt smiled. “Now we're get-
ting somewhere! ‘Now think carefully,

back to the time of the Brady murder. The
papers were full of it, so you can probably
gauge just about what you were doing at
that time. Some incident—”

“Yes... . remember I got a part-time

Let Me Tell You

<taeninnintenesineleias
About your business, travel,
mony, love affairs, friends, ene-
mies, lucky days and many other
interesting and important affairs
of your life as indicated by astrol-
ogy. Send for your special Astral
Reading. All
tific, individual and guaranteed sat-

changes, matri-

and date of birth plainly, No
if you like
send 15 cents (stamps; no coins)
Address: <3
PUNDIT TABORE (Dept. 577), &

reper Forjett Street, BOMBAY VII, BRITISH
INDIA, Postage to India is Sc.

WHAT CAUSES EPILEPSY?
IS THERE A CURE?


UNIVERSITY OF AL.SAMA

582 Ky. 115 SOUTH WESTERN REPORTER, 2d SERIES

back’ later, which she did on or about the
19th of August. His examination, as he
said, showed some abrasion which indicated
a forcible penetration. The other physician,
going more into detail, agreed fully with
the family physician’s conclusion.

[1] Then follows the testimony of the
police officers, which testimony brings for-
ward the confession, the introduction of
which is subjected to severe criticism. From
this testimony it appears that after the 17th
of August appellant became and was until
October 14th a fugitive from justice, later
being located at some point in South Caro-
lina. Learning of his whereabouts, the
Covington authorities, upon recognized req-
uisition, brought him back to Kentucky,
taking him first to Ludlow and later to
Covington, where he was placed in jail. On

‘ the trip from South Carolina appellant was

accompanied by several police officers. Aft-
er lodgment in the Covington jail, it was
suggested by one of the officers that Hall,
another officer, go and talk to appellant.
Appellant was approached, and said he

“would not talk now, but later.” In the
afternoon of the same day this officer with
a “turnkey” went to appellant’s cell, and at
this time, or perhaps later, told appellant
that Lattimore had made a confession. Ap-
pellant then agreed to go to police head-
quarters, where in the presence of four or
five officers, and the stenographer who took
his statement, he made the written confes-
sion. This statement was taken down in the
presence of the officers, transcribed by the
stenographer; later read to appellant, who
signed same, after suggesting two or three

immatcrial corrections.

The document consisted of 200 or more
questions propounded to and answered by
appellant. Those officers who testified as to
the statement, particularly with reference to
its procurement, all agree in saying that
there was neither promise of reward or
immunity made; no beating, threats, or CO-
ercion of any kind were indulged in. It may
be noted at this point that all witnesses tes-
tifying on this phase of the case were put
to and underwent a most searching and

critical cross-examination.

This inquiry was begun before the jury,
but when it became apparent that objections
would be interposed at the proper time, the
court recessed the jury and heard the testi-
mony in their absence. After its introduc-
tion the jury was reassembled and the
testimony continued, the appellant not being
tendered as a witness, though he had testi-

fied in the absence of the jury.

We have reviewed this testimony with ex-

traordinary care, and cannot escape the con-
clusion that the method or manner of its
procurement in no wise transcends the pro-
visions of the statute supra, or was such
as to bring it into condemnation, under any
of our decisions, including the one upon
which appellant’s counsel confidently rely.
It scems to us that the inquiry was conducted
in an orderly and legal manner. Appellant
when brought forward to testify, touching
the preliminarics leading up to his confes-
sion, did not claim that it was procured
through force, violence, or under promise.
His testimony was to the effect that on the
trip from South Carolina to Covington (or
Ludlow) he was asked no questions, and was
well treated. He does say that he was alarm-
ed particularly so when the train arrived at
the station in Kentucky. He feared mot
violence, and asked the officers to protect
him. He seemed relieved upon their assur-
ance that they would do so. He states that
when the train arrived there was a great
crowd, but he does not claim that there was
any evidence of violence. It appears that
most of the crowd was made up of police
officers, present for protective purposes;
others merely out of curiosity. He was still
nervous and frightened when brought to the
police station, being afraid as he says, of the
police officers, particularly the one who
afterwards questioned him. His testimon)
is to the effect that when the officer began
to question him they did nothing more than
scat him at a table and “crowded” around
him. They told him that Lattimore hail
made a confession, and this was true, sine
he says it was presented to him to read;
that he read it in part, the remainder being
read to him, and he recognized Lattimore's
signature thereto.

Appellant said that some one said at the
beginning, “Lattimore had made a written
statement and if I would make a written
statement it would be better.” After this
hearing the court concluded that the better
practice would be to submit to the jury the
question as to whether or not the confession
was procured by any unfair means, and wé
note from the record that this thought was
carried out by the giving of an appropriate
instruction on this subject. Appellant was
not offered as a witness, nor did he testify
later on this subject. In fact, as appears
from the record, he also failed to testify of
offer any witness on his behalf, bearing
the question of his innocence.

The strenuous objection of counsel for

appellant came when his statement wat 7

tt Ie Nha —Atm SAP MN Lo Dewy HSE

VENISON y, COM IWE
ok teeth re a heres Ky. 583
roffered for the jury’ i : ;
pi not make ee We Such was not the case here. There was
further than to say that bei tag ion aoc: absence of any plying of questions on the
sninok detail 4 ay that except in some trip from South Carolina to Kentucky, and
ails an immaterial facts, it cor- none after appellant’s arrival in C ys
roborated the testimony of the prosecutrix until after he had signified that nde
and her companion. The appellant admitted make a statement Nor can tl at ne would
the accomplishment of his design as had of the best course to be 1e suggestion
been testified to by the prosecutrix, with pellant be construed as a Esa by ap-
some incriminating additions. We say this immunity, or assistanc eS eee
because appellant testified that he and Lat- ; “
timore, failing to fulfill an engagement with The foregoing being the main objection,
some colored girls, had agreed to and plan- W° have given the complaint the most care-
ned to attack “some white woman.” Ap- ful observation, and after doing so have
pellant in his statement said: “Just what we concluded that the court did not err in per-
did do, that was our plan.” mitting the confession to go to the jury.
Counsel in brief say, and we agree, that bane is this true, since there was,
it was not necessary, under the facts as pia aad ample proof upon which the
adduced, to introduce the statement of ap- ae one te doubt did, base its verdict
pellant, and that its introduction prejudiced po one = _- on our conclusion of
appellant's substantial rights, because it was refer a age lis respect, we may make
procured in violation of the statute, supra; Sw ain: ir v. Com., 235 Ky. 466, 31
ra confession being obtained while appel- 3g Ss w.2d Sepebew siege ne 238 Ky. 356,
was incarcerated, during which time he 43 64 S.W 2d aruth v. Com., 251 Ky.
was plied frequently, if not constantly with Ky. 244 “46 Ss hive ras gone 242
: < ide of, an ontjoy v.

questions. They complain of the 200 <
more questions and answers manifested a hey ee

nage exited statement. The docu- [2] The judgment, after directing the
a —— ey than the stated num- punishment fixed by the jury’s verdict, fixing
a8 ss —_ - 7 examination we the day and date, and a particular place for
x Capac die sae of them related to the execution, limited the number and class
bealinrion comm ted, he others merely of persons permitted to be present. It is
ant mn ancor cquentia matters as to ap- complained that the judgment is not in due
rama enc = prior to and after the form or in accord with the statutes. Subsec-
wee g ,an matters relating to his tion 2 of section 1127, Kentucky Statutes
af ion -attimore. provides that “a common law offense for
Counsel points to Cobb v. Com., 267 Ky. which punishment is prescribed by statute
176, 101 S.W.2d 418, 419, as being in sup- shall be punished only in the mode so re-
port of the contention that the confession scribed.” Section 1154, Kentucky Statutes
a iBegalty obtained. We do not agree that provides that the common-law ofiense hare
ocolbyrtigi is conclusive, and distinctions charged shall be punished by confinement in
coe fudge us to be persuaded. It the penitentiary for a prescribed period,
ope ’ : Cobb opinion that a state- Or by death. Sections 1137-1 et seq., Ken-
oe i (not written) was ad- tucky Statutes, and 294 of the Criminal
16 hve Hp ri his objection. Cobb Code of Practice, provide the mode of exc-
wei tea canner: and taken later Cution in death penalty cases. Section
— “ by e arresting officers. These 1137-1, Kentucky Statutes, provides that all
ba re) > said, continuously plied him executions, where capital punishment is in-
a Bs, ne ped one of them told him he flicted, shall take place within the walls of
, roar Nepkagget yee = after he had made a penitentiary, the mode being by electro-
nes see hat = hen not have to go cution, and section 1137-4 provides what
ihe cae ys ny rea if Cobb would oflicers, and the number of persons of var-
it wou e easicr and any- ious classes, who may be present, excluding

thi ia }
ing he could do for him he would be glad all others. The section supra (1) makes an

to h 99 rey : : $
ihc aside acti questioning was exception where capital punishment is in
ie trip until the party got with-  flicted f i i i

“ea pte piry lac ed for the crime of rape or attempted
yington, when, under the rape. I h cas

ibisence cree oe 1, ape. In such cases the sentence shall be
cers, Cobb finally made executed b i i

aie ee : cuted by hanging, and in the county in

ine aa which we held was obtained which the crime is committed, by the sheriff

ay condemned by the statute. of the county.

WV

VOL OF

oeFée
bw 3 OF as —

sei cn ni a at tnd

; pli - he harles Wordle
OT Ap Cita iis : ey be. ih Z Antu
Psd le oO

LAST WORDS

itinal obese slepale DUE)

Lui (up) See ee Te Tod deh


1 sharp-
in’t live
ly. Then
iat were
t so long
Pa were

1e sheriff
ard Jef-
Jecember

nodded.
oas here.
» out and
back and
him the
coing out
inidex
Ys) Clay

I saw

at night

f that -is

Dd shoul-
‘d know

Vhite be
car?”

iapely
that.
going. to
ink. Clay

irculated
id given
iler be
stioning.
ton Jef-
le young

e?” the
1's moth-
ack?”

ick very
fe talked
for work.
rdin. was

car?”

head. “I
Huston
it know
or not.”
ard from

f a hand

at Carl
Jeffries’
by Carl
in stated

Huston
ight they
nd a job.
the sher-

ink they
ing,” she

residents
mmunity.
yung men
ft for St.
iber 3rd.
1 wit-
them

te that

various
lives and
ituckians.

'

And he heard only the highest praise
of the pair. The young men were
hard workers and were thrifty and
sober, more than one person de-
clared. They had. never been in any
kind of trouble.

Possibly, the sheriff decided, there
was nothing in that angle anyway.
Even if Huston Jeffries were in love

with the older woman, he would have

no motive for rend Clay White-and
his father. Clay’s jilting of Mrs. Car-
son would have given Jeffries a free

hand with her.

i GpRUBBS pressed his search for the

peddler Mrs. Carson had de-

scribed. But nothing came of. this.

' The peddler seemed to have vanished.

The sheriff went back to his office

‘in Liberty and while he was mulling

over the meager facts in the case, a

Casey County resident dashed up to.

his desk.

“That hammer you’ve got on dis-
play,” he panted. “IT know who it
belongs to.” ’

Grubbs leaned forward. His eyes

gleamed with new interest. “You da?”.
‘“It belongs to Roy Tolliver,” the

man replied. “First time I looked at
it I knew I’d seen it before. But it
took me some little time to figure
out where.” .

“T don’t suppose you’ll mind goin
with me to ask Tolliver about it, wil
you?” Grubbs inquired.

“Not at all,” the man said briskly.

“And-if Tolliver’s got.any—sense,-he’ll..

admit it belongs to him.”

“But if he is the one who killed:

John and Clay White he won’t be
likely to admit owning the murder
weapon,” Grubbs pointed out.

“T don’t think Roy committed those
murders,” the man said. “I think the
killer either stole or borrowed the
hammer from him.”

Grubbs wasn’t so certain, however.

When the sheriff and his companion
arrived at Tolliver’s home they found
he was not there. In fact, he hadn’t
been seen for over a week, since be-
fore the double murder.

.Grubbs assigned a deputy to re-
main at Tolliver’s home in case he
showed up, then he and other officers
made the rounds of all places in
Casey County where the man might
be. But they had no luck. Tolliver
was not to be found in any of his
usual haunts and dives.

It wasn’t until the following day ©

that the sheriff’s luck changed. Tolli-
ver returned to- his home and the
waiting deputy promptly brought
him to the courthouse.

Grubbs started questioning Tolli-

ver about the hammer. The man re-

fused to answer any and all queries.

“I ain’t done nothing,” he reiter-.

ated. “And you can’t hold me fo
doing nothing.” ‘

“T can hold you for questioning,”
Grubbs reminded him. ‘Now what
about this hammer? I’ve a. witness
who says it belongs to you.”

Tolliver looked at the bloodstained
weapon and then started yelling for
a lawyer.

“Take him out and lock him up,”

Grubbs instructed one of his deputies.
“Then if he still wants a lawyer he
can have one.”

A half hour later, the deputy
brought Tolliver back to Grubbs’ of-
fice. “I think Roy’s changed his mind
about wanting a-lawyer,”’ the deputy
said with a grin. ;

Grubbs motioned Tolliver to a
chair.
the murders of John and Clay

White?” he asked Tolliver abruptly. '

Grubbs said bluntly. ‘And it looks

. Grubbs placed’ thé hammer on. the
‘desk. He looked at the gory weapon

length. ‘

‘the same make and style. But my

_ ber where he was or what he had

. vester Warner. An attractive young

_for you?”

ville,’ she explained.

“What do you know about. _and Carl Hardin,” she replied.

%)

The man gasped audibly. “Mur-.
ders?” he exclaimed. “I didn’t even
know they’d been’ killed.” ° é

“Well, you know’ about it now,”

like one of the» weapons used was
your hammer.” : ;
Tolliver. turned pale as: Sheriff

for a long moment. Finally, he tore
his eyes away from. it., “That: ain’t
my hammer, Sheriff,’ he said at:
“But you do-have one like it,”
Grubbs said.) 3.424.
‘Tolliver. nodded. : “My: hammer: is

hammer’s got'my name burned in the
end of the handle.”

Grubbs sent a deputy to Tolliver’s.
home to check on this. Then he asked
the man, “Know of: anybody else
who’s got a hammer like this?”

Tolliver’s hesitation was apparent.

“Well?” prompted. the. sheriff.

Presently, the man nodded. ‘Syl-
vester Warner’s got a hammer ex-
actly like the one on your desk but
I’m certain that one isn’t his.”

“What makes you so certain?”

‘Sylvester is one of John and Clay
White’s best friends and neighbors.
He was always over there helping old
John with his stock and in the sum-
mer time he practically made the old
fellow’s garden.. He’s. not the mur-
dering kind... 7:

Grubbs was silent a‘moment. “We
can check on it anyway,’ he. said
presently. teh

AN hour later, the deputy returned
with a hammer he had obtained
at the Tolliver home. ec for the’
name burned on the handle, it was
identical to the murder weapon.

Although Tolliver couldn’t remem-

been doing on the night of the mur-
der, the sheriff was forced to let him
go because of lack of evidence.
Taking a deputy with him, Sheriff
Grubbs sped out to the home of Syl-

woman who said she was Warner’s
wife answered their knock on the |
door. |
“We'd like to see your husband,” |
Grubbs began.
“He isn’t at home now,” the woman
replied. “Is there anything I can do

Grubbs showed .her the blood-
stained hammer. “Ever see this be-
fore?” he asked. ;

The young woman stared at the
hammer for several seconds, then.
shook her head. “Don’t believe I ever
have,” she said. -

“Doesn’t ‘your husband have one
like this?” the sheriff insisted.

Mrs. Warner shrugged. “Maybe: I
don’t know. Would you like to look
among his tools and see for yourself?”

tao a good idea,” the sheriff re-
plied. ,

He and his deputy searched the
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“He told me he was going to Louis-

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“No, he was with Huston Jeffries

“Was he in a car?”

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]WHY WEAR

‘| jeered.. ‘How can d
a car?’ : ne ,

“No, I think they were planning on
hitch hiking,” the woman said.

Grubbs and his deputy hurried
back to town. He now wanted more
than ever to find Huston Jeffries and
ask him about his part in the Car-
son-White triangle. He wanted also
to locate Sylvester Warner and. find
out once and for all whether the
murder weapon had belonged to him
and whether it had been stolen from
him or loaned out. And since Carl
Hardin was supposed to have been
with the other two, he wanted to see
that young man on general principles.

Grubbs ordered a general broadcast

throughout Illinois, Missouri, Ohio,
Arkansas, Iowa and, Kentucky. Then
he asked the police radio to flash the
description ‘and’ license number of
Clay White’s car at regular intervals.
While waiting results on ‘these
orders, he set out trying to learn
whether or not. anyone had seen Syl-
vester Warner with Jeffries and Har-
din. on their way out of -Barger’s
Ferry the-evening before the murder.
-And. he soon learned more than he
had bargained for. He found a -wit-
ness who declared that, Clay White
had picked the three. men up in his
car on the streets of Barger’s Ferry
‘about dark and had driven off in the
direction of his home with them.
Grubbs had®* to’ admit that their
continued absence and their failure
to contact any of their relatives made

that Warner's er was not among
his tools particularly deepened the
suspicion against him: The sheriff felt
that Jeffries’ motive might spring out
of his regard for Blanche Carson. .

The ‘three’ men might simply have

\ swallowed those stories about: John

“White’s ‘hidden wealth and deter-
mined to have it for themselves.
Several ‘weeks later,’ Patrolman

| Earl Finney of the Cincinnati, Ohio,
police force, noticed a car answering '
the’. description sent out by Sheriff.

Grubbs parked in one of the city’s
suburbs; Quickly, he checked. the
‘license num

the same.

‘engine hood and pul out, the igni-
tion wires, then telephoned for sev-
eral officers to come and help him
guard the machine and arrest who-
ever, sought to drive it away. _-

in less than a half hour. But it was
three o’clock in the morning before
‘anyone approached the car. At that

of the dark and crawled in the front
seat. As they tried to start the motor
the Cincinnati officers ” surrounded
them and placed them under arrest.

“You ain’t got nothing on us,” one

ia

| to make this tp

“Now Til® te )

of the. three men’s” descriptions -

it look bad for them, Also, the fact

There was still another possibility.

's on the car with those ‘I noticed Cla
in the ‘circular and found them to be:

Acting quickly, he jerked: up the.
foo led ,

-- More than a half dozen officers had ,
hidden themselves in strategic spots>

time, three young men ambled up out:

had been murdered unless you'd
taken part in the killings yourself.”

The three young men looked down-
cast but they didn’t say anything
more until they were booked at head-
quarters. They readily gave their
names as Sylvester Warner, Huston
Jeffries and Carl Hardin but they
still denied having participated in the
murders of John and Clay White.

The Cincinnati officers flashed news
‘of the arrest to Sheriff Grubbs. The
sheriff went to Cincinnati at once and
with the help of Emil Gau of Hamil-
ton County, Ohio, took the trio ta
Lexington, Kentucky, where he ques-
tioned them again and again about
the murders, ,

Presently, when it looked as if the

three young men were not going to
make'a statement at all, Grubbs said,
“Well, boys, guess we’ll have to take
you back to Liberty after all. But
I’m warning you. Now unless you
want to tell me the truth here and
now, we’ll have to go back....” >
Grubbs’ words had the desired
effect. Sylvester Warner was the first
to start talking. And after he had
admitted his part in the murders,
Jeffries and Hardin also confessed.
“We didn’t intend to kill the old
men,” Warner explained in-his full

confession. “We were just going to.

tie them up, then take their dough.
We'd heard they kept a lot of it
around the place. Clay gave us a
ride out of Barger’s Ferry and we got
out of the car near the house. «We
waited: until after they were in bed
to go up-to the house.

“When I told Clay it was a hold-up,
-he just laughed at me and told us to
go home, That was when I hit him
over the head with my hammer.”

Warner, Jeffries and Hardin then
went on to relate the full details of
the bloody crimes. Jeffries and Har-
din had beaten Clay some more when
“he had staggered outside and Warner
. had_knocked old John in the head in~

side the house. The trio had hunted
for treasure nearly all night but all
4 Baer ne found was eleven dollars. ~
_ “We were about to drive off when
getting up off the
- ground. He wobbled around in circles

and I was afraid he wasn’t going to’

die. So Jeffries suggested we take
both men down to the river and dump
them. That way, Clay, if he was still
alive, would drown.’

' So the three men had taken the two:

_ bodies to the river, had tied them to
the fisherman’s trap line pote, had
weighted them down and pitched

them into the muddy waters of the

stream, Then they had started east

in the car and by morning were al-

most out of:the state of Kentucky.
During the course of their confes-

sions, ‘the three men stated that

neither Blanche Carson nor Roy Tol-
liver had played any part in the plan-
ning or commission of the crime.

Two months later, the three men
were brought to trial. Neither of
«them “a pth defense, On Feb-

officers replied) ~ ; ; ; _ Yuary , Warner and Jeffries
“We didn’t steal. this the. were. found ty and sentenced to
spokesman said. “It. us death in ‘the electric chair. Carl Har-

; ~ din was found ty and given a sen-

» life in prison and Sylvester Warner |
_ went to the electric chair alone.

N ames of Mrs. Blanche Carson and

we were a
We had
less than t}!
forced to ;
One mo!
the phone)
was up-tow
ment pro:
o’clock a y
who he
Leighton. |
lived in a i
ment on t!
Once Lu
he had i
wonderful!
at a bette
in salary.
We had
Leighton’s

He sa
“Where's |
Before |
self came
he saw L
charm, thi
“How are
ant morni
Leightor
hand. He s
racket?”
Luke bl
said. “I’m
mean””’
Lei;
in Sa
menti_
got me w)
Company.
same busi:
he’d neve1
Luke s}
ers.
“There
engineeril
your frier
“Yeah, !
sure I tel
Chamber
me there
Company
ter, in Ca
Luke a:
jured inn
“There
take somé
have. so
tion that >
out givins
perhaps,
money a
lationship
Leighto
“We'll si
right,” he
going to i
phoney. |
sort of a
At this
eye gave
wink. I g:
play we!
spot as i
from my
private o

behind m

Luke :
said to


ihe exeutition ap Roger W uncn on May
ay VALS, was thelist hanging i Erankiin:
‘ouLIYe WV uiCn, a black tonviclat the
Pen icant Wi pyscuitenc cd 10 dle mall lie

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LCA: iwanstitiucd cit ean ouution, Prat
Photograply, COUN: wy Revit SP
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4


ni Paes

1026 Ky. 62 SOUTH WESTERN

ue, and, with all this, he came to the conclu-
sion that a fair and impartial jury could not
be obtained from Floyd county. The law
does not require a vain or foolish thing, and
if the trial court from competent evidence
and relevant circumstances before it is con-
vineed that a fair and impartial jury cannot
be obtained from the county in which the tri-
al is to be held, to try a cause, it is not re-
quired by section 194 of the Criminal Code to
do the foolish and expensive thing of sum-
moning in jurors to corroborate such evi-
dence and relevant circumstances. cf.
Brafford v, Commonwealth, 16 8S. W. 710, 711,
13 Ky. Law Rep. 154; Bowman vy. Common-
wealth, 146 Ky. 486, 143 S. W. 47. Here the
experience of the trial judge on the first tri-
al of this case, coupled with the competent
evidence he had before him as to the state
of feeling in Floyd county in this case, jus-
tified him in summoning a jury from an ad-
joining county. As said in the Brafford
Case, supra, these facts and circumstances
were “sufficient to justify the action of the
court, without needlessly [and we may add
expensively] consuming time to accomplish
what was obviously impracticable.” The first
contention of appellant must be disallowed.

[2-4] It is next argued that the court ad-
mitted incompetent evidence. As is more
fully set out in the opinion in the Mander
Johnson Case, he and the appellant, together
with the Joneses, were jointly indicted,
charged with having entered into a con-
spiracy to kill Bill Turner, and having killed
him pursuant to such conspiracy. The accus-
ed were tried separately. In the course of
the admission of the commonwealth’s testi-
mony in the instant case, a Mrs. Collins was
permitted to testify that Mander Johnson
told her just before the homicide, in sub-
stance, that his father was awfully angry at
Bill Turner because of the altercation they
had had the night before, and that they were
at that time in search of Bill Turner. Wil-
lie Johnson was not present at this conversa-
tion, and of course it was not admissible
against him unless there had existed a con-
spiracy as charged in the indictment. On
the appellant’s objection to the introduction
of this testimony, the court admonished the
jury, in substance, that, unless they should
believe after the close of the testimony be
yond a reasonable doubt that a conspiracy
had been established, they should disregard
this testimony, but if they believed beyond a
reasonable doubt that a conspiracy had been
proven, they could then take it into account.
As a matter of fact, and as stated in the
Mander Johnson opinion, there was scant if
any evidence of a conspiracy, and the court
did not either in the Mander Johnson Case
or in this case instruct on the issue of con-
spiracy. After the evidence had all been in-
troduced, appellant never asked the court to
take any further action about this testimony

REPORTER, 2d SERIES

of Mrs. Collins. At the time the common-
wealth did introduce this evidence, it was of
course problematical whether a conspiracy
would be established by the commonwealth
or not. The court did all that it could do and
should have at the time. Skillian v. Common-
wealth, 206 Ky. 586, 268 S. W. 299. It must
be presumed that the jury obeyed the admon-
ition of the court and declined to consider the
testimony of Mrs. Collins when no issue of a
conspiracy was submitted to them.

It is next contended that the self-defense
instruction was erroneous. However, this ex-
act instruction was approved by this court in
the case of Caudill v. Commonwealth, 239 Ky.
712, 40 S.W.(2d) 834, and Hall v. Common-
wealth, 242 Ky. 717, 47 S.W.(2d) 538, 539.

[5, 6] Lastly, it is contended that the ar-
gument of the commonwealth’s attorney was
improper and prejudicial, at least in two par-
ticulars: First, in the beginning of his clos-
ing argument, the commonwealth’s attorney
told the jury, in substance, that the reason
that they had been summoned from another
county to try the cause in hand was due to
the fact that the court was unable to get a
jury from Floyd county because of the state
of lawlessness there existing. The jurors as
sensible men Knew that there was some im-
pelling reason why they had to be summoned
from an adjoining county to try a case in
Floyd, and that reason necessarily had to be
because the judge thought that the parties
could not get a fair trial from a jury in
Floyd county. There was nothing substan-
tially told the jury but that it did not al-
ready know or accurately surmised. Per-
haps it would have been better taste if the
commonwealth’s attorney had omitted this
statement, but we do not regard it as preju-
dicial. ‘The second particular in which it is
claimed the commonwealth’s attorney made
an improper argument occurred at the close
of his argument. At this point he adjured
the jury to remember the testimony of Mrs.
Collins concerning which we have comment-
ed above. Of course he should have made
no reference to her testimony in view of the
admonition of the court when that testimony
was introduced, and in view of the fact that
the court did not submit to the jury the is-
sue of conspiracy, thus demonstrating that
in his judgment there was no evidence to
carry the issue of a conspiracy to the jury.
However, we do not regard the comment
prejudicial in this case. In the first place,
there was other competent evidence tending
to show that appellant and his son were out
hunting Bill Turner the morning he was
killed, and Mrs. Collins’ testimony added but
little to it. Secondly, it must be presumed
that the jury was fully conscious of the ad-
monition of the court that they should not
consider this testimony of Mrs. Collins un-
less a conspiracy were established, and, as
the court had not even submitted that issue

WATERS v. COMMONWEALTH Ky. 1027
_ 62 S.W.(2d)

to them, they knew that they should not take state source of his knowledge to be admissi-

Mrs. Collins’ testimony into consideration. ble in evidence.

As between the commonwealth’s attorney and 10. Homicide €>338(3)-

the court, it ought to be presumed that the ‘Admission of dying statement that de-

jury obeyed the court rather than counsel, fendant shot deceased held not prejudicial to
No error appearing prejudicial to appel- defendant, in view of abundant evidence of

lant’s substantial rights, the judgment is af- guych fact.

Saeet I1. Homicide €234(4).

Evidence in trial for murdering deputy
sheriff held to show that defendant, not offi-
cers on opposite side of house, in which de-
fendant was surrounded, fired fatal shot.

12. Homicide 250.
Evidence held sufficient to sustain con-
viction of murder.

WATERS v. COMMONWEALTH.

Court of Appeals of Kentucky.
April 28, 1933.

Rehearing Denied Sept. 29, 1933.
Appeal from Circuit Court, Montgomery
1. Homicide = 166(1). County.

Defendant’s testimony in trial for mur-
dering deputy sheriff, attempting to arrest
defendant for murdering another, that he kill-
ed such other, held competent to show motive. Affirmed.

2. Criminal law €=369(3). Ilenry Watson, of Mt. Sterling, for appel-

Testimony in trial for murdering deputy lant.
sheriff that defendant killed another such dep- Bailey P. Wootton, Atty. Gen., and H.
uty on same occasion held admissible. Tamilton Rice, Asst. Atty. Gen., for the Com-

3. Jury €247 monwealth.
Juror owning land and residing in coun-
ty of trial held qualified, though he voted in

another county. u é “
convicted under an indictment charging him

4. Criminal law €9722/2. with murder and his punishment fixed at
Statement of commonwealth’s attorney in death. On this appeal the serious responsibil-
opening statement on trial for murdering dep- ity comes to us to determine whether the rec-
uty sheriff, attempting to arrest defendant ord discloses such errors, either of fact or of
for murdering another, that commonwealth law, as requires the judgment to be reversed
would prove that defendant killed such oth- and the appellant to be relieved from that
er, held proper. sentence to the extreme penalty of the law

5. Criminal law €>1091(10), £130(2). which now hangs over him.

General invitation to search record for A number of grounds are relied on for a
errors in receiving or rejecting evidence, with- reversal of the judgment, and each of them
out pointing out alleged errors in appellant's has been carefully considered by the court.
brief or bill of exceptions, is insuflicient. The indictment under which appellant wao
6. Homicide 6=301. tried and convicted charged him with the

Defendant setting up self-defense as sole murder of Stanley Helton, a deputy sheriff
g s

A harge cannot complain of of Menifee county. The killing occurred at
presi — ee coat peng ben pe: ay suai the home of Charlie Neal in Menifee county
ailur ; g end ¢@ -

on July 13, 1932. Charlie Neal had been

era homg and other. cecapants therest, killed a few days before, anda warrant had
7. Homicide €=215(4). . been issued charging appellant with his mur-
Decedent's dying statement that he was der. On the day of this homicide Sheriff J.
shot by defendant held not inadmissible in tri- L. Back, of Menifee county, accompanied by
al for murdering one of several officers sur- Deputy Sheriffs Allie Henry, Marion Staple-
rounding house, from which defendant fired, ton, W. S. Hogge, John Cox, and the dece-
as mere expression of opinion. dent, Stanley Helton, and Roy Williams, a
constable, and Menifee Spencer, a neighbor,

8. Homicide €=200. ‘ : went to the home of Charlie Neal to arrest
Decedent's dying Gectereeron be edvnizet- appellant on the warrant charging him with

ble in murder trial to identify. guilty persce. the murder of Neal. On reaching the house
9. Homicide €=215(4). the officers partially surrounded it, the dece-
Decedent’s dying declaration, stating dent and Stapleton being located on the
killer’s identity as ultimate fact, need not south side of the building, Henry, Back, and

William Waters was convicted of murder,
and he appeals.

REES, Chief Justice,
The appellant, William Waters, has been

€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

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pamdtchhetitatesese on

98 Ky. 424 SOUTH WESTERN REPORTER, 2d SERIES

9. Homicide €>166(3) was called for trial, (2) error in o" Poa
Evidence that defendant on trial for mission of incompetent evidence, ( ) =

murdering his wife had been put under bona the verdict is contrary to the law re Sige’

to keep peace pursuant to peace warrant dence, and (4) that the — om pare

sworn out by deceased about 10 days before fusing to grant a new trial on the g

the killing was competent on question of of newly discovered evidence.

bec ahi [1,2] (1) This killing took place on
January 10, 1938. Appellant was indicted
on February 18 and on February 21 was
arraigned and remanded to jail, his trial
— being set for March 9. Approximately ten
11. Homicide €=319 days before the trial, the ae es: ae
Where defendant on trial for murdering Ollie James Cohen to Sgt t . ’ x 4
his wife introduced witness who testified ant and, at the request . = q “3 =
that shortly after Christmas deceased shot also appointed Martin ee ay inte —
at defendant, affidavit of one not called to in the defense. When t e pce cares
testify that on Christmas night she saw Ge- for trial, Mr. yey it = se vas a
ceased shoot at defendant three times did the courtroom but left ee i gece
not authorize granting of new trial, since other. No motion SS peer
ee eel Cohen filed in support
(2, Reminls 92S of a motion for a new trial states that he
In prosecution for killing of wife, aff: ior emed the court that he desired the
davit of one not called to testify that she presence of Mr. Mayland. It appears bean
saw deceased shoot at defendant three times other affidavits in the record that Mr. May-
on Christmas night previous to killing did land was called but, for some céqenin not
not authorize granting of new trial, since appearing in the record, he did not attend
such evidence, if established, would provide the trial. His affidavit states that “some
no justification for killing of deceased three sudden and un expected occurrence had oe
weeks igtee: vented the affiant from attending the trial”.
The court, on failure of Mr. Mayland to
a attend, appointed I. Arnold Waxman to
e assist Mr. Cohen on the trial and the vasal
proceeded, no motion being made at any
time for a continuance and, as far as the
record shows, not even an oral request was
— —_-+—_— made for a postponement of the trial.
: As there was no motion for a continu-
Appeal from Circuit Court, Jefferson ance, and as we are unable to om oo
County, Criminal Branch. examination of the emer ee .
Willi onvicted of willful cating that the substantia rights 8
negli peste appellant were prejudiced by the failure
sarge, aad Se Seper™ of Mr. Mayland to attend and take part in
sonia the trial, we are unable to say that the oe
Ollie James Cohen and I. Arnold Wax- committed ve! ow salipic raion! plea
man, both of Louisville, for appellant. to proceed. Only a fe eet
Hubert Meredith, Atty. Gen., and Guy i the case, their testimony was very

i i and the attor-
. for the and on a very simple issue,
S so erywealh nl neys who represented him seem to have
ommonwealth.

done so about as well as could have been
FULTON, Justice. done under the — of the case
Willi i inst appellant. It is not error
t, Willie Waters, was convicted proven against a
of ae wiltful murder of his wife, Ella to refuse a veagynpee ce —— pate
ial i ircui bsence of one of several a
Waters, on a trial in the Jefferson Circuit a : ne of er Soe
, i h. there is nothing in the record to
Court and received a sentence of death rapes
j 1 advantage the presence 0
that judgment he prosecutes this materia :
pias jeaiiting that the judgment should counsel would rae me Ray ea?
be reversed on account of errors of the Combs, 53 S.W. : : “J mien aes = i
trial court as follows: (1) That the court Douglas v. _— peikened apie
erred in not continuing the case when it Law Rep. 2398. e are, :

10. Homicide €=250 ;
Evidence sustained conviction of willful

13. Criminal law €=945(1)

A new trial should be granted on groun
of newly discovered evidence only wher
the evidence is of such decisive character as
to render a different result reasonably cer-

WATERS v. COMMONWEALTH Ky. 99
124 8.W.2d

opinion that the court committed no error
in proceeding with this trial.

[3,4] (2) Appellant complains that the
court erred in permitting the introduction
in evidence of a photograph of deceased
taken the day following the killing, his
theory being that the introduction of this
photograph served no evidential purpose but
was done for the purpose of inflaming the
jury. We see nothing in the photograph
calculated to have any undue effect on the
jury. There is nothing sensational or shock-
ing about it and to all appearances the de-
ceased looked like a sleeping woman with
the upper part of her body exposed. The
photograph showed one of the wounds in-
flicted on deceased by the appellant, this
wound being in the upper part of the right
arm, the evidence showing that the knife
or dagger used by appellant was found
broken off in the wound. The photograph
was pertinent to the issue as showing the
location of one of the wounds, and there
was nothing revolting about it calculated
to inflame the jury. In the case of Cox v.
Commonwealth, 215 Ky. 585, 286 S.W. 689,
the introduction of a photograph of de-
ceased taken before his death was held
not to be a prejudicial error. In Davidson
v. Commonwealth, 261 Ky. 158, 87 S.W.2d
119, the court held that a person injured
by the accused was properly permitted to
exhibit his wound to the jury for the aid
it might give the jury in determining the
range of the shot and the relative positions
of the two men; and in McElwaine v.
Commonwealth, 154 Ky. 242, 157 S.W. 6,
this court approved the introduction in
evidence of pieces of skull of the deceased.
As a wound may be exhibited to the jury
and as parts of the body of the deceased
may be introduced in evidence where such
testimony is relevant, we see no error in
permitting the introduction of a photograph
of the deceased showing the location of
a wound. The location of this wound,
although it was not the direct cause of the
deceased’s death, had some relevancy on
the question of the position of the parties
at the time of the killing as illustrating a
probable lack of aggression on the part of
the deceased. The trial court committed

no error in admitting the photograph in
evidence.

[5,6] The contention is also made that
the court erred in permitting Gus Heiken,
a witness for the Commonwealth, to state
that he was a State Parole and Probation
officer, the contention being that this made

it apparent to the jury that appellant had
theretofore been convicted of a felony.
This witness testified with reference to a
conversation between him and appellant
concerning the deceased. We find nothing
whatever in the record remotely indicating
that there was any such purpose on the
part of the Commonwealth disclosed by the
mere asking of this man’s occupation. It
is always competent for a jury to know
a man’s occupation or profession, as this
furnishes some light to the jury in esti-
mating the weight to be given to his
testimony. No mention was made any-
where in the record by any witness or by
anyone connected with the trial that the
defendant had been previously convicted
and we are unable to see how the mere
fact of permitting the witness to testify
that he was a Parole and Probation officer
would justify the jury in jumping to the
conclusion that appellant had been previ-
ously convicted of a felony.

(7-9] Appellant further claims that the
court erred in permitting the Common-
wealth to prove that about ten days before
the killing the deceased swore out a peace
warrant for the defendant and that pursu-
ant to this peace warrant he was placed
under bond of $500 to keep the peace for
six months. It is insisted that this is
equivalent to permitting the Common-
wealth to show that appellant’s reputation
for peace and quiet was bad, although he
had not placed his character in issue.

There is no doubt as to the correctness
of appellant’s contention that admission of
substantive testimony as to defendant’s bad
reputation for peace and quict where he
has not attempted to prove that it is good
is erroneous. Strong v. Commonwealth,
216 Ky. 98, 287 S.W. 235. Appellant is
also correct in his contention that in a
prosecution for murder evidence of his con-
viction of a misdemeanor is incompetent.
Warren v. Commonwealth, 222 Ky. 460, 1
S.W.2d 774.

Those authorities are not controlling
here, however, because it was clearly com-
petent for the Commonwealth to prove
that the deceased had taken steps to have
a peace warrant issued against the accused
as bearing on the question of motive. The
fact that the deceased had this peace war-
rant taken out and the defendant bound
over to keep the peace was necessarily
competent and relevant testimony as show-
ing the likelihood of the defendant harbor-
ing resentment against the deceased by

wig


1028 Ky.

Cox on the east side, and Williams and
Hogge on the north side. Without giving
the officers an opportunity to arrest him, ap-
pellant began firing at them from the house
with a shotgun loaded with buckshot. The
officers returned the fire, and appellant ran
out of the rear part of the house and escaped
into thé hills. Helton was struck by one of
the charges of buckshot fired by appellant,
and died a few days later in a hospital at
Mt. Sterling in Montgomery county. Marion
Stapleton also was killed and Roy Williams
was seriously wounded.

Appellant had been living in Menifee coun-
ty about six months before the homicide, and
had been staying at the home of Charlie
Neal. He had formerly lived in Menifee
county, but had been absent from the state
of Kentucky for a number of years, more
than six of which were spent in the Ohio
penitentiary. He admitted that he had kill-
ed Neal two or three days before the hom-
icide of which he stands convicted, but he
claimed that he did not know a warrant had
been issued for his arrest and he did not

” know the men who had surrounded the Neal

house were officers. He claimed that the
. officers fired first, and, believing they were
trying to kill him, and not knowing they were
officers, he returned the fire.

Three indictments were returned against
appellant in the Menifee circuit court—one
for the murder of Stanley Helton, another
for the murder of Marion Stapleton, and an-
other for the murder of Charlie Neal. Appel-
lant’s motion for a change of venue was sus-
tained, and the cases were transferred to
the Montgomery circuit court for trial. The
commonwealth elected to try the appellant
under the indictment charging him with the
murder of Helton.

[1,2] One of appellant’s complaints on this
appeal is that in the trial of the case the
court did not confine the evidence to the
Helton case, but permitted the admission
of evidence showing the killing not only of
Helton but also of Marion Stapleton and
Charlie Neal. On his cross-examination ap-
pellant was asked if he killed Charlie Neal,
and he answered in the affirmative, and no
objection to the question and answer was
made, but, even if seasonable objection had
been made, this evidence was competent, for
it tended to show a motive for appellant’s
acts on the occasion when Helton was killed.
Graham y. Commonwealth, 164 Ky. 317, 175
S. W. 981; O’Brien y. Commonwealth, 115
Ky. 608, 74 S. W. 666, 24 Ky. Law Rep. 2511;
Bishop v. Commonwealth, 109 Ky. 558, 60 S.
W. 190, 22 Ky. Law Rep. 1161. The court
properly admonished the jury that they
should not consider this as substantive evi-
dence against him. Stapleton was shot in
the same transaction that resulted in the
death of Helton, and it was competent for

the commonwealth to show all that occurred

62 SOUTH WESTERN REPORTER, 2d SERIES

on that occasion. The killing of Stapleton,
though a distinct crime, was so intimately
connected with the crime for which appellant
was being tried as to be a part of it and in-
Separable from it. The killing of Stapleton
was mentioned only incidentally by one or
two of the witnesses, and the two killings
were so closely connected in time and place
that separation wag practically impossible.
Gambrel v. Commonwealth, 241 Ky. 39, 43 S.
W.(2d) 835; May vy. Commonwealth, 153 Ky.
141, 154 S. W. 1074; Helton vy. Common-
wealth, 84 S. W. 574, 27 Ky. Law Rep. 137.

[3] The qualification of one of the jurors,
Isaac McCarty, is challenged, and it is ar-
gued that the trial court erred in overruling
appellant’s challenge to this juror. He was
challenged on the ground that he was not
a resident of Montgomery county. McCarty
on his voir dire examination stated that he
voted in Bath county. He stated emphatical-
ly, however, that his land was located in
Montgomery county and that he had lived in
Montgomery county for a number of years,
and that his home was in that county at the
time of the trial. The fact that he was per-
mitted to vote in Bath county did not consti-
tute him a citizen of that county.

[4] In his opening statement the Common-
wealth’s attorney made some reference to
the killing of Charlie Neal, and it is insisted
that the trial court erred in not sustaining
appellant’s motion to set aside the Swearing
of the jury. The bill of exceptions fails to
set out the statement of which appellant com-
plains. All that appears in the bill of ex-
ceptions in reference to the statement of the
commonwealth’s attorney is the following:
“In said statement he referred to the killing
of Charles Neal to which the defendant,
through his counsel, objected and the court
overruling the objection defendant excepted.
After completion of his statement the defend-
ant, through his counsel, moved the court to
set aside the swearing of the jury and empan-
el another jury by reason of the statement of
the commonwealth’s attorney to the jury re-
ferring to the killing of Charles Neal and
the court overruled said motion to which the
defendant objected and excepted at the
time.” There ig nothing tending to show
that the statement of counsel at the time it
was made was prejudicial. As heretofore
pointed out, evidence as to the killing of
Neal by appellant was competent as tending
to show motive for the commission of the
crime of which he was accused, and it was
not error for the commonwealth’s attorney
in his opening statement to say that the com-
monwealth would prove appellant had killed
Neal.

[5] Appellant contends the trial court er-
red in the admission and rejection of evi-
dence, but he does not point out the alleged
errors either in his brief or in his bill of ex-
ceptions, and we have frequently written

ORR v. WO
62 S.W.
that a mere general invitation to search the
record in order to ascertain whether any evi-
dence was improperly received or rejected is
not sufficient. But, in view of the extreme
penalty that has been inflicted in this case,
we have carefully examined the record, and
find no error in the admission or rejection of
evidence that is prejudicial to appellant’s
substantial rights. In fact, the record is un-
usually free from such errors, and it is clear
that the trial judge conducted the trial with
meticulous care.

[6] It is next insisted that the instructions
are erroneous. Nine instructions were giv en
covering every phase of the case, and, with-
out copying them in this opinion, it is suffi-
cient to say that they are such as have been
approved in numerous cases where similar
facts were involved. Appellant complains
because no instruction was given on his right
to defend the Neal home and its other occu-
pants, who were Mrs. Neal and her two chil-
dren, but his sole defense was that he shot
in his own defense.

[7-10] After the decedent had been taken
to the hospital in Mt. Sterling, he signed the
following writing which was admitted as his
dying statement: “I am Stanley Hetton, I
am in a serious condition and don’t believe
I can get well. I was shot by Bill Waters
today, July 13, 1932.” Appellant insists that
the admission of this statement was error,
and his principal objection to it seems to be
that it is an expression of the opinion of the
decedent that he was shot by Bill Waters
and not the statement of a fact within his
knowledge. This contention is without mer-
it, since the decedent stated positively that
he was shot by Bill Waters. One of the pur-
poses for which a dying declaration is admis-
sible is to identify the person who committed
the crime. It is not necessary that the dece-
dent should state in his dying declaration
the source of his knowledge as to who shot
him, but it is sufficient that he state as an
ultimate fact the identity of the killer. In

OLFOLK Ky. 1029

(2d)

a load of buckshot fired from a shotgun. Ap-
pellant fired a shotgun, and he admitted that
he used shells loaded with buckshot. While
some of the officers had shotguns, none of
them had shells loaded with buckshot. The
evidence leaves no room for doubt as to who
fired the fatal shot.

[12] A careful examination of the record
reveals no error that would warrant a re-
versal of the judgment. The jury heard all
the evidence, saw all the witnesses, believed
the appellant to be guilty, and fixed his pun-
ishment at death. The verdict is amply sus-
tained by the evidence. The appellant had
a fair and impartial trial, and the judgment
of the trial court must be, and it is, affirmed,

The whole court sitting.

ORR et al. v. WOOLFOLK.

Court of Appeals of Kentucky.
May 23, 1933.

Rehearing Denied Oct. 3, 1933.

{. Brokers G=54. :

Broker acting in good faith, and finding
purchaser ready, willing, and able to buy
property at stipulated price and on owner's
terms, and continuing so until owner had rea-
sonable opportunity to execute sale, perform-
ed his contract, and can recover commission.

2. Brokers €=61I (1). =e
One engaging services of broker is liable

for broker’s compensation, if sale is not con-
summated because of absence of or defect in
title.
3. Brokers C61 (4).

Broker cannot recover commission on
sale not consummated because of defeet in

any event, the admission of the dying state- principal’s title of which broker had suet
ment was not prejudicial in this case, since knowledge or possessed facts samicteet : :
there was an abundance of evidence showing pyydent person on inquiry, so that knowledge

that Helton was shot by appellant.

[11] It is finally insisted that the verdict S°”

thereof was obtainable, if pursued with rea-
able diligence.

is flagrantly against the evidence, and, in 4, Brokers ¢=61 (4).

support of this contention, it is argued that

Broker authorized to sell property sub-

there ig no proof that appellant fired the shot ject to condition that no nc be ate
that killed Helton and that he might have yntil employer's title was per - cosa

been killed by a shot fired by one of his asso- peeoyer commission on sale to one = ing
ciates. The evidence shows that, after Wa- merchantable title while title was sti efec
ters began firing, the officers shot into the tive.

house, and that they were shooting from

three directions.

i i Hel-
on the opposite side of the house from ; ;
ton, and it is suggested that he might have pass title until

Some of the officers were 5. Brokers €=88(4).

Whether broker knew owners could not
after judicial sale, precluding

i r ker’s commission held for ju-
been shot accidentally by one of these oflicers. recovery of bro

The proof shows that Helton was shot with ry.

€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indcxes

1
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igang 29

pies 5

ba end 3

$44 b44 bi Es

Ter eeesttsey?

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Sap Bet 8 es

96 Ky.

or any other part; that syphilis could
have caused an internal squint and coud
produce marked impairment of vision and
in advanced cases total loss of vision.

Dr. W. W. Potter, another ear, eye,
nose and throat specialist, says that ap-
pellce had syphilis in the tertiary stage and
that he found no evidence of traumatic
injury to appellee’s left eye except a small
scar from an old injury which would not
account for the extent of loss of vision
claimed by appellee. He stated that his
report showed that he believed appellee
was telling the truth as to his lack of
vision in this eye.

Dr. P. E. Giannini, company physician,
who treated appellee after the alleged
traumatic injury to his right eye, said he
found no trauma, but only an ulcer. He
treated appellee for several days and when
the eye did not respond to treatment he
sent him to a specialist to have it removed.
He states that he found no impairment of
vision of appellee’s left eye, but that ap-
pellee claimed at that time that vision in
that eye was impaired.

(2,3] Appellant cites numerous cases
from this and other courts as authority
that by evidence is meant something of
substance and consequence, carrying the
quality of proof and having fitness to
produce conviction; that evidence of al-
leged facts inherently impossible and ab-
solutely at variance with well-established
and universally recognized physical, me-
chanical and scientific laws, is not evi-
dence within the meaning of the law,
requiring evidence of some probative value
to justify the finding of the workmen’s
compensation board. We are thoroughly
in accord with this proposition of law
advanced and it has been enunciated by
this court in numerous cases. Clark et al.
v. Young’s Ex’x, 146 Ky. 377, 142 S.W.
1032; Louisville Water Company v. Lally,
168 Ky. 348, 182 S.W. 186, L.R.A.1916D,
300.

[4] However, we are not in accord
with appellant’s contention that the testi-
mony in this case presented no substantial
evidence to the board that the injury to
appellee’s right eye did not result in dam-
age to the vision in his left eye, nor do
we subscribe to its theory that evidence
introduced for appellant demonstrates con-
clusively that loss of vision in the left
eye, if any, was due to syphilis alone and

to no other cause.

424 SOUTH WESTERN REPORTER, 2d SERIES

The substance of the testimony we have
quoted above reveals that one physician,
a specialist in eye work, Dr. Kincaid, tes-
tified that in his judgment the injury to
appellee’s left eye was due to the accident
and injury to the right eye. We quote
above his exact words along that line.
Dr. Combs, who, while not an cye special-
ist, yet has had considerable experience in
this field, says that infection in one eye
may injure or destroy the sight in the
other eye in a few days. This direct tes-
timony on the part of Dr. Kincaid taken
in connection with the testimony of Dr.
Combs, in our judgment, unquestionably
amounts to substantial evidence of proba-
tive value evidencing the fact that loss of
vision in the left eye was due to injury to
the right eye.

We are at a loss to understand appel-
lant’s earnest insistence that testimony of
physicians introduced by it established be-
yond peradventure of a doubt that loss of
vision in appellee’s eye was due to syphilis
alone and that there can be no loss of
vision in one eye as a result of injury
to the other.

No witness introduced by appellant tes-
tifies with any degree of positiveness what-
ever that loss of vision in appellee’s left
eye was due to syphilis. The strongest
testimony along this line elicited from the
appellant’s medical witnesses was the tes-
timony of Dr. Gunn, who, in speaking of
loss of vision to appellee’s left eye, said,
“T am inclined to believe it is due to
syphilis,” but his evidence quoted supra,
makes it apparent that it was a matter of
surmise and speculation with him and he
would not say what percentage of the loss
of vision was due to syphilis. Neither Dr.
Potter nor Dr. Giannini, both of whom
examined appellee, stated that any loss of
vision in appellee’s left eye was due to
syphilis. Dr. Weeter did not examine
him and, of course, was not competent to
testify with reference thereto. His tes-
timony reveals only the possible effects of
syphilis on the vision. All doctors in the
case are agreed that many people have
syphilis in the tertiary stage with no loss
of vision.

Appellant’s insistence that the theory of
“sympathetic reflection,” that is, that in-
jury and infection in one eye may possibly
bring about loss of vision in the other
eye, is contrary to well-known and es-
tablished and universally recognized medi-
cal knowledge is equally without merit in

WATERS v. COMMONW
124 8.W2d — ey 9%

our judgment because the two physicians
who testify for appellee state that this is
possible and one of them even says that
in his judgment loss of vision in appellce’s
left eye is due to the injury to the right
eye. Dr. Gunn, appellant’s witness, al
, : ae » ai {. Crimina

mast he does Rai positively that: caw naseghieiorg far toatl

No injury reccive ig gicenoerdieetan
as ra ae eaaiten ah or mH made, and record did not reveal substantial
Cais Ge odlser ade” te taener Ie Pe rights of defendant were prejudiced, trial
ies "Teas teen ap sees court did not err in permitting trial to pro-
q impaired vision in tlie. eeeq when one of two counsel ST cain te

eye sometimes cause same in the other
cre?” dake ie weeets: “Tek pelea court to represent defendant failed to attend.

there nas been some ‘sympathetic reflec- 2. Criminal law €=593

tion. Dr. Gunn also makes it clear It is not error to refuse continuance on
that he was unwilling to say that loss of account of absence of one of several atto

vision in this eye was the result of syphilis. neys where there is nothing in record é
He even says that his examination of the show any material advantage the presenc

eye disclosed no indication of syphilis. of absent counsel would have been. . :

276 Ky. 315
WATERS v. COMMONWEALTH.

Court of Appeals of Kentucky.
Jan. 13, 1939.

Far from being a figment of the imagi- 3. Criminal law €=438

aimed - Sains of sympathetic reflec- In prosecution for killing of wife, ad
to nantes - Sage age ‘ie c eye due mitting photograph of deceased taken: day
a ad . “ Jon in the other ye, following killing in which to all appearances
ater da ae Bssae comgnoes that it is deceased looked like sleeping woman with
a : o act ny law writers. We upper part of her body exposed was not er-
quote from orkmen’s Compensation Law ror as calculated to inflame jur

by Schnider, Volume I, Section 250: *

: “Sympathetic affection of one eye by
injury to the other. An employee was {5,,
struck in the eye by a chip of steel, which p's

4. Criminal law €=438

In prosecution for killing of wife, pho-

aph of deceased taken day following kill-

: 7 bes ing showing locati 4 i

pei g location of one of -
d total blindness of the injured eye, gictea by defendant was Sica ee pe

and all of the physicians advised a
! ; n oper- i i
ation for its removal in order to prevent ao bigs sackoton ee

sympathetic ophthalmia of the other eye
which might cause its loss. The employee 5. Witnesses €=236(2)

objected to the operation unless it could It is competent for a jury to know a
= performed in Italy. The court held witness’ occupation or profession, as such
iat this objection was unreasonable, and furnishes some light to jury in estimating
that the disability of the employee was Weight to be given to his testimony.

due to his own unreasonable refusal to

undergo an operation.” ee ae

. Permitting witness in prosecu

Aili Pe cn an accidental killing of wife who eligi aah ie
mt Pe caused a traumatic cataract. to conversation between him and defendant
er eye was sympathetically af- concerning deceased to testify that he was
ected, causing total disability. This was parole and probation officer was not error
held to be a compensable injury.” as disclosing to jury that defendant had

We dnc eres at the ectaion. that been previously convicted of felony.

pets was substantial evidence before the 7. Homicide €>163(1)
preteen. the finding that the loss In homicide prosecution, admission of
a ~ in appellee’s left eye was the substantive testimony as to defendant’s bad
ges injury to his right eye. We are reputation for peace and quiet would be er-
: e opinion also that appellant’s evi- Toneous, where he has not attempted to prove
ee a ne Pa ee conclusively that it is good.

uch evidence for appellee i
to well-established and waieenilile tris +e Sn
nized principles of medical science.

Wherefore, the judgment is affirmed.
124 8.W.2d—7

In murder prosecution, evidence of de-
fendant’s conviction of a misdemeanor would
be incompetent.

Pd
ae

ME

*6C6T-1-€ (uosueszor) ag *sy *oeTe SyoeTq SeTTTTM ‘SUaLWM

lattes tea ce


100——iKy.

reason thereof, thereby establishing a mo-
tive on his part for the killing. In the case
of State v. Senn, 32 S.C. 392, 11 S.E. 292,
it was held that the procuring of such a
warrant and the details or merits of it
tended to show the relation existing be-
tween the defendant and his wife and was
therefore germane to the issue and receiv-
able in evidence. The precise question
was decided in this State in the case of
Payne v. Commonwealth, 251 Ky. 776, 64
S.W.2d 888, where the defendant was con-
victed of murdering his wife, the court
saying [page 889]: “Evidence that he had
been arrested a few days before on account
of mistreating his wife and had been put
under bond to keep the peace, even though
it was without surety, was competent on
the matter of motive.”

We are of the opinion, therefore, that
no error was committed by the trial court
in admitting this evidence.

[10] Appellant’s contention that the
verdict is flagrantly against the evidence
is entitled to but scant consideration. The
evidence shows that about 5:30 P. M. on
January 10, the appellant came to the home
of his wife, from whom he had been sepa-
rated for some time. She lived upstairs
and another colored woman, Edith Stratton,
lived downstairs. He went into the room
of this woman without knocking, demand-
ing to know if his wife was there, and was
told that she was not there, this woman
apparently realizing that appellant was
present for the purpose of making trouble.
Appellant left the room of this woman but,
not being satisfied with her answer, came
back and looked behind the door and then
went out calling for his wife, who was up-
stairs. His wife, not realizing who it was,
answered the call. He then went to the
stairway leading to his wife’s room, at the
foot of which stairway was a locked door,
and proceeded to break the lock on this
door. As he started up the stairway his
wife cried out, “Oh, you Jew-baby, what
do you want?” He responded, “I come to
kill”, and as he entered her room she began
to holler and scream, “Don’t kill me, don’t
kill me”, but he immediately proceeded to
stab her to death. She was unarmed and
apparently was unable to put up any effec-
tive resistance. Immediately after stabbing
her to death, appellant ran back down the
stairway and out of the house. None of
the testimony for the Commonwealth was
denied and it shows nothing less than a
cold-blooded, premeditated murder. Appel-

124 SOUTH WESTERN REPORTER, 2d SERIES

lant plainly went to his wife’s home for
the purpose of killing her and proceeded
to do so immediately on his arrival there,
without any provocation or altercation of
any kind occurring after he reached the
house. The mere recital of this evidence
makes it apparent that there is no merit
whatever in this contention.

[11-13] (4) Appellant’s complaint that
the court should have granted a new trial
on the grounds of newly discovered evi-
dence is equally without merit. In support
of this motion, appellant filed the affidavit
of a colored woman, Pearl Beard, which
states that on Christmas night previous to
the killing she saw the deceased shoot at
appellant three times.

On the trial of the case, appellant intro-
duced one witness who testéfied that “a
little after Christmas the deceased shot at
appellant”, although it is not said how many
times she shot. The two instances are
undoubtedly the same, although one witness
puts it on Christmas night and the other
“a little after Christmas”, and, therefore,
this evidence is merely cumulative with the
evidence introduced by the defendant.
Even though it were a different instance,
such evidence would not be sufficient to
authorize the granting of a new trial.
It is certain that her shooting at appellant
three weeks before did not justify him in,
or provoke him to, seeking out the deceas-
ed, breaking down her door, entering her
room and stabbing her to death, and could
have little, if any, influence on the jury.
The same character of evidence, uncontra-
dicted by the Commonwealth, had no effect.
Granting a new trial on newly discovered
evidence of this character would set a
precedent which, if followed, would result
in most convictions being set aside. A new
trial should be granted on this ground only
where the evidence is of such decisive
character as to render a different result
reasonably certain. Sessmer v. Common-
wealth, 273 Ky. 40, 115 S.W.2d 337. The
evidence here offered is not of that type.

All the circumstances of this case con-
duce to show that there was no possible
justification or excuse for this killing and
that it was premeditated, cold-blooded mur-
der on appellant’s part for which he must
pay the extreme penalty of the law. We
are unable to find anything in the record
indicating that he did not have a fair. and
impartial trial.

Wherefore, the judgment is affirmed.

The whole court sitting.

NEELY v. TARRANT COUNTY Tex. 101
124 S.W.2d

NEELY et al. v. TARRANT COUNTY.
No. 1761—7128.

Commission of Appeals of Texas, Section B.
Feb. 1, 1939.

!. Appeal and error €=345(1), 722(1)

Motions for new trial of action in dis-
trict court of Tarrant county, on ground that
verdict was contrary to undisputed evidence
and judgment was contrary to law, were
insufficient to serve as assignments of er-
ror because of their generality, but were
not nullities and motions and orders over-
ruling them were sufficient to constitute stat-
utory predicate for filing of appeal bond
within 30 days after overruling of motion.
Vernon’s Ann.Civ.St. art. 2092, subds. 28, 29,
31.

2. Appeal and error €=282

A motion for new trial need not be filed
as prerequisite to appeal in case tried by
court without a jury.

3. Appeal and error @=722(1)

Assignments of error on appeal in case
tried by court without a jury need not be
related to motion for new trial in event mo-
tion for new trial is filed. Vernon’s Ann.Civ.
St. art. 1844,

4. Appeal and error €=722(1)

On appeal in case tried by court without
jury, appellants were entitled to have con-
sidered formal assignments of error em-
bodied in their brief in Court of Civil Ap-
peals though formal motions for new trial
filed by appellants were insufficient as as-
signments of error because of their generali-
ty. Vernon’s Ann.Civ.St. art. 1844.

5. Appeal and error €>384(2)
An appeal bond should describe the judg-
ment from which appeal is taken sufficiently

to identify it. Vernon’s Ann.Ciy.St. art.
2265.

6. Appeal and error €>384(2)

An appeal from a distinct and severable
Portion of a judgment is not effective as
Such unless it clearly appears from face of
appeal bond that appeal is so limited. Ver-
Non’s Ann.Civ.St. art. 2265.

7. Appeal and error €>384(2)

Where appeal bond described judgment
from which appeal was taken but did not
refer to motion for new trial, appeal was
not subject to dismissal because bond was
not filed more than 30 days after judgment

on ground that appeal was from judgment
and not from order overruling motion, since
appeal, even where bond describes order
as well as judgment is from judgment and
not from order. Vernon’s Ann.Civ.St. art.
2265.

8. Appeal and error €=384(2)

An appeal bond which accurately and
fully described judgment from which appeal
was taken was sufficient, though it did not
refer to order overruling motion for new
trial or exception taken or notice of appeal
given thereafter. Vernon’s Ann.Ciy.St. art.
2265.

——

Certified Questions from Court of Civil
Appeals of Second Supreme Judicial Dis-
trict.

Action by the County of Tarrant against
Robert E. Neely and another, on the offi-
cial bond of the named defendant. From
a judgment for plaintiff, the defendants,
appealed to the Court of Civil Appeals.
On certified questions.

Answers in accordance with opinion.

Perkins & Culbertson, Price & Christo-
pher, and William E. Dahl, all of Fort
Worth, for appellants.

Samuels, Foster, Brown & McGee, of
Fort Worth, for appellee.

SMEDLEY, Commissioner.

The Court of Civil Appeals at Fort
Worth has certified to this court three
questions arising out of the following
facts set out in the certificate and appear-
ing in the transcript:

On February 27, 1935, after trial with-
out a jury, judgment was rendered in the
district court of Tarrant County in favor of
appellee, the county, against appellants Rob-
ert E. Neely and American Surety Com-
pany of New York for $3,316.50. The
judgment as entered recited that both
Neely and the surety company, defendants
in the trial court, in open court excepted
and gave notice of appeal to the Court of
Civil Appeals for the Second Supreme Ju-
dicial District. On March 8, 1935, the de-
fendants filed separate motions for new
trial. The motion of Neely, omitting the
number and style of the case, the designa-
tion of the court and the signatures of the
attorneys, is as follows:

“Now comes Robert E. Neely, one of the
defendants in the above entitled and num-
bered, cause, and moves the Court to set

*

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Beasts

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per td

JOURN

Pi

‘My plan also would] in
circulation of your paper, as mul-
titudes woulg delight in
ing so many’ Greetings’

columns
dough as it would t

-dlocks, but sat dow
twice on the’ trip,

$35

News Told B

todians

- Willle Waters, Lov
died in the electric

SST 758"

splendid
ns of Louisvitie. AG
result of five yea?
education and puty
the “next fi

;

er was charged with drun
ing, assault and battery, fail-
saa driving and ooced ina’ the
ess an

ey was charged with drink

acodediee

edly
ed eighty

wen
iles

,

picked up: the trail, Nourien

garage after aban
found othe car against; the ?,

wreck, .

‘imy| 4.F.L.iAsks Senate
F etse ution?
peed es:

donment or


WATSON, James, white, hanged at Bardstown, Kentucky, on May 12, 1827.

"Louisville, Kye, July 21, 1826-MORE DREADFUL MURDERS,-Two men were assasinated in the count
of Nelson last week, on Friday, One was a Mr, Cauffman of that county, the other a

Mr, Courteney from Mississippi, They were shot in a by=path, in a dark, shady woods, a
few miles east of Bardstown, The bodies were not found until Saturday evening or Sunday
morning, They were both shot with rifle balls, in the back, = One appeared to have

been killed instantly, and to have been dragged a little distance from the path into

the woods, The other who had two wounds, appeared to have received the first in the
shoulder, and fe have run some forty yeards, dropping blood freely as he went, and

then to have received another and a fatal shot, and was left in the path, The

account has been brought to this place by two different gentlemen from Nelson, and may no
doubt be relied upon, Three individuals, a father and two sons, we understand, are
suspected, and have been arrested and confined, , upon a charge of having perpe=

trated this horrible outrage, and circumstances of great weaght are mentioned as

grounds for suspecting them. - COMMENTATOR,"

COURIER, Charleston, Sout Carolina, August 15, 1826 (2/6.)

"MORE HORRORS, - We have to add to the list of the many mrders that have been

committed in Kentucky, that of Michael Coffman and George W, Courtney, who were

shot with rifle guns on Friday evening the llth instant. These men, it is stated,

were returning home, from the house of Thos, James, Escqe, near the Beach Fork, in

this county. It is supposed they were way laid by some two or more persons, and

shot, They were found on Sunday morning the l6h instant: A coroner's inouest was

held over the bodies of the deceased persons, who found a verdict of murder, by some per=
sons ukknown. Coffman was shot in the breast and fell dead, it is supposed, &@& in the road,
His body had been removed about 25 yeards and thrown behind a large log, Courtney

was shot in the back, bupposed to have run from the road into the woods, where he

was found. We forbear to make any comments upon this murder, or the circumstances

that have led to the apprehension of five persons, vize, James Watson, William Watson,
Isaac Watson, Doctor Watson, and John Watson, who were charged with the murder, and
committed to jail for examination and trial, - ST. LOUIS GLOBE." REGERSER AND NORTH CARO.
LINA GAZETTE, Raleigh, NC, X#KXXXXXXK3X August 13, 1826 (3:3)


| ) Mthtee/ biteci At of liu pirir G Wirkal Cygluan eco
Fiawheuiglor: Cour tery, eurdirivnt the 2ntiner Y Le Law: The
— ALAY MALES / Agra ka he puarde of 5000. de Coneinel

ug toe
fad (tobe Tad wall, hata seal alr Ka
/ AL jee , feayed ead, ee
hed Laguustit 4 th pie Har boa plathone aud da wate

@ feeb dei ab the gallows. Kann tiles Liar

Lt tis Sate ee eo ena

of Ke aw tee — Le: Cherie, anticbe, 8, ifayfira? Gas


clear through the skull and into the brain. It seemed to be a wound from a
blunt instrumént, making a round hole in the temple; éxamined the wound and
found that the pole of the hatchet fitted exactly into the wound. Noticed
two more wounds on the skull, which showed that the skull was fractured, and
either of ‘the wounds would have produced death. They were apparently in-
'flicted by some blunt instrument. Saw her before she ‘died. ‘She lived from
8 o'clock at night until the next morning. Was not with her when she died.
Saw Watson the day after he was captured, about 2 weeks after the inquest.
Witness and Mr. Gray, the attorney for the accused, were present, conversed
'with defendant about the murder; asked him how the hatchet came fo be in the
room adjoining that ‘in which the murder was committed. Watson answered that
he went into the next room to get his coat dnd laid the hatchet in the bed.
CROSS EXAMINED- Told Watson he would be hung for it and held out no induce-
ment to him. :
Milton Watson: 'Am the son of Philip Watson. Lived on Seventh between
Scott and Madison when my mother died. On Tuesday evening when I came home
found father sitting in the door and mother sitting in a chair sewing.‘ Went
aftermy wife who was away; when I cam back heard something fall; father then
ran past me out of the‘door with a coat on his arm. I ran after him and
asked him what waw the matter., He replied: 'Nothing,' and I let him go and
he ran up the alley and out of my sight. I then went upstairs and found
HHHWH mother lying upon the floor, with blood all gver her head. I identify
the hatchet as my mother's; found it that night. “here was blood and brains
upon the pole of it. Was présent at a fuss betweeh my mother and father on
Monday night, at which time He went out and got the hatchet and threw it
under the bed. Have often heard him threaten to kill my mother, About Sai
two weeks before the killing he threatendd to kill her. He was drinking.
eeekachel Watson examined: Am the daughter-in-law of Philip Watson. Lived
with him. Come home at 9 o'clock that evening. The hatchet is my mother's;
saw it that night, the pole was covered with blood and brains, Had heard
womé quarreling between them. CROSS EXAMINED: Never heard father make any
threatse My husband Miltoh was at home when I‘came home that night. They
had two hatchets; one was usuall upstairs.

"Testimony of Amanda “towers: I lived in the same house at the Watsons. Mrs.
atson was downstairs about 7330. She seemed troubled and went upstairs.
Shortly after this, heard a falls; saw Watson go upstairs and‘met his father
at the head of the steps; asked what he had done; the father remiied 'Noth-

ing.' Went upstairs and saw Mrs. Watson lying on the floor. Heard him
cursing his wifé about a month before the murder.

"Testimony of Anna China: Saw Watson come downstairs in his shirt-sleeves
the night of the murder, His son went up about the samé time.

"Testimony of Wm) ‘Pages Knew Edith Watson. he was about 65 years old3
Met Watson on the Tuesday morning before her death. He said he was ‘going
to kil that damned old hussy,!' and added: 'There's going to be hell to-
night.' ‘CROSS EXAMINED: Am friendly to Watson. |

"!Testimony of Henry Seaton: Knew Philip Watson. On the Sunday before the
murder was with him. He told me: 'They have robbed me of everything. My
wife is away from home and God Bamn,her. I am going to kill her,'
"Testimony of P. Je Bolan: Am Marshal of Coving. Made an effort to arrest
Watson. He was brought in by some persons from‘another county, some 3or 4
days after the murder. The hatchet has been in my possession since the
murder,! ’ : !
"Thé Commonwealth's BBBBRWER Attorney rested his case at this bognes

A Covington paper, possibly the COMMONWEALTH, dated Nov. 22, 1677.

"Phil Watson, aged 65 years, the colored man, who killed his wife with a
hatchet on the night of Sept. 5th last; went 'home' quicker yesterday than
anyone we ever SaWwe The place he started from Was on the gallows erected
on Willow Run bottom, about a square ‘south of the Linden Grove Cemetery, It
was done in presence of about 5,000 persons. “he old man had ‘joined the
Catholic Church early in the morning and was baptized, partook of the
Blessed Sacrament and received the last rights of the Church in jail. Revs.
vather Brandt and Jones and Sisters of Charity of Civington did all any good
and zealous people could do to make him forgive his enemies and become a

Dh ae ie eee e Sart EN ae ee re

Le ae TE ee ON are ae eg men oe ne ee ay, Ae

WATSON, Phillip, black, 65-year- i teva. hanged at Covington, KYey on Feb.
1, 167

"Since the murder of the colored woman, Eda Watson by her husband, and the
: escape of the murderer, Marshal Bolan and his deputies have been searching
night and day for “the fugitives On Thursday word was received that Watson
had applied at the house of a colored woman named Lewis, out on the Flats
at ‘South Covington, for permission to stay over night the night of the mur-
der, and being refused admittance had slept on the porch several hours.
The woman Lewis bought the information into town herself, not knowing of
the murder until she got to town, Marshal Bolan hotly pursued the clue thus
obtained and learned that Watson made his headquarters at a hay mow on the
farm of Mre Winston, about 7 miles from the city. ‘latson had been at Mr. :
Winston's house, put the older gentleman of thé family had adviséd the son
not to hold him’ a he might not be the person wanted. When he started to
leave, a colored hand said ‘That! s old Phil; I knows him,' Mr. Winson and
his employees immediately gave chase, but old Phil was too fleetfooted for
Z them, At 7:30 Saturday evening, Capt. Charles Morgan, with 20 men, sarted
for the Winston farm, Théy were conveyed in a Wagon to the Flats, "and then
scoured the country, from there to Mr. Winston! §, where they guarded the hay
mows from 11 o'clock, the time they reached there, until 3 A.M., when Mar-
shal Bolan brought the news of Watson's capture. The colored troops then
returned tg town, reaching here about 7 o clock.
"The Mayor s Courtroom was crowded this m6rning, the principal part of the
congregation being colored people to hear the examination of Phil Watson,
the negro wife murderer. About 16 o'clock Marshal Bolan brought the oriso-
ner ‘into the courtroom and phaced him in the prisoner's seat. Mayor Athey
stated to*the prisoner what he was charged with, and that he was before him
for examination and not for trial, and that if he wanted an attorney he
would grant him reasonable time to procure one, On motion‘of Mr. Wileox
the assistant County Attorney, he was allwwed until tomorrow at 9:30 o ‘elock
to procure an attorney. The Aris soner did not seem to think there was any
serious charge against him, and appeared to be very quiet and not much ex-
cited, obit ceyéd! HAST prosecuting: itnessesy feeyycthoséty. HeHecnequéstee
that Mr. Ingram, the man who captured him, be summoned as a witness, which
was granted, after which Mayor Athey adviged the colored people, through
those mrevante to let the law take its course, and not to use any violence
whatever. The prisoner was taken back to jdil and locked UPe
"Our reporter called on him*in jail, and found Dr. Hall examining some 3 or
4 wounds in his back, that he claimé to have been inflicted by his son on
the night he killed his wife, He freely admits the murder, saying he
slapped her first and then struck Her with the hatchet because she threatened
t o have a man named Stowérs, residing in the lower part of the house, to
come up and put him out. He says that if Stowérs had come upstairs, he
would have treated him worse than he did his wife. After the deed | vatéon
ran through the alley betweeri Scott and Madison to Eighth, out Bighth to
the banks of the Licking, which he followed to Fifteenth, ” and from threre
struck over ‘to the Independence Pike, taking to the woods. He lived on
green corn, melons and fmiit,; Laying around the coumery three or four days
Watson got lost and started Son the Lexington Pike. 4t the Eighteen-mile
House, one mile this side of Walton, he encountered Mr, Ingram, the toll-
gate keeper, who recognized and arrested him after a. chase and a scuffle,
A telegram summoned the police authorities, and the prisoner was brought
into town," THE ‘TICKET, Covington, Kye, Monday, Sept. 10, 1877.

sos Sea YX

"This morning the case of Phil Watson, colored, charged with murder of his

wife Edit occupied the court. The foklowing jury was impanneled: Pat Roony,

Hood Irvin, J. F. alae Je He. Littell, John Stephenson ‘John R. Cooper,

W, Ee Robinson We we wicDonnold John F, Taylor, Herman ‘Schwartman John’

S. Sharp, Frank Dressman. Dr. hverdick was the Pirst witness examined and
2 testified as follows: ‘Am a physician and Coréner of Kenton Cotinty; held an
inquest ‘on the body of Edith Watson; her death was caused by 3 Wounds in
the skull, one of the wounds was caused by the pole of the hatchet going

/ peer ee ee. See ene er eee are.

if

vinden ng , of i / / IV7§- ER: ly Wat im, Arline Wha
UA trig)! ut, Woes Gath ah ated oF Wao fun a iu hi
2. ms " rN PD. Ah. AN , ea
pr? i ae wy € ue Cz 0 / ee AE o a ; i Eg 1S
vores ee te ‘Wale coh i, wiser

G Vaz i ét1 ,


| Cane

\ Gordabiiwr, 5. Meg lb, lla Ou. Alirdasy » Tee (LE eck: feectte
Ubi Mbtee aurea 0f We perkir F Wuckal Co7gouan 2ecol

| Aine wnnuces J dyglriidl La Kpwasrce of $000. A: Cnneenatl

fe Udit Alyce tf eyeaulioce, Yad cepacia tg ted LA, Acol
las Willan donecthing ta Slatin ib Cie Pretraler flor dlach ha tina
Coypeelia, oe Be nacer Mec tihiltirs ct dill oer ke fob -
hethd t nok heel £0 onnetlee/ aflic [ld eck; Che
Ace Cheer LoD, ted Wiad aes Me fl. ty hag.
of Ker den ta — eet” Cpanse, Clasleiler, 4, bfxifite? C29)

oye ad ve inf -

eee a Pra at a Jae Shh Ky ae rn sno ae 4 an: Feb 1 1878
= WASSOy, Phil, black, hanged at Covington, Kentucky, on Feb. 1, Lo/e,

PIRSA K AIR cult gore peated Say ped
sf aR i Ne" pe

t

informed her brother of} Canuabte Marry Hi'fle has returned ‘from
ery who followed the wuran| hie vit to Kig Bone, much juproved: iv
bme on Seventh street, andj bealth.

ured a warrant for ber arrest.

bap of NEW DRESS GOODS at 10,12)& 25c pr yard’
DAL PRINTS at 5, 6 aod 7 ceats per yard.

JAMES W. WALKER. -_

Prices in Carpet Department.

Mies Liczie Coppin, of Cincinnati, ie visits

ing her brovher, John R. Coppia,the popular

dry goode- merchant, ‘ feta

-4-- Mine Kea Gale, of X w Liberty Ky,, and{. Copying neatly done tor
Mies Annie Moods, of r encé, Fon Addreve WoW care.

‘deen -visitinre Mirae re -Bet ot: oC ipl

poet residence, reurned home this morn- liver, aod tones vp the sim
theirwslewom,{; H.B. Jenks, Chief medicine ever did. iy C.

t- street, Cincinnati, a distance | Service, at Leniova Geeeen ee ee
le. Justead of the old time | ‘2 7 : feod tenaat. Apply to’ No
e telegraph you can now hear "I etreet, :

wae the voice of the speaker, The marriage of “Mr. Arrold Brown and ‘Chilis and Fever posi
"| Mise Sallie Croninger came off fa ing | wearing one .of “Nmyder'
Terrible Accident. at the residence “of er,| Pada.” All druggists sell t

o'clock this morning an acci-

may prove fatal to one of the

e ay ag dk at the old

pery baikliog on Third street F
boatle the Times office, Cincin- +4 miners aN ee abs
@ buildiog*has of Jate “been ‘ :

g repairs and remodeling, aed
being taken down nothing but | ~ po
alle aod one end remained.| A «peciai mectiog of City Council wan held
, | At night, Presitent Stephens tn the chair, and
all member present except Messrs, Collina
(Tuntuger, Ashiguvk, Hewe, Freer; Myers and
Sappie, 4 % , ny

Moucy wax appropriated for cialis allowed
At the Just reguiar meettug, :

Preeweant Sepheus presented the tmaonthly re-
port of the ‘Treasurer, showing A balance da
haired of $29,736 Bes it as sak
_ Me: Whittlé objected tg the report o

d aod catabout the besd [around tuat the 81 ind had bee

pies Pest svi internal in-[arawn. 2 = pats
o€ homes Martin, known

* cp | Ways and Mewns. © : ‘
ding hod carrier, and the other | AY ite nave to lay on the table. Lost, | One of ihe bert places fn th
bin, a mortar carrier... They | anu the wotion of str dilakoty cartlod. © | Wagohen, Clocks and. Jewelr
ght to their bomes in this city.} A petition troin People residing gear the cor-| Motch,  Jewelar 618 Madisor
re nerof E’guth and Madison street; oomplatning yu f
E TRAREDY—A-WIPE MUR about the ‘bad coudivet of the sidewalk in

s front of jjall'¥ stone Jard, and of {he outhouse,

DERED. Was presented. and referred to the Coniniitee
after eight o’clock last night | 0% /pteronl Improvements for tuapection, with

y bi power to att, ~
ataon;- a worthless NE’rO, | Me. Carpenter presented the following reso-
bis wife, Eds, by striking | tation, which was adopted ;
e lett temple with the poleof} “zen, That tho natject of the extension of
“at their-dwelling, No.--20 | the Keuluoky. Central. tatirdad, Abrough this
oth atreet. The ph Sd oe city, lo or hear the river front, to some polot

; couductve to the Interedts of the road and
plairs: together in their sleep- city, be ‘referred to the apectat committee of

iy Couvellmen aad crrvena ogwni u
ferred the matwr of Constructing a branch from
the (incthoats Southern fatlroad at Laiiew,
Wand {nto the city of {ovington, and that aald ‘
cominitlee are hereby authorized and empow-f *
ered. ti confer with the Hornt of Man:
the young man rushed to the] te Kentucky Ceatral ratiroed,and leartt from
meet Lis father coming dow5. | them their views relative thereto, at the ear: | «
out, telling bis ‘son .'there sa tiene pie ot hyd
ing the matter. Procuring | *"4 | reper} ‘the reeult of | =
ho Son went up stairs to ia- heir labors to this Counefl on conaluaion of the Ag

> game,” -§¢ i Gy

when he found his mother The tiidwing was ato adopted: 8 D>
the floor with two terriblo| © “2esotcd, That the Prealdent of the Council
b her head from which the blood | be authoriacd and inatracted to execute a note,
‘ leaving the brain exposed. on the behalf of the city of Covington, for sum.

Dual i ediatel Clupt, With what'is in the Treasury to the}.
+ ulaney: was immediately | - cuit or tie General Fund, to. pay. the allow-
ances made by Us Coundl!, nat heretofore pro-
vided for, Bud tuat the satd note be algned by
hin, as President of the Vity Counell of Coving-
tou, attosted by the Clerg, aud (hat the seal of
“| the olty be amzeu.” '
Adjourned,
oO Pe
Mr. Lester sail that whem he wass
boy ten or twelve years of age, he was
one day stauding in Market Square with
his grandfather, wheo four Irishmen
came<up,'one of whom asked tho dis:
tance to Pawtucket.~ Re was told

ah

Mm) asuronanrm |
MAKER! ©
emoved to No. 417 Scott Street, =~
of Custom-made SHOES and BOOIK

attention paid (o Ladies’ Bheoex.

tm

COUNTY FAIR.

PARIS, KY.

, 6, 7 and 8, 187,

| akcly™ moved Ww tefer to Commiltée ou |

| icky Central R. R.
| a faa aN SSwith siesta fos aah
sien Tiekets —

i Rates, from all Ticket Of |
imGroundsae Sigs 3
ovington at 7:00 A.M. and 2:80"

Fair Grounds at 6 P. M, will run”
on Saturday, A tides, peer

ROUND TRIP, $3.40.
1s 8top at Fair Grounds. ~~

_ H, P. RANSOM, G. T. A.
t 30, 1877. eget  ag3L-3t

om. JONES.
as bf WE AD 9...

AND REPAIRER OF

-

ock tone of encouragement to his three

- - : ere Oe
v ’ hed and Polished. 8 iy) d, sodihe Neadplay fa’ pal of | tired comp nions, “that’s not bad at all

eke i sembling a huge peal in its ee Font Saige Bey Ad OW
AS ; ee ion, =,"The bi were} dq you. wan see ij +]
Ss, and Satisfaction Guaranteed. Sas bo the bret, he lee elatchig asi by age: ay
; See Ba aes i gan: t. The} was the quick reply; “3 wan
at Maybery's, Nos. B20 and B31” ition of the body ehemed ta ibn| self: thest tke moet ‘6

ovington; Kye -.. ~~) °° egmem Mat the, poor creature was at: sxqvidence Journal, °


a,

: Boxt ‘Lopeday evening.
22 Mr. Ram, Wille purohesed. a boad

oi » BOG *) DIP ‘ ‘
Soott. and Madison, in which Smith
claimed: for ma:
the-city but duly done by the

eee oe  WOLMICE COURTS So!

Lewis Shivan, disorderly conduct, 85.
* Edward Stapton,: druuk, aod -diavte

gh

>John Hogan pays coats of arrest tea
byony er tie Paar 2 pigs Ns
ost B.\Pattdreon, dn the samé charze,

The Phit:-Wateod Cure, > >

Another large: crowd assembled in
courtroom this. morning 'to hear the
preliminary examination of Phil Wat-
son... About 10° 0’clock ‘the pritoner,

accompanied by “Marshal Bolan aad,

Deputy, Gopdson,: | made his. appear.
ance, .
Col: Wilcox, on the part of the Com-

“monwealth, ordered the names of the

witnesses called, and the -following an-
swered their names: Amanda Stowers,

ay. Mitt Watson, Mollie Hardin, Dr. Aver:
~~ dick, Aana Chins end Henry Satin. *

Mayor Athey asked the prisoner if
he had found aa attorney; and ‘be re

_ plied'that Mr. Raymond ©. Gray bad

promised to attend to his case, Afier
waiting sbout an hoor for Mr. Gray to

~ make his © sppearance Col, Wilcox

moved to proceed with the examination,
The Mayor doubted as; to the willing-
nese of-the prisoner, etating thasit wee
a very epee matter to him-(Wat-
Bon). About 11 o'clock: Mr. Gray are.
rived; and His-Honor~stated-that ti]
‘witnesses - had’ ‘all answered © to
their. names, and asked him if
he.-.was’ ready to proceed ~ with
the ‘trial Mr... Gray made-a. mo-
tion: to: waive an examination, which
was granted, and the’ prisoner was re-
mManded'to jail; without bail, on the

‘Charge of murder.: The witnesses: in

the case.were gecognizéed In the sum of
$100 for their appearance at the next
term of the Criminal Court,

ST REPS, URNS
The Peaselburg achvol’ opened yester-

day. i 4 * i :
Twenty-two car-luads of atock arrived

~-on the K. C. thie morning.

The Social Two's dance at Toehermes’
Hall, the'20th of this month, promises

--to bea grand ‘affair,

The Koights of Pythiaa assemble: at

~*~ theie ball at 7:30 thia evening to vist in

a body the Knights of: Cincinnati.
‘Bquiee Francis ‘sat ou Wai, Smith
: Mored)® this morning for « breach of

on fr peace on: ape Marthe Vatton, avil
William was meshed to the “emouut tof

Siand cots * .

The Workingmon hold a waex inceting
al the corner of Tike and Main atroote
Haturdey night. “They annoupos a con-
cert and spiel at Ruddo's garden. for

mente ak ee teary) for the rou
TE HAS TS

x his ey

~~" T batter soul iti th pia, nd
< Was ont of money, anyhow, whereypon

a Be Was o' ip a baree dae tae frost
Ps '

** PAN, Watson in Slave Times.

less in shew slave times’? tells —
hyelerete Moar thief he gepd 40°

Hb belong Ye tke ieee Ste “One
morning, a little after-dey break, he ap-

peace lag An aged doforted Yikn WhO kiew Phil.
y ;

eq Befdte tieipring tore-in
f Walton leading ind gray ware, the

padett @2lot.of fine’ éonntr:

Fweighed ‘and locked ‘ap in the 'ware-
honee ; tlien the atorekeeper refused to
pay Phil -er-give: up the! meat, unless

Ainself, hie old \maseg permitting it.

from Slect’s smoke-housa. When Mr.
Slcet heard of it he determined ‘to sell

ine broad daylight, -and= couldn't be
caught untit:Mr. Sieet circulsted word
among the. colored-peopl@ that be
wouldn’t sell: Phil} n6é ‘matter what he
did. Phil’came back then; after an
sbeence of three weeks, ‘and got of
with: cussing. *

At another time a tot of bacon was
missing frout the’ smoke-bouse: of a
neighboring farmer, and a horse was

sled gone Five days after the-horse

was fqund “tied in a thicket, with evi-
degoes that. somebody bad attgmpted

theft was also: attribated to il, but

He hadtaken the horse to carry off the
meat aod was afraid to return it with
the greasé on. its back,
PSL EES Es AE EA i ln a
¢ Garreting on Greenup Street, -

Last night abjut 7 o'clock, as Mfr.
Victor,< who resiclee on--the-corner’ of
Twelfth and Greenup '‘streeta, was re-
turging home from work, he was seized
by two men on the corner of Mixth sad
Greenup © streets, thrown. dows

in money,’ Me.’ Victor oticed the two
mea folowing him all the-way from Cin-
ciunati, bat their actions: did not éxcite
hie suspicion until they neared the epot
where he'was attecked; thea they
ménced closing up on hiuw, After they
had taken his pwcket-bouk, thoy took to
their heels, Me. Vivtor gave the alarm,
but too ‘Inte, se thoy. bad made good
theif oscape, They wore iu such a hurry
that-they-overkioked-eome money that
Was covcenlod if auother pucket,
4% = + * RN I enn w= ce ee

Tho stallion show & the Lexington

event of the week; In adlitioa to thie
thet hloviled stook, ofc, The Keutuck

ae

¥

‘telp.at Be

roperty of Mr: Bl which, .was, “of 6 rooms, $16
fi pesty of Mr: Blegs, on whic BUG ob eyrryy nao n he canting

hese he proposed.to sell to the store-|:

3. Leeper, Fi iemengre ddwo,

Phil got’au order from his master, al-|: oS
though. the rascal’ declared he-hat} Jos Havin ioneer. = weB-St
raleéd the ‘hoge and smoked thé hatis|i New és the time to join the clases fa}.
It turned out, however, as the Waltot4 College, day or
@xv euspected, the mest ad beén'stdlen,

Phil. When they told Phil he lit out, |?

to wash the grease-from-hi¢- ba Fhist

thé rascal was too sharp to be caught.1¢

a orl -2
aher dinner sa If you a
% Vee uae

Meont-+Tmo roams, No. £0_37.
eet; apply on the preiises. poy Ah

' Second-hand Beeks bought und
sold at P. Moran's, No, 434} Goott sires,
Payers aad pericdicaleon hand. septl0-2s

AVA Stevens 81.

book-keeping, at the Coyi
aay 4 pil a het pie an seltf

i pes should

bow join the already large clase of cudents in
tLendance at the Covington Commercial Col-
Nees sir ie te asa: Ce peg RL
“Chills and Fever positively cured bs
pe of fm ee bs Curative

Wearing ©
Pads.” All d eel} them. je2leody
mercial course call at the Covington Commer-{

information as to couree of study, names of |

year. selif i
‘ Leat—Gold cuf-baiton, on Pike street; |
office, agsltf i

Wanted —(ised German girl for general |
bousework, at 426 Greenup. af
~ For Rent—Aa usually peat. com:t
fortable and convenient frame house, with j

rooms, es Kichth street, pear Kuseell.

Apply to W. E. Ashbrook. uy
Chamois and Shenges for boure. ;
cleaniog purposes, cheap at edel
Drug Store, 8. E. cer. Temth nea

Madison Streets.

Vaults and Stnks—Ceaned, dar or

| Copying neatly done jor jae Ac.
Addr W.-W. care of the Treat, suf

DaCodta’s Hadical Cure invigorates the
fiver, aud toeues the stomach as no other

: . vp
rubbed uf his pocket boul, containing $6) medicine ever did. Sold by GAD Webuwing

Houee ter Rent—A three store brick
atore, No, 427 Sot street: will rent low to a

agli:

KindlingeSewed aod spit, so at
cont wood, Jar ia rear Oi No. 3 Fan,
Ninth street. All ordere prompily ateended |
to 7 Pay co sae
Coal—O, P. Fairchild, No. 18} East PIAS
rect, tahes orders for oval for Mr. U. Sbias be
ourper of Sedu And Soutt strwete, at the same, ;
rm tee per bushel and for the same ca! a2 acid
atthe paige on tye t
Fine Bathing Npenges jut ~

Fair, Wednonlay, promises to be the | soar ap Ntere. KK cer,

Teath and Madison Ntreeia.

thero- will be’ an immense: display of TOA, Ryvana, Genera! Krecavee Na

PLOT Third ettwes, Coringwon, Kyi Gy Su
Vincoutegium -- To purity fait

4 odove in vaults, sewers, alleys ard cellar

Harley 8, pag receive tet
ward. et Hi i G2 < ees

eight, withoet dirt or email, by L, Besenad |
yey River Road, Eva siete '

good tegant, Apply w& No. Ji. Wee Fite |
atreet,

It you are thimking of taking acom-|
cial College or sead for circglar giving fall jis

fants im attendance the past |

Wa

Goder will be rewarde! by leaving at THe |

Gre

Re

The tera
Market as we

pts Are He

That thie Sior
BP The presen
Co. has bec a

coivet, and aold at patuced. prices at. the!
KE-

oe é
Aud the Prop
inves the
af Covingwe

Coviagtes

eEIBREA

paeert zarararea

8% TO GIvE NoT Ic

of Abuses Bae, 1877,_ ware:

againat: the >

‘who has -

bia’ ce
property bia i fren :

ber, A. D. 1877, at 10 o'clock; A. Mi»
TTENDEN, Manan 9
2 e840 Ses ihe, An Messenger.

, WALKER, —

tans STREET.

PENING LARGE LINES OF

mall Goods!

ALPACAS,

10 and 50 cents per sard. ;

MERE; | Of the Celebrated Mary

St Ss yfart: Make,
90 and #100 per yards:

Sat 86, 90, $1, 125 t02, 50 pr

EW DRESS Goons at 10,124 & 25c pr yard:
a 5, 6 and 7 cents per yard.

JAMES. W. WALKER.
best in Carpet Department,

* 8 Thee

Aca
Giiicnatluoadeon. od eae coon

.
;-4 on

 Teai’e oa- a =e

Seiad paste eek
ie peta acs”
rs his own =.
aes seal: tery alto, vad.
7 propery laleresne sere 3

Register, on the 18th day of Septem- .

DAYS svi, 5, 1877.
e 00 ; 7

ERR

POLICE COURT. = Bese
one + Tom 0°:
B $13 for putting a bruised
Whris Santiff; Luke Cutler
#4 for sleeping out and ee
Ys Beha ME Ue ESR EO

A) County ie alr “commences
rt day. * y
fw port Local celebiated ite Brat
ry yesterday. = :
‘Two'n ennounce a ‘ball: at
Mall, ony the: 19th of this

farnett, the negro who. was &

ford, Ohio,: a malls of

atapal at the corner of fourth

ue ap.

Acbrated trotting horses “Post:

Dick Taylor came down on the
y Central Railroad: this’ ‘mora

bute for Chester Park.

bly, of Mitchell &‘Tranter’s
e owner of the celebrated dog
whose prowess $50 to $100
ked at any time. ~*~

O'Hara took a deaf and dumb
into onstody, yesterday after-
prevent his injuring some white
ildren, who’ had been teasing |.
p was found to belong: in Cin

b'which place he was sent.

ashington, the son’ of Geli
on; # colored citizen, has “been
or several days. He: is. sup-
be somewhere in Newport, ‘per:
dy in the‘ hands of the police,
preby notified where he belongs.

harles Morgan, armed with

sary papers and accnmpanied |:

meo,. left this: morning in
the man Watson who mur-
ywifo last night, ° Morgan bes
ie whereabouts and wil no
are him. na

an

y the residence of Mr. Job n |

s robbed of a lot of wearing
pd nothing bas. been: heard

ing goods until a few daye|:
Miss Mary; Herold recog-| -
e towels in‘a basket carried}

‘woman who was passing the

he informed: her ‘brother of}:

ery who followed the woman
bme on-Saventh street, and
ured a warrant for her arrest.
ap, Betty Lewis, was lodged
the Su ee of grane. |

hone is rar succeesin] operation
Hemingray’s glees works, on
the river, pal their rsiewo.m,
t street, Cineionati, a distance
pad of the old:time

ate = itying. spectators, the si moaning |
a pee lamentations from:the outer room

ae ally ene ay ‘with his coat in his arm. —
te 4

‘him, and: has several times threatened

f

the
py and with on ~ heel
asa ) gerd death, koot

seat on the bed, and piteous cries] *

biblting her stock ren ne:

4c Neri eh oe Wed

(Bia Wook, Mt Nox 416 ;

iWauteasdon ‘gitl to od

“Mit: MeAdams, I

fron for three in family, a He 5

removed from 1426 Scott sti

: wchtera had been |Greennp aireet, between Tenth
led by sympathizing hao = LI between en

Coroner Averdick summoned a jury
and act the. ‘time for investigation at this
morting.

Marshal Bolaa’ took energetic ‘atepa
for thé ¢opture-of the murderer; etation-
ing guards at both bridges and sending
messengers to - Fifh-etreet’ ‘Ludlow)
ferry end out~both:’ ‘pikes. . Hopes “ara,
entertained that Watson will be-ca
tured. this morniog,.. although -he. is
known to be as crafty as | a’ fox "and of an
enduring physique.’

He wag seen by Poter Fry and séveral
others going down Third street: towards |
Eula, before the ‘murder ‘was gener-

e murdered woman, wha, was fifty-
five years of age; belonged to Mr,:Wm.

stronger expresalons of 1 regret and respect
than were sattered ‘Yast night by; both
bisck and: whitewho ware acquainted
with the deceased. She was a woman
of amiable dieposition, industrious, and
honest... She had to work to support the
worthless vagabond who claimed her as
his' wife. It, is supposed that he de-
manded money from her last night, and
her refusal Jed ‘to: the murdor:

‘Watson has been iu the habit of car-
rying ‘a. hatchet: constantly about with

to kill his wife.- The'night before Wat-
son ‘took a batchet to bed with him, and
his wife slept with her daughters for
fear. The hatchet, with bleod on the
pole, wee found in an adjoining room by

last night.

streets.

John Cesta, or wife, w s

aud pay thele dues at Circulating:

Old worn eat tim, sh =

ee wt repaired and made

neoe, corner Fifteent

—Gold necklace .and
ing, in the neighborhood of

Banklick, leave at No 1211 Les

4 For Remt.—Dovble frame

rooms each side, hetween Second
ead Main and Bakewell streets,
from ferry boat; rent som: Apr
Third strett=—

Wanted.—Cioak hands at
street, Bischof & Loeb. Hands

own sewing machines,
* Farnished Roem ar

beforg the war aud was’ greet! —In « private family ina quiet
ved. by thne. pevdemar's fan Bet gigs ead red,

decd, we have seldom beard niore or} price expected

Wanted_A woman to coma

iron; a short distance in the co
or American: preferred, Addr
877, Covington Post-office.

Wanted—To rent a houx

Address: Drug store, corner Six
streeis,

- Wanted = Ohery scant!

equare, at No. 820 Madieoa stre

few is the time to join
k-keeping, at. the Coyingtos

College, day or evening sessions

are inal and all ur

yield when “Bunyder’s Hid@ 3
are’ applied; ,

Persons desirous of

as book keepers or, business pe
now join the already large cla-s jim

one‘of the daughters about nine o'clock prondence ne pe vovinaton. (0

ege,
M you are thinking o

+ Pac Corener’s Verdict.

Covincton, Sept. 6, 1877.:

— | mercial course call at the Covin
cial College or send for circul

Wo, the jury, find that the-deceane, | ntrmation 4 fo, sure of

Eda Watson, came to her death: b

wounds inflicted by. a hatchet im: the

hands of fs Watson, her’ bueband.
BRAMLAGE, Boremaiyy 4

w M. “WATKINS,

T. N. Ross,

J-E. Lere,

Gero. Jy Zeiez,.

JNO. WEAVER.

-LOCAL PERSONALS. |

Constable Harry Rife} ifle- has: returned from
hie visit to Rig Bone, much improved in

health;

. Mien Lizzie Coppin, of Cincinnati, i is visit-
ing. her brother, John R. Coppia,the popular
dry goods merchant. a

- Misa Eva Gale, of New Liberty, Ky., and
Mies Annie Moddy, of Eminence, ‘who have
been-visiting--Alise Jeannie Bristow. at Md Fs
country, peunen ee) returned home able morn:
ing. te

“H, B. Jenks, Chief Clerk of Railway Mail
-Bervice,. at Louieyille, Ky., was:in the city
this worning—and leaves this even! og fora

Y | year.

Leet—Gold cufi-button, 0
finder will be rewarded. by les

Tie@KeET office,

Wanted —(ood German g
housework, at 426 Greenup.

For Rent—Ao vouwnal
fortable and convenient fram¢
6 rooms, on Eighth: street,
Apply to W. E.. Ashbrook.

Hail moretany and Spong
Cleaning purposes, cheap al
Drug Stere, 8. E. cor.

m Streeta.

Vaults and Sinks—CE

night, without dirt or emell,

No. 487 River Road, Covingter : |

aeeerinn oetly done fo
tare of tia

~ DaCoeta's Radical Cnre“t “fe
liver, and tones‘ vp the stoma
medicine ever did. Sold by C

- House for Reat—A
store, No. 427 Scott street: n\

ROOM ahde A Dr

td

WATSONY Philip, hanged Covington, Ky., Feb. 1, 1878 - Continued.

saint, but it 's pretty hard to change the nature of a man, especially a

bad man, as was old Phil all his life; it's a big job to make a repentant
sinner out of a hardened one, as the efforts of thos devout persons and

the following. last words from the mouth of the murderer, just before the
drop will prove. He said, in a loud voice: 'Far'well, vain worlds Idémn
goin' h6me. De Lord Jesus has called me, an' I'm goin' home. But dere's
lots o' rascals left who will follow me to the pits of hell$' And then
Sheriff Lowe pulled down the cap over his face, pulled the lever, and poor
old Phil 'went home,' as he called it, in an instanf, for after fhe drop,
which fell at thirteen minutes of 11 o'clock, not even a muscle quivered; the
rope had done its work well, breaking the neck so quickly that it was, after
all to the doomed man an easy death. In 9 minutes and 10 seconds the pulse
ceased to beat. He was, however , allowed to hang the usual 25 minutes, when
he was cut down, placed in a coffin, taken to the Cathedral, and from fhere
to the spot allotted by Bishép Toebbe for him and nine other of his chass
(as soon as they can make arrangements to be taken there as murderers) in
St. Mary's Cemetery. The last of the last words of the condemned man des-
troyed all sympathy for him in the hearts of those who heard him. It proved
in him a maliceand revenge that was shocking in the extreme to the senses as
coming from one who had just the instant before kissed the cross of Christ
and prayed that God would forgive him as he forgave all. He was evidently
of the most hardened nature. The only time during the days of his imprison-
ment that he exhibited any signs of regret for what he had done or fear of
the future, or rather seemed to apjreciate his true condition, was in jail
in the moring of thd day he was hung, while bidding goodbye to a couple of
negro women who had been raised under the same master with him. While on
the gallows he showed no signs of fear, save a slight tremble which we
believe was cuased by being cold, as he had no overcoat on, there being a
good many present who shook as much as he did who had overcoats on. But
he's gone now; and, so far as we are concerned, we hope 'home,' but not to
that terribly hot climate where he hoped, the other rascals left behind him
would follow him, ‘the pits of Hell,'

"The COMMERCIAL tg the only English paper that published this morning Wat-
son's dying confession. That looks right smart newspaper enterprise on

the part of Prof. Hunt, that paper's Convington reporter, who penned the
long article on yesterday's hanging in that paper this morning. he s@b-
stance of the confession is that on the evening of the murder he went home
and asked his wife if she wasn't going to get some supper; that she replied
she was nots; that when he was looking for the hatchet to split some kindling
to start a fire, she came from the back room with the hatchet in her hand,
saying she would split his head open if he didn't get out of there, He
then caught hold of her, and being very angry and drunk, scuffled for the
hatchet and when getting it struck her on the head two or three times with
it, not knowing what he was doing. It was signed 'Philip' Watson,"
Unidentified Covington newspaper. Another unidentifed paper states that
during slavery he was the property of Benjamin BRBBEMH Sleet, while another
gives his name as Benjamin Sayers and describes the wife as being well-liked,
and industrious, working hard to support her "worthless, vagabond husband."

é

‘8 8)

t

HW STREET, ™ere

DEALER IN aoe "gy = Biezaee ne
VER WATCHES. JEW
KS, SPECTACLES: ols

ELRy,
PLATED: WARE oF,

i

ind peahdyeoc: ete ces
Weweraniedotaee - QLD GOLD sad att yyy - 7

, BOUGHT.
enn %

T!

es

Eis:

DES

\ vo

—

. es

LOR | peor fea Soo
m the AND MOST REMUNERATIV}
ave re-| ; ADVEBT(OING MEDIUM
~The Largest Cru
way] HE EANGEST UCLA
s. | ANDTHE @RBATEST AMOUNT
tantly} OF ORIGINAL HOME aNnp

b order} 4 OOUNY MATTERS. # iy
lowest)" 4 TREWERELY JOURNAL!

The aim of which is to give all

give all the |
news of the city and ‘county, at the lee
price of TEN CENTS per week from. each
subscriber, or at the rate | ;
One Year ice scces:csssczedic ntecduipaatis

Six months... 2...-.s-...0:

All who take am interest in the prospe a

of our city and its home enterprises should
not fail to take the Looat.’ The paper will
be «delivered. to all parts.. of. the-city by :
obliging aod gentlemanly carriers, who vill
expect in return, et the end of each week
one dime from each subscriber
EEE :

UJ

“the night of September 6th: last, went

FEPORY LOC

Sevens 200) WE ‘left who. will: follow. me to the piteof

- calleg it, in an instant, for after the drop,
which fell” at © thirteen ° minutes of 11)

sew wens

Mr. {obs ai et bap hipoat fi te
baa WES inte

dropsy- ~~

» Mr. We Pe Pfeffer, teacher in Fiat

tay 2 tbat, paid our office friendly
erat ta foSpa ae: 15,

Mr, A. T. Morin, of Grant’ county,4

prother of Ben... H, Morin, isa guestof
Dr; Bennetts) ee

Mrs. Thomas. Meehan, Mise Tillie

Hogarty, of Lexington,’ and Mrs, Young,

; of Danville, are vigiting friends here.

iyo :
Going Meme’!

fie = long

* OVER eae wet sae S24 SMe
Phil Watson, aged 68 years. he colored |
who killed bis wife with a hatchet} ~

aan,

“nome” qvicker yesterday than a y ofe
we ever saw. The place he started from

was on the gatlows. erected on Willow |":

Run bottom, about:a square south of the
Linden Grove Cemetery. It was done.in
presence of about five’ thoneand® people.
The old men. had jelned the “Catholic
Church early in the morning and was bap-
tized, partook of the Blessed: Sacrament
and received the last rights of the Church

2 ter jail hong Rpt Brandt aad
and Sisters Of Charity of Covington did

all any good and. zealous people could do
to make him forgive his enemies and be-
come s. saint, but: it's ‘pretty hard. to
change the natare of>s man, especially: a
bad man; as was.old Phil alf bis life; ive
a big job to make-® repentant sinner “out
~ ofa hardened ono. as the efforts of those

devout persons: and . the. fellowing.. last}:

words from the’ mouth of: the: murderen.
just before the fatal drop will prove, He
“paid? in & loud voiceie- <5
“Farwell, vain world! I’m goin’ home.

De Lord. Jesus -has talled: me,’ an’ I'm
goin’ home. But: dere’s-lots rascals

hello. = SA RS SU Be i poe
And then: Sheriff Lowe pulled down:
the cap over his face, pulled: the: lever,
and poor old Phil “went home,'’ as he

o'clock, not-even a muscle quivered; the
rope had done its. work well, breaking the

eat.

antly on

1 ishing every Thursday. a
e

. The establishineht of & first-class weekly
paper, moet especially for the benefit: of ‘the
people of the county, was long felt, and
therefore the proprietors: of the Tri weekly”
Local propose to satisty: the want by pub

. WEEKLY. LOCAL >

; Its aim in: the future will. be. to makes

specialty of giving all the local news of the
city. and. county, society’ and otherwise: of
advoceting ali measures: which tend” to "ihe
advancement of the city's and. county's: in-
terest, aud those of ita citizens, [tis the in-
tention of the proprietors to. continue in
making the Local, more interesting aa: time

passes; to make it in a word, . The: Pride u/

Campbell County. .

THE WEEKLY. LOCAL

ne" _WILL BE AKT TO RUBSCRIAERS FOR ee

| 9160 PER ANNUM. —

AGENTS
ALEXANDRIA.........-PETER KRONTZ:
COLD SPRINGS ,.....GE0; AHLERING..

the | CLARY VILLE .2;...00.. W. To CLARY

DEMOSLVILE sascossscseinds C. QUINN

a
és PRINTING..

neck so quickly that it was, alter all to}

the doomed man an easy death. Ip nine |:

* Gninutes and ten seconds the pulse caase |
to-beat. He was, however,. allowed. to

hang the usual. twenty-five minutes, +.

when he was cut-down, placed in a coffin,
taken to the Cathedral, and from there to
‘the spot allotted by Bishop. Toebbe » for
him and nine other of his class: (as, soon

as they. can make® arrangements to be}

taken there as murderers) in St. Marys
Cemetetysen ce ain ao he

The last of the last words. of thacon-
demned man destroyed all sympathy: for
him in the hearts of those who heard him.
It proved in bim’ a walice. and revenge
that was shocking in the extreme .to the
senses as coming frow,one who.bad » just
the instant. before: kissed the cross of
Christ and prayed that God would forgive
him as he forgave all. - He was evidently
of the most hardened’ nature. The: only
time during the days of his imprisonment
that he exhibited any signs of regret for
what he had done orfear of the future,
or rather-eeemed to appreciate his true
condition, was in. jail in the morning of
the day he waa bung, while bidding good
bye to a couple of nexro women who had

been raised under the same. maater with |*

him: While on the gallows he showed

no signs of fear, save & slight: tren ble

which we believe was caused by. being

cold, as he had no overcoat on, there be-

ing a good. many presen} ‘who: shook ss
‘much ab he'did who had overcoats on.
But he’s gone now; and, so far as we aré
- Soncerned, we hope, “home,” but not: to
- = that terribly. hot-climete where he boped,
- “the other reegaie tes: behind. him woald

-| which was read a first and second: time,

alleworth ‘and “others, of Pendleton,
Pantech Y, PG each with interest thereon

Committee of Claims, aad ordered ‘to. be
“- Introduced a bill for the relief of Isaac
N. Webb; of Harrison county; Kentucky;

referred to the Committee on Wat Claims
and ordered to be printed.

a:

Newport City faxes’. -
A penalty amounting to ten: per cent.
.will be added to city tax bills-if not paid
on or before Feb. 15th, 1878.
—_- +
Ea DAV BONG RT
The Excelsior Literary and Musical
CloW meets at the residence of- Mr. Tom
Tresise this evening. RS ene §
Is it not about time for the city authori-

been-biesching on the sand bar “for: the
past year. : ie Sea ee

she only was granted the right: to. sell
her estace, bi OS es
“We would like to-know if Judge ——,
on Clay street, likes tonee the ladies take
-the street-when they pass his placa, on
agcount of there being no pavement. —

2" Business Notices.
-Wiener-wurst, at. Louic: Brandts: to-
bight... It will be excellent.
“ Mr. Stephan Cromer, at his well known
hardware store is always ready to deal
out to bis customers everything kept by
hardware men’ at. the lowest possible

rates. ae r an Y off bry heer cage
wanting good strong harness, for

sige ie

Those +
either buggy of wagon use, or saddles;
can save money by purchasing .them of
Mr-H.B. Fuchs, on Monmouth street=
For the neatest made. and cheapest
monuments and’ tombstones, goto. Reh-
ling, Quebeman & Co.. Their work always

Wetton e  hd ohne of Ponalet io
day of July, on’. ac-|{*

count ofr cea al wes

collected@rom themtnder cdlor of com ||

FOR TRAINS’ WEST.

Wo. 3 Southern Repeating
8 emer ws tye NadccamassapseecceneneresSclO &, i
Southera, L

ea ARRIVES AT CINCINMATE: |

Nos pert Fast Lie seceorcspeess-seemsencee—aeet10 &. 1
ie edipeaiocrearscicts<ciomenknsee Be
“2 Cincinnati Express. 3 op me

Bn e :
New Orleans and other Southera Cities.
ties to bury those huinan bones that have ies

& Mise Maggie Collins was wot “dfvoréad me
from her husband, Mr. Olmstead Collinge; |

JOHN MACLEOD, Gea'l Sop’t, Louleville, Kp

ine evreoll 0 pe MAE”

“ 10

Mebile, >
Little Rock,

Pullman” Southern Sleepers |

©’ wrrgeur OMANGE, ---- -

side of ‘the city.
only lice by which

PULLMAN PALAGE SLERPING CARS

3 ane 2UN— ;
From New York cane taaivetlles and
pre Soothers ne Le from Cincinnati to
Decatu:
Mabie Milan Jackson Miss aad WOW Orleans
os , “ WITHOUT CHANGE. .
ASE sd neg cpr mga ey
—FIA— :

Louisville & Cincinnati Short Line
For sale at alt ticket offices in the Nor+h and East.
ce ee -\ B. 8, PARKER, °

| -Geu'l Ticket Ageat. . Gen'l Pass, Agent.

———

Vola.

JUST RECEIVED 1

A QUANTITY OF

| PURE NORWEGIAN |

}- gives satisfaction.
Mr. J. R. Gordon, the gentlemanly coal
merchant, has all kinds of coal for sale ‘at
the lowest prices by. the: load or hundred
bushel. 00560 oe Pei Se ee
“Phe attention of our readers is called
to the advertisement of the Clasgow.
Nor ual-School in this paper. © The school
comes highly recommended to us. |

Cincinnall Daiiy Market. .

: Curcinnati, February 4, 1878:
= Golda New York- At-en.

of }) percent. upon the closing: rate of last
eveniig, but'declined 4 jer ceat, an! closed
per cent. lower: than’ yesterday. In our
home market: the mercantile’ demand ‘was
-only moderate. for cash - Gold, but receipts
were light; ratea. were e little hi her at, the
opening, but declineb and cl at 1j per
cent. premium buying and 2} premium sell-
ing. doid checks on New York were drawn

at 2} per cent. premiums
Produce quiet, 2 = 0
> Grain market inactive. . * ps -
Flour io moderate demand =. oS ie
Whisky demand at $1 03
Cotton quiet; middling 1054

REANS—-Priae to choice 62.0062 l0per bush?

COFFRE—Bio, fair, 18@20}4 geod 0G90%4 laney
BQH, Jaws, MOM Xi

Sr ms eee
> FLOUR—Faney, | 6 2567 00; extra, 4 9@5 15
superfine, 875 4 00 low grades,$ 00a8 50 rye,3 854350

FRUIT—Green Apples at § 00qp5 q0 pet bbl. Creole
Oranges $7@8 per ddI. Cranberries §7.° - Lemons
$4 50@5 50 per box. Layer Raising $2 00@2 25.
Citron -16@We, Prupes. 13410 “Cufrante 156080,
Dried Appius on atrival 405 Sans
Dried Peaches on sralval $44)4, from stores te7-

pite of Hell.

at 2} premium, but were offered at ‘the. close} .

" BRAN—Odered, at 22 00@12.60 par tons mbddlin |

COD LIVER

ORT!
This Oil’ is recommended by Physicians ‘to |
"be the Best and Most Reliable ia the’ |

Market-

FOR SALE IN ANY QUANTITY!

quaecasecnaencatthacmenrhesemancteaasee” eee AE NE non hehe Sn ae

Soy ece ;
(Cc. FL KEENERSS |
< *.. DRUG STORE,
N. E. COR, YORK and BELLEVUE STS.

Draggist and Apothecary.

| HENRY BATHIANY,
oe) Dealer ig -

Drugs, Medicines,
 OHEMIOALS,
Toilet and Fancy Articles.

~~ PATENT MEDICINES,

BRUSHES, SOAPS, PERFUMES?.
‘Presa tpitoes carefatty compoe sded A
‘atall hours, day or night.

Wf. E. Cor. isabella and Lewis Stree#

a <a aaaiaa

“GRAIN— Wy heat? Red prime) to. ogholoe
- ' plos,1.18@1 23 ye

oe
Those who have 1% alioadf agi
Ror the Newront 100" gud
: ng in there, Oe
2 send oe ane


o
r &

ae ?

—_

or)

i! jMecalty of giving all thé local news “uf the
«uy and county, society and otherwise, ul. x

ied 4) 5 edowwateng elt measures which tend to” ees
edvancement of the city's and county's in:
teres, and those uf ite Citizens, « [t-is the in:

F tention. of the Proprietors to continue in

Central
yldéa

Oe

roltur
>

> SS ep

LOLOL GOL,
ve fhe ental Acherrst of wp Brevcless weeiis °
| paper, mnt eopecially fue the benefit of the
lpewple of the cowoly, was long feit, aod
| fRerefore the proprietors “of the Tri weet!
_ Lemel povpase to satiaty the want by pu
| bees Thursday. o

WEEKLY LOCAL

aml

i sa
i bis seen tn the future will. be to make's

making Sia. ae more interesting as time.
passes; to make it in a word,’ The. Pric
Campbei! County. | j ae els se

THE ‘WEEKLY tool

* miu, Be agit to Av macauaas ror.

a 50 FER ANNUM. |

~ Acme FoR THE ‘LOCAL:

sc ren aoe eae KRONT2:-
COLD SPRINGS......GEO. AHLERING.
CLARY VILLE co WoT CLARY
Sesceyiiaee sete C. QUINN=6

ae facies of Ee oc’ for exenating

ee Anan oh

“OF EVERY 1 DESCRIPTION,

BOOK and J OB WORK

in the mast perdot styl, in strpann by.

Pe agp ot

+ tyre

‘ any establishment in Kentucky:
Pamphlets, | Posters, Programme,
Cards, Letter-- and. Bili-Head,
Envelopes’ ‘att: ‘Check,

And, in short, anything that type<i

} Peper can fabricate, « r with}
ness andthe, gc S Ss

4

eee Be es

et Ta Phil went bome,” as he!

pl goon
ref te in on instant,
abich teil at thirteen winutes of 11
ocigek, noteven ® muscle quivered;: the
rope had done its work well, breaking the
neck so quickly that it was, after. all to
the doomed map an easy death, ir “nine

~ winutes and.ten seconds the patse cease |
to- beat. He. was, howevtr, allowed to
~ hang ithe
when he was cut-down, placed ia « coffin,
taken to the Catherrat, and from there: to
the spot allotted by Bishop “Toebbe for

hun‘and nine other of his class (as soon |.
~ as they can make: arrangements to be}
taken there as ‘marderers) j in St Marys :

Cemenerys s208 sere ne

> The last.of the last words. “of thacon-
demned man destroyed all sympathy: for
“him in the hearts of those who heard him.
It proved in him: a -malice and: revenge,
that was shocking in the extreme to the |
senses ag coming from.one who bad. just

the instant before kissed the ‘cross: of ing.
at 2} premium, but were offered at the cloee }.-—

HENRY: ae

Christ and prayed that God would forgive
him as be forgave all. He was evidently |'
of the most hardened’ nature. The only
time during the days of his imprisonment
_that be exhibited any, signs of regret for
~ what he bad done or fear of’ the fature,
or rather- seemed to appreciate: his true

“. condition,” was in jail in the morning of
“the day he was hung, while bidding good
_bye to.a couple of negro women who had

_ been raised under. the same: master with |”
him. - While on the gallows he showed |

no'signs of» fear, save a slight. tremble
which: we believe: was. caused» by being
cold, as he had no overcoat on, there be-
ing @ good many presen}. who shook as.
much ab he did ‘who hed. overcoats on.|
> Buthe’s gone now ; ‘and, so far as we are,

“concerned, we hope, “home,” but not to
that tertibty hor stigute where: che hoped,

the other 4efs behind: him would
follow.t hienj- ‘ene pite of Hell. > =
HIS DYING CONFESSION,

The Commercial is the only English
e thas mort é baat

rg Salepaie

Tights sa cr cw r Salat

* part of Ha peper’s

_ reporter, Pree ‘penned the tong article on
“Ladera ta ‘in that

morning.’,
‘ sion is: nae ‘on

wasn't govig
: replied she was not; that when

¥ =p ance ne pork, . $14 © 35all.~ "Lard
pare Lat ects “tratchat:-to split: some} { prime? 38 sdioahdore 40096. Clan ia
back ith the hatchet in her hand, |
farsi w split hie hada tae it PEALE a svt at oi
@ ny bes ries ane ee there.. H | SEEDS—Timethy,’ prime to whole ¥ dai 60
x cand drwaby eeuled. . orcthe. hades at. SUGARR—New raisin Yasige, elarised |
oe on the hea iT eeasee perib.: A. white, 10%fcal0}gc per Ib,

when getting it tan
wo or singe Himes with:
what: he doing.

a Ce Wetaon,” oe POULTRY D GAME Still dull Chickens tm
aS Page aed ee Ee
: ane ‘Fab. very a
a desire,to gorrect na in this more es $1 bocd 78 per Cow. Quafie 760) 00,per | Bn
“ning’s Enquirer, relative to; @ difftculty dics - a
4 b ween. at Root.and. . i ’ £ CurganaT, F ry & WTR...
trothes Seats ket” . ast 7 ‘To oirng oo ERY 975 nbds, and | Wo
1 spectator. whippe
“ME oot ad an, ah eg: renter Sees a ee res
oan his cane: Ros were holding a
~~ Soa whea I broke. eway I rea him to hip
“home. Taleo Gesive to correct the states: vy
MH
3
» 5am

ant Seren nme e

an dr mr

for after the drop, |

usual. twenty-five - “minuteay; -

per oa

he pobejpoce 2 pred 9 oonfes-
@ evening of the murder, | s0a8se
he went home and asked -bis-wife -if sbe

teat acca upper; that ‘abe
he was

iby nef kaowing
was gvenes

pcan BSYVCG myucy YJ rere oe

{Mr H. By Faebs,o0 -Monmoutt-street-—{—

For the. neatest. made and cheapest} ’
monuments and tombstones, go to Reh:
ling, Quebeman & Co., Their work always |

ee
A QUANTITY OF

— PURE. NORWECIAN-

uy

—_+-gives satisfection—
Mr. JR. Gordon, the igentlemanly coal
Reechant. has all kinds of coal for sale at
the lowest prices wy, the load or hundred
bushels..." “a corn
The attention: of <our sudarens is “called
to the advertisement of “the (Tasgow
Nor ual School in this paper. The school
comes highly recommended to us.”

- Clncinnad Daisy. Market...

. CUINCENN ATIC February §, 1878.
1 Geld in New_York

of } per cent: upon the closing rate ‘of last
evennig, but Revie: tyerceat, anal cloud
t per cent: lower. than yesterday. Jn our
home’ iiarket the mercantile: demand . was
only moderate: for: cash: Gold, -but- receipts
were light; ratea were a little higher at 4
opening, but declineb aa ¢ at lj pe
cent: premium buying and 2} premium sell
id cheeks on New York were drawn

at 2 per.cent. peemining

| Produce quiet. ae UA oR
Grain market inactive. $ ‘ e
Flour fn moderate demand * ; :

* Whisky demand at @1 03

= Cotton quiet; middling 1054

Teimbe rege od eheles ballgl eeeeaceaie
BRAN—Odered. ab 12 00@13 64 pet tons middiin f
@17 00@20 00 per ton.

< BUTTER—Prices are as follows Chates, Crepmery
paid are baa . Medium . 14g 16e.;- Comtiman, 10612
CHEESE—Stendy at 1818.

dalivereh at 1011e; Oxmp-

cite 7 508 Wo *
COFFEE—Mio, es nar ent si eres
Bee. Tavs, HEH. 22 es

vas iaeas Lestelt ti enaiie tie veuakes
\-FLOUR—Fancy, 6 23@7 00; extra, .4 90@5 15.
guperéine, ¢ 75 400 low grades,3 00a3 50 rye,3 350350
“FRUIT—Green Apples at & 005 40 per Wl. Creole
J} Oranges $7@8 per dbl. Cranberries’ $7. bemons
$4 60@5.50 per box. Layer Raisins $2 00@2 25.
Citroa: 18@20c, Prupe-lagid=-Carrenie Tygade |
Dried Appius omarrival 405. se
Dried Peaches on aralval 4a4}<; from stores 6a7."
GRAIN—\ heat Red -prime: to choice
1 191.18 ite prime to.‘ choles, 1 18@1 23: Rye
sive, 7; chotes,: 67608 Corm low; mixed ear; 09.
OATS—'¥ alte; /. 2963004 mined held at 19@30

= Pest ngetby Wold at 0010. pa tan 9

W; common, éa7

‘ Calapan te choice, a 1001" 1S per ton ;

algae alec pins is

HIDES~Grean hides, 64a7i¢e; salted, bade 56.

phek pos Septal ome 6a sorghum |
fe common, 4dad5 j” medium, 500650

me fet
in ace fot extra Wo: 1. 0b 20<!96 jLAaeoed
6ic,; petroleum. refined 14a15e.

TALIOW—For country 7. City, 73¢¢
-VEGETABLE—Potatoes at 85@45 per bush.
- ONLONS—1 76@!1 5Q

pestle teense erngpesncm inten a

COD LIVER

Sep Ai ree oo aL pm lee

-Ortr:!

This Oil i is recommended by Physicians. to
S be the Beat and Moet Reliable i in the

Market. ©

“POR SALE IN: ANY: epaee

AT
C.F KEENER‘'S’
N. E, COR. YORK and BELLEVUE STS.

etna sae ‘Apothecary. ;

. ee Dealer in... ©
” OREMIOALS, .
Tollet and Fancy Articles,
“PATENT MEDICINES, — .
BRUSHES, SOAPS, PERFUMERY,
‘TRresertpthes aiseldily compotsde <> =~
at all hours, day or night. «.

>| 5. or. Labelle and Lewis Strvets

Those who hive not ‘aheady subscribed

‘for the :Newrort Locat! are now
sending in. their. names and

tos money to us daily.

“Because it iz known that

more interesting news from the City,
County and State than any other paper
published in this part “of ’the State.

ALGO, to those sending in their names
and $1.50 will receive the Weekly for
“one. year, together with a Beautiful

Chrome.
no pecla ial Notice! ‘The propri proprieiges of
4 have made especi
pea to receive ‘all the Poasdnone of
the-Lezisinture now in session at Frank-

Have You Tried It.

We refer. to that most remarkable co

pound, Dr: ‘Morris’ of Tar, Witd Che

2) igh oop glioneta

6p . ‘ ¥

‘en me, bronebitis, and all diseases of lun
throat. fno- similar

tion ever before se quickly found its way in
Pyblic favor as this, Its sale in our comm
ay is simply nergy Those; who. ha

oe er

riper ei) 4
Pe es Ge

aoa fie


WATTS, Cato, hanged Louisville, Kye; 1787.
(The first man to be hanged in this jurisdiction, )
"The hanging of Albert Turner today recaalls the first execution of a criminal in Louis-
ville. It occurred in this city just over one hundred years ago and the victim was a negro
then as now. The century grown simplicity of the rough rope around the neck and the suse
pension from the limb of a tree will beinteresting reading in contrast with the hemp of
the scaffold today,
"In 1786 there lived in Louisville a soldier and a gentleman named John Donne, He was the
ancestor of descendants yet dwelling among us and holding high social positions. He had
been a brave soldier in the Revolutionary war, and when the liberty of the colonies had
been secured he moved to the west with other of his comrades to begin anew the battle of
life. He was with Gen, Clark at his conquest of the Illinois country and stood high in
the estimation of that great man, He was well educated for his times, and was remarkable
for the great beauty and legibility of his chirography. His writing appears like copper
plate and yet was done with an ease and rapidity which won) have been an excuse for an
unreadable screed. He was the husband of an estimable wife, and the father of 2 sons, then
of tender years, with whom he dwelt with happiness and plecnty in his neat cabin on the
corner of Sixth and Main Streets, No citizen stood higher with his fellow-men for he was
both soldier and citizen to whom parents might point with pride as an example to be foltow-
ed, in the eseential duties of public or private life,
"There also lived in Louisville at this time a negro named Cato Watts, Cato had come to
Louisville in 1778 with the first emigrants who settled on Corn Island and laid the foune
dation of Louisville. He was a black, heavy set negro, of low stature, and remarkable for
the sweet music that he made with his fiddle, When the families left their temporary
cabins on Corn Island and moved to the fort at the foot of 12th St. o n the main shore, the
event was celebrated with a Christmas dinner known in the language of the times as a housee
warming on Dec, 25, 1778, An accomplished French violinist, happened here at the time had
been engaged for the occasion, but the jolly pioneers not being satisfied with fis music,
Cato came to their relief with his rusty fiddle, and being inspired by the occasion, made
such music as had never before been heard at the falls, He was the musician at all wed-
din gs, quiltings, sugar camps and gatherings at the falls, and there was no such thing
as an acceptable dance without his inspringestrains, He was beloved by both old and young,
and was an institution without which life could not have been as enjoyable at the falls
as it was, This mos t popular citizen and this négro fiddler, however, were destined to
m ake a terrible tragedy at the falls, One night John Donne opened his front door and saw
someeme at his woodpile., He at once suspected theft and making for the intruder, seized
him, He knew not t hat the supposed thief was Cato, who had again and again played the
fiddle at his house, Cato, to extricate himself from the iron grasp that was upon his
throat, struck Donne on the head with a stick of wood, which felled him to rise no more,
Cato made no attempt to escape, but was the first to give the alarm when he saw what he
had done, He was arrested, placed in jail, and tried for murder, To try him under the
law, as it then existed, was to convict him unto death, for there were then 160 crimes
for which a man could be hung, and Cato had committed one of the gravest of them = the
taking of human life, In this day he would have put in a plea of self-defense and made no
donfession, and possibly have gone free, But in that day, the mere striking of Donne with
a piece of wood sufficient to cause dath, would have brought him to the gal lows as surely
as the killing, Cato was tried, convicted and sentenced to be hung, On the day of the
execution, he was borne from the jail on a cart driven by 2 oxen, The cart was drawn to
a large oak which stood upon the public square, where the Astor House now stands, on the
south side of Jefferson, between 6th and 7th Sts, A rope was thrown over a large limb
which projected from the tree, and then tied around the neck of Cato, When all was ready,
the oxen drew the cart from under the tree and Cato dropped down, suspended by his neck
in the air, A few struggles and writhes and contoritions and all was over with him, The
population of Louisville was not great then but all the good people, old and young, male
and female, turned out to see the last of Cato, Many were the tears shed by those who
had so often danced to his fiddle, They had lovd him in life, and they came to his execue-
tion, not with morbid curiosity, but in sorrow, He met his fate in a manly way, and said
to the last what he had said at first, that he had no intention of killing Mr, Donne, but
had struck him with the stick of wood only to get away from him,"
COURIER*JOURNAL, Louisville, Ky., July 1, 1887 (2)


CATO WATTS, Hanged Louisville, Kye, 1787 (First man to be hanged in
Louisville, )

"The hanging of Albert Turner today recalls the first execution of a criminal in Louisville, It
occurred in this city just one hundred years ago and the victim was a negro then as now, The
century grown simplicity of the rough rope around the neck and the suspension from the limb of a
tree will be interesting reading in contrast with the hemp of the scaffold of today,

"In 1786 there lived in Louisville a soldier and a gentleman named John Donne, He was the ancestor
of descendants yet dwelling amone us and holding high social positions, He had been a brave
soldier in the Revolutionary war, and when the libertyeof the colonies had been secured he moved
to the west with other of his comrades to begin anew the battle of life, He was with Gen, Clark

at his conauest of the Illinois country and stood high in the estimation of that great man, He

was well educated for his times, and was remarkable for the great beauty and legibility of his
chirography, His writing appears like copper plate and yet was done with an ease and rapidity whic
whould have been an excuse for an unreadable screed, He was the husband of an estimable wife, and
the father of two sons, then of tbnder years, with whom he dwelt with happines and plenty in his
neat cabin on the corner of Sixth and Main Streets, No citizen stood higher with his fellow-men
for he was both soldier and citizen to whom parents might point with pride as an example to be
followed in the essential duties of public or private life,

"There also lived in Louisville at this time a negro named Cato Watts, Cato had come to Louisville
in 1778 with the first emigrants who settled on Corn Island and laid the foundation of Louisville,
He was a black, heavy set negro, of low stature, and remarkable for the sweet music that he made
with his fiddle, When the families left there temporary cabins on Corn Island moved to the fort at.
the foot of 12th St. on the main shore, the event was celebrated with a Christmas dinner known in
the language of the times as a house-warming on Dec, 25, 1778, An accomplished French violinist, 1
happened here at the time had been engaged for the occasion, but the jolly pioneers not being
satisfied with his music, Cato came to their relief with his rusty fiddle, and being inspired by
the occasion, made such magic as had never before been heard at the falls, He was the msician

at all weddings, cuiltings, sugar camps and gatherings at the falls, and there was no such thing

as an acceptable dance without his inspiring strains, He was beloved by both old and young, and
was an insitution without which life could not have been as enjoyable at the falls as it was,

"Bhis most popular citizen and this negro fiddler, however, were destimed to make a terribke trage=
dy at the Falls. On night John Donne opened his front door and saw someone at his woodpile, He

at once suspected theft and making for the intruder, seized him, He knew not that the supposed
theif was Cato, who had again and again played the fiddle at his house, Cato, the extricate himself
from the iron grasp that was upon his thorat, struck Donne on thehead with a stick of wood, which
felled him to rise no more, Cato made no attempt to escape, but was the first to give the alarm »
when he saw what he had done, He was arrested, placed in jail, and tried for mrder, To try him
under the law, as it then existed, was to convict him untio death, for there were then 160 crimes
for which a man could be hung, and Cato had committed one of the gravest of them - the taking of
human life, In this day he would have put in a plea of self-defense and made no confession, and
possibly have gone free, But in that day, the mere striking of Donne with a piece of wood sufficier
to produce death would have brought him to the gallows as surely as the killing,

"Cato was tried, convicted and sentenced to be hung, On the day of the execution, he was borne
from the jail on a cart driven by two oxen, The caré was drawn to a large oak which stood upon
the public square, where the Astor Housse now stand,s on the south side of Jefferson, betwwen 6th
and 7th Sts, A rope was thrown over a large limb which projected from the tree, and then tied
around the neck of Cato, When all was ready, the oxen drewthe cart from under the tree and Cato mak
dropped down, suspended by his neck in the air, A few struggles and writhes and contorfifons and
all was over with him, The population of Louisville was not great then but all the good people,
old and young, male and female, turned out to see the last of Cato, Many were the tears shed

by those who had so often danced to his fiddle, They had loved him in life, and they came to his
execution, not with morbid curiosity, but in sorrow, He met his fate in a manly way, and said

to the last what he had said at first, that he had no intention of killing Mr, Donne, but had

struck him with the stick of wood only to get away from him,"

LOUSSVILIE COURIER-. OURNAL, Lougsville, Kye, 7-1-1887 page two

WEIGART, William, hanged at Lexington, Kentucky on Atgust 12, 185).
"From the KENTUCKY YEOMAN, August 15, 185). |
q

"Saturday last, as-our.readers will recollect, was the day appointed for the execution of
William Weigart, who was convicted‘of the murder of Charles BMM% Cushing in Lexington last
Wintere

"Tt was announced that the execution would take place, contrary to general expecfations,
between 3 and 10 in the morning, At an early hour crowds could be seen coming finto the city
from every direction, and by 9 o'clock the street in front of the jail was crowded to such ar
excess that it wasimpossible for vehicles or horsemen to pasSe

"The Sheriff, with an armed guard, was stationed around the door to keep the crowd from
pressing too closely upon the car, which was standing in readinesse

"About 94 o'clock, the prisoner, escorted by the jailer, the Sheriff and Rev, Messrs.
Berkeley and Pratt, made his appearance with a quick, agitated step, and, waving his prayer
book, ascended the car, Several of his friends got in with him and the mournful gems cor-
tege drove slowly to the spot at which he was ta take his departure from earthly affairs.

A very large crowd followed and proceeded the car, whilethe windows and doors along the
route were filled with anixous, eager faces, desirous of catching a glimpse of the unfortu-
nate mane

"Soon the dreaded implement of death was seen rearing its gloomy head in the distance, and
as the prisoner noticed it, a perceptible shudder went overhis whole frame, An immense
multitude were gathered there, and all heads were turned to the advancing car, which was
bearing a fellow human to his doom,

Arriving at the foot of the gallows, the car stoppede Rev. Messrs. Pratt & Berkeley then
sung a hymn in which the prisoner joined, and then the first named gentleman addressed the
Throne of Grace in behalf of the unfortunate young man,

"Yeigart then himself kneeled down and prayed in silence - prayed for a few moments = then
rising from his feet, Mr, Berkeley commended the poor prisoner to the kind mercies of a just
and forgiving God, During each of the prayers, Weigart's voice could be heard as if in
supplication to Heaven. :

"The devotional exercises being concluded, the officers of the law stepped forward and
commenced the dreadful preparations for death by tying his hands. Up to this time the pri-
soner seemed to have been supported by some vague hope of rescue or pardon, but when the
fatal white cap was drawn over his eyes he seemed to realize, and not fully until then,

the dreaded fate that awaited him, While the rope was being tied, his acquaintances came
around and bid him farewell, Having thanked his clerical friends for their kindness and
unremitting attebtion to him durine his incarceration, he commenced in an inaudible murmer-
ing as if in prayer, and as that was conducted, the knot was arranged around his neck and the
rope fastened to the beam above, All was ready now, and the period for him to expiat e the
crime he had committed against his God and the laws of the land had arrived, the word was
given to drive off, when the prisoner attemt ed to anticipate it by jumping off,

"He failed in this, and the word was repeated; the car started, and in another momemt the
unfortunate criminal was writhing in the death agonies,between heaven and earth, He was ver;
light, and the fall did not break his neck, and his sufferings were intense; several times
he drew himself up some distance, and let his whole weight fall ouickly, with the intention,
we suppose, of putting an end to his pain.

"Oh! It was a horrid sight to see a human being writhing and twisting in all the torture of
disgraceful strantulation, and God grant that no necessity may every again rise, which will
demand the interposition of the strong arm of the law to secure such a horrid vengeance,

"tHe died penitent, and with full confidence in the promises held out by the Scriptures, His
remains were attended to the cemetery on Sunday evening by a good concourse of people.

"It was a moment for serious and solemn reflection, yet in all that vast crowd we could not
perceive a single cheek that was moistened with the tear of sympathy, and almostevery
countenance wore its every day, business like aspect. After the first shock, the momentary
horror was dispelled, and the careless jest and idle laugh were heard, in strangé discord to
the death rattle and gur#ling groans of the expiring victim.

"We have remarked that the crowd was larger than we expected, yet we felt inexpressibly sho-
cked and almost disgusted, as we saw thenumber of females on the ground, It is searcely

credible, yet it is true
"who should have expected that woman, soo gomIonKh sweet synonym for mhroy and gentleness,

she whose delicatehands are ever ready to minister to the wants of the distressed, and to @


soothethe troubled and care laden mind, could have gazed upon a scene which was enough to

harrow the sensibilities*of a strong man, S . e;
"We are gratified to think that the larger portion of females in the city repudiated the
very through of going to the execution; for this*we commend them,‘as it displays that
kindness of heart and commiseration for the misfortunes of others, whic has ever been the

growning ornaments of their character." TIMES, New York, N. Y., §4226185); (6/1).