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¢1U KENTUCKY REPORTS. [ Vat. 19%.

for the insane at Mt. Vernon, Alabama, from which he
later escaped, since which occurrence his whereabouts
had been unknown to his family and the asylum author-
ities. This information was confirmed by two other let-
ters, of date October 16th and 21st, 1922, respectively,
one from the assistant superintendent and the other from
the assistant physician of the Mt. Vernon, Alabama, asy-
Ium,. both of which contain the additional information
that the appellant’s condition of mind was diagnosed at
fe Mt. Vernon asylum as ‘‘dementia praecox—paranolae
ype.

The several letters referred to were attached to and
now appear with the brief of appellant’s counsel; but as
a case on appeal to this court must be reviewed and de-
cided upon the record as made and presented in the court
from which the appeal is taken, and these letters were
not used by the appellant on the hearing in the court be-
low of his motion for a continuance, or there made parts
of the record, we cannot now consider them in deter-
mining whether that court erred in refusing the contin-
uance; although it was not the fault of the ‘appellant or
his attornev that the letters were not introduced in
support of the motion for the continuance, or could not
be procured in time for such use.

In determining, therefore, whether the trial court’s
refusal of the continuance sought by the appellant
amounted to an abuse of its diseretion, we will look alone
to the facts and circumstances presented on the hearing
of the motion for the continuance. Briefly repeated these
facts and circumstances were, that on October 5, 1922,
the day following the shooting of Hayeraft, the appellant
was arrested therefor and ineareerated in jail. Haveraft
died of his wounds October 7th, and on that day, which
was the sixth day of the October term of the Breckinridge
cireuit court, the indictment, charging the appellant with
the murder of Haveraft, was returned. Two days later,
viz., Monday, October Sth, and seventh day of the term,
the court, by an order then entered, appointed the attor-
ney to represent the appellant and fixed October 12th,
the tenth day of the term, as the date for the latter’s trial.
Tt will thus be seen that the appellant was compelled to
go into a trial for murder, a crime as heinous as is
known to-the law and for which the death penalty is a
punishment, seven days after his arrest, five days after
the death of his alleged victim and the return of the in-
dictment charging him with the murder of the latter, and

Dis
iy

Liege sce

Miller v. Commonwealth. 711

three days after the appointment by the court of an at-
torney to make for him a defense. It should also be kept

in mind that when committed to jail and during the entire
time intervening between such committal and his trial,
the appellant was laboring under the disability that
vould naturally result from a serious gunshot wound ;
for it goes without saying, that a wound caused like that
of appellant by the passage of a bullet entirely through
his body, is to be classed as a serious, if not a dangerous,
wound that would necessarily be attended by physical
pain and, probably, mental suffering as well; and that
there was ‘‘soreness’’? from the appellant’s wound was
admitted by the affidavit of the physician filed for the
Commonwealth on the hearing of the motion for the con-
tinuance.

Manifestly, the foregoing self-evident facts were suf-
ficient in themselves to demonstrate that the time allowed
the appellant tu which to make the preparation neces-
sary for his trial on the day named in the order of the
court, was wholly inadequate to that end, indeed, so lim-
ited as to make such preparation, however great the dil-
igence of himself and attorney, impossible. With those
facts must be considered the uncontradicted information
furnished by the affidavits of the appellant and his at-
torney, to the effect that the former was a stranger
wholly without acquaintanceship in the county; that he
was expecting assistance in the preparation for trial
from his father, a resident of a distant state, to whom
the attorney, when appointed to defend the appellant, im-
mediately wrote for such assistance, but to which letter
there had been no reply and, for want of sufficient time,
could have been none, nor a visit from the father, before
or on the day set for the appellant’s trial.

In addition to the information mentioned, the alti-
davits of the appellant and attorney positively stated
their inability to prepare for the appellant’s trial within
the limited time allowed by the court for such prepara-
tion; that of the attorney giving emphasis to his want 0!
familiarity with the facts and circumstances attending
the commission of the crime charged, the necessity ot his
being given time and opportunity to investigate them:
and that owing to the appellant’s condition of mind
whether such condition resulted from his wound or sony
other cause the affiant could not state, he was unable ti
obtain any material assistance from him in the prepare:
tion of his defense for the trial.

712 KENTUCKY REPORTS. _ [Vol. 197.

After a careful consideration of all the facts and cir-
cumstances presented on the hearing of the appellant’s
motion for the continuance, we have reached the conclus-
ion that the trial court’s action in overruling the motion
must be declared reversible error. Under the Constitu-
tion and laws of this state every person accused of crime,
however great his guilt, heinous the crime or revolting
the circumstances attending its commission, is entitled
to a fair and impartial trial, which .ncludes, of course, a
fair opportunity to prepare and present his defense.
And whenever it has been made apparent to this court
that one accused of crime was deprived of reasonable
opportunity to explain away his guilt, or was foreed into
trial without reasonable opportunity for preparation, it
has not hesitated to adjudge him a new trial. While in
the interest of justice a speedy trial is much to be desired,
it is more important that the law be administered and its
judgments executed in an orderly and deliberate way,
to the end that every person arraigned for crime may
lave, truth, a fair trial.

The object of a continuance is to afford the accused
reasonable opportunity to employ and advise with coun-
sel needed in his defense or, if unable to employ counsel,
to advise with and obtain the assistance of counsel pro-
vided by the court; to procure the attendance of witnesses
and their evidence to establish his innocence, excuse his
commission of the offcase charged, or discredit the wit-
nesses for the prosecution; and, also, reasonable oppor-
tunity to obtain, if desired, the presence and assistance
at his trial or in making necessary preparation for same,
of a member or menibers of his family. And if by a proper
showing on the part of the accused, it is made to appear
to the trial court that these aims, or any of them, cannot
reasonably be accomplished without a continuance of the
case, the refusal of the continuance by it will amount to
an abuse of its d'seretion. We reneatedly have con-
dcemned such precipitancy of action in forcing a trial as
was followed by the court below in the case at bar. One
of the cases so holding is that of Smith v. Common-
wealth, 133 Ky. 532, in which the appellant was eonvicted
and given the death penalty in the court below for the
murder of his father, who in attempting to restrain the
con from shooting another was himself shot and killed by
him. The circuit court being in session at the time of the
homicide, the grand jury immediately returned an in-
dictment charging the appellant with murder. The latter

Miller v. Commonwealth. iis

being without money with which to employ counsel, the
court upon the return of the indictment appointed an at-
torney to defend him and at the same time set the case
for trial four days later. The attorney thereupon had
subpoenas issued for his witnesses returnable on the
day fixed for the trial. When that day arrived the appel-
lant moved for a continuance supported by the affidavits
of himself and attorney, each stating as the principal
ground for the continuance asked, that the attorney in
the brief time intervening between his appointment and
the day fixed for the trial, had not been able to fully in-
vestigate the facts connected with the homicide for which
the appellant was indicted, or to properly prepare his
defense. The court, however, refused the continuance.
In declaring this ruling reversible error we, in part, said:

‘(Under the circumstances of this case the court’s re-
fusal of the continuance asked by the appellant, was an
abuse of discretion. The appellant may be a brutal and
dangerous man, but by the showing of the record he is
certainly an ignorant one. His penniless and friendless
condition, together with his ignorance and the fact that
his counsel between the time of his appointment to repre-
sent him and the beginning of the trial was almost con-
stautly engaged in discharging his professional duties in
other cases pending in the same court, made it well nigh
impossible for him to properly prepare anpellant’s case
for trial within the three or four days’ time allowed by

-the court. That appellant’s counsel is a capable lawyer

all who know him will coneede; but while the record man-
ifests the skill and care with which under the curcum-
stances he conducted appellant’s defense, it also shows
the cmbarrassments that inevitably result from the hasty
and incomplete preparation of a case. He shou!d have
had reasonable opportunities for conferring with his
client and the members of his family; reasonable time for
looking up witnesses and ascertaining their testimony,
and for making such further preparation as would se-
cure for his client a fair and impartial trial.”’

Tn Samuels v. Commonwealth, 154 Ky. 758, the appel-
lant, a negro, killed another man of his own color Decem-
ber 3rd, was indicted for murder December 4th, an attor-
ney then appointed by the court to defend him, and his
ease set for trial December 9th, on which day he was tried,
convicted and given the death penalty. He was confined in
jail from the day of the homicide until the trial; and his
counsel by reason of the briefness of the time allowed and

714 KENTUCKY REPORTS. [Vol. 197.

his being much of the time engaged in the trial of other
cases, had no opportunity before the trial to properly in-
vestigate the facts or prepare his defense. On the appeal
the trial court’s refusal of the continuance asked by the
appellant was held reversible error.

While in theopinion full recognition is given to the
importance of speedy trials in the enforcement of the
criminal laws, emphasis is given to the fact that it is
more important that such trials be fair than that they be
speedy. But the following excerpt from the opinion is
here quoted because of its peculiar applicability to the

situation presented in the instant case:

“Tt is true, as argued for the Commonwealth, that
many applications for a continuance are made purely
for the purpose of delay and with a view of defeating the
ends of justice, but applications like this are generally
made by defendants who have the aid of friends and
money, and who hope by one of these methods to secure
some undue jadvantage that could not otherwise be ob-
tained. But when, as in this case, the defendant is a poor,
ignorant and friendless negro, it is not to be suspected
that the application for a postponement, under the cir-
cumstance stated, was made with the hope that it would
result in any improper advantages or do more than en-
able him to present in his defense such facts and cireum-
stances as might be procured through the assistance of
his counsel from witnesses obtained by the ordinary pro-
cesses of the law, which would have been placed at his
disposal.’”’

We also may say of this case much of what is thus
expressed in Allen v. Commonwealth, 168 Ky. 325:

‘‘But when a man stands charged with a capital of-
fense, and may, in the discretion of the jury, be deprived
of his life or his liberty. forever, it is of the highest im-
portance that he should have such time and opportunity
to make his defense as the grave nature of the accusation
and its consequences demand, and under the unusual con-
ditions shown by the record we do not think that the ap-
pellant was given this time and opportunity. It is true
he had employed counsel to defend him, and it does not
appear that any witness whose evidence he desired was
absent from the trial. But the mere presence of witnesses
and the services of counsel are only a part of the prepar-
ation needed in important cases. The accused may in
some cases have every witness that he needed in the court

Miller v. Commonwealth. 715

house and be represented by able counsel and yet nat
have the time for preparation that he should be allowed
in order to properly present his defense.’’

Obviously, the appellant’s need of a continuance was
not obviated by the court’s permitting his affidavit state-
ment as to what the absent witness Mopley would testify
to be read as the latter’s deposition. Only by a continu-

ance of the case at bar could the appellant’s counsel have
been afforded time and opportunity for a thorough in-
vestigation of the facts and circumstances attending the
commission of the crime for which appellant was indicted.
and his connection, if any, with it, and also by prope:
investigation to verify or remove his (counsel’s) belie?
of the unsoundness of the latter’s mind; both of which
investigations were and are necessary to enable counse!
to prepare his defense. -

_ The appellant’s complaint of the admission by the
trial court of incompetent evidence remains to be consid:
ered. The evidence complained of was furnished by th«
testimony of one Clifford Poole, respecting a pistol that
was found with another pistol and a gold watch in the
possession of the appellant at the time of his arrest ant!
which articles were then taken from him by the officer anc
posse making the arrest. The watch was identified by
other witnesses as the property of Hayeraft, but thi.
pistol first mentioned was claimed and identified. by
Poole as his property; he stating that he had loaned it te
one Ed Sago, at the time in the employ of the Louisville
Henderson & St. Louis Railroad Company, as a watch-
man at its Sinking Creek bridge about five miles fron
the bridge of which Sam Haveraft was the watchman.
Sago, it seems, was shot and killed the same night (Oc-
tober 4) Hayeraft received the wounds that caused his
death. Poole further testified that he saw Sago in pos-
session of the pistol on the day preceding the night hs
was killed, but that when early the following morning
he saw his dead body where it was found at the Sinking
Creek bridge, the pistol was absent. a

It is insisted for the appellant that this evidence was
not only incompetent, but that it-had a very prejudicial
effect upon his substantial rights, as it tended to connect
him with the commission of another crime and was, i
fact, largely instrumental in causing his conviction of
the one for which he was tried. We think, however tha’
the testimony of Poole was competent for the purpos
of identifying the appellant as the slayer of Hayeraf:


708 - KENTUCKY REPORTS. { Vol. 197.
fendant was shot and severely wounded; and that the
indictment was returned at the present term of court,
that such time has not elapsed in affiant’s opinion as to
enable him to properly prepare adefense. . . . That
in his opinion the case should be continued until the next
term of this court to afford the defendant and his attor-
ney sufficient opportunity to thoroughly investigate the
circumstances attending the killing, in order that he may
have a fair trial.”’

Several affidavits Were filed for the Commonwealth
in resistance of the appellant’s motion for a continuance
of the case. One obtained of the jailer, a joint one from
four prisoners confined in the jail with the appellant, and
one from the physician by whom his wound was treated.
The affidavits of the jailer and four prisoners were sub-
stantially to the effect that they saw nothing in the con-
duct of the appellant that indicated an abnormal condi-
tion of mind, and that he appeared to be competent to ad-
vise with his attorney and seemed to do so without difh-
culty, when the latter visited and talked with him. They
failed, however, to relate any conversation between the
appellant and his attorney in their presence, or hearing,
from which the trial court could have formed an opinion
as to the appellant’s physical or mental fitness to give to
or receive from the attorney assistance in the preparation
of his defense for the contemplated trial of the case. As
these affiants were not experts and their acquaintance
with the appellant was of only a week’s duration, their
affidavits threw little light upon the matter under inves-
tigation.

The affidavit of the physician, after describing the
character of the appellant’s wound, which he said was
produced by a pistol bullet that entered the back two and
one-half inches to the left of the spinal column, passed
entirely through the body and made its exit in front be-
tween the Sth and 9th ribs two inches below the left nip-
ple, substantially stated that, in the opinion of affant,
excepting the pain and soreness resulting from the
wound, the appellant’s physical and mental condition,
at such times as he attended him, was normal and such
as did not impair his mental fitness to advise with and as-
sist his attorney in the latter’s preparation of his de-
fense for the approaching trial of the case as ordered by
the court. It does not, however, appear from the affidavit
of the physician that he was present at any of the several
interviews that occurred between the appellant and his

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Bienen

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Miller v. Commonwealth. 709

attorney, or that he was aware of anything that was said
in the conversations then had, or of the accompanying
efforts of the attorney to obtain of the appellant such in-
formation as he regarded necessary to enable him to pre-
pare for his trial. Furthermore, it is not stated in the
affidavit, nor otherwise shown, that the physician made
any examination of the appellant for the purpose of as-
certaining his mental status. Whether by making such
an examination he would, or not, have discovered what
seemed patent to the appellant’s attorney, viz., that the
appellant was possessed of some defect or peculiarity of
mind that mentally disqualified him to render the attor-
ney material assistance in the preparation for trial, must
be left wholly to conjecture.

As before remarked, it is disclosed by the affidavit of
the attorney filed in support of the appellant’s motion
for the continuance, that on the day of his appointment
by the court as attorney for the latter, which, as shown
by the order of appointment, was on the Sth day of Oc-
tober, seventh day of the term, and three days before the
day sct for the appellant’s trial, viz., October 12th, and
tenth day of the term, he (the attorney) sueceeded in ob-
taining from him the name and address of his father,
Richard Miller, a resident of the town of Madison, state
of Alabama, to whom he wrote and mailed on a morning
train the same day, a letter advising him of his son’s
plight and asking of him in behalf of the latter, such as-
sistance as might be of service in enabling his attorney
io make for him a proper defense. To this letter no reply
was received before or during the trial of the appellant,
which began and was completed October 12th, the tenth
day of the term, to which it had previously been assigned
by order of the court. On the next day, October 13th,
early in the morning, the appellant’s motion and grounds
for a new trial were filed, the motion overruled, sentence
pronounced and judgment entered pursuant. to the ver-
dict of the jury, and immediately thereafter, not later
than nine o’clock a. m., October 13th, the term closed
with the final adjournment of the court.

We are informed by the brief of appellant’s attorney
filed on the appeal that he received the afternoon of Oc-
tober 13th, and after the final adjournment of the circuit
court on that day, a letter from Richard Miller, the ap-
pellant’s father, in reply to the one he had previously
written him, by which he was informed that the appellant
had been adjudged a lunatic and confined in an asylum


Baffatr attached:
pe. - Officers
unty jail and

ignment. today h

went: South to’
er: emaaulerer

Kentucky, : will 4
next © Tuesday.
4a dinner. at

a: | were. ‘made by: the « dey ast
<¢ 2] Bale of the new Jegalized: brew
—~| 18 forbidden in lowas:: 5

4 Bt Joseph, Mo, a wet

ag tee

"wo beer trucks en. route from
wick and Marshall, Minn..

of beer), valued” at. ities

>| IoC. - Jepsen, chie “pole!
poe: said the seizure © ‘ast

| ber mide a. test chon te ection
.| the status of transportation’ of.'9.2

pene pent, beer: through’ dry states.

re | bright “and,  sitlere,
j vectly: ahead,

a? 1 42:14° Father John’ W::|
ce’ | Hopkinsville,” whom Carson’ ‘bad.

4 He ‘groaned: again :as thes

aS curled from: his” forehead: and leg

He was. seated ‘in: the

 Pequested to be present, murmured

12:16. AS groan ‘fssued” area t his
‘Ups:as.his body; sprang forward.

shock - was applied | at 12:

shocks revealed. he. wae not fad, |
fand at 12:

applied, immediately follows
the fourth.” Wispe of white

&

oe :
g

bea ie

0 we iihehss seized and the’ drive i
ers were held: on $1,000 bond. each,} ©:
'| The’ shipments. contained 6007 cases of

F the: -olaying of the farmer. ©

e was walking with his fath

ici

i

pis

< Dewbery
Cin wo of the wayhig. of Thomas
rTulery, a Hardin ‘county, Ky., farm-
er,. was B sayed late in the afternoon

execution for seven days at. the
request: “of, Federal: “Judge: Charles

I. Dawson, who. saidhe desired |
| to. - give < further’ “consideration. to:
@ petition: filed by. Dewberry’s

*" =} counsel stating : “that« the Negro’s

>} constitutional . rights “were: denied

‘at /his:-trial in Elizabethtown for

‘son circuit. court He was narged
with the: Shooting’ :

y ville railroad: -offici
‘picked: * Carson . and

|ruary, 1931, term of McCracken cir:
cult: court to die. for the ‘Slaying.
in Paducah, ‘of Charles Clark, 19;
during an attenipted:’ holdup.’ Clark |

i, {attempt to stop the beer trucks”
‘| when they: arrived. The rumor ws

) the tary trucks. Et was!
that the trucks were dew
lnyed because of the comgestior: in|
the Bt. Louis brewery yards. Boost
nds of orders for beer were walt-
te:be filled.
More than a- more: of Par val
retail firms have taken oul Heenres |
to sell beer. The ist meiudes va-

at least twh drug stores, besides a:
restaurant OF fWO. eS

A brief Murry of Seanent waa”
caused early today. when rumors

the county conatabaulary were keep- ©
\ing- watch near the Paducah ea
of the Ohio river bridge, and mig't

A

later denied.. Members of the ata's
highway. patrol said they merely ,
intended .to. look over the trucm:
to see that they were not loaded
beyond: the 18,000-poucd maximum —
permitted by state . laws. Police!
authorities sald they talked with |

‘| the constabulary and were informed :

that there would be no interfer-:
ence with. the movement of. beer.
trucks coming: into Paducah.
Metropolis, -acroas the river in:
Nlinois, :made preparations. for the.
sale of: legalized beer as soon as -

it. was ‘receive... Word ‘came to |
‘dealers in that city’ ‘that no trucks

would Jeave: St.. Louis “until day-.
light, “because the operstors wert:

highway. “Metropolis. stores and :
lunchrooms. ‘which. possessed licenses
to sell beer..were tn” eactness for |

| the. first deliveries.” ee

> Additional licenses “for the’ retail’
and wholesale sale. of beer: were |
issued today - by Commissioner « Of

| Finance. ‘Charles Rieke = The fol-
j lowing = procured — ‘retail hoenses:
Peacock’ Garden, DW. Thurman,’

43023 Broadway; Sutherland Drug.

{Company,. Ninth and Broadway; :
‘Hotel: Ritz, Twenty-secend street :
and Broadway; J. G. Oakley's Cafe:

430. Broadway; Silver Castile No 1
{by -O.. C. Stacy. Thirteenth and >
Broadway; Boswell Cale, in Pale.
mer Hotel. 3. =) i

> Distributors'- licenses were. issued:

to Nu E. Stone. “3170. Bulsee: street.

“ AYF Ky. April 7—
ee cial)—sPour ‘truck Joads of beer
*~ tived: here shortly after noon. toca

ply. “Mayfield. with the new be
age, Orders continued pouring +5

‘} both from individuals and reta: ere.”

er | Meanwhile, local - officials: remained |

vt ache aveltet: his end
bom we i Wonuer thes syns
- HG Was brought :
! ‘his eh

quiet as: to -their. actions an the:
‘matters. The first case of Deer weh
Jto an. “individual © who paced. chi

trucks arrived {n Leaisvitle at 7
m. Thuraday in order to be in ts
At nfidnight Friday and leas

as spon as. Spee at ASTER: ae
ing. ho
Swill have y pay
the beverage and: ‘there: Pai: Dy
orale beer. hee. for. some, tine:

rious soft drink starida, a bets) ant ee :

were broadcast that members of! > ~

Any

ie Spe sce

eh: *
Ae of

ie © —
ene
ine er
Mayo
Wala,
a Ute
The
conies.
AL “O50
otkns
Leese
ri:

. prugra

afraid. of hi-jackers - along the orem! ‘

7™man
pee? Sgees
Elizabe-
ViMaoCls.
(orca:
the: Rix

rrr).

SEE

The:

det a

melt
CHuren
he

“ra: 3. 8

ie:

eas

order. several. weeks ago | Fo at as


382 Ky.

Motor Company for a few days,
sent it to St. Louis.

55 SOUTH WESTERN REPORTER, 24d SERIES

drove it or quent in his payments on the car, and that he,
Voss, took possession of same with the knowl-
edge and consent of plaintiff. Had Voss gone

Thereafter Cooper prought this action
further and alleged that, after taking pos-

against the Commercial Credit Com pany, and
Voss, its agent, alleging, in substance, that
they had taken and carried away his automo-
pile, the market value of which was $700,
and had converted it to their own use. In
addition to a general denial, the defendants
attempted to justify under the foregoing pro-
visions of the chattel mortgage. At the con-
clusion of the evidence, the trial court told the
jury in substance to find for plaintiff the rea-
sonable market value of the car on August 6,
1930, the day it was taken. Pursuant to this
instruction the jury returned a verdict for
$500, and the court rendered judgment in
favor of Cooper for that amount subject to a
credit of $118.34, the amount of the two un-
paid installments on the machine, with inter-
est.

The case is here on motion for an appeal,
and, in view of the questions involved, it is
deemed best to deliver a written opinion.

[1,2] It is true, as claimed by appellant,

that we have often held that a chattel mort-
gage clause like the one in question is valid,
and, upon default by the mortgagor, the mort-
gagee may take possession of the mortgaged
property, providing he may do so without
committing a breach of the peace, or assault,
or subjecting himself to an action for tres-
pass. Andrews Vv. Singer Mfg. Co., 48 S. W.
976, 20 Ky. Law Rep. 1089; White Sewing
Machine Co. vy. Conner, 111 Ky. 827, 64 S. W.
841, 23° Ky. Law Rep. 1125; Hawkins Furni-
ture Co. v. Morris, 143 Ky. 738, 187 S. W.
527. But in each instance we have been care-
ful to point out that, after lawfully obtaining
possession of the mortgaged property, the
mortgagee must within a reasonable time,
unless the property be redeemed by the mort-
gagor, sell the property at a fair sale and on
adequate notice, and then return to the mort-
gagor any surplus above the balance owing
by him. Here it may be eonceded that the
automobile in question was peaceably taken,
but there is no showing that the mortgagee
thereafter disposed of the property and ac-
counted for the surplus proceeds of the sale,
as required by the terms of the mortgage. On
the contrary, the taking of the car was the
last step disclosed by the evidence. Clearly
the taking, without more, was 4 conversion
of the property, and the court did not err in
telling the jury to find for plaintiff the rea-
sonable market value of the car at the time
of the conversion, in view of the fact that the
judgment was eredited by the amount owing
on the car.

[3] But the point is made on behalf of Voss
that the court erred in sustaining a demurrer
to the fourth paragraph of the answer, plead-
ing, in substance, that plaintiff was delin-

2. Criminal law €=369(15).

within hou
hood where accused killed deced
and confederate were endeavoring to To
and companion held properly admitted.

session of the car with plaintiff’s knowledge
and consent, he turned it over to the Com-
mercial Credit Company, and took no part in
the conversion of the car or its proceeds, a
different question would be presented. Tor
aught, however, that hig pleading discloses,
he may have assisted in the conversion, or
have been the only agent through whom the
conversion was brought about. It is appar-
ent, therefore, that the paragraph in question
did not present a defense, and that the court
did not err in sustaining the demurrer there-

Wherefore, the appeal is granted, and the
judgment is affirmed.

26 Ky. 445
McGEE v. COMMONWEALTH.

Court of Appeals of Kentucky.
Noy. 11, 1932.

Rehearing Denied Jan. 13, 1933.

1. Criminal law €=369(1).

Generally, evidence of other crimes is

not admissible against accused while under
trial for particular offense charged.

Such evidence is not admissible except
where proof of other crimes is necessary
to show the identity of the accused as the
person who committed the crime proved,
the guilty knowledge, particular criminal
intent, malice, or motive, and that the
crime of which he is accused and for which
he is being tried is part of a plan or sys-
tem of criminal actions.

Evidence of robberies accused commi

Evidence was properly admitted, espe-
cially where no objection thereto was
made upon trial below, to identify the ac-
cused as one of the two who had engaged
in a series of robberies committed but a
short while before their later attempted
robbery which resulted in the death of de-
cedent, and to show that the crime for -
which accused was tried was a part of &
plan or system of criminal actions on the
part of the accused and his confederate.

3. Criminal law 6665 (4).
That only eyewitness to killing was per

mitted to testify after fai

€—For other cases

sce same topic and KEY NUMBER in all Key Number Digests and Indexes

tted

r of time when and in neighbor-
ent while he
b him

ling to comply with
Pusu

McGEE v. COMMONWE
a 5 55 S.W. oe By; 383
r exclu ling witnesses from courtroom Bailey P. Woot
a . not prejudicial error (Civ. Code Prac. § M. Bike. Me a a ee
) wealth.

Permitting witness to testify was not
prejudicial error, especially where ruling
was not relied on by accused in his motion
and grounds for a new trial, since Civ.
Code Prac. § 601, leaves it within the
sound discretion of the trial court to per-
mit a witness who has violated such or-
der to testify, and, since witness was the
only eyewitness to the killing, it could not
reasonably appear that his evidence would
be influenced in any way by the evidence
of other witnesses previously testifying
as to other matters and offenses.

PERRY, J.

At the January term of the McCracken cir-
cuit oieae the grand jury indicted the appel-
lant, Sam McGee, for the willful murder in
that county of Charles Clark.

ee the following February, upon his trial
pane the jury returned a verdict of guilty
paieouan<: ua charged, and fixed his punish-
at death, upon which j we a
feces judgment was pro-
Sore 21 next following, the defendant
a his motion and grounds for a n i
4. Criminal law @>824(8). in which he assigned seven Ae eer
e Aceused, who failed to request instruc versal, and in support of his said eistion filed
ton imiting purpose for which evidence of his affidavit, undertaking to show thereb
: biti might be considered waived right that he had not received a fair trial .
plain because of its not being given. A new trial was refused, and he ee pros
ecutes this appeal, seeking a reversal of the
ire aia complaining that the following al-
eged errors were committed by the trial
court: (1) That the court erred in permitting
incompetent evidence to be introduced by the
ee eel aoe (2) ae the court erred in
- € g g e whole law of th RG
oe anes affidavit, counsel’s state- that the court erred in overruling One s
si Associated Press report on public Te? to the indictment; and (4) that the ne
ee ent against defendant in county at time dict is contrary to the law and to tk a
ie cane 5 not sufficient showing to warrant ‘ence. oe
rersal for unfai j
‘air trial. Before considering any of these objections
ae A assist in a clearer understanding of
ur discussion of them, a brief statement of

5. Homicide €>300(9), 309(3).
Refusal to submit manslaughter and self-
defense instruction held not error, where

pity was no evidence to authorize instruc-
am.

7. Criminal law @=938(3).
Newly discovered eviden
ce that at time :
aa pom was in friends’ home two Seaiite uae cokes
les awa
mle y fron: needa wastanied 9 ace ia mt as disclosed by the record show
: ee es Clark was shot and killed in the
city of Paducah, McCracken county, K
the evening of J athe
: g of January 17, 1931; that he was
s ot between 7 and 8 o’clock as he walked
pate his father-in-law, George Rock, along
North ‘Twelfth street of said city dying al-
a immediately; that the shooting oc-
curred there near the home of George M
Rock, where the deceased and his wife iad
gone that evening to visit her parents; that
at about 7:30, George M. Rock and his son-in-
witness law, Charles Clark, left Mr. Rock's residence
MEOIVE At GIL reves evicted: to go.toa barber shop; that, when they had
; Criminal oe. awe nee to 300 feet from Mr. Rock’s
Reels { : sidence, ey were accoste f
Appeals, imposed is for jury, not Court lant, Sam McGee, and si
manded that they ‘‘stick ’em up.” Mr sone
realizing that they were ab bat “4
: een sre about to be robbed
o.fiveat tpn Ciena Goark McCracken resisted, when the appellant, McGee, and ic
. ge sana wand opened fire on them. In the
oa. oldup, Charles Clark was sho ar
a aie was convicted of murder, and heart and died immediately, oer ae ae Be
aes ceived two serious gunshot wounds ya :
Nie shoulder and one in the side.. Mr Rock
‘land H. Logan being armed, returned the fire, killi @ Mi ‘
ln, both of peanet and Samuel M. Rosen- Risby. The appellant Mote ie cate
I dala ort, for appellant. was arrested a few hours lat ee
‘ s later,

_Evidence did not warrant new trial
since it could not be considered as mS
dence newly discovered by accused since
his trial, because its very nature was such
that it was at the time of the trial known
to the accused whether or not he was with
. friends in a locality distant from the
“ae and place where it was shown the
rs A occurred, and therefore such evi-
mal ending to establish an alibi and the

inesses thereto were then known by ac-

>For other
ca i cY N
ges See same topic and KNY NUMBER in all Key Number Digests and Inde
xen

% f


386 (Ky. 55> SOUTH WESTERN REPORTER, 24 SERIES
O e.
- i hows the same to contain three
5 18; McCarty v. Common indictment s] | the
partons of glen 287 S. W. 363. The rule counts. It is criticised on the ays ~
so ithe effect is thus stated in 16 Corpus Ju- by these it charges two sees a
i 1058 as follows: “A failure to give a par- tention is plainly without merit, Atop
pw ¢ yorserrae on the rules regulating the sideration of the three counts emp sGjedioe
pr aoe and the exclusion of evidence, and the indictment clearly shows — atk a
co, hs ahaa: weight, effect. corroboration, charges a ~ _ gtr gear _ =
es : j : : vhile Q as, e
‘ : is not error where such an deceased, Cc ar k, whi a Sap ie
oe a kt gnocieny requested. Thus, ther as principal or pets mg. To agp
: ’ federate, Milton Risby, acting
@ held that, in the absence of a con =
Baad a therefor, it is not error to fail to a conspiracy | made and a ie hae
a van an instruction limiting the purpose appellant = his sarpore st mie ts ind
i i i on- to commit the crime 0 .
pen oe ar ix dcr iy sons of George Rock and Charles Clark. We
“tr are of the opinion that the en =
the in- fully meets the requirements 0 e
5] As to the second complaint that drawn fully meet ren
Pad sa were erroneous in failing to sub- applicable provisions of the Criminal Code
mit to the jury a manslaughter and self- of Practice (section 122 et seq.).
defense instruction, a consideration of the Further, the question presented by this ob.
evidence disclosed by the record very conclu- jection was before this court in the cease of
sively convinces us that appellant’s conten- ‘Anderson v. Commonwealth, 144 Ky. 215, 137
tion is again without merit, for the reason S. W. 1063, 1065, where it was claimed on ap-
that there was no evidence heard in this case peal that the indictment charged two offens-
upon which there could be based or which es, and this court, in denying the contention,
would authorize a self-defense or manslaugh- said: “If he shot and killed Charlie Carroll
ter instruction. or if he was present aiding and abetting ot
he case of Cook v. Commonwealth, 232 person who did kill him, or if he was a me
7 613, 24 id: f who were engaged
Ky. 613, 24 S.W.(2d) 269, 273, the court said: ber of the band o persons f on
“One is not entitled to an instruction on in some unlawful a See ee —
i i f which Charli
- s nless the evidence justifies it. in the execution oO _
ws po atacand death sentences where no killed, or if he was a member P outea this
out aiieees instructions were given. Ferrell acy formed <r ge ree oe .
5 8S. W. 495; boy, he was guilty 1 g1
vy. Commonwealth, 176 Ky. 330, 19: 5 ee can ot
118, 153 the same extent, no matter
Lawson v. Commonwealth, 152 Ky. » i te . cup tg, gn
lth, 81 Ky. these capacities he was party
ee ia | f the court did not err in overrul-
‘ k y. Commonwealth, 218 Ky. Therefore, : 3
aon 4 8 336; Fowler v. Common- ing the demurrer to the indictment. a
weaith, 13 Ky. Ops. 853.” Again appellant, as his next and final o

An rther, in Ki Commonweal i j f conviction, insists
i 192 jection to the judgment o

wh pag Ww pri. 1064. agian in that the verdict is contrary to the law and

Ky. 4600, 2 . WwW. y .

i vidence.
OA ed ; Counsel for appellant, in insisting upon —
. in the rule announc . " "state
si pager vehssoared 124 Ky. 747, 99 S. arguing this alleged one ~ ae ae te
in an . mag a 967 and later cases, that the appellant did ~_ - ee mare
bi yk whee the facts and eapeepanerse ara Pepe Poneto os ian
. . to preclude his trial was
in evidence are so convincing as «ander which and. where his
ide than that of roo rings
aaiy athe Seneey 98 iene or held. They state that public feeling postion
mmeicr, inetrections ss i ” strong against appellant that the tria :
usiE-defenae shoal nek Se give ealled upon the Governor of the —
To like effect, see Frasure v. omental wealth to direct soldiers to be in a
wealth, 169 Ky. 620, 185 S. W. 146. the trial, to the end that “the orderly er
The appellant did not testify in his OWN og of the court might oes be poeta Ac
defense, and did not offer any evidence. by a mob,” and that “ iers ee ee
The evidence of the commonwealth as giv- in and about 0 cae “pipe
en by its witness Mr. Rock was entirely to judge's stand and Oe ean vank canal
the effect that the appellant murdered the de- the igs 1 er bciien pei heere fargo
, harles Clark, by shooting him near shows at p , cllant’s
tee a doea resistance being offered to the ceptions were not taken to protect app
r slant and his con- interests. ;
yer Bisby, of the decedent Charles ‘The record fails to disclose that rage yee
ederate, sby, > , The i ti rane ise
Clark, and said witness, when told by them qitions prevailed. No showing is ma red
: g ti k ‘em up.” record that the appellant’s rights babi? -
o “stick ’e ls ppe geeg ;
We will next consider appellant’s objection diced by the proneame: an sublic feeling
No 3 that the court erred in overruling the at the time of his arin i oc wer
demurrer to the indictment. A reading of the against appellant was there

McGEE v. COMMONWEALTH Ky. 387

558.
tile that he could not have a fair trial. The
record does not disclose that any motion was
made either for a continuance or for a change
of venue, nor was any motion and grounds for
a new trial based upon the existence of such
alleged conditions, if they did exist, filed, nor
do we find where the existence of such condi-
tions appears anywhere in the record except
in the aflidavit of defendant made in support
of his motion and grounds for a new trial,
which assigned other and different alleged
grounds of error.

In the recent case of Dewberry v. Common-
wealth, 241 Ky. 726, 44 S.W.(2d) 1076, 1081, it
was urged on appeal that the court erred in
failing to continue the case and that the sub-
stantial rights of appellant were prejudiced
by the presence of soldiers. The court, in de-
nying appellant’s contention, said:

“The appellant, in the affidavit of his coun-
sel filed in support of his motion and grounds
for a new trial, complains of the presence of
the soldiery, but nowhere, either in the mo-
tion and grounds for a new trial or bill of ex-
ceptions, does appellant rely thereon as a
ground for setting aside the verdict of the
jury. No complaint is made therein of the
Presence of the soldiers, and where there is
no affirmative showing that an accused’s
rights were substantially prejudiced thereby,
or that their presence deprived him of a fair
and impartial trial, the mere fact that the sol-
diers were in attendance furnishes no ground
for a new trial or reversal. The refusal of
the court to grant a continuance or the post-
ponement of the trial because of the presence
of soldiers, or on account of local sentiment
or prejudice arising from a defendant’s crime,
will not be disturbed by this court unless it
be made to appear affirmatively by other evi-
dence than by the affidavit of the accused or
40 oral statement of his counsel that the court
abused its discretion. Smith v. Common-
Wealth, 42.8, W. 1138, 19 Ky. Law Rep. 1073.

“One of the purposes of a bill of exceptions
{s the presenting to this court questions for its
consideration on an appeal. This court can-
not reverse a judgment in a criminal case un-
less for an error of Jaw occurring on the trial

W. (2d)

public sentiment in McCracken county against
the appellant or that soldiers were in attend-
ance at the trial, and we are of the opinion
that, on the authority of the cases cited supra,
appellant’s contention that the judgment be
reversed on his affidavit and the quoted report
of the Associated Press as to conditions ex-
isting in McCracken county at the time of the
trial cannot now be considered or sustained
by us.

Appellant’s affidavit made in support of his
request for a new trial did recite that on the
night of his arrest he was carried from Padu-
cah to the nearby town of Mayfield and
again taken from there and lodged for safe-
keeping in the jail at Hopkinsville; that such
precautions were observed in his behalf, look-
ing to his proper safeguarding during the peri-
od of his imprisonment while awaiting his
trial; that public feeling in Paducah was in
a state of high excitement and_ hostility
against him because of the enormity of the
crime, with the commission of which he was
charged, and that appellant was terrified by
Such alleged show of hostility to him and so
frightened as to not at the time remember
matters available for his defense,

The record does show that the court ap-
pointed three or four attorneys of good stand-
ing at the McCracken bar to represent the de-
fendant in the proper presentment of his de-
fense upon his trial, and that such attorneys
were directed to visit and did visit the appel-
lant while imprisoned at Hopkinsville to in-
quire of and consider with him the matter of
his defense, but that their services were re-
jected by appellant, who refused to discuss
the case with them, stating that he would
employ his own counsel for such purpose.

[7] Counsel for appellant also further urged
that he be given a new trial on the grounds of
alleged newly discovered evidence. In sup-
port of this claim they file affidavits wherein
the affiants seek to establish an alibi for the
appellant by averring that the appellant was
at the time of the killing of Charles Clark,
between 7 and 8 o'clock in the evening of Jan-
uary 17, 1931, with them in their homes in

and appearing in the bill of exceptions as pro- Paducah some two miles distant from the
vided in the Code of Practice.” place on North Twelfth street where this mur-
Again, in the case of Carsons vy. Common- der is shown to have been committed. Such
Wealth, 243 Ky. 1, 47 S.W.(2d) 997, 1001, the being the character of the claimed newly dis-
contention was made that appellant was enti- covered evidence, it is evident that the same
tled to a change of venue because of the con- C2™not be considered as evidence newly dis-
dition of public sentiment in the county where Covered by appellant since his trial, by reason
’ppellant was tried. The court said: “There Of the fact that its very nature is such that it
must be evidence other than, and independent Was at the time of his trial known to the ap-
of, hewspaper articles showing the condition PCllant whether or not he was with these al-
of public sentiment in the county, and for that !eged friends and acquaintances, the afliants,
“ause he cannot have a fair trial in the coun- i® & locality of Paducah distant from the
‘ty In which the prosecution is pending, or at Scene and place where it is shown the mur-
that term of court.” der of Charles Clark occurred, and therefore
such evidence, tending to establish an alibi
(8] Appellant’s bill of exceptions in the ease and the witnesses thereto were then known by
‘t bar fails to show either the condition of him, if same at all or ever existed.
Ky.DEc.55-57 S.W.(2d)—8


384 K 55 SOUTH WESTERN REPORTER, 2d SERIES
e y-

i 1
By the commonwealth’s evidence, it is the April term, 1931, entered motion that thelr
By

e stricken from the record as attor-
ae = ei gtahoy ey pancho tig appellant, which was mig en pd
Re ire cae a block from where the court, and thereafter, upon the —_ ¥
fore seen about siomac d onl that they were the trial being filed in this court, apt
preg ens nk robbed three differ- Logan and Samuel M. Rosenstein, ake oot ;
spi fe nt Lkuabend within an hour of Frankfort, were by this court appoin i
one b' and killing of the as counsel to brief the case for appellant, ar
a . we feel that they for their services here ren-
oe d that he runs dered the defendant, both in their ge

ca Auieaane® NE at near the oral argument made before us in his behalf,
a barbeque stand on » Y

we studious and excellent briefs
illing in evi ce, 2S well as in the € F
ae beige at ype telgt yw iow 3 of submitted by them, are deserving of the com
and that abou (9)

i rt for the fidelity, skill,
i hom Mendation of this court fi Seti :
Jansary #7, dices a8 ee ee pan and earnestness with which they el —
o> aoe a “eh Sa cies acened with the itously —— py and trust a
priertes - , under their appointment.

i sy identified by Blakeley as the ones aA
cue : a. trial to have been used by We will now address ageone — yea
s “ai n oe Risby upon the occasion of the ground of complaint made . fshpecemr an
ne of the decedent, Charles Clark. Blake- acempecmge eer etek .

” : : s : ue
hey, after stopping at lowing t e introducti 3
ped ae presets Jett it together. tent evidence, consisting of ee admitted bed
dengan wealth wit- timony of the commonwealth’s ee. ral

Th is aoe = = ee germane flagman, nings and Lee "8 a — gs ee
ness, F. A. Jennings, a ssing flagm: : robbery of them by appellan :
wien peony SS asenigane os —_ associate, Milton Risby, a on ane
tion, that upon this same eveniis, k. the to andin the neighborhood of their attemp' os
6:15, while he was returning from work, pbery and killing of the Semcnent UbAr

i ro I
appellant and another colored man held him Clark, and. also further complaining of the

and searched and robbed him in this neigh- alleged error in permitting Mr. Rock,
bechend, which he detailed, and identified sae — aa. paca 5, tie chaatinn obits ron
appellant, McGee, as one of the negroes who inlaw, Charles Clark, by the appellant, Mc-
then robbed him. Gee, to testify upon the grounds that ew! pd
Also Lee Kepner testified that on the night fendant, upon entering his plea _— — fie
of the killing he and his brother, Charles the charge aes er 24 oa ad
Kepner, started to town at about 6:20 o'clock, counsel moved . —. ee eel sat
and that just as they got to Ninth and Har- put under rule, w - ne ae bok
rison streets, two fellows showed up in front notwithstanding suc. ’ seats tui: tbe
id, “Stick ’ + that they had, in violation of the rule, rema
pal gerey a sine a wae Senne across cetera and in the hearing of gree vad
a ia oe an alley, where they were made nesses while they testified ya ee ead ra
to ile flat on their stomachs and were robbed; wealth, yet thereafter had been
that he was robbed of a signet ring, which testify. :
they found on the person of the deceased Mil- [1, 2] Disposing of these objections in ~
ton Risby, and witness also identified at the order made, it may be conceded that t o
trial the defendant, McGee, and the deceased eral rule is as contended for by appellant, that
Risby as the men who had robbed him and evidence of other crimes is not admiss va
his brother, Charles Kepner, who also like- against the defendant while under tria i
wise testified to the fact of their robbery by the particular offense charged, except i
these negroes, Risby and McGee. proof of such other erimes is pease
Lee Kepner’s testimony as to how and ghow, (1) the identity of pointes oH
where he and his brother had been robbed person who committed the ¢ p a
h a ithout objection thereto, and {pe guilty knowledge, (3) particular c A
ad been given W . his later lice or motive and (5) that th
only when he began to testify as to his er intent, (4) malice or ot OT ae
telling a watchman about the robbery did crime of which he is — ie cae
counsel object to that testimony, but as tO je is being tried Page pao ne ee
which no ruling was made Mel ia court Nor of exieiont nettle Whoicregx ” at oe
exception taken by the appellant. dence in the ca bar a
a. appellant, McGee, did not testify in his pberies committed ware =e S baring
i introduce any proof appellant killed the decedent, : WR
own behalf, nor did he in oe ee hich aod Be aouaee,
eae on rac ee same manner that he had robved
From the record, it further appears that Sin ead sat the tw Reseae.
upon the completion of the trial, and after Je g

We are of the
ini idence was properly &&
w trial was refused upon appellant’s mo- opinion that —_ eee ae Seeestcak ea
‘i = ad grounds therefor, the attorneys ap- mitted as coming Ww! J
on an ; , y
pointed by the trial court to defend McGe

ec. at rule stated, supra, to identify the appellant a8

McGEE v. COMMONWEALTH Ky. 885
55 S.W. (2d)

one of the two who had engaged in this series pellant claims that this was a substantial vio-
of robberies committed but a short while be- lation of section 601 of the Civil Code of
fore their later attempted robbery which re- Practice, and was prejudicial to appellant
sulted in the death of Clark and to show the and an abuse of judicial discretion on the
crime of which McGee was accused was a_ part of the trial court.
part of a plan or system of criminal actions ;
on the part of McGee and his confederate Ris- 3 at at iene feed also

, y ‘it, as n re-
Be: = peatedly decided by this court that the cited

No seasonable objections were offered bY Code provision is directory rather than man-
counsel for appellant to the admission of this datory, thus leaving it within the sound dis-
evidence, and even had there been, we are of cretion of the trial court to permit a witness
the opinion the same was properly admissible jo has remained in the courtroom during
as coming within the exception, supra, and aS tne introduction of evidence to testify, not-
coining within and under the ruling of this withstanding the court has previously Ra
court in the cases of Powers v. Common- tained the motion of either party to exclude
wealth, 197 Ky. 154, 246 S. W. 436, Moore Y. witnesses, and that such ruling by the court
Commonwealth, 188 Ky. 505, 222 8, Ww. 4, will not be disturbed unless by the record it
. v- papeenanahen.y 186 Ky. 45, — appears that the court has abused its discre-
eae = “ie big ingie ag Commonwealth, tion in so permitting such witness to testify.
Ot ae ees ae a} : In the instant case, Rock was the only eye-

In the Moore Case, supra, the appellant was witness to the charged killing by McGee of
charged with housebreaking,

i and the court his son-in-law, Charles Clark, and therefore
permitted the commonwealth to introduce ey- jt could not seansterabiy: eppenr that lle evt-

{dence showing that two other robberies had ence would be influenced in any way by the
been committed in the immediate neighbor- evidence of other witnesses previously testi-

hood where it was alleged that the appellant fying as to other matters and offenses, and,
had robbed the home of one Foster

- On ap- eyen were we in doubt as to this, we are
peal, it was argued that the admission of evi- made certain as to the propriety of our hold-
dence of the other robberies was incompetent ing through the fact that appellant’s com-
and prejudicial. The court, in holding such plaint as to this alleged error of the trial
contention without merit, said:. “The crimes court in permitting Rock to testify is not
were all committed, in point of time, within available to the appellant as a ground for
the space of an hour and in the immediate reversal of the judgment against him, since it
neighborhood of each other, showing a sys- wag not relied on by him in his motion and
tematic plan of criminal actions, and all fair- grounds for a new trial. Whitson v. Com-
iy attributable to the same person. The evi- monwealth, 197 Ky. 745, 247 S. W. 979; Ren-
dence was relevant and competent, as conduc- der y, Commonwealth, 206 Ky. 1, 266 S. W.
inz to prove the identity of the perpetrator 914.

of the crime at Foster's, with that at Hutch-

ens’, whom the evidence conduced to prove
was the accused.”

We now turn our attention to appellant’s
second complaint, that the court erred in fail-
ing to give the whole law of the case in two
In the very recent case of Dewberry v. Yrespects: (1) That the court erred, after ad-
Commonwealth, 241 Ky. 726, 44 S.W.(2d) mitting evidence of other crimes, in not in-
1976, the commonwealth attempted to intro- structing the jury for what purpose such evi-
duce evidence of the commission of crimes by dence might be considered; and (2) that the
appellant and his associates on their way court erred in failing to give the manslaugh-
from Louisville to Elizabethtown. The trial ter and self-defense instruction. We are of
‘ourt sustained objections to such evidence, the opinion that neither of these assigned ob-
ag upon a review of this case by this court, jections is meritorious,

was held that evidence of the commission
gr crimes was competent and should a ae ee bial gene

ave been i € a“ ’ ’
the silesiaolaad of Wis eviaetee te cee of ber not etr in admitting fhe ‘complained ot
Rodgers vy. Commonwealth, 241 Ky. 593, 44 evidence of other crimes under the facts in
8.W.(24) 599, , this case, and now further conclude that, if

Especially { ee , the appellant desired an admonition to be
this withe y is appellant's contention as tO given by the court to the jury as to the pur-
jai aerating mpi hypo the en bral pose and extent to which such evidence might
ae tein pon the trial below permitted to be considered by it, it was the duty of the

y without objection thereto. appellant to ask for such special admonition
a addressing ourselves to the next ob- thereon, from which it follows that, having
evtion, that the court prejudicially erred in failed to seasonably, or at all, make such re-
permitting George Rock to testify after de- quest, the appellant waived his right to cam-
sa motion to exclude witness from the plain because of its not being given. Keller

ttroom had been sustained and this wit- et al. v. Commonwealth, 230 Ky. 815, 20 &,W.
Sess had failed to comply with the rule: Ap- (2d) 998; Eaton v. Commonwealth, 250 Ky.

55 S.W.(2d)—25

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go2 ‘Ky.

wrongful means shall not be admissible as
evidence, is to exclude confessions obtained
through “sweating” or induced by hope or
fear raised by promises or threats of one
having authority over the accused at the
time. KRS 422.110.

\

2. Criminal Law €=519(4)

Confession made by accused charged
with murder while alone with chief of
police who told him that anything he said
would be used against him, but if he wanted
to ease his conscience or get it off his
mind to tell him, was not involuntarily.
KRS 422.110.

3. Criminal Law €=519(9)

It is not necessary that a confession
be made spontaneously to be voluntary,
nor is a confession inadmissible merely
because elicited by questions addressed to
accused. KRS 422.110.

4. Criminal Law €519(9), 520(1), 522(1)

The fact that a confession was made in
response to a question assuming accused’s
guilt, does not, in itself, render the con-
fession inadmissible, unless the question
was so phrased or framed as to trap ac-
cused and to inspire hope or fear, or was
accompanied by menacing circumstances.
KRS 422.110.

5. Criminal Law €=438, 1169(1)

In prosecution for murder, admission
into evidence of photographs, which served
no useful purpose, of deceased’s body as
found by police was error, but, where such
photographs were not gruesome, and case
was not a close one, such error was not
prejudicial.

eesealiiidorre

R. Pollard White, W. O. Soyars, Hop-
kinsville, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A,
Stewart, Asst. Atty. Gen., for appellee.

SIMS, Justice.

Ed Milam was convicted of the murder
of Stephen Farmer and his punishment was

275 SOUTH WESTERN REPORTER, 2d SERIES

fixed at death. He urges two grounds for
reversal: 1. his confession introduced by
the Commonwealth was obtained under
such circumstances as to render it inad-
missible; 2. photographs introduced by the
Commonwealth showing the body of de-
ceased served no evidentiary purpose, were
inflammatory and aroused the prejudice of
the jury.

The proof introduced by the Common-
wealth, which was the only evidence offered
as appellant did not take the stand, is to
the effect that Ed Milam, 25 years of age,
and James Robinson planned to rob a
liquor store known as “The Hut” located
in Christian County near Fort Campbell.
Around 5:30 o’clock on the afternoon of
July 15, 1954, Mansfield Ellis drove them
to the scene of the crime in his car. Ap-
pellant and Robinson went in “The Hut”;
Robinson ordered a bottle of wine from the
clerk, Stephen Farmer, and appellant pulled
his gun and said, “This is a stick-up”. Mr.
Farmer reached for his gun, fired at ap-
pellant and the latter fired three times, two
of the shots hit Farmer and killed him
instantly. Appellant was shot through his
right ear.

Appellant and Robinson ran out of the
store and attempted to get in Ellis’ car.
Ellis testified he refused to let appellant in
the car and the latter ran behind the store.
Ellis drove to his home, New Providence,
Tennessee, some 25 miles distant, with
Robinson on the back seat. Some thirty
minutes after the shooting appellant re-
turned to the highway, caught a ride to
his home, New Providence, was soon ar-
rested and lodged in jail at Clarksville,
Tennessee.

On July 16, Russell Greenwell, Chief of
Police of Hopkinsville, went to the Clarks-
ville jail and appellant voluntarily made and
signed a written confession. Appellant lat-
er told Greenwell his pistol was not at the
place designated in his confession but he
had hidden it near an outhouse at his home,
and the weapon was subsequently found
there.

Right after the shooting G. W. Riley, a
Highway Patrolman, George Batts, a Dep-

MILAM v. COMMONWEALTH Ky. 923
Cite as, Ky., 275 S.W.2d 921

uty Sheriff of Christian County, and Dr.
Preston Higgins, went to the scene of the
crime. When Dr. Higgins arrived Farmer
was dead with his pistol clenched in his
hand. Riley had a camera with him and
took eight pictures which Batts testified
fairly represented the inside of the store as
they found it. Six of these pictures show
the deceased from different angles slumped
in a kneeling position behind the counter
with his head resting on a shelf. Two of
the pictures show what looks like a blood
stain under deceased’s right arm. The body
of deceased does not appear in the other
two pictures, which show a bullet hole in
the cash register.

Able counsel appointed by the court to
defend appellant vigorously argue that the
circumstances surrounding appellant show
he did not voluntarily make the confession
introduced in evidence against him. They
urge he had been in custody for two or
three hours before he gave his confession
to Greenwell; that his confession stated the
robbery was planned on the night of July
15th, when the attempt to execute it was
made in the late afternoon of that day and
the confession did not give the true loca-
tion of the weapon used by appellant.
Counsel also call attention that Greenwell
testified the Clarksville officers stated to
him, “Milam would not * * *”. (Here
an objection, we presume by appellant’s
counsel, was sustained as the witness was
relating hearsay testimony.) Counsel in-
sist these facts show appellant refused to
talk voluntarily and he must have been
plied with questions and a confession wrung
from him which should have been excluded
under KRS 422.110.

[1] Counsel for appellant are right in
saying the purpose of the statute is to ex-
clude confessions obtained through “sweat-
ing” or induced by hope or fear raised by
promises or threats of one having authority
over the accused at the time. They cite
Curtis v. Com., 312 Ky, 205, 226 S.W.2d
753; Tarrence v. Com., Ky., 265 S.W.2d
52, which sustain their interpretation of the
statute. However, Counsel have drawn an

inference which has no factual basis. Ap-
pellant did not take the stand and no one
testified he was plied with questions or that
either promises or threats were directed at
him. On the contrary, Chief Greenwell tes-
tified he talked alone to appellant, told him
anything he said would be used against him
and “If he wanted to ease his conscience or
get it off his mind” to tell him. Thereupon,
appellant confessed to Chief Greenwell, who
reduced it to writing, read it over to appel-
lant and the latter signed it.

[2-4] Certainly, in the face of this di-
rect and uncontradicted testimony of Mr.
Greenwell, we cannot say that appellant’s
confession was involuntarily made. It is
not necessary that a confession be made
spontaneously to be voluntary, nor is a con-
fession inadmissible merely because elicited
by questions addressed to accused. The
fact that a confession was made in response
to a question assuming accused’s guilt, does
not, in itself, render the confession inad-
missible, unless the question is so phrased
or framed as to trap him and to inspire
hope or fear, or was accompanied by men-
acing circumstances. 20 Am.Jur. “Evi-
dence”, § 500, p. 432; Curtis v. Com., 312
Ky. 205, 226 S.W.2d 753.

[5] We are in full accord with appel-
lant’s counsel that the photographs of de-
ceased’s body taken soon after the shoot-
ing as it was found in the store should not
have been admitted in evidence. Mr.
Charles William Kimmell, the mortician
who prepared the body for burial, testified
specifically at what points the fatal bullets
entered deceased’s body. These pictures
served no useful purpose. However, they
were not gruesome as were the ones intro-
duced in Craft v. Com., 312 Ky. 700, 229
S.W.2d 465, which caused us to reverse that
judgment, but were more like the photo-
graphs introduced in Calhoun v. Com., 301
Ky. 789, 193 S.W.2d 420, where we said
they were not prejudicial in the circum-
stances there presented. Likewise, the pic-
tures in the case at bar could not have been
prejudicial to accused in the circumstances
shown in this record.

>

920 Ky.

S.W. 11. Since the apparent unnaturalness
of this will is so fully explained and justi-
fied, the nature of the disposition is no
evidence at all of the lack of mental capa-
city.

[3] It is next contended by the ‘contest-
ant that because the testator had told his
daughter he was leaving property to her
and because the will was inconsistent with
such expressed intention, there is an indi-
cation of irrationality. It appears to us
perfectly normal for a person to change
his mind or even to do at a later date some-
thing contrary to his earlier expressed
intention. The proof on this point does
not show lack of mental capacity.

[4-6] The strongest proof of what may
be termed unusual conduct on the part of
the testator related to his general debility
in the declining year of his life. The
testator’s wife died four months before he
made the will, and he passed on about a
year after it was executed. The testimony
of his daughter, who of course is the in-
terested party, indicates that from the time
of her mother’s death until her father’s
death he progressively showed the signs of
old age. He lived by himself and became
slovenly in his habits with respect to keep-
ing house, preparing his meals and keeping
up his personal appearance. Whereas
earlier in life he had always been neat and
clean, it became difficult to persuade him
to change his clothes, to take baths and to
do other things which might normally be
expected of him. Apparently he did not
use his bathroom in the proper manner and
was very careless about his personal habits.
He burned things on the stove, and at one
time thought someone was trying to steal
his property. He became forgetful and on
occasion did not recognize his daughter
or close neighbors.

There are two reasons why this proof
has little or no force with respect to the
testator’s mental capacity. In the first
place, the contestant’s witnesses, including
herself, did not fix the times when the events
occurred or the actions were observed with

275 SOUTH WESTERN REPORTER, 2d SERIES

relation to the time the will was executed.
In the second place, the facts shown do not
indicate an abnormal course of conduct but
rather a lack of stability which generally
comes with old age. The testator’s conduct
was of the same character as that shown
in Schrodt’s Ex’r v. Schrodt, 181 Ky. 174,
203 S.W. 1051. There it was held that the
opinions of non-expert witnesses were in-
sufficient to prove mental incapacity if the
facts upon which the opinions were based
were insufficient. The fact that a person
grows old, his habits change, or he is un-
able to administer to his wants in the best
manner without the help of a wife who has
cared for him most of his life does not
constitute substantial evidence of the lack
of mental capacity.

[7] The contestant undertook to prove
over the objection of the contestees that
the testator attempted to make an oral
arrangement with his son whereby his
daughter would eventually share in his
estate. The contestant claims that this
proposed arrangement, inconsistent with
the will, showed lack of mental capacity.
As we view this evidence it tended to prove
quite the contrary. It indicated the testator
still recognized his daughter as a natural
object of his bounty, though he remained
firm in his purpose not to leave property
to her under the will which might come into
the hands of her husband.

[8-10] The right of a person to make a
will disposing of his property in accordance
with his own wishes is one carefully
guarded by the courts. This right would be
of little value if it could be exercised only
in accordance with a court’s or a jury’s
notion of what would be the just and
proper thing to do. The presumption is that
a testator possesses sufficient mental capa-
city to make a will, and the burden is upon
a contestant to establish by substantial
evidence the lack of it. We think the
proof in this case falls short of showing
lack of mental capacity, and a verdict
should have been directed upholding the
will. See Bickel v. Louisville Trust Co.,
303 Ky. 356, 197 S.W.2d 44.

MILAM v. COMMONWEALTH Ky. 921

Cite as, Ky.,

In closing we would like to compliment
counsel for both parties upon the excellence
of their briefs filed in this Court.

The judgment is reversed with directions
to enter a judgment sustaining the will in
accordance with appellant’s motion for
judgment notwithstanding the verdict.

Dallas KEESEE et al., Appellants,
v.
Talmadge (Tell) MAYNARD et al., Appellees.

Court of Appeals of Kentucky.
Feb. 25, 1955.

Action for injunctive relief and for
damages for wrongful cutting of timber.
The Circuit Court, Pike County, R. C. Lit-
tleton, Special Judge, dismissed the petition,
and plaintiffs appealed. The Court of Ap-
peals, Per Curiam, held that plaintiffs had
failed to sustain burden of proving title,

Affirmed.

Injunction €>128
Trespass €=46(2)

In action for injunctive relief and for
damages for wrongful cutting of timber,
evidence supported finding that plaintiffs
had failed to sustain burden of proving title.
CR 52.01.

ns

Kenneth A. Howe, Pikeville, for appel-
lants.

Baird & Hays, Hobson & Scott, Pike-
ville, for appellees.

PER CURIAM.

This case is before us on motion for an
appeal under KRS 21.080, the amount in-
volved being less than $2,500. The action
involves the wrongful cutting of timber on

275 S.W.2d—68%

275 S.W.2d 921

a 20-acre tract to which the appellants claim
title, and, consequently, prayed relief in =i
damages and an injunction prohibiting fur- &
ther cutting. The defense consisted of a~
traverse with no plea of title in the appel- jj
lees. The trial court adjudged that the ap- ©
pellants failed to sustain their burden of
proving title and dismissed the petition,
commenting also that title to the land really
could not be adjudicated without making a °

third party, one Boney Cline, a party to the ©
suit. as

After examining the record and exhibits ©
introduced, we are of the opinion that the ©
chancellor was justified in concluding that ©
the appellants’ deeds and testimony failed .
to establish that the deeds covered the tract
in question. Not finding the chancellor’s “4
conclusions “clearly erroneous”, the motion 7

for an appeal is overruled and the judgment
is affirmed. CR 52.01.

w
© & KEY NUMBER SYSTEM
T

a Ed ihe heen

I
COMMONWEALTH of Kentucky, Appellee. ‘~’
Court of Appeals of Kentucky. b
Feb. 25, 1955.

dl

Prosecution for murder. The Circuit
Court, Christian County, Ira D. Smith, J.
entered judgment of conviction. Accused
appealed. The Court of Appeals, Sims,
J., held that although admission into evi-
dence of photographs of decedent’s body as
found by police was error, where such
photographs were not gruesome, and case
was not a Close one, such error was not
prejudicial.

Judgment affirmed.

1. Criminal Law @=520(1), 522(1)

Purpose of statute providing that a
confession obtained by threats or other

¢

0A Ky. 275 SOUTH WESTERN REPORTER, 2d SERIES

Were this a close case or had the pic-
tures been ghastly, as the ones introduced in
the Craft case, we would have a more seri-
ous question and one which more likely
would cause a reversal. Prosecuting at-
torneys should always be careful in offer-
ing photographs of bodies and judges even
more careful in admitting them, as they are
are often of no evidentiary value and they
can cause reversible error.

The judgment is affirmed.

Simon DANIEL, Appellant,
v.
H. B. RICE AND COMPANY, Appellee.

Court of Appeals of Kentucky.
Feb. 25, 1955.

Action by insurer to recover insurance
premiums wherein only material issues of
fact were whether insured had been given
credit for certain payment and whether he
had notified company to cancel policy on
truck. The case was submitted to jury
which returned verdict in favor of insured
but on motions of insurer verdict was set
aside and new trial granted and case was
transferred to equity docket where it was
referred to master commissioner. From
judgment of Circuit Court, Johnson County,
James W. Turner, J., in favor of insurer
for amount commissioner recommended that
it recover, the insured appealed. The Court
of Appeals, Cammack, J., held that the trial
court abused its discretion in granting new
trial when evidence was in sharp conflict
on issues presented and record disclosed no
error in giving of instructions or in admit-
ting or excluding evidence.

Judgment reversed with directions.

1. New Trial €=71

In action by insurer to recover insur-
ance premiums wherein only material is-

sues of fact were whether insured had been
given credit for certain payment and wheth-
er he had given notice to cancel policy on
truck, court abused its discretion in grant-
ing new trial to insurer when evidence was
in sharp conflict on issues of fact and there
was no showing of error with respect to
instructions, or in admission or exclusion
of evidence.

2. New Trial €=6

Trial court has broad discretion in
granting or refusing new trial, but such dis-
cretion is not without limit and is abused
by granting new trial when no sufficient or
sound reason exists therefor, or where court
travels outside record to find grounds for
granting new trial.

3. New Trlal €=70

Trial court has no right to disturb find-
ings of jury merely because it may not agree
with verdict, when evidence is sufficient to
support it.

eS ——

R. B. Harrington, Paintsville, for appel-
lant.

Wheeler & Wheeler, Paintsville, for ap-
pellee.

CAMMACK, Justice.

On January 13, 1950, H. B. Rice and Com-
pany filed this action against Simon Daniel,
seeking to recover the sum of $822.53, with
interest, for premiums on insurance policies
issued to him by the Company. The case
was submitted to the jury which returned a
verdict denying the Company’s claim. On
motion of the Company the verdict was set
aside and a new trial was granted. The
court also sustained the Company’s motion
to transfer the case to the equity docket and
refer it to the master commissioner. The
master commissioner recommended that the
Company recover $822.53, the amount
prayed for. Accordingly the court entered
judgment against Daniel for that amount.

Daniel has filed a motion for an appeal
under KRS 21.080. For reasons hereinafter
stated, the motion is sustained and the ap-

DANIEL v. H. B. RICE AND COMPANY Ky. 925
Cite as, Ky., 275 S.W.2d 924

peal is granted. Daniel contends that the
court erred in granting a new trial and in
transferring the case to the equity docket.

Daniel was in the business of drilling oil
and gas wells and H. B. Rice and Company
issued his Workmen’s Compensation in-
surance. The amount of the premiums for
that insurance was based upon Daniel’s
annual payroll. The Company also issued
policies for public liability and property
damage covering Daniel’s trucks. The prin-
cipal dispute in the case concerns a pay-
ment of $750 for which Daniel said he was
not given credit, and whether Daniel was
liable for $97.35 which the Company claimed
was due on insurance covering a 1937 In-
ternational Truck. The Company admitted
that the $750.00 payment was made, but
said Daniel was given credit for it, and that
he owed $822.53 in addition.

The testimony for the Company showed
that it was the practice in its dealings with
Daniel, as well as other customers, to renew
the policies as they became due and bill the
insured for the amount of the premium.
The truck was insured on October 20, 1947,
and renewals were continued on it until Feb-
ruary 20, 1950, when Daniel informed the
Company that the truck had been sold.

Daniel said he sold the truck in 1948, and
sent the Company a letter on December 23,
1948, notifying it to cancel the policy on the
truck. The Company’s testimony showed
that the notice was never received, and that
according to its custom it renewed the policy
on January 1, 1950.

The Company’s motion for a new trial
was based upon the following grounds:
(1) The verdict was contrary to the weight
of the evidence; (2) the instructions were
erroneous; (3) the court erred in refusing
to give a peremptory instruction offered by
the Company; and (4) incompetent evi-
dence was admitted and competent evidence
was excluded. The trial court did not as-
sign any reason for granting a new trial in
his order, so it was necessary for us to
search the record to determine if an error
existed sufficient to justify that action.

[1] The only material issues of fact
were whether Daniel was given credit for
the payment of $750 and whether he gave
notice to the Company to cancel the policy
covering the truck. The evidence was in
sharp conflict on these questions, and clearly
the questions were for a jury to decide.
The argument that the instructions were
erroneous is also without merit. The Com-
pany offered no instructions and the record
does not show that it objected to the instruc-
tions given by the court. Even if an objec-
tion had been made by the Company we find
no error in the instructions given. The
record also fails to show that either side
moved for a peremptory instruction. But
if a motion for a peremptory instruction
had been made it would not have been er-
ror to refuse it, in view of the sharp con-
flict in the evidence. We also fail to find
that incompetent evidence was admitted, or
that competent evidence was excluded.

[2,3] The trial court has a broad dis-
cretion in granting or refusing a new trial.
But such discretion is not without limit.
Jones v. Phillips, Ky., 243 S.W.2d 890;
Burton v. Spurlock’s Adm’r, 294 Ky. 336,
171 S.W.2d 1012. A trial court’s discretion
is abused by granting a new trial when no
sufficient or sound reason exists therefor,
or where the court travels outside the record
to find grounds for granting the new trial.
Stockdale v. Eads, Ky., 263 S.W.2d 133;
Steinke v. North Vernon Lumber Company,
190 Ky. 231, 227 S.W. 274. A trial court
has no right to disturb the findings of a jury
merely because it may not agree with the
verdict, where the evidence is sufficient to
support it,

The record before us fails to disclose any
sound reason for the granting of a new
trial. All of the grounds assigned by the
Company were without merit, and it failed
to point out any other grounds in the record
sufficient to warrant the court’s action.
Therefore, it was an abuse of discretion for
the trial court to grant the new trial.

Since we have held that it was error to
grant a new trial, the question of whether

1208 ‘Ky. 109 SOUTH WESTERN REPORTER, 2d SERIES

; i i dition was gaod; that he did all kinds of
i . eg ig, ial of p haagsciaers work on me farm, cut corn and put up
Be tase ben the result of some heart hay; that - aaa oad bd ad =
D siti i iti ate or in bad health prior ;
ity jo ee in priciarinny td He 1931. John Hall nage in ee .
i i he knew him all the time up to .
pig ands aaa laepne wt “he did that he associated with him, never knew
fai = his er was that he could him to use but little alcoholic liquor, nor
faint, = hi tating cathe’ from a good to be afflicted with heart gp agree
rhage hey It might be an acute gastro- etc.; that he worked hats agg i nay we
: sainal upset food poisoning, Over- was able-bodied and . Fi g at ced
res and it could also come from some ss 9% a sid de Set #. Sint
i i ust, e "
undue perros —, “gd Seale je Howard Supplee said that he lived io to
nacyaen Pe ante seen him what caused him, worked with him in a Ww _
say — = Sat ihn he may have had. shredding corn, and other bate 28 =
He pon - his opinion that the cause of farm. He —_ sn peices Mon a
his death was coronary occlusion; that time, but he di es Si Be prep Tes
is, a clot into the vessel which supplies - = Site. ram aor ee
ak vag ier cunt at aa ola re load into a truck a ten-gallon can of —
pas sabe i summary of the testi- two years before his death; never new
= aie ties It was shown by the him to have a heart attack at any _
death certificate that the cause of his ~~ _ = -n baal ; — a : ne
r judgment, this testimony aa ;
retinue eld Ne ey aa to unable to see in what respect this testi-

the testimony considered as sufficient on mony is incompetent. .
the former appeal of this case. We do [4] As we said in Pru dential Tosu r
not think it would be conclusive of the ance Company of America v. Hodge’s
issue. The truth or falsity of the evidence Adm’x, 232 Ky. 44, 22 S.W.(2d) 435,
was for the jury alone, because on the 437: “It has been held that a layman may
whole case there was a conflict of testi- testify of things within his knowledge
mony as to the issue presented to the jury. as to the strength, vigor, and apparent
We do not think a directed verdict sh ould physical condition of another person, an
have been given or that the verdict 1s as to the presence or absence of =
flagrantly against the evidence. indicating disease. It has been held that

: ll
[3] It is further claimed that it was some, iets Ory within the knowleige
highly prejudicial for the court to permit eet tao ¥ The layman may not
certain lay witnesses to testify as to ~ dixetioee iscane as an expert, but he may
; Ae or to Poe tee 5
phy prpthagenes o prema cco Seis testify to facts within his actual —
for th i pica “ : = pee SSW (Ba) 490 cP aa
ae " ; 228 Ky. 669, 15 S.W. ;
J a bbe J on Hall Gan ead Camp, Woodmen of the World, v. Morris,
oe O ’ onn ’

: Ky. 201, 278 S.W. 554.”
Supplee, all lay witnesses, who in each 212 Ky ss Son, demise ahaeal
instance stated that they knew Obertate [5] As t 7 som sla pag
for many years up to and ee eeciinay pang <— ue or aid acecil
prior to his death and knew him to be practi . a
, bbott said he that it was amply su
i te ea eo ieee immediately verdict for or against are bead se
befor his death; that he was living with are of the 4 eng = ages itd
him in January or February, 1932, the evidence of Dr. ite sig ann om
date f the issuance of the policy; that certificate were not enough to —
ieee knew him to use alcoholic liquor us to now say that a peremptory beng
of ‘any. ki d or to have a heart attack tion should have been given or ioe
7 a he ‘afflicted with dizziness or con- verdict is flagrantly against the pe 7
vulsic etc.; that he was a large, strong especially where there is a on ans
maa, ked all the time; that his gen- testimony and where reasonable ae
ety seninatitink as to his physical con- might honestly differ as to the tru

MONTJOY v. COMMONWEALTH Ky.
108 8.W. (2d)

1209

falsity of the conclusions or deductions available to one who had been convicted of

to be drawn from the testimony. Pruden- rape (Civ.Code Prac. §§ 344, 518).
tial Insurance Company of America y.
Hodge’s Adm’x, supra.

The court is of the opinion that no
error was committed to the prejudice of ‘:
the rights of appellant. No further com-
plaint is made of the instructions,

Judgment affirmed.

ee

Appeal from Circuit Court, Kenton Coun-

John (Pete) Montjoy was convicted of«
rape, and he filed a “petition in equity” mak-
ing the commonwealth of Kentucky sole de- “4

AO LLINOW

fendant. From a judgment striking or dis-
missing the petition, John (Pete) Montjoy 5

appeals.
Judgment affirmed.

Ovi arr amann sate

Wm. E. Wehrman, James L. Magrish,

mS
.¢))
ct

and Conrad Magrish, all of Cincinnati, ¢

Ohio, for appellant.

Hubert Meredith, Atty. Gen., and A. E.
Funk, Asst. Atty. Gen., and Ulie J. Howard,
of Covington, for the Commonwealth.

THOMAS, Justice.

The appellant, John ( Pete) Montjoy, was
dicted by the grand jury of Kenton coun-
, in which he was charged with the crime
of raping Mrs. Irene Cummings, whose hus-
band was an employee of a railroad com-
pany in the operation of its trains. At his
2. Criminal law €=939(3) trial he was convicted, with the infliction of
Prisoner was not entitled to new trial 4 death sentence as his punishment. He ap-
on ground of newly discovered evidence, be- pealed to this court, and the judgment was
cause of lack of diligence in discovering such affirmed in an opinion rendered in the case
evidence, where alleged newly discovered of Montjoy y. Commonwealth, 262 Ky. 426,
witnesses were mainly acquaintances, if not

90 S.W.(2d) 362. A petition for rehearing
regular associates, of prisoner. was filed, which was orally argued in this

3. Criminal law €3945(1) court, but later overruled. Appellant then

Prisoner convicted of rape was not en. applied to the Supreme Court of the United
titled to new trial on allegedly newly dis. States for an appeal, but his motion there-
covered evidence that he was acquainted for was overruled by that court. 298 U.S.
with prosecutrix prior to alleged crime, 646, 56 S.Ct. 961, 80 L.Ed. 1376. He then
since evidence would have only ee 44 applied to the judge of the United States
mote, 10 and, heather teh dank. District Court for the Eastern District of
Kentucky (the Hon. Church Ford) for a
4. Criminal law €=941(1) writ of habeas corpus, based upon practical-

Prisoner convicted of rape was not en- ly, if not entirely, the same grounds as are
titled to new trial on allegedly newly dis- herein urged against the judgment of con-
Covered evidence that crime could not have Viction. His motion for the writ was over-
been committed in manner described by Tuled by that learned judge. Appellant then
Prosecutrix, where matter was thoroughly 2"nounced that he would appeal from that
gone into on trial, since court will not grant ‘ecision to the United States Circuit Court
new trial for newly discovered cumulative ©f Appeals for the Sixth Circuit, and the
evidence, unless it be of such nature and execution of his sentence was deferred un-
character, or so overwhelming, as to render til the time expired for taking that appeal,
it probable that different verdict would Which he ultimately failed to do.

have been reached. On January 20, 1937, and after all of the

proceedings above enumerated, he filed in

5. Criminal law €=951(5), 998 the Kenton circuit court, as the commence-

Sections of Civil Code of Practice deal- ment of the instant proceedings, a unique

ing with new trial and modification or va- pleading or paper styled “Petition in Equi-

Cation of judgment after term were not ty,” in which he made as sole defendant
109 S.W.(2d)—764%5

270 Ky. 470
MONTJOY v. COMMONWEALTH.

Court of Appeals of Kentucky.
Nov. 5, 1937.

1. Criminal law €=939(1)

One seeking new trial on ground of in
newly discovered evidence must show that ty
he exercised due diligence to procure evi-
dence before trial, and was unable to do So.

‘yoBTq

‘oder 20] pesusy

*JE6T-LI-2T uo S*hky Suogsutaog


“

1210 Ky.

the Commonwealth of Kentucky. In it he L.Ed. 1082. The latter contention was
reiterated the defenses that he interposed at thoroughly gone into by this and the various
his original trial of the indictment against federal courts to which appellant made ap-
him, and filed as exhibits therewith an al- plication before the instant proceeding was
phabetically designated list of documents inaugurated, and which question had be-
which he alleges are affidavits of newly dis- come finally and effectually settled and de-
covered witnesses, some of which are not termined. There is thus left for determina-
sworn to at all, and others consist solely of tion on this appeal only the question of al-
letters written by the allegéd' discovered leged newly discovered evidence, and to
witnesses to an attorney, Mr. Alfred Bett- which we will now devote our attention.

— First National Bank Building, Cin- [1] If that ground was available for the
cinnati, Ohio. The writers of the letters, purpose invoked at the time employed (i. e.,
so addressed to that attorney, indicate that after the judgment of conviction had be-
they belonged to the medical profession. come final, as is true here) under any proce-
But wheth OF not they — fact pres- dure or remedy known to the law, then it
Che Peet ere, and, if so, in what branch would be requisite that the one employing
of practice, is not disclosed by their letters 214 relying on it, bring himself within the
to the athOrRey, OF US APY other manner at jute justifying his right to do so; i. e., that
any place in the record. The commonwealth he had exercised due diligence to procure
filed both - special and general demurrer tO the alleged discovered testimony before his
that pleading, and without waiving either it trial and was unable to do so.
filed an answer in which every material
affirmative allegation contained therein was [2] The alleged newly discovered wit-
specifically denied. The answer also con- nesses relied on resided in the immediate
tained a second paragraph setting up the community where the crime was committed,
various procedures taken by appellant inthe although some of them resided in the city
case, as above enumerated, and in which it of Cincinnatti, Ohio, just a short distance
was insisted that appellant’s conviction was across the Ohio river from Covington, Ky.,
not only pursuant to the regular prescribed and the greater number of them appear to
rules of practice embodying due process of be at least acquaintances if not regular as-
law, but, also, that his case had received sociates of appellant. But however that
much more than the usual attention at the may be, it is not shown that any research of
hands of the various courts to which he any kind was ever made by appellant or his
made application. The court does not ap- attorneys to discover the testimony now re-
pear to have passed on either of the demur- lied on. Therefore, the record presents an
rers, but, on the contrary, struck or dis- inadequate showing of diligence on the part
missed plaintiffs petition, from which or- of their client and themselves to entitle ap-
der appellant prosecutes this appeal. pellant to the benefit of the alleged newly

Counsel for appellant, therefore, is mis- discovered testimony, even if it was sufh-
taken when they state in their briefs filed cient to grant the relief sought herein if
herein that the court sustained a demurrer proper diligence had been exercised. But
to the pleading of their client, thereby admit- we are by no means convinced that such is
ting its statements as true. However, if the fact. The discovered testimony is di-
that had been the procedure on this hearing rected to three propositions: (1) That ap-
by the trial court, it could not affect our pellant and his victim were personally ac-

disposition of the appeal in the manner quainted with each other before the com-

hereinafter stated, since the application here mission of the alleged offense, whereas it

made is based almost entirely upon alleged appeared at the trial that they were not;
newly discovered evidence attempted to be (2) that about four of the alleged discov-
manifested by the exhibits filed with ap- ered new witnesses (the testimony of two
pellant’s pleading, plus an effort to procure of whom appears in letters written by them
a reconsideration of the question raised on as hereinbefore referred to) state that ac-
the original trial, i. e., that negro jurors cording to their opinion the offense could
(to which race appellant belongs) were not not have been committed as described at
permitted to serve on the jury, and which plaintiff’s trial, i. e., by the parties standing;
denial (as alleged) was of the nature and and (3) that a prosecuting witness (Black)
character involved in the case of Norris v. who testified at appellant’s trial had retract-
State of Alabama, 294 U.S. 587, 55 S.Ct. ed his testimony, as evidenced by his af-
579, 79 L.Ed. 1074, and Patterson v. State fidavit filed with the petition as one of its
of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 exhibits,

109 SOUTH WESTERN REPORTER, 2d SERIES

MONTJOY v.

- Vj, OMMONWEALTH Ky. 1211
0 SW coe in the 262 Kentucky, leged newly discovered evidence, if other-
dts, ieee nee Sitges = eit ee —- available, is sufficient, under thorough-.
trial. It therein appears that the prckeect peas a aaa iain
ing witness Black, who it is claimed has
now repudiated his testimony given on the [5] But, independently of all such co
trial, testified to the robbery of the prosecu- Siderations, this application was Proper] KS
trix by appellant before committing the of- ied by the trial court for reatee *
fense for which he was convicted. In his ounced in the two recent cases of Jon : .
affidavit filed with the petition, he continues Commonwealth, one of which is re orted in
to adhere to that testimony, and the only 269 Ky. 772, 108 S.W.(2d) 812 gee the
retraction made by him was, that he testi- Other one in the same volume of Gelitacky
fied on the trial that appellant and the Reports, page 779, and in 108 S.W (2d) 816.
prosecutrix (at least so far as he knew) The first one was an original proceedi
were unacquainted with each other, where- filed in this court for a writ of habeas send
as in his affidavit he attempts to say that bY @ convicted defendant (punished by
the statement so made by him at the trial] “eath) after his conviction had been ai.
was false. He attempts to state that such irmed by this court, and a petition for :
falsehood was sworn to by him because of hearing had been overruled. The other
threats and other unlawful pressure and ON€ was an appeal from a rulin of the
acts of duress brought to bear upon him by State circuit court that convicted him :
different officers. However, if it should be 2" application made to it for a writ “yan
established as an undenied fact that the pros- 4m nobis, and which applicatio i wb
ecutrix and appellant were acquainted with 8Tounded upon identical reasons a gee
each other before the commission of the @Ppellant in this application. We = d
crime for which the latter stands convicted, Out in that opinion that this court had de
it would then have only a very remote, if termined in the cases of Wellin to .
ek bearing upon the case, since the only Com., 159 Ky. 462, 167 S.W. 427: Creer Vv.
a verse conclusion that might be drawn Com., 165 Ky. 715, 178 S.W. 1027, and Cold.
rom such fact would be that their acquaint- iron v. Com., 205 Ky. 729, 266 S.W. 374
ance oe eases and undue nature, that new trials, under sections 344 and 518
= pores in character; but which no of our Civil Code of Practice, were not
naibec rd r Foss claimed throughout the available to convicted defendants in crim-
proese oe i st statement applies to all inal Prosecutions. Therefore, this proceed-
ey ee i avits seeking to establish ing, if attempted to be based upon either of

act of prior acquaintance, — sections, cannot be sustained under our
ruling made in the cases referred to.

7 far A heh ris paper paneer also held in the same Jones opinion nae he

Sas inion con- ancient common-law writ of i
cerning the impossibility of the crime being had never been led in thi eine
committed in the manner described, do not so far as it yer re 7 splenic
claim to be experts, and possibly their af- ecutio ide eee
fidavits for that reason could not be conisid: fanred 4 are d rpm me cores
ered for any purpose; whilst the ies We sliesd@are a se ae Gee

writers to the same effect show no more opinion fat ine ee te ey i

a the aha free ageyer se where ie facts, to om sridh te en

acts. Besides, all Originally promulgated, existed.

or = Lye ae Lea = pointed out in fe same patie ae he

» as thoroughly writ was never available to make effecti
gone into upon the trial of the indictment newly discovered testi piri
against appellant, and it is not the policy against perjury, th tthe origi ares ne
or the rule, as hereinbefore declared by its siacion oun ee ra
hares ie wees cae, oe y a n was to reach a situation whereby

‘ | » to ndant in a prosecution, th =

: ave i rt ee sence ee the forms of a trial ine

t aracter to law, had, nevertheless i i

or so overwhelming, as to render it probable at all i i oe eee

igs en t all, and which failure grew out of facts

reached. We donot heweven d'a eran VN the appearance of fair ta, ba

80 in this case. We therefore conclude that which a end S teetca aes ae

it iv most euaais deciots a which situation was brought about by

€ al- duress, physical or otherwise, which the de-


270 Racial Violence in Kentucky, 1865—1940

he could not verify whether the woman had been raped or not. With
Black’s statement in hand, the police went to Montjoy’s cell between
3:30 and 4:00 in the morning and questioned him at length until
he confessed. As his attorney informed the justices, not only had
Montjoy been kept in solitary confinement and denied adequate sleep
for six days, he had been brutally beaten by the police before signing
the confession. Wehrman, trying to show that local authorities had
worked to prevent the truth about the incident involving the black
man and white woman from being known, pointed out that Black was
held in custody for nearly a year without being charged with any crime,
when released was warned not to discuss the case with anyone, and
was then escorted out of town by the sheriff. Unfortunately, efforts to
locate Black to testify in behalf of Montjoy had proved fruitless, the
attorney revealed. The final argument for overturning the conviction
centered on the physical condition of the alleged rape victim after the
incident. Unlike most women in a similar situation, Cummings was
completely unruffled, in appearance and demeanor, after the attack.
More significant, however, she refused to be examined by a physician.
Indeed, only on the day before the start of Montjoy’s trial—four weeks
later—did Cummings consent to an examination. Members of the
Kentucky Court of Appeals made short work of Wehrman’s argu-
ments, rejecting all of them. No proof had been entered showing that
blacks had been discriminated against in the jury selection process.
The mere fact that none had ever served on a trial in Kenton County
was not sufficient evidence of a racial bias, the justices stated em-
phatically. In response to Wehrman’s assertion that the confessions
had been made under duress, they concluded: “Admitting, for the
sake of discussion, that the facts are as contended, their cumulation
does not amount to duress or force. In nowise do they come within
the condemnation of section 1694b-1 et seq., Ky. Stats. commonly
known as the ‘anti-sweating’ act.”*

The efforts of concerned citizens had saved the life of McPerkins
but had failed in the case of John Pete Montjoy. Why? In the first case,
it was clearly demonstrated that no relationship existed between
the black man and white woman. Montijoy, however, had placed him-
self in a situation that given the racism of the day, he could not

23. Montjoy v. Commonwealth; see also a letter in New Masses, XVI (July 9, 1935),
21, signed by representatives of the NAACP, the ACLU, and the IDL.

nT

Color-Coded Justice 271

win. Ultimately, it made no difference whether evidence could be ob-
tained to show that Mrs. Cummings was, like the white woman in
the McPerkins case, also a woman with a disreputable character. All
that mattered was that Montjoy had an illicit relationship with her;
whether Cummings had agreed to sexual intercourse or had been
forced into it by the black man carried the same weight in the eyes of
the white jury. Mary Brite, whose efforts had resulted in Anderson
McPerkins escaping the gallows, concluded regarding Montjoy’s case:

With the white light of truth thrown upon the case, it is neither whole-
some nor pleasant to consider. Reduced to its simplest elements, it is an
instance whereby the unsupported statement of a white woman linked
with bitter prejudice is sufficient to condemn a black man to the death
penalty. From a legal point of view it contradicts every principle of admin-

" istering justice in criminal cases. From a social point of view, the case is
an example by which race hatred and ill will is fostered and fomented. It
appears that officers of the law and officers of the court closed their eyes to
principles of fair-play and simple justice in order to conform to concepts of
race hatred. Hence a challenge exists to all fair-minded citizens of the

Commonwealth of Kentucky and American citizens in general to voice a

protest against this manner of administering justice. All that could be re-

quested for Montjoy is a new trial where he would be afforded the oppor-
tunity of a hearing of all the facts, free from rancor, passion and prejudice.

That is the least that should be required of the courts which are the in-

struments of the people and exist to preserve to every man equal, fair, and

unprejudiced justice.”

In the continuation of another trend from the nineteenth century,
hostile whites packed the courtrooms as Afro-Americans were sen-
tenced to death for the murder of whites. Even in cases with circum-
stantial evidence or facts suggesting that Afro-Americans had acted
in self-defense, they stood little chance of winning acquittal from all-
white juries.

On July 26, 1906, Martha Broughton was murdered in Knox County.
Suspicion centered on her black domestic servant, Annie Henson, and
Henson’s male companion, Jesse Fitzgerald. Robbery was thought to
be the motive. No solid evidence could be found linking them to the
woman’s death; but Barbourville officials concluded that the black
couple had the opportunity, and Fitzgerald had been linked with the

24. Brite, “The Case of John Montjoy,” 3.


1212. Ky.

fendant on trial could not prevent, and to~
which he was forced to submit. Many au-

thorities are cited in the Jones opinion, but

the chief one in which the history of the

writ was given (and its application exten-

sively elaborated upon) was that of Sand-

ers v. State, 85 Ind. 318, 44 Am.Rep. 29, the

opinion in which was written by Judge By-

ron K. Elliott, a most noted and pre-eminent

judge. The reasoning employed by Judge

Elliott in that opinion, as well as the con-

clusions he reached, are fortified by many

other cases cited in the Jones opinion, and
because of which we deem it unnecessary
to repeat them here. We will, therefore,
content ourselves with referring the reader
to the indicated sources for that informa-
tion.

We do not share the apparent enthusiasm
of counsel in the innocence of their client,
since the reading of the various records
made by them in his behalf fail to disclose
the extreme injustice that they insist has
been meted out to him. They, however,
have succeeded in procuring a more or less
protracted postponement of the execution
of the sentence pronounced upon their client
by the misappropriation of unauthorized
and unfounded procedures, followed by mul-
tiplied delays, all of which supply a useful
purpose when properly employed; but it
was never the purpose that they should be
used as tools to create mere delay in the
enforcement of duly rendered judgments.
On the contrary, both the law and society
that it serves require that there should be
as speedy an end to litigation as is consistent
with a fair and impartial hearing, and it
would appear that in this case the time has
been reached for the pronouncement of a
finale to such unmeritorious and destructive
litigation.

For the reasons stated, the judgment is
affirmed.

© fy rer amen srsten

270 Ky. 466
TURNER-ELKHORN COAL CO. v.
SMITH et al.

Court of Appeals of Kentucky.
Nov. 4, 1937.

{. Reformation of Instruments 4!

A written instrument may be reformed

109 SOUTH WESTERN REPORTER, 2d SERIES

and proof of mutual mistake or one party's
mistake and other’s fraud.

2. Reformation of Instruments ©€=45(18)

The chancellor erred in crediting items
set out in defendant’s counterclaim on judg-
ment for plaintiff, where only additional
proof taken after reversal of previous judg-
ment for defendants on ground that evi-
dence was insufficient to authorize reforma-
tion of parties’ written settlement contract
did not indicate that items concerning which
witness testified were not included in settle-
ment, or that defendant was led so to be-
lieve by any act or representation of indiv-
iduals composing plaintiff firm.

——

Appeal from Circuit Court, Floyd Coun-
ty.

Suit by the Turner-Elkhorn Coal Com-
pany against T. W. Smith and others, in
which defendant Smith filed a counter-
claim. Judgment for plaintiff in the
amount sued for, subject to certain credits,
and plaintiff moves for appeal from the
part of the judgment allowing such credits.

Motion sustained, and judgment re-
versed, with directions.

Job D. Turner, Jr., of Lexington, and
Combs & Combs and J. D. Harkins, all of
Prestonsburg, for appellant.

A. J. May, of Prestonsburg, for appellee.

CREAL, Commissioner.

There have been three former appeals
of this case; the opinions being reported
in 218 Ky. 503, 291 S.W. 715; 239 Ky. 428,
39 S.W.(2d) 649; and 247 Ky. 112, 56
S.W.(2d) 545, 546. Reference to those
opinions saves the necessity of an extended
statement of the case.

J. C. Turner and the other individual
parties composing the firm of Turner-
Elkhorn Coal Company entered into a con-

‘tract with T. W. Smith to construct a _

railroad siding. Checks given by Smith to
employees engaged in constructing the sid-
ing were not paid by the bank on which
they were drawn because of lack of funds,
and the employees asserted a lien upon the
coal company’s property. To avoid this
the company paid checks amounting to
$711.17, and also a judgment for $117.32
against it in favor of another workman on
checks given by Smith. The company 1-
stituted this suit to recover such sums.

Smith by answer and counterclaim alleged

for fraud or mistake only on allegations that there was a balance of $16,122.44 due

TURNER-ELKH

lORN COAL CO. v. SMITH Ky. 4213
him under the contract and for which he not so clear and convincing as to justif
was entitled to judgment, less the amount cancellation thereof: it bein rae a
sued for. The company by reply denied the opinion that on a return of the case: “The
allegations of the counterclaim and pleaded court may permit further evid = :
a written contract of settlement entered in- taken, or dispose of the case “te mh
to between it and Smith. This settlement is already made, as the eitite a ; rere
set out at length in the opinion on the first vised, or the court fentice “a a -

appeal. After th d
. . ce e m i
By rejoinder Smith admitted signing was filed sha ahins pean snes a0
the writing, but averred that he did so on equit 1d ge aenee a “5
hie CA ee oe ee , ity, and after the deposition of W. R.
Me ~ R. €, Reese, former manager of the Turner-Elk-
manager of the company, that it would pay horn Coal C
designated persons sums of $4,466.90, and so aes aan gels Fe
: oo | $4,466.90, terrogatories, the chancellor adjudged that
e prayed judgment for this sum less the plaintiff
u plaintiit recover the sums sued for, sub-
amount sued for, and, upon motion to elect, ject t di i Hi
i i » ject to credits aggregating $308.50 for cer-
rested his counterclaim on the amended an- tain items set out i Smith’ o
swer which plaintiffs controverted. counterclaim, and plaintiff : tagiated ge
. : :
_Jeroes for Smith in the sum of motion for appeal from at ak i a
§ ,000 was reversed on the first appeal; it judgment allowing such credits,
eing held, in effect, among other things,
that appellee was not suing to avoid the set. _,[1] The first ground argued in support
tlement agreement on the ground that it of the motion to grant an appeal and for
was Urea d by fraed and. Shot ceria reversal of the judgment is that a written
evidence admitted on his behalf was in- instrument may only be reformed on the
competent, it being indicated that if suffi- ground of fraud or mistake where there are
cient pleadings for this relief should be see allegations and proof of mutual mis-
file d and supported by evidence, the ques- take, or of mistake upon the one side and
tiun of fraud might be submitted to the fraud upon the other. This rule contended
jury and they be instructed if they found for by counsel for appellant is so universal-
that the settlement contract was procured lyr ecognized as not to require elucidation
by fraud they might find for appellee on OF “itation of authorities.

ea a plenty if any, due [2] It is next argued that the court was
a g : ntract. without power or authority under former
fie Feats See the case to the lower opinions in this case, and under the evi-
. oe i ee an amended rejoinder dence, to reform and correct the settlement
bora =“ — Rian 8 of the agreement pleaded by appellants, and the
| by the com- opinion rendered on the third 1 i
pany, and the trial resulted in another ver- cited. That opini er as a
dict and judgment in his favor. On ap- court ere atin ct a
L , I not transferring the
PMeir sotement eat it = = equity, Lean eae said: aberint she
E ey whole case for the defendan :
pig hee conics trial, the court erred last upon the cancellation of a ce
esapcipns ing certain evidence with ref- tlement in writing, and the only testimon
the: fies a Ping Saale, = the writing was produced “3
appeal, Smith again amended his ante a sit Ges eee ae ica
i ¢ paired and weakened by hi issi
rae alee pool specifically alleged on cross-examination. His ean
pintet is ie gre ract of settlement to the alleged false representations were
ipa of ee obtained contradicted by three witnesses who were
ol ae > o¢ ian ae spe- present when the writing was executed.
oe ating to a 0 had The writing itself constituted cogent evi-
thisted Ma back paid. y, when no part dence of a complete settlement (Walker v.
a ae i ae Walker, 228 Ky. 357, 15 S.W.(2d) 298)
eda ne iano ‘* : oie pees judg- and a rpg ag thereof could not be
peal, was reversed on the ground ir ya tablished nal ig erestianiny ek fers esl
court erred in overruling plaintiff’s motion the rviiches is ee pete and vincher
d con
Pines _ gr to equity; and, also, Western Manufacturing Company pried
tea are ence that the settlement con- ton & Long, 126 Ky. 749, 104 S.W. 758, 31
Pleaded was procured by fraud was Ky.Law Rep. 1130, 12 L.R.A.(N.S.) 427;
= ;

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486s

a lier legislation and prior action taken
thereunder, as well as section 187 of the Con-
stitution requiring separate schools for white
and colored children, there might be room
for counsel’s interpretation of the excerpt,
supra, from the 1926 act, but the error into
which we are convinced they have fallen is
their viewing the question from entirely geo-
graphical considerations instead of from clas-
sification considerations. From 1893 to the
enactment of chapter 8, p. 35, Acts 1922, §
4464, and its immediately following ones pro-
viding for the establishment of graded com-
mon schools, was a part of the statutory law
in this commonwealth. Chapter 24, p. 162, of
the Acts of 1916 (the latter section 4468a1),
extended that law so as to provide for the es-
tablishment of colored graded schools, and,
under the authority conferred by each stat-
ute, a great many white graded schools as
well as colored graded schools were estab-
lished throughout the commonwealth, one of
the former of which was the white graded
school including Midway and contiguous ter-
ritory. The statute with reference to the es-
tablishment of white graded schools was re-
pealed by chapter 8, Acts of 1922, supra, and
the statute providing for the establishment of
colored graded schools was repealed by a pri-
or act. So that there is now no existing law
for the establishment of either white or col-
ored graded schools; but those that were es-
tablished prior to such repeals are continued
in existence. In a great many cases coming
hefore us, two of the latest of which are,
Commonwealth v. Sebree Deposit Bank, 202
Ky. 589, 260 S. W. 388, and Louisville, Hen-
derson & St. Louis Railway Co. v. Powell
County Superintendent, 218 Ky. 563, 281 S.
W. 532, we not only upheld the constitutional
requirement for separate schools for the two
races, but also adjudged that it was compe-
tent for either of the races to establish for
itself a graded common school within a pre-
scribed territory for the sole benefit of the
school pupils belonging to the particular race
establishing such school, and when done, the
pupils in that territory became an independ-
ent school unit as to the pupils of that race re-
siding therein, and that the establishment of
such a school by a particular race had no ef-
fect whatever upon the school status of the
pupils of the other race residing within the
same geographical limits. It simply left it
where it was before, i. e., in the county. It al-
so was held in those cases, especially the last
two, that the pupils within that territory and
belonging to the race that did not establish
the graded school continued as pupils within
the county wherein the graded school was es-
tablished, and were entitled to all of the priv-
ileges, including public funds for their edu-
cation, that are provided for other school
pupils both white and black residing within
the county outside of such established graded
school district. In other words, those opin-

5 SOUTH WESTERN REPORTER, 2d SERIES (Ky.

ions construed our various statutes so as to
carry out the constitutional provisions for
separate schools, and also held that either or
both of the races might by complying with
the statutes providing for the establishment
of graded schools, take themselves out of the
geographical limits of the county school unit,
and thereby make themselves an independent
school unit without in any wise affecting the
prior school status of the pupils of the other
race therein that did not do so.

Such was not only our holding in the latter
two cases, but we also held therein that cor-
porate property within the geographical limits
of the established graded school should pay
the school rate of taxation provided for by the
trustees of that district in proportion to the
number of pupils of the race that established
the district bore to the entire number of pu-
pils within it, and pay at the county rate to
the county collecting authority for the pupils
of the nonestablishing race within the same
geographical limits. We are convinced thar
it was not the intention of the Legislature, by
the enactment of the 1926 act, nor by the en-
actment of chapter 172 of the same session,
to disturb, or in any wise interfere with. the
interpretations so made by us. If it had been
its intention to do so, it would have been an
easy matter to employ language plainly ex-
pressive of such intention. On the contrary.
we conclude that, when reference is made
therein to “an independent graded school dis-
trict,” it was intended to refer only to such
racial districts as were theretofore organized
under prior existing law, and that it was nev-
er intended to burden that race with the duty
to also educate the pupils therein belonging
to the race not so organizing, who remained
in the same school unit as before; i. e, the
county.

The question was presented to some mem-
bers of the court on an injunction motion in
the case of Brown et. al. v. Kentucky State
Board of Education et. al., in a memorandum
opinion rendered on August 25, 1926, and not
published. On the exact point now under
consideration we therein said:

“To construe chapter 82 of the Acts of 1/26,
which was House Bill No. 460 of that session,
as defendants contend would not only result in
repealing by the vaguest implication the stat-
utory law as it theretofore existed, but would
also force unconstitutional procedures in order
to educate at public expense all colored chil-
dren in independent scholastic districts. If de-
fendant’s contention as to the true construction
of the act referred to, and kindred ones enacted
at the same session, be correct, then each
(white) graded school district in the state would
be compelled to educate the colored children
within its boundaries either by a separate
school for them, or by converting the graded
school into a mixed one at which the colored
children could attend, and which latter result
would be in defiance of an express provision ©
section 187 of the Constitution. But adopting
the first alternative (maintaining a separate
school for the colored children within the dis-

Ky.) McQUEEN v. COMMONWEALTH 487
5 S.W.(2d)

trict) would, in a majority of instances, reduce
the minimum number of pupils required by law
for the maintenance of a public school, since in
many (white) graded school districts there is
not the minimum number of colored children
for that purpose living within the district, and
no one Will contend, we presume, that the trus-
tees of the district could be compelled to main-
tain such a school outside of the limits of the
district. If, however, they could do so, then
under the present state of the law the mainte-
nance of the schools would be met by taxation
of property of only white taxpayers in the dis-
tricts, since the present graded schools in the
state that have been created by white patrons
are not authorized to levy or collect any sort of
tax on the property of colored citizens living
within the district.”

[2] While such opinions, rendered on sum-
mary applications to a member of this court,
although concurred in by the entire member-
ship of the court, are not precedents for the
guidance of the court under the stare decisis
doctrine, though rendered in the same case,
yet they may be looked to for their persuasive
effect.

The interpreted rights, obligations, and du-
ties herein adjudged will, of course, be limited
and confined to those created by the statutory
law on the subjects involved that was in
force at the time of filing this action and dur-
ing the period of its pendency, up to and
including the time of the rendition of this
opinion. Each and all of them are subject
to the right of the Legislature by a valid
statute to make such changes and alterations
us it deems proper within its constitutional
authority, and, if done, such duties, rights,
and obligations herein declared will there-
ufter conform to such enactment when made.

Wherefore the judgment is affirmed.

The whole court sitting.

(224 Ky, 89) ‘
"¢ McQUEEN v./COMMONWEALTH.

Court of Appeals of Kentucky. March 23, 1928.

1. Criminal law @==586, 1151—Ruling on con-
tinuance is discretionary, and not disturbed,
save for abuse.

Application for a continuance is a matter ad-
dressed to sound discretion of the trial court,
and its rulings on such questions will not be dis-
turbed, in absence of showing discretion has
been abused.

2. Criminal law @=590(1)—Refusal of contin-
uance is no error in case reasonable oppor-
tunity for preparation is shown, unless affi-
davit discloses reason therefor.

_ Where reasonable opportunity for prepara-
tion is shown, it is not error to refuse to con-
tinue proceeding, unless affidavit for continu-
ance states some material fact that could be
established by absent witness or discloses some

an

relevant or competent circumstances that could
be proved in event of continuance.

3. Criminal law @=589(2)—Refusal of contin-
uance because of temporary disqualifications
of one attorney is not abuse of discretion,
where others are employed.

It is not an abuse of discretion to refuse a
continuance because of temporary disqualifica-
tions of one attorney, when there are others em-
ployed in the case, and to justify continuance
under such conditions circumstances would have
to be peculiar and clearly show that accused’s
rights were prejudiced by refusal.

4. Criminal law @=913(3)—New trial ought not
to be granted on possibility of obtaining new
witnesses.

New trial ought not to be granted on spec-

ulative idea that possibly new witnesses may
be obtained.

5. Criminal law €=590(2)—Refusal of contin-
uance because of inability of one counsel to
assist in preparation of case held not error
under circumstances.

Where defendant, in prosecution for murder,
was not tried until several months after indict-
ment, though he was a fugitive during greater
part of such period and two weeks intervened
between incarceration and trial, refusal of con-
tinuance because of inability of one of counsel to
properly prepare case held not error, where oth-
er counsel was not so circumstanced that he
could not have made simple investigation of dis-
puted fact required.

Appeal from Circuit Court, Harrison
County.

Clarence McQueen was convicted of mur-
der, and he appeals. Affirmed.

Wade H. Lail and Swinford & Swinford,
all of Cynthiana, for appellant.

J. W. Cammack, Atty. Gen., and M. B. Holi-
field, Asst. Atty. Gen., for the Commonwealth.

DIETZMAN, J. The appellant was con-
victed of the crime of murder and sentenced
to death. He appeals.

The facts are these: Appellant, who lived
in Cynthiana, had been arrested for a viola-
tion of the federal prohibition laws and car-
ried to Lexington for trial before the federal
court sitting at that place. He gave bond
and returned to Cynthiana. There is testi-
mony tending to show that he was much in-
censed at his arrest and threatened to kill
the person who had “turned him up.” On the
afternoon of April 25, 1927, appellant pur-
chased and drank two pints of moonshine liq-
uor. He then armed himself with a shotgun

and made his way to the river. He says he

was going duck hunting, although the evi-
dence shows that it was past the season for
that sport. When he reached the river bank,
he found Lewis Williams sitting there. Up
to this point there is not much dispute in the
evidence, but the proof for the commonwealth
and that of the appellant differ radically as

€For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

“OZ6T-E1I-L uo (AGguNOD UoSsTdizeH) dS AM °99ETS *HOBTG feouedeTO *NEHNOOW

488 5 SOUTH WESTERN REPORTER, 2d SERIES (Ky.

- to Chat then occurred. The proof for the
commonwealth consisted of the testimony of

George Craig, who said that the appellant, on
seeing Williams, told the latter that his time
had come, and that Williams replied, “Wait
until I go into the house and get mine,”
whereupon the appellant fired his shotgun,
the load going into the back of Williams by
one of the shoulder blades. Williams was up
by this time. Appellant reloaded his gun, it
being a single barrel shotgun, and shot Wil-
liams again in the back, the load going in by
the other shoulder blade. Williams dropped
to the ground, dead. Williams made no at-
tack on the appellant and was unarmed. The
appellant testified that, although Craig was
seated by Williams when he first got there,
Craig left immediately and did not see the
shooting.

Appellant further testified in substance:
That, when he approached the river bank,
Williams accused him of having said that
he had been “turned up” by Williams. Ap-
pellant denied this, whereupon Williams said,
“Well, I heard you done it and anybody that
says that isa damn liar.” Appellant respond-
ed that Williams was the one who brought
this up and that he was no more of a liar
than Williams. That Williams then said,
“We are going to settle this,” and started to
place his hand in his pocket as though to
draw a knife. Appellant then shot Williams.
To substantiate his claim that Craig was not
present when the shooting took place, the ap-
pellant filed his affidavit as to what an absent
witness, Anne Johnson by name, would say
if present at the trial. The court permitted
this affidavit to be read as the deposition of
Anne Johnson. In substance, it said that she
was standing near a well close to the scene
of the shooting when it took place; that
Craig was near her at that time and could
not, from that place, have seen the shooting.
As to what occurred after the killing, the evi-
dence again is not in dispute. Appellant
made his way down town, threatened an-
other party, stated to several people that he
had killed one “son of a bitch nigger and was
looking for another” and then disappeared.
It is true appellant does not admit making
these threats, but neither does he deny them.
He simply says that he does not remember
making them. The body of Williams was
prepared for burial, was searched by the un-
dertaker, and no knife or pistol was found
upon him,

Appellant was indicted on May 31, 1927, for
the murder of Williams, but he was not ap-
prehended until the following September,
when he was found and arrested in Pontiac,
Mich. He was brought back to Cynthiana
and lodged in jail on Sunday, September 4th.
The next day he employed Judge Wade H.
Lail, of Cynthiana, to defend him. The Sep-
tember term of the Harrison circuit court
began on this day. On September 7th appel-

lant was brought into court and his trial was
set for Monday, the 12th. On that day ap-
pellant through his attorneys Judge Lail and
the firm of Swinford & Swinford, which had
in the meantime also been employed to de-
fend the appellant, procured a continuance
of the trial to the 19th day of September.
When the case was called for trial on that
day, his attorneys again moved for a contin-
uance. This motion was overruled. The
case then proceeded to trial, with the result
stated.

The sole ground urged in this court for a
reversal of the judgment is that the lower
court erred in not granting the continuance
requested on the day when the case was ecall-
ed for trial and tried. When the trial court
continued this case on the 12th, he did so on
the strength of the affidavits then filed of
the appellant and of his counsel Judge Lail
and Hon. Mac Swinford. In substance these
affidavits averred that the firm of Swinford
& Swinford had not been employed until the
8th of September, at which time the senior
member of the firm was at the bedside of a
son who was fatally ill in Louisville, Ky.;
that this senior member had been at the bed-
side of this son practically all the time since
the employment of the firm and had been un-
able, on account of such absence from Cyn-
thiana and on account of his mental distress,
to give this case any attention; that the jun-
for member of the firm, Hon. Mac Swinford,
had been to Louisville a good deal of the
time to see his brother and had likewise been
unable, on account of such absences and his
distressed state of mind, to give the case the
attention it required; that Judge Lail had
been very busy during the term of court;
that he had depended on his associate coun-
sel in large measure for the preparation of
this case; and that for these reasons he, too,
had been unable to prepare properly this case
for trial. On the 19th the only affidavit filed
by the appellant in support of the motion then
made for a continuance was that of Hon.
M. C. Swinford, the senior member of the firm
of Swinford & Swinford, which stated his
continued presence at the bedside of his son
and his inability to prepare this ease for
trial. The parties, though, seemed to have
treated the affidavits filed on the 12th as be-
ing still applicable in support of the motion
of the 19th and we will do likewise. The com-
monwealth filed the counter affidavit of the
commonwealth’s attorney, which, so far as
Hon. M. C. Swinford is concerned, did not
controvert any of the facts alleged as to him.
This counter affidavit did state, though, that
the appellant, when he employed the firm of
Swinford & Swinford, knew the handicap un-
der which both of its members were then la-
boring, and, despite such knowledge, retained
them. As to Hon. Mac Swinford and Judge
Lail, the counter affidavit stated that they
had both been in Cynthiana practically al

Ky.) McQUEEN v. COMMONWEALTH 489
5 S.W. (2d)

the time from the 5th of September to the
19th; that they were both capable, competent,
and able attorneys; that the number of wit-
nesses was small; and that they had had
ample opportunity for preparation.

This case took two days for trial. On the
opening of the court on the second day, the
appellant moved to set aside the swearing
of the jury and for a continuance of the case.
In support of this motion he filed his affida-
vit, in which he reiterated his unprepared-
ness for trial, and stated that he did not
know what the witness Craig was going to
testify to until he heard the opening state-
ment of the commonwealth; that Craig was
not present at the time of the shooting as
he could prove by Anne Johnson, who was
at present in Milwaukee. In this affidavit
the appellant set out that Judge Lail’s sister
had been very ill; that she was Judge Lail’s
office assistant; that Judge Lail depended
upon her assistance in the preparation of his
trials; and that, for this additional reason,
Judge Lail was unprepared for trial. So far
as this affidavit embodied what Anne John-
son would have testified to, if present, it was
allowed by the trial court to be read as her
deposition. It was in this state of the rec-
ord that the trial court declined to continue
the case.

[1-5] In testing whether any prejudicial
error was committed by the trial court in his
refusal to grant the continuance requested
on the 19th, certain salient facts must be
borne in mind. Appellant admits he shot and
killed the deceased. He does not deny the
threats the witnesses say he made prior to the
killing or the statements attributed to him
after the killing. According to his theory,
no one was present at the shooting but the
deceased and himself. The only chance, then,
he has to strengthen his case or to weaken
that of the commonwealth, is to prove the
absence of Craig at the time of the shooting.
In his affidavit, he says that he did not know
what Craig would say until the common-
wealth made its opening statement, and yet
Craig’s name was one of the six names ap-
pended to the indictment as those of the wit-
nesses. There is no showing made in this
record that appellant can in any way, if given
a new trial, corroborate the statement of
his witness Anne Johnson to the effect that
Craig was not present when the shooting oc-
curred. On the facts as they had them, the
appellant’s counsel, despite the handicaps set
out in the affidavits, well and skillfully rep-
resented him.

Further, it must not be forgotten that on
the facts as they appear in this record the
appellant when he employed his counsel knew
of the handicaps under which they were la-
boring. Under such circumstances he may
not well complain of such handicaps. Piercy
v. Commonwealth, 195 Ky. 725, 244 S. W. 52.
An application for a continuance is a matter

5 S.W.(2d)—314

addressed to the sound discretion of the trial
court and its rulings on such questions will
not be disturbed in the absence of a showing
that the discretion has been abused. Caudill
v. Commonwealth, 155 Ky. 578, 159 S. W.
1149; Kelly v. Commonwealth, 165 Ky. 483,
177 S. W. 249. Where a reasonable opportu-
nity for preparation is shown, it is not error
to refuse to continue the proceeding, unless
the affidavit for a continuance states some
material fact that could be established by an
absent witness or discloses some relevant or
competent circumstances that could be prov-
ed in the event of a continuance. Murphy v.
Commonwealth, 92 Ky. 485, 18 S. W. 163, 13
Ky. Law Rep. 695; McDaniel v. Common-
wealth, 181 Ky. 766, 205 S. W. 915; Watkins
v. Commonwealth, 149 Ky. 26, 147 S. W. 947.

Further, it is not an abuse of discretion to
refuse a continuance because of the tempora-
ry disqualifications of one attorney when
there are others employed in the case and tw
justify a continuance under such conditions
the circumstances would have to be peculiar
and clearly show that the accused’s rights
were prejudiced by the refusal of the contin-
uance. Owen v. Commonwealth, 181 Ky. 257,
204 S. W. 162. As stated, the facts of this
homicide were not in dispute except on the
question whether appellant shot the decease!
in his necessary self-defense. The location
of the wounds in the back of the deceased
and the facts that appellant had armed him-
self prior to the homicide, that he had made
threats which he does not in terms deny, and
that no pistol or knife was found upon the
deceased after his death, are all very power-
ful factors weighing against the contention
of the appellant.

No doubt, the question of the presence or
absense of Craig at the time of the shooting
is important. But in a place no larger than
Cynthiana it would not take long to investi-
gate that question, and while it is true that
the members of the firm of Swinford & Swin-
ford were greatly handicapped and that one
of these members probably under the circum-
Stances could give no thought or time to
preparation, yet the record shows that Judge
Lail was available throughout the period
from September 5th to the 19th, a period of
14 days. As one of appellant’s counsel was
available for this task and as this counsel
was thoroughly competent for it, appellant
may not complain, as we have seen, that his
other counsel were unable to make the in-
vestigation. True it is that Judge Lail was
busy during this time, but the record does
not show that he did not have the time to
make this investigation. In a town the size
of Cynthiana it would have taken but little
time to interview the six witnesses whose
names were appended to the indictment.
Such an interview would at once have disclos-
ed that concerning which Craig was going to
testify. It would not have taken long to have

490;

Acertained if there was any other witness
beside Anne Johnson, who claimed to have
seen Craig at the well at the time of the
shooting. This is all the additional prepa-
ration that could have been of any value in
this case. New trials ought not to be granted
on the speculative idea that possibly new
witnesses may be obtained. ‘The issues of
law and fact in this case were very simple
and there is not the slightest intimation in
the record that any other witness can be ob-
tained to corroborate Anne Johnson. Under
such circumstances the trial court did not
abuse its discretion in refusing to grant the
requested continuance or in overruling the
motion for a new trial based on such refusal.
The cases upon which the appellant relies
are clearly distinguishable on their facts.
In the case of McDaniel v. Commonwealth,
181 Ky. 766, 205 S. W. 915, the accused was
arrested on the 22d of April in Warren coun-
ty and was on the 25th transferred to Jeffer-
son county for protection against mob vio-
lence. He was too poor to employ counsel
and only secured counsel on the day his trial
begun. He was tried under threats of mob
violence. On these facts this court held that
he should have been granted a continuance.
No such facts as these appear in this case.
In Smith v. Commonwealth, 133 Ky. 532, 118
S. W. 368, the trial of the accused was set
four days after his indictment. As he was
unable to employ counsel the court appointed
counsel for him. The appointed counsel was
very busy trying other cases. The sheriff
was unable in the short time intervening be-
tween the indictment and trial to subpoena
the witnesses for the accused and we held
that he should have been granted a continu-
ance. In the case of Miller vy. Commonwealth,
197 Ky. 703, 247 S. W. 956, the accused was
himself shot in the mélée. He was unable to
employ counsel. The court appointed coun-
sel for him on October 9th and fixed October
12th as the date for his trial. During these
intervening 3 days the accused was suffering
seriously from his gunshot wound. After the
trial it developed that the accused was an

5 SOUTH WESTERN REPORTER, 2d SERIES (Ky.

escaped lunatic suffering with paranoia. On
these facts, we held it error to refuse a new
trial to the accused. The next case is that
of Samuels v. Commonwealth, 154 Ky. 758,
159 S. W. 575. There the accused was unable
to employ counsel and the court appointed
counsel for him on the day of the trial. After
the trial newly discovered evidence was pro-
cured of vital importance. It was held that
the accused was entitled to a new trial. In
the case of Allen v. Commonwealth, 168 Ky.
325, 182 S. W. 176, the trial was set 3 days
after the return of the indictment and on ac-
count of the peculiar facts in that case the
accused was unable to confer with his coun-
sel. We held that a continuance should have
been granted.

In the case before us, however, the accused
had ample opportunity to confer with his
counsel, There were no threats of mob vio-
lence. His trial did not occur until several
months after his indictment. While he was
a fugitive from justice during this period,
yet this status was of his-own election. He
might, had he chosen, employed that time in
his preparation for trial. Further, two
weeks intervened between his incarceration
and his trial. The witnesses for the common-
wealth were few in number; in fact, there
was no one who testified on any disputed
facts except Craig. Although one set of coun-
sel was handicapped in the preparation, the
other counsel was not so circumstanced as
that he could not have made the simple inves-
tigation of the disputed facts. The issues of
law were so simple that they lay within the
knowledge of these skillful and able lawyers
without especial preparation. There is no
intimation that any additional evidence can
be obtained to corroborate Anne Johnson.
Under the light of controlling authority we
are unable to say that the trial court abused
its discretion in refusing to grant the request-
ed continuance. No error appearing prejudi-
cial to the substantial rights of the accused,
the judgment must be and it is hereby af-
firmed.

Whole court sitting.

Ky.) JONES v. COMMONWEALTH §81
5 S.W.(2d)

(224 Ky. 124)
JONES v. COMMONWEALTH.

Court of Appeals of Kentucky. April 17, 1928.

1. Criminal law €==996(1)—Clerical error in
writing in one part of judgment name of an-
other for that of defendant may be corrected
as clerical misprision.

If, as would seem from reading judgment in

a criminal case as a whole, the name of another

than defendant in the latter part of it is simply

a clerical error, it may be corrected by motion

as a clerical misprision in the trial court.

2. Arson €==37(1)—Evidence of feloniously
burning of barn of another held to sustain
conviction.

Evidence on prosecution for feloniously
burning the barn of another held, suflicient to
sustain conviction.

3. Criminal law ¢—>1159(4)—Credibility of wit-
nesses is not ground for reversal.

The court will not reverse merely on the
credibility of the witnesses.

4. Criminal law @=>1104(3)—Certified tran-
Script of record to be filed on appeal is com-
plete transcript of record, except of evidence
which need not be copied (Cr. Code Prac. §
336).

The certified transcript of the record which
Cr. Code Prac. § 336, provides shall, on appeal
in a criminal case, be filed in the office of the
clerk of Court of Appeals means a complete
transcript of the record, except the transcript
of evidence which, by statute, need not be
copied.

Appeal from Circuit Court, Clay County.

Charley Jones was convicted of the feloni-
ous burning of the barn of another, and he
appeals. Affirmed.

Frank H. Baker, of Manchester, for ap-
pellant.

J. W. Cammack, Atty. Gen., and S. B. Kir-
by, Jr., Asst. Atty. Gen., for the Common-
wealth.

HOBSON, C. Charley Jones, Frank Bush,
and James Bull Wagers were indicted in the
Clay circuit court for feloniously burning the
barn of John Davidson. Frank Bush was
first placed on trial; he was found guilty
and appealed, but later the appeal was dis-
missed. Charley Jones was placed on trial
at the next term. He was found guilty, and
his punishment fixed at one year in the pen-
itentiary. He appeals.

The judgment of the court reads thus:

“The defendant Chas. Jones, was brought into
open court by the jailer, and, being informed
of the nature of the indictment, plea, and ver-
dict, was asked if he had a legal cause to show
why judgment should not be pronounced against
him, and, none being shown, it is the judgment
of the court that the defendant Harlan Baker

be conveyed by the sheriff of Clay county to
the state reformatory at Frankfort, Ky., and
there be confined at hard labor for a period of
1 year.”

[1] It is insisted that the judgment is void
because Harlan Baker has not been tried.
But reading the judgment as a whole, it
would seem that the words “Harlan Baker”
are simply a clerical error for “Charley
Jones,” and, if so, this may be corrected by
motion as a clerical misprision in the cir-
cuit court, for Harlan Baker was not a party
to the case at all.

[2, 3] It is also strenuously urged that the
verdict of the jury is palpably against the
evidence. The evidence for the common-
Wealth by Davidson was that the fire oc-
curred about 11 o’clock at night; that the
light waked him up; that he then went to the
barn and there saw Charley Jones and
I'rank Bush, who rode rapidly away on two
black mules; that he knew them well, and
saw them clearly by the light of the fire. An-
other witness testified that shortly before
the fire they passed him down the creek
just below Davidson’s house, and that there
Bush proposed to go up and set fire to David-
son’s barn, saying that he had been putting
his mouth into things he had no business in;
that this witness also testified that he saw
the light of the fire shortly afterward and
just after the light appeared Bush and Jones
came riding rapidly down the creek on two
black mules. Another witness testified to
efforts made by Bush to get coal oil that eve-
ning.

While the testimony for the defendants
was to the effect that they were elsewhere
that evening, the credibility of the witnesses
was for the jury. The court will not reverse
merely on the credibility of the witnesses.
The instructions of the court to the jury
clearly submitted the case to them, and there
was no substantial error in the trial.

[4] The court has passed on the merits of
the case, but that the practice here may not
be followed as a precedent, attention is called
to the provisions of section 336 of the Crim-
inal Code that the appeal must be prayed
during the term in which the judgment is

+ rendered and is granted as a matter of right;

also, that a certified transcript of the record
must be filed in the clerk’s oflice of this court
Within 60 days after the bill of exceptions
is made a part of the record by an order of
court, A certified transcript of the record
means a complete transcript of the record,
except the transcript of evidence which by
statute need not be copied. The record filed
in this case does not conform to the Code,
but, waiving these defects, the court finds
no error in the record.

Judgment affirmed.

@=For other cases see same topic and KEY-NUMBBER in all Key-Numbered Digests and Indexes

5 S.W.(2d)—56


(1b KENTUCKY REPORTS. [Vol. 197.
_and as conducing to show an intent or motive on the part
of appellant for the killing of the latter, viz., that the
motive was robbery. In Bishop’s New ‘Criminal Pro-
cedure, vol. 1, section 1126, the reasons for upholding
the admissibility of such evidence are thus stated:

‘The intent, knowledge or motive under which the
defendant did the act charged against him, not generally
admitting of other than ‘circamstantial evidence, may
often be aided in the proofs by showing another crime,
actual or attempted. Then it is permissible.”’

The same doctrine is recognized in Greenleaf on Evi-
dence, vol. 1, section 53, in which it is in part said:

“Tn the proof of intention, it is not always necessary
that the evidence should apply directly to the particular
act with the commission of which the party is charged,
for the unlawful intent in the particular case may well
be inferred from a similar intent proved to have existed
in other transactions done before or after that time....”’

It will be found that this court has given its sanction
to the rule, supra, in the following cases and others that
might be cited : Obrien v. Commonvwe alth, 115 Ky. 698;
Tye v. ee ord L. R. 59; Clar y ¥. Common-
wealth, 163 Ky. 48; Bullington v. Commonwe alth, 193
i 529: Musie v. Cetin ealth, 186 Ky. 45; Moore v.
Commonwealth, 188 Ky. 505.

The evidence in question being admissible as a link in
the chain and entitled to such weight as the jury might
see fit to give it, its admission by the trial court was not
error.

In view of the fact that the appellant must again be
tried for the crime charged in the indictment, we will ex-
press no opinion respecting the weight or effect of the
evidence contained in the record.

Beeause of the error committed by the trial court in
refusing the appellant a continuance, the judgment is
reversed and cause remanded for a new trial, not ineon-
sistent with the opinion. The whole court sitting.

, Cox, etal. v. Prewitt, et al.
(Decided February 16, 1923.)
Appeal from Whitley Cirenit Court.

1. Religious Societies—Effect of Division of Church or Society.—Sec-
tion 822, Ky. Statutes, providing that where a schism or division

eet a

Sn ie Ae

a

Ma fo

wt

Cox v. Prewitt. 717

occurs in a religious society each party shall have the use of the
church property for divine worship a part of the time, applies
where the members of an independent self-governing local church
divide into two factions and one faction. claiming to be the true
church, attempts to exclude the other from the use of the church
house.

2. Relizious Societies—Effect of Division of Church or Society.—-The

court erred in adjudging a faction in an independent self-govern-
ing church composed of 48 members the true church, and enjoin-
ing the other faction composed of 142 members from using the
church premises for divine worship.

3. Religious Societies—Effect of Division of Church or Society—As

the excluded majority faction only asked for the right to use the
church one-half of the time, the court should have so adjudged,
although the statute provides for a divisional use proportionate to
the size of the factions.

M. A. GRAY and W. R. HENRY for appellants.

STEPHENS & STEELY for appellees.

OPINION oF THE Court By Jupce CLarKe—Reversing,

Prior to March 28, 1916, a considerable number of
people in Corbin, Kentucky, had associated themselves
together for the worship of God, and had been conduet-
ing services as a religious society without any regular
pastor, under the name of the ‘‘Church of God.”? There
is no proof of any formal organization, or of the election
of any officers, or of any formal agreement or covenant
of faith or discipline, but the parties thus associated and
acting together recognized and accepted certain ones of
their number as officers and were in substantial agree-
ment upon all matters of faith and doctrine, and, in our
judgment, constituted a local, independent, self-govern-
Ing religions ey or church.

On March 28, 1916, two adjoining lots were acquired,
one by donation and the other by purchase, which were
conveyed by deeds of general warranty, containing no
trust provisions of any kind, to E. L. Cox, Speed Snyder,
Gillis Goff, R. N. Johnson, and W. H. Prewitt, as ‘‘trus-
tees of the Church of God.’’ By the efforts of those thus
associated together and public subscriptions, a church-
house was built wpon this property, and same was dedi-
‘ated in the fall of 1916, free of debt.

Thereafter services were regularly held in the church,
in which all of those who had helped to build the house
participated without disagreement and without formal

43. KENTUCKY REPORTS. [Vol. 200.
trying one of the worst eriminals in Hopkins county, He
is a greater criminal than Macbeth of whom Shakespeare
tells us. Until you get rid of such criminals as this de-
fendant crime will go on in Hopkins county and the
bleached bones of murdered men will continue to be
found.’? We think the language of the first statement,
‘‘Under our present system of coddling criminals he will
get out in half the time you give him,’’ was Improper ;
but, in as much as the judgment must be reversed for
reasons hereinbefore stated, we will refrain from de-
termining whether the statement alone was sufficient to
authorize a reversal where, as here, the court declined to
sustain an objection to it or to admonish the jury not to
consider it. In urging the impropriety of the last quoted
statement from the argument of the attorney it is said in
brief that a short while prior to the trial some luman
bones were found in the vicinity, and that the complained
of remarks indirectly charged the defendant with the
erime of killing the person whose bones were found, and
were so understood by the jury. But, if the referred to
fact appeared in the record then we do not think the
language susceptible of that interpretation or applica-
tion, nor do we think they went beyond the legitimate
license of the prosecutor in presenting his side of the ease
to the jury. He was then arguing the case from the
standpoint of the Commonwealth’s testimony, which the
jury evidently understood, and if that testimony was be-
lieved by the jury, as it was by the attorney, it rendered
the defendant a eruel and heartless criminal and created
an ureent necessity for the community to get rid of him.
He was at that time commenting on the fortuitous cir-
eumstance of the miraculous recovery of the prosecuting
witness, but for which a heinous crime might have gone
unpunished, and we do not think he transcended, his rights
in the remarks complained of in the light of the lieense
we have often announced in considering this objection,
that ‘reasonable inferences to be drawn from the facts
and cireumstaneces might be made and commented upon,
and that to do so was not prejudicial error. The law in
such cases recognizes the fraility of human nature, and
that in the heat of argument inappropriate remarks are
liable to be made, but unless they are altogether un-
founded from any fact or circumstance appearing in the
ease, and manifest such a wide departure from legitimate
deductions as to be at once poisonous and prejudicial, a

Prep te ated shh? a wo ae

(ye eo

ener Seren en eS

Miller v. Commonwealth. 435

-yeyersal will not be ordered for that reason alone.’’

Musie v. Commonwealth, 186 Ky. 45. We are convinced
that in this case the Commonwealth’s attorney in the last
remarks complained of did not depart from the latitude
therein prescribed. Upon a return of the case the Com-
monwealth’s attorney, if he desires it, should be permit-
ted to resubmit the indictment to the grand jury and
draft a proper one under the first part of the statute and
in conformity with this opinion.

Wherefore, the judgment is reversed with directions
to sustain the motion for a new trial and for proceedings
consistent herewith.

Miller v. Commonwealth.

(Decided October 12, 1923.)

Appeal from Breckinridge Cireuit Court.

1. Criminal Law—Affidavit for Continuance for Absent Witness Held

Not to Show Diligence.—An affidavit that absent witnesses resided
in another county and that a subpoena had issued for them “on
the — day ot May, 1923,” and placed in the hands of the sheriff

of the county of their residence, who had not returned it, did not.

show diligence, where the trial was had on the 3ist day of May,

since the subpoena could have been procured on the very day of
trial. ;

2. Criminal Law—Refusal of Continuance for Absence of Witnesses

Discretionarys and Not Ground for Reversal, if Absent Testimony
was Only Cumulative, and Defendant got Benefit of it.—Criminal
Code of Practice, section 189, vests in the trial court a sound dis-

cretion at a term subsequent to return of indictment as to con- -

tinuance for absence of. defendant’s witnesses, or whether a trial
will be ordered if the prosecuting attorney agrees to admit the
affidavit to be read as the testimony of such witnesses, and a
judgment of conviction will not be reversed for refusing a con-
tinuance, where from all circumstances it is manifest that de-
fendant’s substantial rights were not prejudiced, as where testi-
mony was only cumulative and the jury got the benefit of it.

3. Criminal Law—Statute Vesting Discretion as to Continuances Ap-

plies to Murder Cases.—Criminal Code of Practice, section 189,
vesting in the trial court a sound discretion at a term subsequent
to return of indictment as to whether prosecution should be con-
tinued because of the absence of witnesses, applies to murder
cases, wherein the death penalty is inflicted.

Criminal Law—Refusal of Continuance for Absent Witnesses Held
Not Error—In a homicide case, wherein death penalty was in-


nd

-

436 KENTUCKY REPORTS. — [Vol. 200.

flicted, refusal of continuance at a term subsequent to the one
at which indictment was returned by reason of the absence of a
physician who would testify that defendant was insane, and a
witness who would testify to an alibi, held not an abuse of dis-
cretion, in view of testimony of other physicians and other testi-
mony overwhelmingly proving that defendant committed the
homicide, in view of Criminal Code of Practice, section 189.

5. Homicide—Verdict of Guilty Notwithstanding Plea of Insanity
Sustained—In a prosecution for murder, wherein the death
penalty was inflicted, verdict of guilty notwithstanding claim of in-
sanity held net flagrantly against the evidence.

CLAUDE MERCER for appellant.

THOS. B. McGREGOR, Attorney General, and LILBURN PHELPS,
Assistant Attorney General, for appellee.

OPINION OF THE Court By Jupce THomMAs—Affirming.

The appellant, Charles Miller, a colored man about
twenty-four years of age, was indicted for and convicted
in the Breckinridge cir cuit court of murderi ing Sam May-
craft and was given the death penalty. On his appeal
to this court, the judgment was reversed by an opinion
reported in 197 Ky. 703, and in which the facts relating
to the Commission of the homicide are stated and will
not be repeated here. That opinion was rendered on
February 13, 1923, and a second trial was had in the
Breckinridge circuit court on May 31, thereafter, result-
ing im a similar verdict, upon which ‘judement was ren-
dered and which defendant seeks to reverse by this ap-
peal.

Only two errors are argued and relied on for that pur-
pose by his able counsel, which are (1), the court erred
in overruling defendant’s motion for a continuance be-
cause of the absence of Dr. Milton H. Board and Aubrey
Mopley, material witnesses in his behalf, and whose tes-
timony, if present, was set out in the affidavit which the
Commonwealth agreed might be read as the depositions
of the absent witnesses, and (2), that the verdict of the
jury is flagrantly against the evidence on defendant’s
chief defense of insanity at the time the homicide was
committed,

1. It was stated in the affidavits that the two wit-
nesses resided in Louisville, Jefferson county, Kentucky,
and that a subpoena had issued for them ‘‘on the — day
of May, 1923,’ and placed in the hands of the sheriff of
that county, but he had not returned them. It is doubt-

i ly

i! gad Rie

Geert ae it. y by
Fa Ae p

* Spit igs)” ig
eT areetehks eam

See

ae

Miller v. Commonwealth. 437

ful if sufficient diligence was shown by that statement,
since the subpoena could have been procured on the very
day of trial and the statement in the affidavit be literally
true, which if correct would be no diligence at all. Brown
v. Comth., 195 Ky. 166, and Mohundro y. Comth., 197 Ky.
221. But because of the gravity of the punishment we
have concluded to treat the affidavit as sufficient and as
conipletely measuring up to the requirements of the prac-
tice.

With reference to the witness Dr. Board, it was
stated that ‘‘on the — day of 1923,’? and while
defendant was imprisoned at the penitentiary at Eddy-
ville, Kentucky, to which place he was sent after his first
trial, witness examined defendant and pronounced him
insane and that he had been so for more than five years,
and that he did not have sufficient reason to know what
he was doing or to know right from wrong beeause of his
mental unsoundness. With reference to the witness Mop-
ley, it was stated in the affidavit that he would swear that
defendant was in Louisville on October 4, 1922 (the even-
ing on which the homicide was committed), and remained
in that city until something like ten o’clock the next
morning, October 5, which, if true, rendered it impossible
for him to have committed the crime with which he is
charged.

The trial was had at a term subsequent to the one at
which the indictment was returned, and section 189 of
the Criminal Code vests in the trial court a sound dis-
cretion in such eases as to whether the prosecution should
be continued because of the absence of defendant’s wit-
ness or witnesses, or whether a trial will be ordered if
the prosecuting attorney agrees to admit the affidayit to
be read as the testimony of the absent witness or wit-
nesses. Under the latitude conferred by that section we
have uniformly held that under the broad discretion
therein given the trial court, a judgment of conviction
will not be reversed for refusing a continuance, unless
from all the facts and circumstances of the ease it mani-
festly appeared that defendant’s substantial rights were
prejudiced thereby (Brown vy. Commonwealih, supra),
an example of which might be, where the testimony of the
absent witness was directed ‘to a most vitally material
issue in the case and was the only testimony thereon.

3ut where there was other testimony heard at the trial on
that issue and the absent testimony was only cumulative,


” KENTUCKY REPORTS. [Vol. 200.

and the jury got the benefit of it, as set out in defendant’s
affidavit, we have quite uniformly held that the court did
not abuse its discretion and that the verdict of conviction
would not be disturbed. Some of the numerous cases so
holding are: Ross v. Comth., 25 Ky. L. R. 1621; May v.
Comth., 153 Ky. 141; Caudill v. Comth., 155 Ky. 578;
Tyree v. Comth., 160 Ky. 706; Adkins vy. Comth., 161 Ky.
954; Comth. v. Flynn, idem 289, and Wallace v. Comth.,
187 Ky. 775. Lay v. Comth., 186 Ky. 163, is a case wherein
it was held that the court abused its discretion in refus-
ing a continuance because the testimony of the absent wit-
ness was not cumulative but was the only evidence upon
that issue, except that given by the defendant, and the
absent witness had not only been subpoenaed but was
present at the time the trial was entered into and disap-
peared before the time for his introduction. The section of
the Code referred to applies to murder cases wherein the
death penalty is inflicted, as well as to other criminal pro-
secutions, and we ean detect no grounds for making an ex-
ception of this ease and excluding it from the control of
the approved practice in other similar ones. There ap-
pears no fact or circumstance, save perhaps the gravity
of the punishment, that would authorize us in doing so.
Other witnesses, including the two learned physicians who
under the proof had the opportunity to and did make a
more thorough examination than did Dr. Board, testified
on defendant’s behalf on his defense of insanity, as did
also his father and another witness or two. Besides, it
appears in the evidence for the Commonwealth that the
examination of the defendant, referred to in the affidavit
as made by the absent witness (Board), consisted in a
short conversation between the two while the defendant
was locked up in his cell with the witness on the outside
conversing with him, and in which the latter made no
physical examination or other diagnosis to determine
defendant’s mental condition. But, however that may
be, we feel that we would be compelled to retrace our
steps as made in the numerous eases referred to were we
to hold in this ease that the court abused its discretion in
declining to grant the continuance on account of the ab-
sense of the witness, Board, and by parity of reasoning
the same is true as to the other absent witness, with the
additional fact, as to his testimony, that it was over-
whelmingly proven that the defendant committed the
homicide which, indeed, is not denied by his counsel.

. 4 Pe NM 4,
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you ahs ha

Miller v. Commonwealth. 439

9 It was shown by witnesses for the defendant that
he was ineareerated in March, 1921, in some kind of an
asvlum for the insane in the state of Alabama. He re-
mained there for about thirty days, the most of which
time he was given the privilege of a trusty and worked
in the dairy department of the institution. While so
engaged and as stated at the expiration of about thirty
davs he escaped and so far as the record shows no effort
was ever made to apprehend him. He afterwards re-
turned to the home of his father, who was a farmer, and
engaged for a while im assisting the latter on his =
when he again disappeared and was not heard from ti
the commission of the crime for which he 1s charged.

The asvlum physicians said that he was classified by
them as ‘‘a dementia praccox, paranoid tvpe,’’ but that
he ‘“‘eseaped before a positive diagnosis was agreed upon
by the staft with the man present.’’? They also said that
the classified affliction produced with the patient ‘proml-
nence of delusions, particularly ideas of persecution or
erandeur, often connectedly elaborated, and hallunema-
tious in various fields with progressive deterioration.
One of the physicians stated that assuming defendant to
be in the same mental condition on October 4, 1922 (the
date of the homicide), as he was when confined in the
institution, ‘he would still have sufficient reason to know
what he was doing and to know right from wrong; but
the other one answered, in response to the same hypothe-
tical question, ‘‘7f this man had delusions of persecution
he would not be responsible for his actions.”’ The father
testified that the defendant, in his opmion, was not men-
tally sound, but one of his colored neighbors in Alabama, .
who was introduced by the Commonwealth, testified to
the contrary. In addition the Commonwealth introduced
Doctors Sights, Traviss, and Kinchloe, all of whom saw
and conversed with defendant after he committed the
crime and they testified in substance that according to
their opinion he was of sound mind and responsible for
his acts.

The Commonwealth also introduced a great number
of lay witnesses who saw and conversed with defendant,
some on the day before he committed the ermme at night,
and others afterwards on up to the day of the trial, and
from those conversations and the conduct of defendant
as observed by them they stated that, in their opinions,
he possessed a normal mind. Added to all that testi-

: a

+ 5 a
af =e attached!

sentatives at

skfe the Red Cross doorway.
They informed the men that they
j werd not going | to take any-

Chief Bryant declared mat, oF

rants would be taken for the teaq-:

-@rs and any disorder would rest
in immediate arrest :
Engtish is Target” oS
Spokesmen insisted that renre-
Relief Conimissan

, headquarters downtown hed sent
~word. for English to come down

‘: there.
“planing to the men that hia post
waa at the Red Cross office, where
‘he 18 in charge of the federal dis-
(tibution of clothing, and that he ‘
‘onuld

‘the talk of “taking” him

ar pouitry buasi-
ndividual hdver
z's dark home. |
ght and other
tar and ale
4 on a permit
rent South to!

ere. which he refused to do, ex-

not leave, hn bay: began

-“There are no nee he éaid

by “Children’s overaliz are here, but
r magisterta: |
s assured wouid ‘Done for men”. There is nothing

But it fated

twee “shamefui"
spect for. Miss. ponds And . for baal

ay can get." 5 =

The demonstration, he tora them:
and 2 lack of: re-

Red Cross.

P Tuesday, he Red Cross. We just want fa

de vege ' president b

one of the men ceciared, “and for

‘get J overalls.”

' Kentucky, will following | police arrival. there was

next! Tuesday;

@ a dinner of |
ersity of . Ker-
tel Irvin Cobb i
o'clock will. ad- ae
eting to, which

. This: meet- ;
the béilreem of }
tect of, hia sate, :

rations. ‘for. the

a relaxation among. the men, Bome
jthem standing tn the doorway be-
igan to ade and ae £008 | na-
ituredly. : n

iOne man™ Smiittered: ‘as be turned
awsy that. ney “ought not to be
scared of am. few damned {brass

‘they went quietly: “A fair sized

“jerowd Ungered in the Sorridon: the):

treat. of ‘the morning.

A; delegation of: about 30 men
_| Walked, into the ‘office of County
i Judge W. A. Middleton. He ex-

of. the

: nated.

Two MEN DIE IN

: Heats LsvHle,

<p shock was applied at@
- ‘We shave. pet for. the’ lads,"

ues ee applied. >
As ‘they began ‘to. ak. ‘away’

fat 14:23

buttons,” - pat for the most. part ;

sere ay that he was not: ‘connected |
or. the: Red

: ‘given 7% ‘stay | or ‘seven. days, also}
chad ‘selected - “his “choice® of. ‘the:

E tiesnaatores “Relief ena
}mission. where: Miss ‘Donohue: fed= iS

re |" eral relief worker, isin. charge. < leg. of chicken, and i

‘|men’ were given -the privilege of.
Srey ‘what. ey wished |

on her, sister: :

The aslitpments toni alned 100 Eqenn
Pi beer Salyer et Oso”
boa Shisen orhief of police,
the jariture: probably ° would
: to determine
the atates of Aeonaponetign’ of 3.2
per cent herr shreugh dry slater

ses a rape

EDDYVILLE PEN
_ ELECTRIC CHAIR

4 Datfoon te Louie elie”
: : execution

se aed in th
” Father Agte Ww.
ee
requested to be

| Vanes, ef:
Carson |. rad}
present. Sureured
@ prayer. which® Carson reperted,
‘The. youth: was Sth] praying when!
the current was switched on at
Wes A groan issued strom [his :
lips “as his “body sprang: forward, :
He. groaned again a® the second
42:17, *

Examination after the: first ‘two. !
shocks réseaicd he #as5 -not- dead,
and at 22.26 the third shock ‘was
immediately

‘curled from - his forehead and leg
where: thee eureny pburned, : Soe
flesh” a 3
Travis: pronounced him
3, Osocke.: fe
Prison’ -otficials « had “not. been
Informed te@ay what ~ disposition
tof make “of the bodies. Carson's
family Tetides in Detroit. and Mc
‘Gee has “relatives in Paducah.
The “long » walt’. for. the. hour
of: "midnight. when the executions
are’ scheduled to: begin, started af}
6 oclick. after the ‘condenined mien.
had eaten. thew: evening and last}
‘Dewberry Iso | Served g
yaddition: to being |
received a. “special meal,. since he.

amehu -before the: order from: Gove
‘ernor. Laffoon arrived)! ©
aa & ‘told. them to bring m

Pi constitutional
«tf al:

chnis: at .

. followed © by |
the fourth. Wisps ‘of. white smoke!’

tin. Paducah, of Charles Clark, 19,

for)

claim ‘to be "connoisseurs in. the art’
Giot- “beer-drinking, Set ;
and. prom unced it
| Chief: w, E

t-| Gens Sumner - sand others at. the
{city hall tried the beer and pro-

a tt Ty :
given en “oppor: mis. at
walt :

the

Seraph e ab tee

convicted of Mie gin y ni ‘ot ft, an e

eb

Tillery, a Hardin pathy, Be tare.
er wae ptayed dele in the afierncar
by an cexeculive order ny Cae ig
tle ae aed.
for Bevel Aa ge at
p request of Pederat
12> Dawnan > wha: aald tie
ta give further: reneeidarat tion
R petition « Med. hy “Dexherry x:
comune) stat eg | that: nes hegrage
righta were
hiss trial dn Elreabethtowa
' the. siaving nf Une farmer 2.
Carson was sentenced - An faath
aft hs convietioni of: murder: at
j the February phe terns of Nels
ison tirenit’ court,
fwithy the shooting: to {sath of Cj
iB: James, -Lowsyulle and” Nash -
ville rallicud” ‘official whe had.
picked. Carson and ‘a companion!
Anthony Peterson, : up and. and
Biven “them a oride: ‘The youths >,
were” hit ch-hiking ” ‘south from -De-
troit, Peterson owas {otind guilty,
in the case and’ given life impris- |
onment in the “state elopmalory

ae McGee: ‘Sentenced in’ 1931

McGee: was sentenced at the Feb-
rua, 1931, term of McCracken cir-.
‘ewlt: court to die for the slaying

for

during an attempted holdup. Clark! ,
Was: walking” with his father-in-law, j
George: Rock. ‘on: “North Twelfth |
Street, when two’ Negroes’ accosped
them. ©
Negro” was shot dead, Clark was
slain, Rock was: wounded ‘and. Mc~
Gee escaped. ° ree was captured a
short time > # bewevers: and
‘rushed’ to tria oe hee
~ During: his trial fnational’ punrde-
“Men surrounded the courthouse to
Bers nt: any.mob violence — after
“threats & lynch. McGee had
eed. heard. oa
/MQee was. “dean of the. ‘death.
row. here. He had. awaited. his end
‘in the: tiny’ cell longer than any oth-
er now here, He was brought here
Ammediately” after: his trial,

REFRESHING BEER.

ryant, Captain John | -
Dunaway, Apter Chief ‘of Police

claimed it excellent.: :

to the Silver ‘nine 4 ‘The |

of this ‘de

redienied - Members of The state

iplxay-owtrol ent they rherely,
‘; iewie ever the trucke -

iney ceere net jem Ae:

rl te (Rend fneximern |
hy cigtejawe PONG :
ae they -1aree?

“ypweriiirte d

hie ge ct ey :

nthe Ct ta bitet § end were gore ed

pret.
-adge. Cheariea:
Seertred b:

9 a

Aerie}: Hesley eft bee «

J tne: Herat deliver an.

chaste”
oRinance Crat lee
Linwing
“Peanne Oaracn

poy OC.
‘Broadway; |
wer Motels

“In the ensuing battle one! ~

: pacha

we an be 66 interfer:

BIER OPEN

; Pein wri
re vyver

LP ere
ith,
Paka fed ett
Meat fryers EROS
PY pits,
camie nf
it rte POLO;

hfe?

PECK ee
Fy

Ite;

WP Eos
eT # :

peer

PE sr i
treat {67

ABE M itd

veered”
at

Bt day

jen a
ernie
steals Sah fuk Peek! Rte
oghewasy : Mets Py Set RIA OS
ara LYONS wife a yaeneyed ew geek

weet

hdaght he.

“He was charged | to sell freer were dn” Feneirees ig

AG Aitional Heer de itr plat’
and & het awn OL eet
ia? TOE ABTA”
Riere. Tne. ini-

her raee
pow Dhara
sither! ta tet Lrg

OTe a ren

S022 Broadway”
L Cempany, d
Hotel RUz

and Brosdway,

3 reared
2103 Oak iey's Cate.
420 Broadway, Silver Castle No
Stacy Thirteenth and

ae an Fal

to N. E. Stone. ae 19° Bridger street

wt thy

of
Hinde tres nes for. Lik;
eae
fas i
crores

rani Fre WET re

KY:

De eee
of safe a
AYR.

ann
thee
oe 4
PAW ADE
tat a

OP rie
end?

of veer pat

4e. Bf:
WEET
‘tole F
5 i tl

“VE mee

pyr ts

ae ae

tok
ORL wRy: "grat
ereet oS

ee: Fd

pee 3

cuer, r

can:

and Mert. L. oo Seg as vIn oe

corporateds

Mayfield Gee Beer.
“MAYFIELD, Ky.> April Tope"

cial)—Pour. truck Joads of beer ar- Le ee

rived here shortiy after noon today -
with eight” hundred cases 16 SuD-.’
ply. Mayfield | with the new. bayer |
age. Orders continued pouring t
both from individuals and. netaiene
Meanwhile, local officials remained
quiet as: to: ‘their actions on the’
The. case of beer went
“an individual. who piaced ate:
Ace ‘several © cweeks” - ago. ‘Four =
trucks arrived in Louisville at 7 2
m. Thursday in orderto be in line
at nfidnight Friday. and leave there

{as apon'as possible after the cpen-”
ing’ hour.

2 Maytield beer drinkers :
will have to pay 15c per bettie for:

eizer

“=.

the. 4

&

3

we Bu
OP eso

the beverage and there will be oo =

i draft. beer: here: tor. Some. time

S: SCHOOLS. "APPROVE.


DUCAH, KENTUCKY, FRIDAY. EVENING, API

*

| WEN BEER GOE
mg MOB TO-STORM/SALE IN E}
| RELIEF’: STATION|PART OF § |

DECISION NOT EXPE
‘t+ UNTIL NEW APP

a / &, marching: “cty sot * “*PRANKFORT, Ky.
irom the pusher Sites cae +The question of the
émployed,’ stormed 12. per cent beer rem
Charter this: morning. and! were |today as the beverage
Fahd wep its: sees throughout the state.


Palla jae
Feu fall

4
£4

5 pipet te asa #

t Ae


hou K Blane, 217s Bridge. street
ne Mart Ey Binan Sealant ans.

Peortegrabed 8 Pe I ene

ceock wil ja ape! ge ey Wh Ds steko war walkir:
ling ta ad | ove eee muttered at be “sumed | Prise cffictals obad not ies oe Genres

rt} Mie meet gi 7: < ieee Masined te be | inforr es inday what disposition | street, when ¢ ; “ony

the A Timer af : buttons.” bot fer tha stek wait 2 ain -omayc of the bedicas  Carsnn’s| them” In the “ene pg pattle ou re Mavtiald ets: eer eens
sect his tak they wekt . Suey A ir oad | fami tesidew in Detruit. end Mc¢ cx} Negro wat shot dead. Clark was] MAYFIELIs, Ky. April. t- “ip
MEN ; crow \engered in the corridor the = Gee has re ‘ALSO in. ‘Paducah, ; Blain, Rock owas au riled and. ber “| tiali-Bour truck jouae: ot heer ay :

cpa a a

Uahe “long wait” “fer the hour! Gee escaped He was captured iy after neon latay) BU

ei ris nd rest me wager: aa ; ped Poured a: rived here kivertiy a ‘lie @ of ; .
“a = baa a } a pa cae : het. RUSTE RUC, aber ihe executions * i short = time Tater, Newey POP. And ath eign! hunderA cases 1% mip a
; A deiegation of about ¥ men? are scheduled {9 hegin started at} rushed” to trial” ic oy Mayfield with the new never. : vi

es AY walked mio the office Gf County | § ecinck sie: i

condemned man: ~ During his trial netiotal “guarde: age: Orders continued writiog Mn: :

cs y Midler } : *
es ipisteed that’ne wae tae Saou j Rac eaten ther evening and jasti-men surrounded ‘the courthouse ij both from individuals and rewire: ae”
with the Commission of the Ret mes. pews. Pr Stra j prevent any. mob (violence after! ' Meanwhile. 12). vie fake roeaicet :
= _- ‘Cron oxen ct berry ery ~ many Miteate to lynch MeGee bad quiet ax th their action we
qoper® " work. He Bata gate en sie of a “Dewserry. in accibon: to being | been heard gee [rater The firet case of beer wert
L dbette joptins: ee Dera! wv the Red Crees paling ease Ot een aays, also! MGeo was” “dean” of the. death ‘an individual who ‘pisned ils
e Cr : = é Neppeed & er aes ‘since a vow here. He hed awaited ‘his end ane aeyeral weeks 9 ago ue
\ : ot seecied nis ehcice of | } in the.tin Yi ~ } trucks arriv rad tn Leaville at sae
Sy ee wnt Meare op el oe i tsb cat Sy eo o "Thur inorder btm i ea
“eG at her home ~ ITT arrived | See ee : vat nfdnight Friday and leave there 18 ihe a
ee mimion where Miss Donchue, fed-1° -I told them ae) het me a big; a meted Ape ts Ne P< fas poon as peasihie after the open 5 ine

19 years of age. eral retief worker, is ty charge fleg cf chicken. and it

: y and oot eure: Sasted | é Mayfield weer drinkers ayes
by Deeurenia. | C. C. Davis, ex'policeman, will] soot." he said REFRESHING BEER . ing hour avfic

twill have to pay ISe per botie foto cs ae.

pesiters U2 Matioced af the court house in. As ‘ts customary, the three feces: : eos doth BLA Bat See
nts ee of eco erene of further troubie i men. wire given the ee of: FLOWS IN AT LAST ma dratt beer here. ie cae iia
(a, C2 NEAR BEER ERA |Srcite ot “Sees wa) TO QUENCH THIRST mele
ruse Sal tiree A chicken, tri tried Potaices, and .cus- | SCHOOLS APPROVE oo fee

"chain ue |  COMES.TO CLOSE’ = tard ‘Die Sse ee (Continued, From Pass One) —| = 420, 000 SCRIP TO lve
Ai oes claim to be
deblidewer Lobes AS 3. é OPENS | mea “ater” Ginner revealed that! ot — deer. drinking, tried Fe le iE - PAY TEACHERS per
wo be het Mat- + peach of en was ready to “face! and pronounced it “the real stuf!” . aie e Mi
se The = (Contineed - Fron Page ‘One)— igh ir trons alivehed mee shies ‘W. £, Bryant, Captain John | = (Continued « From Page ‘One\—
better. Spir? away, ASS j
Stintave. Merial | beer; cr bow many men had been Joxed with newspapermen, deciar- | Gene Saber ane Eitan principals and two colored schooi .
ings CemeveTy. |; put to work.» ing that ke beleved he will never city hall tri {principals at its meeting Thursday ©
: city hall tried: the. peer and. Pro:

—_ — . } Brewers inChicago estimated dhe “i the electric chair. claimed it excellent. night. The principals and the e31-
: $9,000,000. had gone into circulation “Tam Annocent of this Job," he!
: re. immediately, while a news- insisted. | Ae

: : mine
Only a. limited. amount of ‘the nites cue tot ec tees toliews ;
\ Neither Carson ‘nor McGee: was. beverage was received in the Alrst Walter C. Jetton. $250; D. Tal--
; nervous’ to any noticeable . extent, shipment to the Silver Castles. The madge Cooper, $225: Miss Adan L
sult of beer.” Prom the first few but both were serious and were! {Peed Of this delivery was made Brazelton, °$160:  Miss' Mabe? C. ff
{hours ale in- Minnesota, the gev-{ preparing themselves tor the end.| Possible by the fact: that a high- Mitchell, $160; Mrs. Blanche ‘Wu- |
OT an $i: in rev his cell, a be powered motor car was used: fo kinson, $120; Miss Tommie: Kirk- '
' =. Rar pered.- $100,808 { Carson. paced : a pipe bring ‘the beer into Paducah. > $128° Mis :
: tween his teeth. McGee, apparent- | goles were even faster than deal Jand, $126; Miss Pattie Chambers, |
ifice”’ case was The. price sartan. In New. York, iy. Seenly religions, ie a pocket ers had anticipated. A‘ throng of | $120: Mrs. Virginia Hul,: $120; Mra.
after 29 of 30 © much-quoted figure was $2 @ case Bible.» | M,C, Beeler, $120; 9A. J, Wells

ae se thirsty’ - Paducahans~ gathered. in PAD
reguiar | Of 246 bottles. The: nlabal for. as Bure, I can. take it.” sa said Car-, $120; Miss Miriam Piper, $120; (9
sor: ‘Re maintained’ that he did’ front (of all retail. establishments

Miss: Mabel C. Roberts, $125: Miss fi SU
where beer was to!be dispensed, in

not. kill. James, but ~ declined Ferrel): Wyman, $120; Miss Maurine |

isc features of. the?c ithe ¢arlysmorning hours. As the

se Duncan, $120. . The. ‘colored princi. | —
“What's the use of ae pow? racemes tides s Shescrowd: “et pals elected. are E..W. Whiteside. | a

$125, and Mattye Strauss, $120. Pay

wae syoiagttoh meat foemiay bewe, is for actual working months only. | ~

a {them and: they were disappointed | ‘The principals haye not yet beer. | Ger

: - because it was s0 slow in arriving. | sssigned to ey rious Pana
have- RO feeling against ets -~ Batrolmen to: Watch. “Tonnage: : for. next. year; :

w sneiet companion on the: hitch} several truck loads-of beer from|. ‘The board discusse routine bus.
eps neva and who-now is serv-/g st. Louis brewery were expected.|iness and. went over the ins urance :
; abe Lerma to reach, Paducah early this morn- | picture with representatives of the i|

ing. by. Steinhauer. & White, on’ underwriters. No action was taken ie may

n¢; North Fourth. street. When’: the | in: regard: to-any of the insurance |
j trucks failed’ to reach Paducah,/ poltcies carried on school ‘proper:y ag
Tyler White set out in An automo. |The discussion may be resumed. ay :
es

bile: to hunt: noe thems = a8 paler a meeting: rien McMir
ry

: Shoulder, _ |b
‘Beef, :

; Stew.

; Hog, ‘Tb. ing

:|Bacon, nice :
streaked, 1b,

{Veal C hops,

¢ es Wes ce sie |
: 8ei° Veal: Cutlets

sf tbe Bind ane


3 Tee 46 on ieee eae gis seep

2

'
ASR a SE tans on ted tend tee A ad
— me : : ¥ Sie

4
#




(Adley ne aie :

ay 277

we i We <i Se SIL See SET

flee Ye so fy or 0 ther 3 Lai
~ (You ra) dent, | Coteeies p20

ae

»

u O ° corh- he eee

tw #i

ee: z, > Law
veten) goede fe ae yh
J a’ How 4

ie
onset Aare a

%

howe fier


HAI

oye!
‘ 4 a tad. Weg ee

First: Triple “Execution Inthe
.: State’s History ‘Carried: Out

~ at Eddyville. Prion; Slaftr
of Arbegust*Issiies: State-
ment’ Giving “: “Advice © to

- World:””-. Asks ° Mothers to
Send ! Cldrén to: Church.

‘BULLETIN

LOUISY TLILE, May 9.—A special ta
The Times from s. ‘staf correspondent
at Eddyville today sald that after
George Weick had malntalned hie In-

nocence- of the cflme foc ‘which he
waa convicted, he. confensed a few
minutes before he was axecuted. “I
shot and killed that man, but no one

saw me do it,” ,We *
having sald. pact sueted Ss

“NEES

* a ee

WESTERN STATI PENIT Ya =
TIARY, Eddyville, Ky., May ee
tucky’s first triple execution by elec.
trocution was completed in Eddyville
Prison this morning, when Frank
Thomas, George Weick and Charles
Miller dled in the electric ne In
the order named..

Thomas djed at 12:39 o’clor
Welck died af 12:53 jab

Thomas, 72 years old, slayer of
jthree men, one of them his best
friend and nefactor, Lee Arbeguent,

was the first to pay the ponalty: Elin
march to the death hous= just’ a fow
feet from the cell in'w a_he spent

after midnight,’ v

Quickly he was strapped in the
death chair, the electrode was applied
to head and ankles, the attendants
stepped back and, a ‘Chaplain A. F.

‘ficial elecutioner .threw a switch, a
convulsive ‘tremor passed: thru. the
aged man’s body and he waa atill.
‘The current was turned off for half
a minute and. then reapplied. Prison
physicians then “stepped forward, 1
Matened for heart betas,’ felt for hia
pulse and, ‘finding’ no ae “of Pais
pronounced him idead,

_-wev cou ss Gead,

Weick’s Death March
Thomaa: execution .completed, his
body: removed and the death march
for George Welck,.convicted of mur-
dering from ambush William Oc«kle
in Jefferson county, began. He met

his last hours, began a ‘tew minutes

Hanberry muttered a prayer, the of- |

| his fate as had the other, except that
he continued to declare his Innocence
of the crime for which he dled. :

death house the third of the three
murderers to pay the extreme pen-
alty of the Jaw, Charles Miller, Negro,
who slew two ‘railroad guards in
| Breckinridge county, marched Into

the death hourne. °
The rname procedure, followed with

machine-like schedule as Jn Thoman'’
case, Was gone thru.
_ * ‘Thomzs* Last Advice |
Thomas, aA one of his last: acts,
' wrote the following. “advice to .the
| world” and gave it to Chaplain Hun-
berry, with the reniens that ft be

made public: : - (

“As I have Butia tew ‘more hours
on this earth, and, sitting jn the
death cell at Eddyville penitentiary,
‘I wish to xive the following advice

o'

to the. world: Le
“I came from one: of the.. best

families in the State of Kentucky.
Young people, keep out of bad carn-
\“ pany and obey your mother and
‘father and go to church and work
for Jesus, ;
‘would have .no. need for: peniten-
aries. and electric chalra.' *

Ns -*Mother,. watch your children and
soe: what..kind ,of company they
keep. |. And ‘see that. they go to
-church: Instead of | golng.to road-
‘houses, “and ‘other: placea of! sin. -
‘The devil .with his cunnning smiles

‘have a times 2. greets
+ “By ~having. the experience :: ‘of.
ti “those things,. 1, feel like Iam iable
‘to advise ; 1, you~ ‘about. them. {.°To .
“those: who’ "read ‘this ladt: statement °
ot mine :on-‘this-earth, I,,want to,
Bay\to-all-that ;:J: am “prepared. ‘to;
smoehe my God and he haa peasy all:
yw 1 strike glad hands that celes.*
‘tal city,.whoes: ene and: maker,
ola God.” Feet ed nde pak yet ad ahi Bes zi
-The: ‘thhee' men’ Sword. “baptized by
Immersion ‘ -Jate. Thursday * afternoon
in -& -bath. ety ‘$n sThomas’ + Cell ; by

aieeill

Itheir
Pauses nt “ine

LEADER,
Lexington, Ky.
May 9, 1924

Within a minute .or two after his!
lbody had been removed from the;

For, J¢ we all’ would, we «,

‘tella them toa:-come .on - Fand— Jet's -

verry... The’ ‘aged man.

dean ee me m- = -- -


cou MILLER, Charles, black, 25, ele

COURIER=-JOURNAL
Louisville, Kentucky
Cote 6; 1922.

DEPUTIES AWAIT
ARRI AL OF MOB

1 Slain, 1 Shot In Breckin-
| ridge; Negro Is Held; Jailer
Asks for Guards: +!

Special to The Courler-Journal.
Hardinsburg, Ky., Oct. 5.—ear of
, mob violence led Jailer Virgil Good-
man to request of Circult Judge T.ay-
man an extra guard for the jal) here
tonight where Charley Miller, 25
years old, negro, is lodged charged.
with the murder of Edward Sago, 56
veara old, and the proiable fatal
wounding of Sam Hayeraft, railroad

>

ly this morning.

From six to eight extra deputics|$
were sent to reinforce the regular jall|i:.

guard.

ea by Charles an

—e —~--:

63

rer,

a Als.

of Huntsville
6 years old,

a robb

times an

———
eee
RRS
tet
hg
Sat

guards, us they were guarding bridzeal
near Stephensport in this county ear-| Ftv

_—se

5

@ negro
Fern,

a,
A

Miller Hes at the point of death and Be

physicians say that he cannot live
till morning. He was shot by a posse
pe railroid employes and, when they
attempted to capture him, resiated
L areean and opened fire. Members of
the posse returned the fire and he
| was shot through the lung. Robbery
| is alleged to have been the motive for
the negro’s attack upon his victims.
Posse Battles With Negro.

A watch and pistol alleged to have
heen Haycraft's were found in the ne-
xro’s possession following his capture.
Mr. Sago was a guard at the L:, -H.
& St. lL, Railroad bridge et Sinking
Creek. Hlis fate was not learned until
uftec daybreak, when his body war
found by his brother-in-law. The vic:
lim was shot in the back, the bullet
piercing his heart.

Going three miles further the negro
is alleged to have attacked Mr. Hay-
craft at the Sugar Tree Run bridse.

A posse was formed at Irvington
when the fate of the two guards was
learned. iL. kh. Henderson and several
others abourd a motorcar went In put:
suit of Miller, who had been notieed
‘us he passed through the town a short!
‘time before. They came upon him et,
ithe Dowell cut, a mile and a half cast
lot the city. :

associated with the

‘

) tbourd passenger traln No, l4y
;Viving at the Union Station ;
: ee and Broadway, a :
‘taken to the SS. Mary :

; SS. Mary on rlizabe
beietda doe R do Elizabeth

Dr. J. B. Prewitt. surgeon for
a . surg the
railroad compuny, found he was shot
three times in the tack
side, through the thigh and both arms
in the face, right hand and abdomen.
Fe sald there is no hope for the pa.
tient surviving the wounds. :

ur. |
‘ Tenth!
t §$ o'clock, and |

L 4
He has nine bullet wounds, |

. oner tn the|

man has become

ant

+ aceta S Nevelonm

nm“

Haycraft was brought to Loulsville ce

wae
wre

ee

|
ie
i
|
i

.... ele ES

a te fie

Bi the TOBINSPORT ue
nplexity: & | Rathskeller: Sectbach tur Coen ey 2
ample, a century ago: v hond h fox George, of

€ solely uporr the plea’ of insanity #7 sens: consis ae cet’ dees cet ud. “At: the seit) says he has rai

Border So Ae et ae hes oday, .a. syst sapor tee bea me: en were, at lunch- finest sweet. potatoe
F ago. his month that ecg ee 4 matt age s r was entertained es the. Laepeerias
“eto was oF saan inet teligest mer “and: won «wis the. ac he rsp Mr, Weatherholt i

tural and School F
wed has: three Varieties.


‘ we *
NVGRO 38 IND,
Special to The Couria

murder againat Charlca dillf,
In jail here, in eonnection
slaying Thursday morniny of :
Baro and the probable fatal w
ing of Samuel Haycraft, Tall
guanis, near Stephensport.
Milier, who ty near death as B Yegul
of velng shat while reaisting arrest
by & poaso, hag reportedly refused to

crime. Last night he sent for a col-
ored miniater,

Ho udmitted yosterday that he gat
the watoh which wes found on h mM,
and which had deen recdgnized by
friends as belonging to Heycraft, trom
a man on the railroad tracks near
Ktepheneport, but would give no de-
tajla of the alleged transactian.

Fear of mob violence hag gubsided
and extra guards which were stationed
at the fall last night have been with.
drewn.

£.

make any atatement in regard ta. the:

pn aor iP

ee ee ene sieainpcientnaia

Body Succumbs to Hurts
In Haspital Here.

Sarntiele, a rallroad guard at tho
Surar Treo Nun Bridge, on the Lou!s. |

|

vita, Henderson & St. Louls Raliroaa

pital, where he wan brougat Wadneg-

{Imes and robbed by Chertes Miller, 35
years old, a negro of Huntsville, Ala.

Edward Sero, 66 years old, guar)
at the Sinking Creek Bridge, was
jeilled by the negro 2 ehort Aletance
froin the scene of tho Heycraft shoot-
Inge.

The Breckinridge County grand fury

jof Sugo and for wounding Haycraft.
‘The nogro wan shot by a posao ani,
‘itecording to physicians attending him
‘in the Hardinsburg Jall, he cannot
recover,
i Hayeraft's watch wes found on Mil-
vler when ho wos eantured by the
‘passe, ‘The narro snia he obtained the
‘{wateh from a man on the ratiread
tracks near Stephensport, but contd

—
°

4

|

| :

' Samuel Hayerntt, £3 years old of
|

'

|

died at 12:25 o'clock Saturday after.
noon at YS, Marv and itrabeth slag.

day night ofter he hnc been shot nine

Friday indicted Miler for the murder

2d of 2 Rail Guards |
Shot By Negro is Dead
Man With Hine Wounds In

|
|
|

/ eachuok,
[6/9 /F22—

a Moove |
-

Naw York Spectatey 1-15-1818 145

Reports execution of Join Moore at Mt-
Sterling Kemtuchy 1 2/A5j18. ‘One of
the Wisddertes of cyivizxive Combs -

Note* yu have a card dates 18ib fora ‘
Dauis K Moove' at this jovation. Same Moore !

DAVIS and MOORE | 2 .
"The first murder co (Montgomery, Ky.) coun-
ty was in 1814 upon d Sylvester Vombs by 2
men, Moore and i purposes of robbery, The scene
of the murder was about one and one=fcurth miles north of
Mount Sterling, on the land now ownéd by Johntbpn 7

Young, and near to the present Site of the Mt, Sterling an
Maysville turncike roade The body was carried to a ra-

vine west of the murder and concealed under the body of a
honey locust, which had’ fallen across a spring branch,

where it was found by Enoch omith,- dre, and others, who
were searching for it, The body was buried on the west

f the pik osite Judge Vinn's, . The murderess escapec
But wer aftervanie caught and both hanged on the ve
spot where the deed was committed." Richard Reid, HIS.
TORICAL SKETCHES OF MONTGOMERY COUNTY

» (James M, Byrnes

mmitted in the


Co., Lexington, 1926, page 21.) |

%

|

Probably the same case?

1817, at Washington, KYexXs NATIONAL INTELLIGENCER, G5 =1B17%
MARRIAGES AND DEATHS, 1800-1820 FROM THE NATIONAL INTELLI~ ©

TON De 2 M
H Hastine Washi { ae frank J phoatheine George

1968, page 95


enn RAC ause

ae OR OPAL ALT LA
_— SS cninstomenoarenrepacmnancener ia

ee ie
” re a -

234 Racial Violence in Kentucky, 1865-1940

courts, resulting in legal lynchings for rape. Most amazing, however
(and most surely reinforcing the significance of race in determining
guilt), are the cases in which a black man was sentenced to death for j
murder even though both he and the victim had drawn their guns.
Such was the case of Henry Smith, who died on the gallows in Louis-
ville for the murder of Louis Specht. Smith worked in the saloon and
grocery owned by Specht. One evening they had an argument. Ac
cording to Smith, Specht “came to me and said I was talking too
much. He cursed me. He called me a big coward, and said he was
going to kill me. He started toward me, and I pulled my pistol and |
shot him.” Specht had reached in his back pocket and pulled out his
gun before Smith shot. Totally rejecting Smith’s account, the jury de
cided that for some unprovoked reason, Smith had shot his employer |
in cold blood. It is highly likely that if the results had been reversed— —
if Smith had been killed by Specht because he saw the black man
reach for his gun—Specht would never have stood trial. Another case ©
in which being black most surely cost the accused man his life was —
that of James McElroy. On September 29, 1886, a white farmer, Walter
Marter, gave a black mana ride in his wagon. Late that evening, Marter

wag found in the wagon, his head almost severed from his body. Sus- |

picion centered on McElroy, who matched the description of the |

black last seen with the farmer. At his trial, only one of the five prose: |
cution witnesses identified McElroy as the man in the wagon with |
Marter, and none of them witnessed the murder nor knew of a mo
tive. McElroy, after nearly being lynched, was found guilty and was j
executed in Henderson on June 30, 1887." ]
A murder trial from Lexington shows clearly how race was the
crucial factor in determining guilt or innocence. On January 13, 1879, ©
John Bush of Lexington was charged with the murder of his em:
ployer’s daughter. His case, which ultimately took five years and
ten months to resolve, also raised the issue of whether or not Afro- 3
Americans were being excluded from serving on juries in Kentucky. —

In 1878, John Bush and his wife were hired as servants for the Van |

Meters, a prominent Lexington family. On the day of the killing, ;
ated and accused Bush of

Joseph Van Meter returned home intoxic
spreading false rumors about his wife. According to Bush, Van Meter |

tried to shoot him but accidentally hit his own daughter, seventeen:

31. Louisville Courier-Journal, March 23, 1892, June 30, 1887.


t
a" . uf 5
. Tl SOUTHWESTERN REPORTER. my ‘Ei
658 bie capacity ts Ky.) LOUISVILLE & N. R CO. v. DAVIS. 659 a fo
tion would excuse | bladder; and that age oer and his i |
drunkenness, or alterca or who have | labor was a Tmapent. ‘There was also er- j the proof that when anything gets down un- | not, under this rule, allow its traius to run
such one. Only persons insane, wie Poot pe aid uot regard bjsrinjuries as 6 |

never reached years of discretion, are not aC- | {dence that

der a train it will throw out the ballast
countable for the commission of crime. Even

along, throwing out rocks from it, as this
id, that the extent ; in this way. Appellee had seen it happen

: one did, endangering the life and mb to all

as 1 , and their ver | be' but not so bad as this. It is al within its reach. If a train ts properly man- i ee e
then the insanity that ior py pe of a ae { wo by the proof that, although t aged and properly run, no such dunger is to A ot
deprives the weep heewrg particular trans- me ag Oo ge: le as ' dents upon the track continued for tr
his reason or W star

me- | be apprehended by those near the track;

in, 80 | and, when anything so unysual occurs to
far as the proof shows, knew-Anything of | such an extent as was sho
the trouble, or took any

The proof for the defen

action. The irresistible impulse darpemen railroad com was pane
dy the law is that only resulting pope m = from under th rainy and it
disease,—from the derangement of the m: groove

caused by a disease of the mind. It is not

der the engine or cars
$f iniles before it dro

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. | i
f the train wereTuspected at Bowlin ex. Civ. App. W. 164, the plaintiff, a H
material how recently the yee rersage 4 =s ie Se wows 8 cal deeeateed pret ry : sit Me ty s struck by a block je coal : ’
have occurred. A on wrt by reason pag: genta there prima facie ert also that they wfere inspected at Louisville | thrown fropr’a train which passed him, and
fosens, irresistible impulse w he has lost | dence of negligence. Hlroad, injured by before it left’there, and was then found to | it was weld that he could recover. This j
ode eco . oer. paresis right and ar = onlay e tan aperet ng & train, be all rjgiit. As to the extent of appellee's | cas
the power ¢ e neg i

8 stronger than that, for there only

wrong, to avold doing the act in question, his | was not pr lump of coal fell off, while here the

~ the proof is very conflicting, although | o
free agency being at the time destroyed. were in a

tinct and separate service. seems to be no doubt under all th

, in an action for personal injury, :

Me oar dnallee Lo Game des — _— fiying for something lke two

4 they . evidence as to the fact o s ug uged | miles. The court said: “There are ipstan-

1 Bish. Cr. Law, § 387; ages Pig aft e ee oe Ss » ow id the : as above stated. The proof on bis alf | ces in which the circumstances su pg :

81 Ala. 577, 2 South. 854, — Com. 16 oy pr gg enh not knowing that any shows that shortly afterwards he wef taken | an occurrence and giving a chgrfcter to it i

Portwood v. Com., supra; Gra re Bush, 808; {the jury were present, made semexke © very sick, and for two or threg-reeks was | are held, if unexplained, to {pdfcate the ante |

B. Mon. 587; Brown Vv. ot a 8. W. 833. case in presence of two a fhe jury, out of his head; that there waa hard place | cedent or coincident exjst€nce of negligence : 3

Moore v. Com., 92 Ky. 637, is that the clent to warrant © new ‘Admonsos : in his back, and he passesfrom his bladder | as the efficient cau the {injury complain- ;
Another and final —* ceeded his Appeal from circuit cou . a quantity of pus and bfood; that after this | cd of. This pb , which, literally translat- ; i

attorney for the commonwealt! a e in the | county. a : bis capacity to labof was substantially de- | cd, means ‘the thing speaks for itself,’ }

authority and abused his hago seninerses “To be officially repo: Inst the Loule | stroyed, and that his injury was probably | is merel short way of saying that the d

closing argument to the jury. in the bill of Action by W. B. is agains From permanent. Ahe proof for the defendant | circumsfances attendant upon the accident

complained of are not setae ales the rec- | ville & Nashville — a aaae a ppeals shows thatfppellee did not regard his injury themselves of such a character as to

exceptions, nor oS ‘pation or exception | a judgment for’plaintif, de as serio first, and that he had no troubl

ord that there was 0

stify a jury in inferring negligence as the :

cause of that accident. There must be rea- ; :
sonable evidence of negligence. But when
other | the thing is shown to be under the manage-
The ex- | ment of the defendant or its servants, and

thereto. We cannot, from ‘ne roceceating itchell and E. W. Hines, for appet wever; would mot account for the pus
that anything was a ae is the subject | ta B. F. Proctor and G. H. Herdman, fo Deed passed from. tie bladder, nor
Se iy thle court: Counsel for appel- | appellee. piper teste ie oe
tant files with his brief what purports to be

unfit he had a violent attack of colic.

: tent of the injury was a gestion for the | the accident is such as, in the rdinary
tion of the com- HOBSON, J. Appellee, W. E. Ds jury, and their verdict Sxfng the compensa- | course of things, does not hap if those
a newspaper report hep __— = It must be | December 22, 1900, was a track tion for appellee thesefor at $3,000 is not ex- | who have the management proper care,
aighresighe timed yor en take notice of | the service of ae ? gn or tr y against the evidence, if ence, in the <i
lain that the cou Rocky Hill station. shew was entitled’ to recover. n by defendant, t
oak an objection thus presented. 1 th ace in the discharge of his duty, & It is egrfestly maintained for appellant from want of care.” In
An unobjectionable jury of the rEg a pe a train coming,and got to one side, # that no~hegligence on its part is shown, as elson (Mich.) 50 N. W. 989,
selected fairly, under the duty alike of ¢ When therain was something lit all facts established are as consistent a roof, which was being rais-

forcing the criminal laws of the state = a seo yacite froprhim, he heard a rattling, sod :

der prope 7 ;
case and of determining un

th the hypothesis of unavoldable accident
as that of negligence; and that, the burden | bh
being upon the plaintiff to show negligence

ckscrews, tipped and fell, and it was
that this created a presumption of neg:
igence, and, in the absence of explanatory

He then aimed ®

1 procedure the | saw rocks Afirowing out. pace

po payed ooh ere get Aa, found him | get furiier away, aged _ ag ee

fact of the de harged. We cannot say | the rocks hit him in the ’ 4 tims proof, was sufficient to sustain a recovery

guilty of the crime charg rt their ver- Sin the back before he ha ns for the death therefrom of an employé. So,

that the evidence does not ney ool inflict away. The train was going sopth, compat & rod or beam, and dragged it efong the | in Howser y. Rallroad Co, (Md.) 30 Atl. 906,

dict, In their discretion they something like 60 miles an bedr. The wel track, knocking out the rocks“‘without the | 27 R. A. 154, 45 Am. St Rep.
the severest penalty. the | were thrown out by a rod or something knowledge of those in ¢

, the

falling of a cross-tie from a d car,

There appears to us to be no rip sor be | that sort under the *ottom of the or Wwe are doubtful if they-would be excusable injuring a person walking ra footway

record, wherefore the judgm which was draggipg against the ballas a for not finding thig-Sut in two miles and a running beside the roadbed; was held to cre-

affirmed. ties. Appell Kad been south to - . Quarter; as the pfoof shows that, when any- | ate a presumption o gligence; and in this

of his sectlef, and was returning. 3 te thing gets loese, scattering the ballast under | case a number péauthorities sre collected.

_— went dows, there were ater where «HE CAL,-#Ome of the rock will hit the bot- | It was the

(us Ky. ballast, but from

y of the railroad company to
reasonable care in providing ap-
ith a safe place to work, and to keep
fe. This obligation to him is not fair-

LOUISVILLE& N. BR. CO. v. DAVIS.

27,
peals of Kentucky. Jan. 2%,
1903.)

= ce nadie alt the car, and a noise Is made, so that | exercise
truck, for something ov

(Court of

a wn pees ly to be distinguished from the case

SER —INJURY—TRACK W TENT threw the rocks out. ese broper place, Person walking on a way besides road-
WON FEW QUESTION FOR JURY—TRI- | ¢op @ mile or more beyond the He is not chargeable with bed, as in the case last cited, seems to
AL—MISCONDUCT. llroad | he was burt, and at the feet leet Bence of those in charge of t us to rest on the enme pringiffe. We there
1A elgg bagel mg oer ~ “ghd as a | stopped an iron rod was Sound, six they were in a separate an fore conclude that the

company, whlle sta

neh in diameter. "7 from bim,
x the cross-ties and
t. It is shown ©.

ide, leg, and | or more, and nearly
train passed, was struc _ oe
s it 8
ae ce pwn Tage There was evidence | 50me place

H he ballas
thet shortly afterwards be yas taken very sick, | others it st t

It was the
etercise reasonable
ite trains for th

refusing the perem
conclusion of the plain-

Totection of those in its | tiffs evidence While it might happen that,
was out of his L 4 Cent De! Service along Hs tracks, discharging the du- | althoug roper care was exercised in the
ae aa Faye ag herd place in his a” are Master emt = Hea nece; ty in the maintenance of the insp

°

back; that he passed pus and bloud from his

on of the train before it started, a
track affa

rod might get down from some defect not

the security of traffic. It could

i
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JAMES McELROY, 2leyear-old milatto, hanged Henderson, Ky., Gn July 1, 1887

"Spent last half hour on earth in company with Revs, Dorsey and Alves, colored ministers, and a
few female members of their locks in sing and praying. Was evidently much affected, and put

his handerkchief to eyes as if weeping, At 12:30 PM Sheriff Hickman and two deputies emerged
from jail with prisoner who boldly mounted scaffold and unhestitatingly took place ont rap doors
Lips moved as if in silent prayer but no evidence of fear displayed. Rev, Dorsey knelt and made
earnest prayer, asking divine aiid for him, “hen asked if he had anything to say, advanceda step
and said: "I appear before you all for the last time on earth, I have but few words to say, I
know nothing about Walter Mart, I did not kill him, I had nothing to do with his mrder, I am
suffereing unjustly, but am perfectly willing to suffer for it, I hope to meet you all in heaven,
Goodbye," At 12:36, trap fell, and the tips of his toes barely touched the earch, A few twitches
of body and a nervous tremor in legs and all was still. Pronounced dead 16 minutes aftertrap fell.
Body cut down at 1 o'clock and examination reveald neck not broken and death by strangulation,
Body given to relatives who took it to Morganfield, Union County, for interment. Several thousand
witnessed execution, trees and roofs around being filled, Courier-Journal says crowd was the
roughest ever seen in Henderson but no disturbance was niciceable even though several negro women
went into hysterics while he was seeking, A line of glistening bayonets held back growd thab
surged forward for better look fihen trap fell. A fire alarm sounded to draw off crowd but it
went unheeded,

"On HHEXX® 29th of last September, Walter Mart, a prominent white farmer, living about five miles
above Henderson, came to town with a wagon load of watermelons, After disposing of them and
pocketing his money 4bout $25, Mart waleked into a saloon for a drink, “hile there he was
approached by McElroy who asked if heneed a hand, Mart told him to meet him at another asboon

in an hour's time and he wuld take him to farm and give him work, Mart, who had been drinking
freely, met McElroy at appointed time, invited him to bar and brought himdrink, at same time
displaying roll of money. After they climbed onto Martis wagon and left town, “art never seen
alive agains At dusk that evening, a sewing machine agent, coming to town, came up to a team
attached to side of wagon on side of rudd where horses were miching grass, found Mart lying in bed
of wagon whth skull crushed, Mart removed to home where coroner came and held inquest. At the
esamination, a woman said she was standing in doorway when wagon passed with McElroy driving rapidlv
anf showing mech excitement, casting furious glances about him and then into bed of wagon where
she could see body of man lying. While she follwoed wagon with gaze, it disappeared into a strip
of woods through which road leads and when it emerged on other end, the driver missing and horses
going along at rapid paces Search instituted for McElroy and he was arrested in Union County, his
former home, 3 weeks later and brought back to Henderson, A mob of several hundred from Mort's
section of county gathered and at dark they rode on city. Sheriff learned of their approachgand
he, with two deputieg, started overland in a light spring wagon for adjoing county, Managed to
elude mob which fired on them several times on road, McElroy receiveiing a pistol wound in flight.
Returned to Henderson for trial in January and convicted by jury deliberating but a few momentse
Originally to hang on May 13 but respited by Governor, an acttign creating storm of indignation

in Henderson, then news not reaching there until date of execution and a large crowd already
cathered, The crowd indignahh and hanged Governor Knott in effigy, as well as State Legislator
Tenatius Spalding of Union County who had used inflence on Governor for the respite, McElroy
hurried to Hopkinsville jail to preven his being lynched, Subsequently takent o Louisville where
he was held until day of execution when he was returned to Henderson under guard, McElroy, a well
built and intelligent looking mulatto of wl, had figured in a number of cutting or shooting
affrays before and alwaysoconsidered a desperate mane Mart was about SOyears old and left a

wife and three sonSe

LOUISVILIE COURIER JOURNAL, Louisville, Kye, Juby 2, 1887. |

Diag EB se apatite aE ET

‘Bie “Me ELROY, James, black, hanged aaa.’ vic, Kentucky, on fue

“GEORGE C! WRIGHT! ©

_ Lynchings, Mob Rule, and “Legal Lynchings”

1865-1940

July L;> 1887

Racial Violence in Kentucky

LOUISIANA STATE UNIVERSITY PRESS

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plaintift ? and, OGptllcans Toners « of- Coloerp, © wok:
defendant $3 and this. Ctr shall i in no wise omit under the- penalty. of Ti 0d: a Cl

Bessa Aud bave then there this writ} W ae Leaken D. Stockton, clerk of our Said 2.62":
court, at the court- house pforcoalil the we Way. of OOr- oot 2

pee ine E year of the Coutonwealth: ie ,
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Press and Wirephoto’

DECEMBER. 23,

1955

‘ex His Suewshees

—

im

1 Into Peaks

arily Disabled

~ot

usted Atmy paratrooper —

ow¥ Cascade Mountains ©.
ed. since he. bailed out
day. eee
Mass. limped unaided —
ly before @ pms
about was his: Japanese

he telephone. She .was at
east, where she: and the
verfully waiting for word
Tuesday. 9° arena

al oe ce et Vs

© you tomorrow,” he told

heeks,’ she: kept saying:

sey had a chance.

tains 4 Days,
on Frozen

Ph
¥

_|Merrifield |
i IExecuted

Feet At Eddyville

tee Slayer Faints

ae Being Buckled
, In Death Chair

' A flashy trail of crime that |

©

>

| began at the age of 14 ended |
-in-the blackness of the electric |
B chair at Eddyville State. Peni-j
H | tentiary early today for 37-year-
old Chester Merrifield: *

>for the «1952 murder of Jeffer=?
son” County ~ Patrolman “Alvin |

Keown aus ha H
| Merrifield was electrocuted at}
£32:05. a.m. ins Eddyville. Peni-;
“tentiary. And as he took his last
i walk, -he limped from the ‘leg

It’ was. a trail that Ied/ from |.
petty thievery to a-conviction j

“| deputy sheriff at the time the
i patrolman was murdered.

Taken Before Midnight
Warden. M. W. Thomas: said

Ameciates Prove Wirephete
‘SGT. JOHN H. HORAN
Hikes out of -wilderness:

dj «what happened :
Horan said today >
0 might have been
niy survivor.”
1 1 ecan-say is that good
rne- training helped pull
nrough? 92 7 ;
im Extremely Rough — |
terr s extremely 1

’snowy ro
estimated the plane had;
ped fram 12.000" feet. to |

10,000.when he jumped
BL poe eee i ate
said he heard a plane cir-
nce over him and £0.0n, |
¢ wasn't-sure whether it:
he one he had left

nied onto the cabin-

ambulance was sent from
mn Air Forces Base near
s Lake. Wash. to pick. up
n and take him to the air
Yor chservation and ‘treat

ily Attending Party —
litary officials said they did
now how long Horan would
eiained at Larson, but he
ently. was. in. good <condi-{
extept for-his feet, which |
froren<. ©. Bis? ae
6. Horan and*the couple's
ren—Kenneth, 5, Michael,
4d. Lorraine, 3 months, were
ding a Christmas party in
honor at Fort Lawtoo
ived the news.
me hn J. Murphy told
ane ind had walked out
: blizzardy rugged

By 8, back pare, this section

U. S. To Send
‘Missile Units
To Europe

~ Batteries Can’ Fire

i ions, capable of dropping ‘atomic |
warheads on. targets up to. 75

said he didn't have any| miles away, will be sent to Eu-
of starting a fire until he, rope soon to bolster Western

European defenses, the Army
announced «today. :

up the Army's atomic firepower
in: Europe.’ It: isa: follow-up :to
the North Atlantic Treaty. Coun-
cil's. pledge last week to “see
jd that the Atlantic’ forces. are
equipped with the most modern
weapons.”

are one: Corporal: missile battal-
ion, ix 280-milimeter: atomic-
artillery battalions and’ several
Honest. John~ rocKet batteries.
All are capable of firing either
atomic.” or conventional . war-
heads,

+ 1,500 men will be involved,

: guided missile with a range
1.50 to 75 miles. :
| The @-foot-long

Merrifield was taken to. the exc
cution chamber. just before mid-
night. to. be prepared for the
chair... :

He said Merrifield fainted as
he was being buckled into the
chair and’ did notregain® con-
sciousness before ‘the first

In a tast-day interview yester-
“| daw, Chester
maintamed his tmnocence.  ac-
cording to story by Harry Bolser
-| on) Page 3.

ee

Atomic, Other Shells

“ -@y The United Press
Washington, Dec. | 22.—Six
orporal guided-missile battal-

charge was administered: at
12:03. He said the second and
fatal charge was. administered
Pat 12.05 am.

Merrifield’s trail of crime led
from a humblé.boyhood home in
Louisville’s--Highland Park to
implication in a ring dubbed the
“society bandits” because of its
penchant for raiding ~ wealthy
parties and taking: jewelry.

It was a trail that-led from
suspended” sentences for juve
nile offenses to a life sentence
‘for armed robbery to a death
sentence for the 1952 slaying.

Pleas Are Rejected
For more than two years and

The move is- designed to beef

Already stationed in Europe

execution, Merrifield: had scram-
bled to save himself. with every
possible delaying legal obstacle.
Previous execution dates set by
Former. Governor Lawrence W:
Wetherby had been’ set aside
pending appeals.

During

1,500 Men Te Be Involved.

The six battalions, -now sta-
tioned at the Army's guided-
missile center at Fort Bliss, Tex:,
will be moved to Europe during
the. next> four months. About

The battalions are the largest
number of Army. atomic units
ever sent to Europe at one time.

The Corporal is a long. ali
of:
fied

missile, with |

tere Merrifield: stoutly |

up’ to the last» hours: before his

Merrifield’s» final
hours three federal: judges,” in-
chiding an associate justice. of
the Supreme Court, turned down
pleSs to prevent the execution.

The Washington office of As:
sociate Justice Stanley Fi Reed
of the Supreme Court notified

L.- - ~niicome 1 <terpemeclcrentimmen ary,
Fan} reas Bf teas efit ain emer a tee ee eee Orth Fork LAR
nae Soper reune.” A-short-wav
TEMPORARY OFFICERS of ‘the new Republican [30 had drow,
County Executive Committee named yesterday are | County could

Actual reorgani

rules group.

It consists of: ee :
Sam Steinfeld, former County
attorney, chairman.

-=C>Paul Downard, former pres-
ident of the Board of Aldermen.
‘Edwin G. Middleton, attorney.
and member of both the old an
pew committees.. ==
Marcus Named Chairman ©

Herman. W. Marcus, Edward

took leading parts as reorgani-

day by the Republican State
Central Committee. be,
Marcus, chairman of the old
county: committee, membership
of which was cut from 62 to 31

elected temporary ‘chatrman of
the new county committee, .

Black, who was left off the
new county committee at his re-
quest, continued to act as chair-
man of the Third. District com-
mittee, a post to-which he was

Columa 1, back page, this section

{> Weplaces Rebdinson

pelected: at a 1952 district con-
; vention,

Mra, Dorothy Young, -3_

RS Tries tt

. Herman W. Marcus, chairman of the old committee, and
i Mrs. Dorothy Young, a GOP. headquarters secretary.

3 Named to-Rules Body
As G.O.P. Reorganizes

© Steinfeld, Downard® Middleton Rooks
Bylaws To Govern Streamlined Cominittees

- By THORNTON CONNELL
tion’ of the new. Republican. county

rexecutive and Congressionaldistrict: committees here £0t' +o two ort
under way yesterday with the appointment of a three-member |

“tutes the. Third District.

the’ 31/members of the commit: |

- Jesse Lawrence, who’ Marcus Guard office

C. Black, and Jouett Ross Todd .

zation was started on the basis”
of a resolution adopted last blen-”

~of- the: new. committees. ;

bythe’ state committee, was.

- Henry Clay Hotel at 12.30 p.m.i in the millid

at Ld as nen anal

In.
‘Thous
Some
At | ,

Flodded ‘n
‘gency last nig
Many town
Thousands
were maroone

| Two wome
| drowned tryin

-

*cC6T=EZ-zT UO (uOSaeTJer) gS *AY *oeTe “TE ‘eqyym SaeqseyD ‘CIMLAIUUIW

‘+ Phone comm
Humboldt Co

The greates
| the big Eel
villages” were
Réedwood.-Va
upper river
log -jam devel
river near F
blocked the
water. Near]
River Valley
PALE oslacteens Rep

The village
lation 450, a
population 3¢
destroyed.

Estimates o

30 in flooded
1. Elmer Hod
! The Humbold
‘messaged the
“| that 30 lives

Marcus announced after the, the county.”
closed 12-30 pm. mecting in| sage, relayed

sys via the Naval
the Henry Clay Hotel that 30 of Veacramento:

: Guard ‘as the
tees attended. Only absentee was formation

trict. Jefferson County. consti-

\ said it had n
tes.

Waves Hel

Thirty-foo
d_ break

said was out of the city. .

Will Prepare Rules

Steinfeld said<the first meet-
il .be

ing of the rules- group:
up floodwate
Frank Br
radio. statios
told the AY
The new rules will be presto tcopardy,
sented to the new committees for | 2 home!
approval et a meeting in the} aiting ev

this commiltee
rules ‘that will govern operation

January 11. They then will be’ ¢ytifornia
resented to the state committee | Knight decla
‘of approval at a meeting that is) pency for a

expected to be called for Jam | nia, and t

uary 20. - , junits at Ev

Permanent reorganization of | ately called
the new committees will take| Ev
place at mectings to be ca'led | coast, from
after. the state committee 8> | noma Count


h Bbtier, ai

| ferson Criminal’ Court ha

“= ing Merrifield a

ad

‘quired by the U.

4

‘THE COURTER-JOUR

NAL, LOUISVILLE, KY.

Merrifield Executed
For Slaying Officer

Continued from First Pace

the Kentucky attorney fenerats
ofisce that the Maystille turf
had refused to intervene in the
<€ace
Other denials came frym Fe 4.
eral District Judge Rev NL Shr.
heucne and) fudge Snacke'ford
nf the Untied Staies
Siwth Circat’ Court of Appeals,
both of Louisville : ‘
Merrifield, by matt had con-
“tended to Shelbourne that Jef-
not
granted him the proper trial re
S. Constitution.
running out,
bourne took the perhaps-
ented step of telephon-
t the prison to
_jaform him-the had been
“demed. Merrifield was so emo-
fionchoked by’ the call that he

.» Because ume was
| Shel
‘un

-owa< unable at first to. talk to
-. Shelbourne A :

Ro Ambro. appealed Stfe

fore

NMerrifield’s attorney. Georse -

ruling to Miller, who upheid it.

The next —. and. lJast>—- des-
perate lecal maneuver
Jefferson Criminal Court
dJudce Lo Ro Curtis, ino w

thourne’s. sentefice given in the $350 armed
rabhery ef an A. & Pe st
$94 Bardstown -Road.

was be- ville, in November, 1940.

hose tence, Merrifield had been de-;
courtroom. Merrifield had © T& <nied parole: Once when he was |

Sone
lg a re aia
* 1% 4

ir

wounded bv Thomas K. Rites.
then a deputy sheriff and. was |
found hiding on the far side of
a nearby fence. Keown, wound-

ed in the stomach, died in Nor-!

ton Memorial Infifmary. ;
Merrifield testified: in his;
Criminal Courtctrial that he saw)
no! police and fired only one;
shat-—into the [cround.
Cammonwealth’s Attorney Aid -
Seitt Hamilton toid the jury thats, >
Merrifield had a definite: mo
tive for killing. a) policeman—
fear of arrest as a parole violator
because he was carrying a xun
.and visiting: -a place... where
whisky was sold
The Criminal Court jury found
Merrifield guilty after deliberat-
ing 58 -minutee.---—~ Sons Sm AL IE

A. & P. Store Robbed s

The parole referred to by!
Hamilton Was granted in Feb:
ruary. 1952. It was from a life.

ay

+

ore at

ou G.0.P. Voters

Six times after getting the sen- i ;

Like Warren

ere ne raters «
.

i NI
; atied

é
are a

CAPABLE. CABLE CAR ... This retired San Francisco cable car,
and-used— I

STOTT“ *

Continued from First Page

which is-r

° tees

San Rafael, Cal, t0 évacuate residents ‘of one flooded area. The cable car is
by a yeungster-im rowboat who is celebrating

Poll Shows’ ‘Northwest Californ
‘Flooded by All Riwe

Christmas vacation from

and *stranded hundr

953, death sen- on the point of getting a parole.

- jt was canceled because. in the

meantime he tad escaped fro:
LaGrange Reformatory. +

ceived his June, 1
tence.

Claimed Inflocace of Drugs”

elers homebound for

| Klamath and Scott River valleys. “op | org hecan tod

Continued from First Page
Hamiets along the-river ‘and the —

mind, and friends insist he will

‘
?

wl licials ~

newly

a pinende OR

‘Ambros motion to Curtis asked
for a new trial on the basis of
produced evidence that
“Chester Merrifield: was under
the influence of drugs. at the
lime: he: made a confession: to
officers. Joseph — Randazzo and
Carlos Johns" of the Jefferson
County police.
The motion said Merrifield
had in his po®ession “a letter

from the offices of the (Lout~

_ wille)- General Hospital, which
letter. specifically defines the
nalure and quantity of the drugs
administered to defendant ied
Merrifield was treated. at Gen-
oral for -a:leg wound suffered

‘Jat the murder scene.

“Curtis wondered why this evi-
dence was produced so late.

“He added, “If you threw the
entire confesmon out the win-
dow, you'd still have three eye-

_ Witnesses who testified that they
saw Merrifield kul Alvin
Keown.” :

‘Straight From Shoulder’

~~ After Curtis overruled” the
motion, Ambro telephoned Mei-

“DL let him know straight from

+ the shoulder it was the end,”

>. Ambro related.

*werptield alin talked by

> phowevthth his sisters. Mrs. Ida

< Faulkner,

4559. Knopp, Louls-
ville, and Mrs, Lucille Morgan,
Fairdale. Pmt ue

. He

buried in. a midnight-blue. suit

Nast meal-a Law-bours.

UM F birt verte tk
-*Merrified. refused..to order &
belore be

4

January, 1935—Shot in fight

requested that he he

-Nine-davs efter that escape
was captured under unusual cir-
cumstances

The prison farm Manager of j
LaGrange was idly looking at ex;
hibits: in. a. Memphis. museum
while. vacationing there. Sudden-
ly he recognized another visitor,
who turned out to be Merrifield.

The LaGrange official rushed to"
a telephone and called police.

Was Arrested at 14

Here is Merrifield’s record
“before -the-irte-sentence- accord:
ing ta records of the State: Di-
of Probation and: Parote:

When Warren supporters in|

; today's: survey. were. asked to '

name their second choice, more
named - Vice-President Niron;
than any’ other. candidate, as.
follows» , ;

REPUBLICAN VOTERS.
(After Allocating Warren Vote)
30%

Nixon)... .2----- as eee

Dulles -.
Milton Eisenhower

rrsion
In 1932, at the age of-14, he
was. arrested’ on a charge> of
grand Jarceny and get a three-
month suspended sentence. :
December, 1932—Housebreak-
ing: three’ months in jail,
suspended. /
June, 1
bond.
July, 1933—Storehouse break-
. dismissed. mgr a
January, 1934—Petit larceny,
‘no disposition shown,

< Warren. «continues to. run
ahead among independent voters
as their favorite G.O.P. nominee
if Eisenhower does not rua, .

933— Drunk, pe ace

rote of independents, including
the vote for Warren and after
allocating the second choices of
his supporters; — Saese

INDEPENDENT VOTERS

with Vance Huston Woods.
December, 1937—Vagrancy and
disorderly conduct, no_.disposi-
tion shown. ;
-1938—Conversion,
probated
1938-—Ateceiving stolen) prop-
erty, three years, probated.
February, }939—-Sent to Eddy-
ville for two years on charge of
banding and “confederating to
commit a. felony, Paroled in}.
February, 1940, and worked in-a{ -

Includ- Allocat:}

Jie 6 MORE SEINE
> Warren Warren
“Note Vote
Warren. -...--~-. 28's  —e
Nixon

+

{wo years,
Seat Sante 18

Dewey «...-....-.16 is
Stassen

Kise
lcdee

5 akg het Wee
phower.,.. 5. ‘iaioe

A ied gees

The following table-showsthe+

-.) vains on the
‘Theaviest in 15 years. ©

| Nevaties aed

was reported 4 to. 15 feet deep
in Klamath.

County Cut Off _

Trinity County was cut’ off’
from: both east’ and west; with
bridges out at both sides ef the
county, ;

Floods’ on «the upper Sacra:
mento River and slides in Ore-
yon: caused the: cancellation of
all trains over the Southern Pa-

cisco and Portland. ‘The railroad

said: last” night there * was. no
chance that service could be re-
sumed. before tonight, if then.
Along the east side of the Sac-
ramento Valley the American,
Yuba. and Feather rivers were
out of their banks at low areas.
Both: Marysville and Oroville
were partly isolated by rising
‘waters of the Feather and Luba,
but: were’ in: no immediate: dan-
ger of being flooded. : ;
~ Part of Town Flooded
In Plumas County part of the
little town of Chester 2s
flooded’ by the» north: fork oh”
the Feather River. ee
With» nearly all. the. coastal
rivers. at alltinve, peak: stages.

the

north coast was raised.
dinary storm to full”

Other Western’ states troubled

hy high water included Idaho,
re

Loutiville restaurant.

ported flood

cific tracks between San Fran-,

west coast were the.

Oreron:
“gonditions easing,

itown’ of Ki : southern #Oregon, ‘ar
he nO Fun. ‘under any circumstances. j y Klamath at the mouth ° :

way, one of the main
routes, should be ope
tomorrow in Oregon.

/2The falling. rivers

early return to the
hundreds evacua
Grants Pass, Ore.,
chance for 280 bus
marooned there, to
journey.
“Heavy rains and
sent rivers over th

northern and northce

washed into the bh
Vale. - ¥
At Reno the
slopped a little wa
banks. Hotels and

The 300-foot span w;
with a loss of $1000

Seew Hits New

Abnormal eetd p
the Dakotas east:
England. ©
storm hit the New
politan area ia wig)
debut... ‘it

Manhattan got 2
More than Sine
Queens, Brooklyn,
of Long Island befd

-

ardous aad
‘Teast two traffic

——

sie ne
Oe TO OT Le


404 +=«4Ky.

upon the person attacking the validity of
the marriage. We believe the attitude as-
sumed by the chancellor was correct.

In Vest’s Adm’r v. Vest, 234 Ky. 587,
28 S.W.2d 782, 783, this rule was approved:

“*The law and public policy favor
matrimony, and when the celebration
of a marriage is once shown, the con-
tract of marriage, the capacity of the
parties, and, in fact, everything neces-
sary to the validity of the marriage,
in absence of proof to the contrary,
will be presumed. * * * This pre-
sumption of legality is said to be one of
the strongest known to law’ ”.

Additional supporting authority may be
found in 35 Am.Jur., Marriage, § 113;
Griffith v. Lunney, 300 Ky. 66, 187 S.W.2d
431, and Littreal v. Littreal, Ky., 253 S.W.
2d 247.

With these principles in mind the chan-
cellor analyzed the evidence adduced and,
since we believe his findings to be correct,
we adopt the following portion of his opin-
ion:

: “Various doctors testified as to Bed-
dow’s mental capacity. One of these
dectors, testifying for the plaintiff, Dr.
Jackson, gave impressive testimony
with his history of the case and with
his conclusion that Beddow was not
capable of entering into the marriage
relation.

“On the other hand, there is the tes-
timony of Dr. Jester, who appears to
have been his attending physician from
the summer of 1949 until near the
close of that year, having seen him 17

times in professional visits from July
20 to December 24. Further, there is
the testimony of Dr. Ahrens, Superin-
tendent of the State Hospital at Dan-
ville, to the effect that Beddow was
mentally capable of entering into the
marriage relationship.

“So far as the court recalls, there is
no testimony of substance tending to
show that there was any change in his
mental condition from the latter part

268 SOUTH WESTERN REPORTER, 2d SERIES

of December, the date of the last visit
of Dr. Jester, until the date of his mar-
riage.

“The circumstances under which the
marriage took place, the manner in
which the trip was made to Mississippi
from Kentucky and the marriage cere-
mony performed in Mississippi does
seem most unusual to the court and
compels the court to look with a good
deal of suspicion upon it; but suspicion
cannot take the place of evidence and,
the mere fact that the parties went to
Mississippi under the circumstances
disclosed in this evidence and had the
marriage performed there does not
justify this court in treating these cir-
cumstances of sufficient evidential val-
ue to overcome the presumption of le-
gality of the marriage.

“There is absolutely no testimony
from anybody that at the date of the
marriage Beddow was of unsound mind
or incapable of entering into the mar-
riage relation. The testimony as to
what his condition was before or after
the time of his marriage is of value on-
ly as it is evidential of what his mental
condition was at precisely the date of
the marriage.

“We have two witnesses who testify
as to the mental capacity of Beddow
at the time he was under their observa-
tion, October, 1949, leading up to the
execution of the will introduced in evi-
dence, these witnesses being Mr. Davis
and Mr. Huguely, attorneys of this
bar. They talked to Beddow about his
business, consulted him and prepared
the will as he directed. The court feels
it is not out of place in connection with
their testimony, to make the observa-
tion that he knows these two gentle-
men well; that he feels thoroughly
justified, from his knowledge of them,
in accepting their testimony as to the
condition of the mind of Beddow at
the time in question.

“Plaintiff has taken the testimony of
Dr. Leet. The court has read careful-
ly that deposition. It is very impres-

MERRIFIELD v. CMMONWEALTH Ky. 405

Cite as 268 S.W.2d 405

sive in its clearness and cogency of
statement; but, as evidence it must
be read and taken in the light of cir-
cumstances under which the examina-
tion of Beddow was made. Beddow,
just a few days before that examina-
tion, had suffered another paralytic
stroke. In the light of Dr. Lyons’ tes-
timony for the defense, the court can-
not escape the conclusion that the pa-
tient at that time had not recovered
from the shock of that stroke and that
it is not reasonable to infer that his
condition at the time Dr. Leet exam-
ined him was his condition at the time
the marriage was celebrated some two
months prior thereto.

[3] “The court believes that the
most that can be said for the case as
made out for the plaintiff is that his
evidence when measured against the
contrary evidence of the defendants
raises but an equilibrium of proof and
falls short of overcoming the presump-
tion of the legality of the marriage.

[4] “As to the quality of mind or
reason one should have in order to be
able to contract marriage one of the
best statements of the principle is
found in 28 A.L.R. at page 639 where
it is said that the rule frequently has
been laid down broadly that mental in-
capacity to enter into a marriage exists
wherever there is such mental incapa-
city as to disable one from understand-
ing the contract, its nature and prob-
able consequences. But it has also
been observed that marriage depends
to a great extent on sentiment, attach-
ment and affection which persons with
equal, as well as those with stronger
intellects feel and that it does not de-
pend, to the extent that ordinary con-
tracts do, on the exercise of clear rea-
son, discernment and sound judgment.
Ordinarily, the mental Capacity must
relate specifically to the contract of
Marriage in order to effect it and if
@ person entering the marriage rela-
tion has sufficient capacity to under-

stand the nature of the contract and
Ky.Dec. 266-269 S.W.2d—19

the duties and responsibilities it cre-
ates, the marriage will be valid. To
render a person mentally incompetent
to contract a marriage, it is not neces-
sary that the mental defect be such as
entirely to dethrone his reason or
amount to an entire want of reason.

“Tt is the conclusion of the court, ac-
cordingly, that the plaintiff has failed
to discharge the burden that rested up-
on him to show that at the time of
this marriage Robert L. Beddow was
mentally incapable to enter into it, and
the rights of the parties are so de-
clared.”

CR 52.01 reads in part:

“Findings of fact shall not be set
aside unless clearly erroneous, and due
regard shall be given to the opportuni-
ty of the trial court to judge the credi-
bility of the witnesses.”

When the force of this section of the Civil
Rules is applied to the facts of this record,
the judgment must be affirmed.

Judgment affirmed.
eX {2 7 28 /: SS

MERRIFIELD v. COMMONWEALTH.

Court of Appeals of Kentucky.
May 7, 1954.

Rehearing Denied June 18, 1954.

Defendant was convicted of murder
The Jefferson Circuit Court, Criminal
Branch, 2nd Division, L. R. Curtis, J., en-
tered judgment and defendant appealed.
The Court of Appeals, Cullen, C., held that,
where only real question was whether de-
fendant had fired fatal shot, statement of
commonwealth’s attorney on voir dire ex-
amination that evidence would show that
police officer had been shot and killed by de-
fendant was not prejudicial, notwithstand-

i a ae Pi ae hs le LE

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e


quit Ga

’ eu t
beth of Leuicville Commonwealths Altorncy
eee Merritiett be omail, had cone Sect Hamilton told the gary that
fended to Shelbourne that Jef- Merrifield had a definite mo-
ferson Criminal Court had not tive for killing @ policeman—-
granted him the proper trial re- fear of arrest as a parole violator
_ quired by the U.S. Constitution. because he was carrying @.Kun
Recause time was running out, and- ‘visiting - -a
Shelbourne took the perhaps whisky was sold
unprecedented step of telephon-
fag Merrifield at the prison to

nie iaterm him the plea shad been
-».. demed Merrifield was so emo-
ftionchoked bv the call that he

was unable at first to talk to
Shethourne— ; Hamilton was granted in Feb
Nerniicid« attorney. Georre. ruary, 1952. It was from a life

FE Ambro. appealed Sifelbourne’«” sentence given in the $350 armed

ruling to Miler? who upheid uo rebbery ef an A. & P. store at

The mext — and last. des» 2424 Bardstown) Road. Louis-

Perete lecal maneuver was be- ville, in November, 1940

fore Jefferson | riminal Court Six Umes after cetting the sen:

Judze L Ro Curtis, ino whose : \

*® tenee, Merrifield had been dq

courtroom Merrifield had te pied parate 0 c 2;

See aaaihen sapacith: entre eee renin caeole
on the point of getting a parole,

tence. ~~ ~ it was canceled because in the
Claimed Iafluence of Drugs Meantime he had escaped trom |
: 5 Cat LaGrange Reformatory. ~ {
*Ambro’s motion to Curtis asked : : j

for a new trial on the basis of Nine days after that escape he

‘ : was captured under unusual cir-
newly produced evidence that” cumctances

> chester Merrifield was under phe prison farm Manager of
* the influence of drucs at the paGranze was idly looking at ex-/
time’ he made a confession to pints in a “Memphis museum
officers Joseph Randazzo and while vacationing there. Sudden-
Carlos Johns of the Jefferson yy he recognized another visitor,
_/ County police. Ake who turned out to Ke Merrifield.
s WONG Ti pond aid cede es The LaGrange official rushed 0
* sbssio . .
from the offices of the (Louie a leptons and called police,
S. willed General Hospital, which - Was Arrested at 14,
“letter specifically defines © the a FER ors.
~s© mature and quantity of the drugs Eshord nical at Mesa le,
7 is mt, FOF 19 Seles da ing to records ‘wf the State Dt
=Merrifield was treated at ©e@n- - : r ‘
< eral for a leg wound suffered trsion of Probation and Parote:
at the murder scene. : In 1932, at the age of 14, he
Curtis wondered why this evie was arrested on a charge of
dence was produced so late. grand Jarceny and get a three
He added, “If you threw the month suspended sentence.
entire: confessron -out the win- - December, 1932—Housebreak-
: >. dow, you'd still have three eye--jng. three: months. in jail,
© witnesses who testified that they suspended. é
saw Merrifield kill Alvin ~ June, 1933—Drunk, peace
Keown.” bond.
“Straight From Shoulder’ duly, 1sssesiorerree break: '
After) Curtis overruled - the Januarv. 1934—Petit larceny,
motion, Ambro telephoned Mer- no disposition shown.
rifield. : January, 1935—Shot: in fight
: “E Jet him know straight from with Vance Huston Woods.”
the shoulder it*was the end,” December, 1937—Vagrancy and
oe “Ambro related. ; disorderly ‘ conduct, no .disposi-
vot Merrifield. also talked hy :

The Criminal Court jury found
Merrifield guilty after deliberat- |
ing 58 minutes. --- a)

A. & P. Store Rebbed
The -parole referred to by?

er che an . ~ ee 7"

place" where

+. Warren . continues to

+ mentite oo! Bus e > BE le ee or dan siialaite. tg whine v
ye PG « ‘i , J is F,
a 7 “tga atl hee ats
te ce ed mast <a a ee : Ri . eae rol a. PP ib fe oni

Peni ees Mt ‘Moy A é pane es ae a pon =
es . 4 Ie a fe 5 i eS metitee, _1- 4, ae x,

t ; ; r ~ . . . os ae <7 we “

CAPABLE CABLE CAR... This retired San Francisco cable car, which

on-a truck chassis and used only occasionally tr parades, wa :

San Rafael, Cal, to-évacuate residents of one flooded area. The cable car is

by a youngster in rowboat who 1s celebrating Christmas vatation from sc

Poll Shows Northwest Californic
G.O.P. Voters’ Flooded by All Rive

Like W arren | Continued from First Page
' yg, elers homebound for. C

H | Klamath and Scott River valley :
Continued from First Page | Mae plone the river and the Rivers began to.drop.

mind, and friends insist he will| soon of Klamath at the mouth southePn Oregon, and
not run under any circumstances. | of the river were flooded. Water oficiales -

: . pao way, one of the main nort
When Warren supporters. in ogg ahead 4 to 15 feet deep routes, should be open t

today's surrey were asked to; ; tomorrow in Oregon.
name thei’ second choice, more, County Cut Off —__— The falling rivers-m
named Vice-President Nixon | | Triple Coe ae cut aS early ede to oon ho
os : ‘from th east and west, with hundr evacua i
ri t 4
acca other “contidate,y.¢s bridges out at both sides ef the Grants Pass, Ore., “area,

: _- | county. chance for 280 bus
REPUBLICAN VOTERS L- Floods on the upper Sacra- marooned there, to-Tes
(After Allocating Warren uate) :

eS ee ten A il COT

mento River and slides in Ore-- Journey. © 920 oe
gon caused the cancellation of — }teayy rains and melti

Nene e183 * -|all-trains over the Southern Pa- “sent rivers over their
Slaven oe ee 13 cific tracks between San Fran- northern and north-¢entr:
Ss Dallesit seo os ascend he cisco and Portland. The railroad _Norat-ef-Boise-the-Wei
Milton Eisenhower .-.-- 10 said, last night there was MO washed into the hamlet
Leds: ie oe a chance that’ service could be re- yale, ©

Knowlind Se s0e0. 2 uets 4... | sumed. before tonight, if then. At Reno the -Truck
Dirksen _-.-..---------- 2 Along the east side of the Sac- slopped a little water
Others 22.0 Se SS ramento Valley the American, panks. Hotels and stor

No opinion .....---.---- 7 Yuba, and. Feather rivers: were downtown area were sa
--__ ~~ | out of thefr banks at low areas. The main loss there w

were partly. isolated by rising the Truckee at Kietsk
run | waters of the Feather and Luba, Tp, foot :
ahead among independent voters | 44+ were in no immediate dan- Se errs Or DO -

as their favorite G.O.P. nominee | ‘

ooh pita : . H be looded.

if Eisenhower does not run. i ger of ae sip Szaew Hits New: York
Part of Town Flooded Leold- :

ee or gn St OPINED
rote of independents, includmg| In Plumas County part of the the Dakotas. eastward.
the rote for Warren and after little town of Chester was . england. .
allocating the second choices of | flooded by the north fork of An unheralded 6-hou
his supporters: the. Feather eye . ra storm hit the New Yor
-d-“with onearly all) the coastal’ politan area in winter’
f Lda al) Ec rivers at all-time peak: stages. -debut2 = 9.4 s5° Sy

aD We

tion shown" . ie the Weather’ Bureau, predicted = 3f2 :
phone with his sisters, Mrs. Ida 1938—Conversion, two years, ;-- _ ing ing J rer arb ant to ids mere aes chentseia tet
~ ‘Faulkner, 4559. Knopp, Louts- probated os sie Es Warren Warren: The storm warning along the ore .than- nehes
- © ville. and. Mrs. Lucille Morgan, 1938—~Receiving stolen prop- : - Vote Vote th cai oe toraiged 4t0im ste ash one res ads and
Fairdale. roe erty, three years, probated. MWAIreM Aarti: 28% —"e | dinary storm to full gale. The stopped sete sponte
He _ request that he. be © February, 1939—Sent to Eddy-| Nixon -----+----18 | 22. | coins on the west coast were the. Prensa teed.
buried in a midnight-blue suit ville for two years on charge of Duiles ~---=----- it It heaviest’ in 15 years. cuseden - - :
with a white carnation. » banding and confederating to Dewey .--.------ 10 13 Other Western states troubled ecticut: parkways
THN hte AME cae a cant ciclo arieg | Mewemaycoco- $14 yw gh wer neue leat fea wo tral death
>) Jast-meal'a few hours-belore he February, -1940, orked in-a| M. Eisenhower .--.9 3 _t ne , Ba seats ces tne
was executed. Instead he called Louisville restaurant. Pence ve ises-= ; a on) ea ees conditions. casings Sooe
for a pot of hot coffee. The so-catled “society bandits” Others 3 6 however, with colder tempera 4
Wife Now In Prison in which Merrifield was believed |. ng opinion __....11 13. *| tures. See ‘ sighs :
; ‘ to have been a leader included Mae Ri ireeei
- The beginning of the end for Samuel J. Hornbeck, Louisville, ee yreacs ane seal Oregon Rivers pping At Kirchd
fad biel betel aes tien per aime eee eR concn 100» NOOK |= Landstides marooned about 90 | 4p some es

- November 8; 1952,-at. the old’ }jornbeck was executed “in
Bie Ah au ner + Wo: ‘Florida this month for his part
Bergh aco atere Ue gains SON RNG a at
iceman his Jife: Goldman. was

ar mith spe Speier ae “Killed in. ‘that battle.
year prison ‘sentence at Federal E

ea cettory for Women, Alder-| Firm Given Until April,

“son, Ws Va, for transporting To Get Ash Collectors

.. stolen jewelry. ir i. '
“As the Merrifields. and. the) An’ order giving Publicker

~ other eouple were - leaving. a Chemical Corporation until April
© Gracas- dexeloped—outside—the+1_lo- :

~ elub’s front entrance. Its Camp Ground” Road. plant

*"""Jefterson Patrolman Keown’ Was signed yesterday by Circuit

and his partner, Thomas Mar-| Judge Macauley Smith,
eum, were cruising by and went; . The company. and the City-
to investigate, _—=-P-County~ Air Pollution: Control

. oe ode ha Meal oe: Commission nad: agreed to. th

According to the Common- October 21. the. commissio
sae wealth, Merrifield had a gun, | sued to compel the eompeny-to
“ ghot.- Keown when the patrolman’ close down until the equipment

+ Prince: Akihito, observes: his 22d} dently rising rivers drove-at-least-

construction workers at - the
Brownlee Dam site along the
Snake-River. in eastern Oregon.

The situation began to improve
in western Oregon, where sud-

Americen institute ef Public Opini)en

Prince Akihite Is 22

Tokyo, Dec. 22 (4)—Japan's
most “eligible bachelor, Crown

David Nichols of Louisville \¥
Exeeuted-After- Merrifield —1¥ (©:

“David Nichols, Louisvillian Court jury Jentenced him” tn
convicted “of murdering his October, 1954, in t ling!
common-law wife, followed his sea oxi eet ghee,
better-known Death Row com- mother’s home in. Griffytown, a

1,500 persons from their homes

\

Nichols, 55-year-old cNegro. a e sa pane
odd-jobs: worker, waa executed pe kilting occurred in May,

“== ~ demanded= the plstot, Ha (ea? wae Instatted. After a hearing, @ | at 12:14: in® , “Penitem Nichols was the 158(h Wa Te = Test =
ai after the. shooting. compromise on next April 1 was | tiary. Peas <-*"* die.in Kentucky's electric chair : $
The fleeing. Merrifield was’ reached. A Jefferson County Criminal’ since its establishment in 2911. Sab.
7 Oa inert Bette A A A (ne te ge S ceaary st WO AFT ea Ser acer No woman har “ever t be

; phar rere i's At ore gees 1 Sete ea ac . - ? * pace nee in the State's electric 5 ee ;

ye? iB i P aet ee > lel eb r. : sh ie " -

pod Sah *

ead

Police Correct Taxpayer

gh x No.’s.N ot $s x * \ -
io % Whe Overpaid Fine—— wal


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EAE Ae Be peti Rives AGRA RC te naleniane®

’ MILLER, Charles, black, elec. Ky. (Breckenridge Co.)
. on May 9, 192)

Sie, y
_ GEORGE C. WRIGHT) |

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Racial Violence in Kentucky

1865—1940

Lynchings, Mob Rule, and “Legal Lynchings”

a a ne eT ee ee

LOUISIANA STATE UNIVERSITY PRESS

Baton Rouge and London

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440 KENTUCKY REPORTS. [Vol. 200

Y aa . ae a
a Re the proven conduct of defendant both before and
7. E ; :
Sai = seid vi the crime, which does not vary
m, but accords with, the act Joi cons
from, C01 ; acts and doings of a ra
pe similarly engaged and cireumstanced a
ce op in its instructions, submitted to the jury
ssue of insanity and witl
e y 3 1 such accuracy
pe é acy as to
ened esis cant the statement that ‘‘after caveful
study, we are unable to point out i 7
study, ut any defect the i
structions, as giv ie tae
' , aS given by the court.’’?’ Under i
eh , a8 & 1 .”’ Under the instrue-
fired found an issue against defendant, and
t mee upon it, as above briefly th
Sé efly outlined, ther
exists no ground under m isio Fie ied,
g under numerous decisi
ou s decisions of this court
ympathy, to interfere with tl li
1 , 1e verdict. Be-
cause of the death p :
é enalty, we have giv
close study in order fy We Are Srvc Tete seer
\ der to convince ‘selv
pa tes ourselves that the de-
é ad a fair and imparti
l é rtial trial according
prescribed rules of crimi ee te
criminal practi :
a ee a practice and are unable to
d any error committed by the court, either sub tial
or otherwise. ‘ % va cs
T] oy ; ;
By ery sea sna was a most atrocious one and that, the
oh aaa Spice is So overwhelmingly proven that
RF ed it, and relied solely o1
a Bel it, y on the plea
~ ce Piet according to his statement to the fa
le purpose of securi 1 ‘But,
ig an acquittal, ‘‘
und ‘ © oe oe ed a
er the instructions the court will give you 1 hi
o the penitentiary for life,’’ thus reduci ‘Sc erie
solely to the defendant’ Sete at tae
rita Ma ee dant’s mental responsibility at the
amitted the deed. The jury, from evi
abundantly authorizing j j rane phd nat eG
pes dae izing it, rejected his only plea, and any
ia dain er ap . might entertain, because of his
1 ate situation, furnishes ral grounc
herr sipnibad ; es no legal grounds for our
Our conclusi :
usion refore, i
shown for a eo hae le oe eee ee
s sé udg it i
Saal aired judgment, and it is accord-
, ne
Whole court sitting.

Whitehead v. Commonwealth.

(Decided October 12, 1923.)

Appeal from Leslie Circuit Court.
1.

Homictha<.. oe

Nia Admissibility of Dying Declarations.—Statements of a

eae Eonivap are competent as a dying declaration, where the
preliminary foundation for its introduction has been laid

ne

‘
4 jiite tims atten Pe

cone

Whitehead v. C ommonwealth. 441°

upon the theory that the consciousness of impending aeath re
moves all incentive to state an untruth or fail to state the whole
truth, and dispenses with the ordinary necessity for an oath and

cross-examination.
Homicide—Direct Statements as to Expectation of Death not
Necessary to Render Dying Declarations Admissible—It is not
essential to the competency of dying declarations that the de-
clarant should state in terms, either that he is bound to die shortly, |
or that he has given up all hope of life, but what he does say may
be aided by and interpreted in the light of the facts and circum-
stances surrounding him at the time.
Homicide—Fact of Death Within Short Time Considered in De-
termining Competency of Dying Declaration.—In determining the
competency of dying declarations, the fact that declarant did die
within a comparatively short time after the expression of his be-
lief of approaching dissolution, while not conclusive, will be con-
sidered.
Homicide—Sufficient Foundation Held Laid for Dying Declaration.
—Testimony of twice reiterated statements of deceased that “he
would never get well, and believed he would have to die,” when
considered with direction to his wife to have his body buried at a
certain spot, and the fact that he died within three days after
expressing that belief the last time, held sufficient foundation for
admission of dying declarations.
Homicide—Evidence that Deceased Did Not Expect to Die Admis-
sible as Bearing on Weight to be Given Dying Declaration.—After
dying declarations and evidence furnishing foundations therefor
were admitted for the Commonwealth, it was proper for the court
to admit evidence for the defendant showing that deceased did
not in fact expect to die, to enable the jury to determine what
weight, if any, should be given to the evidence of the dying
declarations.
Homicide—Determination of Admissibility of Dying Declarations
in Presence of Jury Within Court’s Discretion.—It is in the dis-
cretion of the trial court to hear the preliminary evidence on .
the questicn of the admissibility of a dying statement, either in
the presence of, or separate and apart from, the jury, if the hear-
ing is properly conducted, and the court is careful in declining to
receive, or by admonition, excluding from the jury, jncompetent
evidence.
Homicide—Defect in Instruction on Self-Defense Not Reversible
Error.—A self-defense instruction, only telling the jury that de-
fendant, in the exercise of his right of self-defense, had a right
“to shoot” the deceased and not that be might also “kill him,”
though defective, does not require reversal, where the court ex-
pressly authorized acquittal, if the jury believed the facts on
which the instruction was predicated.
Homicide—Instruction Held Not Misleading as Requiring Proof
of Self-Defense Beyond a Reasonable Doubt.—An instruction that,
if jury believed from the evidence that at the time the defendant


een ee

Sea a lt es

206 Racial Violence in Kentucky, 1865—1940

ate black leaders formed the Commission on Interracial Cooperation
(CIC) to help ease racial tensions. The organization did not seek a
revolution in southern race relations but merely called for improved
schools and other facilities for blacks (still in a segregated setting)
and, above all, for the end of racial violence.

At the first statewide meeting in Louisville, from July 23 to 24,
1920, the people affiliated with the Kentucky CIC agreed on a pre-
amble to guide their actions:

Not in passion or prejudice, but in the broad spirit of those seeking pa-
tiently and in faith to find a solution of the delicate inter-racial problems
that menace the peace and divide in hurtful antagonism the energies of
our people, we desire to mobilize the better sentiment of both races in the
state for the removal of the causes of friction and strife, to the end that
equal justice may be secured to all and the energies of the two races may
be joined in the great common task of building a better world for our chil-
dren and our children’s children to live in.

Governor Morrow, who had issued the call for the first meeting, served

as honorary chairman of the organization. In his keynote address, he
reminded whites of their obligations to uplift black Kentuckians.
Leaders of the organization called for a common-sense approach to
solving racial matters; treating everyone with dignity, for example,
would improve conditions. Various white and black CIC workers
wrote articles in newspapers throughout the state emphasizing black
improvement and showing examples of blacks and whites working in
unity and harmony. “The interracial committee for Breathitt county
helped a group of whites and blacks work together to secure three
acres of land and build a school for blacks” was a typical press release
from the CIC. Believing that education would solve many of the prob-
lems faced by blacks, the organization devoted considerable time to
helping Afro-Americans acquire high schools in many parts of the
state for the first time.*

Led by its black director, James A. Bond, the CIC tried to ease
racial tensions and called for the punishment of anyone, black or

32. See the pamphlet of the first meeting, State Inter-Racial Conference for Ken-
tucky, July 23d and 24th, 1920 (Louisville, 1920), in CIC Papers.

33. For a positive article on the accomplishments of the CIC in Kentucky, see

George Madden Martin, “Race Cooperation,” McClure’s Magazine, LIV (October,
1922), 9—20.

Meeting Violence with Determination 20 7

white, who committed crimes that threatened peaceful race rela-
tions. A branch of the organization was formed in Whitley County
shortly after the Corbin riot of October 30, 1919. Members of the
branch agreed “to secure the conviction and punishment of the mob
that drove the colored people out of town.” Both the county judge and
the prosecuting attorney, who joined the CIC, agreed. As a result, the
man identified as the ringleader received a two-year sentence in the
penitentiary and twenty-nine other white men were indicted for their
role in the riot. (The ultimate outcome of these indictments is un-
known.) The CIC sent workers to the site of the Dix River riot, and
they worked, so their annual report proclaims, to ensure that whites
as well as blacks were arrested for the racial outburst. CIC reports also
claim that on several occasions leaders of the organization stood up to
mobs and persuaded them to not lynch a black person. A Madisonville
police officer was killed by Lee Ellison in 1920. The CIC reminded
local whites that only one black, not the entire Afro-American com-
munity, had committed the crime and said that Ellison should receive
a fair trial. After the incident was resolved, the CIC proudly informed
the public that Madisonville blacks had helped apprehend Ellison,
who was duly tried and executed. The same proved true in Hardins-
burg, in Breckinridge County, where a black man was accused of kill-
ing one white and wounding another. The incident “aroused the evil
passions of large numbers of white people in the county. The colored
members of the committee .. . called a hurried meeting, drew up a
statement declaring that the colored people had no sympathy for the
black, Charles Miller, who had committed the horrible crime, and
urged that the law be allowed to take its course. White members of
the committee joined in.” In the eyes of the CIC, Miller received a fair
trial, and his death by electrocution was justified.**

With the cooperation of the governor, the CIC gave awards to sher-
iffs for preventing lynchings and publicized these events as examples
for other lawmen to emulate. In April, 1927, a medal was given to

34. For an account of the investigation by members of the CIC in Corbin, see Crisis,
XXI (April, 1921), 250. For a number of yearly reports of the Kentucky commission,
especially the years 1923, 1925, and 1928, see Folder 157, Box 167, CIC Papers. See also
“Minutes of Special Interracial Committee,” January 12, 1921, in CIC Papers. For.ar-
ticles discussing the role of CIC members in preventing lynchings, see Southern Work-
man, LXV (March 1931), 126, and World Outlook, XXVI (May, 1936), 30.


656 71 SOUTHWESTERN REPORTER. (Ky.

wisdom or policy ie for *ne ijegislature, not

O'RDAR, J. Appellant was tried, indict:

eimenof willful
ad nd facts having been ed, and convicted of the ‘
parhiorri te sue prialing his special findings murder, and sentenced to (dg He was

roperl, tructed jury,
par less clearly & palpably against the
evidence. Under rule the findin of
fact made oy the<ircult court can dis-
turbes.  ¥ the colored distr}

.Jarcce igeitory than the W district; and
yao bop dary ia not cle established - by

the efidence, still. it.

Judgment aftir ed.
2p

{114 Ky. 620)
McOARTY v. COMMONWBHALTH.
(Court of Appeals = — Jan. 28,
1908.

~ NITY—INSTRUCTIONS—RB-
MURDERES OF COUNSEL—NEWS-

a trial for murder of defendant’s wife

Gna ee. evidence that on ee eee —
. da bumerovus occasion

P~3 savers} wonthe. defendant had abused and

H d that be had frequently threatened
meri ker. The court charged that such evi-

helr verdict in fixing the unishment, if they
bn “from the other evidence find the de
fendant guilty Held, that such instruction was
as favorable to defendant as he was entitled to.

2. Where a husband continued to live with
bis wife for weeks after having been told of

ider complaints thereof, ba
eourt cannot cons Pa Se oonager vapect of

Appeal from circuit court, Fayette county.
“To be officially reported.”
William McCarty was convicted of mur-
der, and appeals. Affirmed.

Ww. G. Dunlap, for appellant. W. P. Kim-

of a | found guilty of having ma Mély and Zel-
d aang © set | onlously killed his wife by shooting ber in
the back. His defense, and the only de-
fense, was that of insanity. There is no evi-
dence in the record of any taint from this
-| malady in appeliant’s family, or in him pre
vious or subsequent to the killing.. No wit-
pegs testified that, in his opinion, appellant —
was, or ever bad been, insane. Appellant °
‘| claimed that he had reason: to belleve that
his wife bad been unfaithful to him, and that
| at numerous times during several weeks and’

months prior to the killing information to
that effect bad come to him; that be had —

he saw her at the home of a Mrs. Swigert.
in the company of some unknown man, and
that Mrs. Swigert’s house bad a bad reputa-
tion. As to these occurrences, including the
killing, appellant testified as follows: “J
thought I would go down and ask Mrs. Swig-
ert where she was; and Bert Miller gaid:
‘Come on. I ain't going to wait here all
night for you; and I went on, and as I got
to the corner of the kitchen there, I com-
menced coughing, and I heard a noise at the
other end of the little passway, and I looked
up and saw Lucy {appellant's wife] and a
man standing inside the gate between the
houses; and they immediately commenced
to run,—the man first, and Lucy second,—but
as they opened the gate I saw the plain
figure of a man; but Lucy got between Us
and I did not see where he went. But whea
I thought of the past, and all that had been
told ‘me, these things all came up before mé¢,
and I felt— Well, I do not know how I did
feel,—to think of all these things that had
been told me, and to think that they were
true. And I opened the gate, and I heard
Mrs. Swigert say, ‘Run, my God, run! an¢
Lucy run in the front door into the front
room, and was in the act of going through
the middle door, and I shot her twice, apd
run out right quick to see if 1 could find the
man that wes with her. I went around the
house to see if I could catch him or not, but
I could not see anything of Bert Miller,
the man, or anybody else. But when I came
to myself, and thought about what I had
done, I thought I had better see My mother.
I thought I had better see her first mysell
and tell her what had bappened, and
thought I would then give myself up. =
stead of giving himself up, appellant b
himself under a house in the neighborhood,
where he was found and arrested by the
officers. That quoted above ig the only ett
dence that in any way tends to establish nd
pellant’s claim of his being of unsound 7
at the time of the killing, if it does.

ball, for the Commonwealth.

{3 See Criminal Law vol. 14, Cent Dig. 4 6;
Momicide, vol. 26, Cent. Dig. § 44.

cept
only other witness to the transaction, ex
Mire. Swigert, is Bert Miller. He testified
that appellant was drinking, and was some

- houses? A. Yes, sir. * © © Q. Who did
_ you see? “A. This woman and his wife. Q.°
Which woman?. A.’ I do not know who she.

Ky) MoCARTY v. COMMONWEALTH. GST

what under the influence of whisky; that
the killing occurred at 7 o’clock in the even-
ing, after dusk. The witness and appellant
were together, hunting for Mrs. Lucy Mc-
Carty, the deceased. As to what occurred
just before and at the time of the killing,
this witness sald: “We got about fifteen
feet away from the gate,somewhere alorg
about that distance,—and saw his wife stand-
ing there talking to a woman. Q. Where?
A. At a lattice. gate. .Q. Between the two

was. Q. Saw Mre- Swigert and a womad?
A. Not Mrs. Swigert; Mrs. McCarty. -Q..
What took ‘place-then? A. He broke and
run towards her. Q:Run in what direction?
A. Toward Main street. When he run, she
slammed it. to, and he jerked it open, and
followed her into the front door. Q. Did
you follow them? A. Yes, sir; I got as far
as the front porch; and as sbe run he run
right behind her, and shot her twice, and as
he shot her she hollered, ‘Oh, Lord God,
belp? and he had his arm around her, and
let her down, and run out. Q. You say his
wife and this woman were standing at the
lattice gate? A. Yes, sir.” Mrs. Swigert re-
ferred to, did not testify in the case. It was
shown that shortly after this tragedy she
became violently insane from the fright and
shock, and was, and has since been, confined
under verdict and judgment of the Fayette
circuit court In the Eastern Lunatic Asylum
at Lexington. Evidence was admitted that
en the previous evening, and on numerous
occasions before, running back for several
months, appellant had abused and beat and
otherwise mistreated his wife. The motive
for this conduct was shown to be because
she did not give him money, and some wit-
nesses intimate because she did not give him
money to buy whisky. Appellant was with-
out means, idle, and dissipated. He had
done little or no work for a number of
monthe, while his wife bad been at work as
a@ domestic. Numerous threats are proven
in which appellant had said he would kill his
wife. The court specifically charged the
jury as to all of the evidence concerning pre-
vious assaults and threats by the accused;
that it was admitted solely for the purpose
of showing the state of appellant’s mind, If
it did show it, and of his motive; and that
the jury should not allow same to influence
thelr verdict in fixing the punishment if they
should, from the other evidence in the case,
find the defendant guilty of the crime for
which he was then being tried. Certainly
this action of the court was as favorable to
appellant as could be expected; indeed, more
favorable, probably, than he was entitled to.
Whether appellant’s wife had in fact been
unfaithful to him, or had given him cause to
belleve or suspect it, ts not at all clearly
shown by the proof. And, even if it had

appellant's own testimony, that he continucd
for weeks to live with her after having been
told of her alleged wrong. His subsequent
act of killing her cannot, then, be reasonably
attributed to the supposed jealous frenzy
aroused by a sudden and unexpected revela-
tion of his wife’s infidelity. Rather, though
it be conceded that he had the suspicion
claimed, and reasonable grounds therefor, it
appears that he was executing a determina-
tion previously and coolly formed, and an-
nounced in numerous threats, to himself exe-
cute upon her a dire vengeance.

+. Appejiant complains of the instructions
siven iy eae to the jury on the sub-
ject of insanity. “They are in the identical
language, excepting names, tised by the same
court on the trial of Portwood: Portwood's
defense was insanity. He was convicted,
and sentenced to death. On appeal this
court held that the instructions given fairly
presented the law, and the judgment was af-
firmed. Portwood v. Com., 104 Ky. 496, 47
8. W. 339. The instructions as to insanity
are as follows: “(2) If the defendant did
shoot Lucy McCarty, but at the time he shot
her the defendant did not have mental ca-
pacity sufficient to enable him to know and
understand that it was wrong to shoot said
Lucy McCarty, the defendant was of un-
sound mind; or, if the defendant did shoot
said Lucy McCarty, but at the time he shot
her the defendant was prompted to do such
shooting by an impulse, resulting from a

diseased mind, of such violence that it over-
came the will of the defendant, and con-
strained him to shoot said Lucy McCarty
when he did not wish to shoot her, the de-
fendant was of unsound mind. (3) If the de-
fendant did shoot Lucy McCarty, but at the
time he did so the defendant had mental ca-
pacity sufficient to enable him to know right
from wrong, and if at the time he had will

power sufficient to enable him to choose be-

tween shooting and refraining from shooting

said Lucy McCarty, the defendant was of

sound mind; and if the defendant did shoot

Lucy McCarty, but at the time he did so the

defendant had mental capacity sufficient to

enable him to know right from wrong, and if

his mind was free from disease, then no im-

pulse to shoot said Lucy McCarty, no matter

how violent, and no matter how completely

it dominated the will of the defendant, was

unsoundness of mind.” The argument is di-

rected principally against the expression at

the close of the third instruction, “if his

mind was free from disense, then no im-

pulse to aboot said Lucy McCarty, no matter

how violent, and no matter how completely

it dominated the will of the defendant, was

unroundness of mind.” It must be the con-

tention of nppellant’s counsel, that any im-

pulse that at the time may be irresistible,

will excuse homicide. Happily for society,

this is not the law; otherwise an ungoverna-

ble temper, or violent, brutish passion, or

been, it was also shown conclusively, and by
11 8.W.—42

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frenzy caused by indignation, or anger. or

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PLACE — CITY OR COUNTY DOE & MEANS

Louisville, Kentucky H, 12-9=1892

RESIDENCE 1853 Portland —
Louisvilie

NAME Dennis McCarthy

DOB OR AGE RACE
3h roche White

RECORD

OCCUPATION

Street Car Driver

CRIME DATE | OTHER

Murder

9-7-1891

VICTIM

Wife

MOTIVE

AGE RACE METHOD

SYNOPSIS

Along with others, offered choice of food for last mnees bub aid saa agai preg dy On night be-

2 4 2
Ore IN =e cw a ow Vo CU oT G w} = SH —~ eee

Spent night praying, counting baiide on rosary. Ate no "breakfast, thavs were x oneees for 3 to y

2
we alath ala a a eenessha = vache ne ate. ) ele ) ers ote He : ative ment isteke had hi

body to be taken to St. ‘Louis Cemetery and deposited in a ‘vault, Serivces planned for a few weeks

later in jail yard and then to be buried there, “Almost from infancy to the gallows, the life of

Dennis McCarthy was one of brutal crime,..At time of mrder, wife was pregnant and expecting ano-

ther child in short time, In confession admitted there was no provocation, Murder commiteed on

Sep. 7’, 1891, at their home, 1853 Portland Ave, Six weeks before he had gone to St, Louis where

he was a motor man on the me Pca streetcars. Five weeks after his departure and one week before
= ‘Ad a S VEU a ~ ave J i N i® fA * J Ww M4 alivud?e CF = oming

home in a feu days ¢ to gues be You have not suited nee and I am Lape to make an end of it,"

lo no n.

a Yeasce nas a¥a\is¥ = Or asm yt 7 a¥s = =. alt= “ = ats anat* <ta Ss WOM Cs
= u 7 =

puments being brought on by him ne was ado pecome a motner ana ne a ised he f being
untrue which she denied, On morning of 9-7, Bhe left home, returning at 3 o'clock but in a few
moments, holding his youngest son, Denny, by the hand, he left the house for a walk, They did not
return until 6:15. The family occupied an apartment over Forst's saloon, The entrance was by the
side way. Upon passing through the door downstairs, the little boy stopped to play with his bro-
“ther, McCarthy ppeceeded up the stairs, His wife was the only person up there, What transpired
tag them is unknown except nd a statement he made ert 8 aol — in which - ~ that

pistol and shooting mer cave times. She fell te Mises with Cal, one of the children, hearing her

= = = an ae «an Sm ys Te re 3) = CY
wa

uracil se Cat) aw asnappist ae Vi OSvorT ao a 4 mG =

not exp Lode because bi had takeing fired all shaban. McCarthy then rushed Fs stairs with revolver

's dress on fire fr

om flash of pistol and with his bare hands smothered the

blaze. One bullet had entered right side, passing through heart and lodging in left side. Two sth
wounds showed that he had shot twice as she tried to flee for they were in the small of the back,
She died within a few minutes, McCarthy walked from 19th St, entrance to the front on Portland fve,
Started across street but ran into a buggy and was knocked into the muddy street, The pistol fell

from pocket and he told a young man to pick it up and hide if from the police, Rising he ran up
Portland Avenue where a man seraee him and held him preshesn the arrival of ere ncers a few minutes

o Sle 1c AJ 3 = Pf = J $s cae Ula» ~ Ube U JUIl,
At autopsy, the child she was carrying was found to be alive but died an hour and a half later,

a ied Sate ms > Coat T) Gut FG aa sata 7 £3 * acate = HOLS P} od ~~ C ty mind S FORP aa a =
a on a oC 7

been crazy, and you can ask any man on Portland Avenue if I have not always Mies regarded as a
desyerate chara 3 his wa > an unbalanced mind am n acy 2a QO he me, but

once in a while I am, I came home Pine St. Louis Saturday and yesterday started out to get work,

While uptown I bought a pistol, I don't know why I bought it, When I went home my wife met me at

the door and greeted me pleasantly, I pulled out my pistol and shot her, but why, I don't know,

I did it this way: Moca. one hand on the back of her head, Idrew her close to me and fired once,

Ne Drs = 0955-62 n6 20 Sf aye mesg 7 and spe S = ne 33 ne i fale =
TRIAL

Denny." ‘The sight was ea mach for me, “put i kneeled quickly and kissed her, Then I ran down
stairs and was arrested, Yes, we were all crazy. My sister committed suicide 15 years ago by
atthe arsenic, My brother Tim split mother's head open with an axe, H e was sent to Anchorage
Asylum and while being shaved one day he seized the raaor from the barber's hand and cut his throat
LaBFIWSROhortly afterward. I have another brother who has psent some time in a lunatic asylum, ihe
mirder was cold blooded and I am ready to stand the consequences, She was good to me, and while I
was out of work she supported the family by sewing. "Pléaded not putity. irtat berarn-on Jarre 2265 —
McCarthy born 3) years before, He and wife married 1); years. She was DD. at time of death and

airTRReNn |} OTD Nannies : ad Oe 3 0 OU) =e ° 6 6 6 * LE RSOERSES

figured in many cutting “ peeking incidents, A short tine before murder of his wife, he almost

6 + atl a GounpLe MmMuorce =werey bpehine Lest HNO-DOVS OF) = dark nigcn and ots hei

throats iad driven a street car for several. years prior to going to St. Louis, In stature, he
_wee-emall,—not_more than S@gereare S'S" tall, When taken to jail, he weightd 130 pose’ but this

morning would hardly have tipped the beam at 90 OU. SVILLE COURIFR-JOURNAL, -

SOURCE


228

tion against the further closing
ihe cae. The pass-way, a8 ate gen
fixed, was at acertain gate, marked .
on the accompanying plat. iar Be
however, had been closed by plainti ay :
had built a fence infront of it, _ =
tempted to — a gla. "esohaipedbe
some ya A
oereadant had closed the opening thus
left, and refused to allow any on to pane:
There was judgment forplaintiff. Defend-
ant appeals. Affirmed. :
The following is the plat:

SOUTHWESTERN REPORTER, VoL. 20. (Ky.

Tyler & Apperson, for appellant. Wood

& Day, for appellee.

r, J. It is manifest from the plead-
iagnene exhibits in this case that the ap-
pellee is entitled to this pass-way Over ap-
pellant’s land, unless by bis own act, in
closing the gate at X on the plat, he has
estopped himself from its use. The appel-
lee closed the gate at X by erecting a fence
in front of it, and when this was done left
an opening in the fence about 200 yards
north of the gate. While such a change

aie nies

Ky.) SMITH v. COMMONWEALTH. 229

could not have been made without appel-
lant’s consent, still this was not un aban-
donment of the right to pass,—time had
not barred the assertion or the exer-
cise of the right to pass; and the appel-
lant is insisting that no such right exists,
and from the testimony was disposed, in
a forcible manner, to make himself the
arbiter in the controversy between himself
and the appellee. The appellee and his ten-
apt had the right to the use of the Pass-
way. The judgment is affirmed,

peer ere

WILLIAMS V. CoopER et al.

(Court of Appeals of Kentucky. Sept. 24, 1892.)
REPLY—Time oF Fininec—Discretion or Court—
DIssoLuTION oF INJUNCTION.

1. Where an offer is made to file a reply 18
months after the answer was filed, and no reason
is given for not having filed it before, the ac-
tion of the lower court in refusing the filing is
not an abuse of discretion.

2. Where a motion to dissolve an injunction
is made during term time, no notice is necessary,

Appeal from circuit court, Morgan coun-

y.

“Not to be officially reported.”

Action by John W. Williams against
John E. Cooper and others. From a judg-
ment for defendants, plaintiff appeals.
Affirmed.

W. W. McGuire, for appellant. John E.
Cooper, for appellees.

Pryor, J. At the April term of the
court for the year 1888 the defendants
filed their answer, and some 18 months
after, at a subsequent term of the court,
a demurrer was filed to the answer, and
overruled. There was then a motion to
submit, and an offer for the first time to
file a reply, that was at the time objected
to. There was no reason or valid excuse
given fornot having filed the reply sooner,
and wecannot suy the court abused its
discretion in refusing the filing. The mo-
tion to dissolve the injunction was made
during term time, and no notice was nec-
essary; and, the injunction having been
dissolved, the greater the necessity for a
reply to the answer, that the title of the
land might be settled. But, whether so
or not, this court ought not to reverse
upon the record as presented. Affirmed.

McCarTY v. COMMONWEALTH.
(Court of Appeats of Kentucky. Sept. 24, 1892.)

Homicipk— INTOXICATION As DEFENSE — EXPERT
EVIDENCE.

1. It is no defense to a prosecution for mur-

der that defendant, who was orderly and entirely
rational when sober, was intoxicated when he
killed deceased.
. 2.Itis error for a physician to give an opin-
jon as to defendant’s mental condition, based on
oa evidence rather than on a hypothetical state
of case.

Appeal from circuit court, Jefferson
county,

“Not to be officially reported.”

Dennis McCarty was cunvicted of mur-
der, and appeals. Affirmed.

Gardneré& Moxley and E. J. McDermott,
for appellant. W. J. Hendrick, tor the

Ommonwealth,

Bennett, J. The appellant was indict-
ed, tried, convicted, and sentenced to suffer
the death penalty in the Jefferson circuit
court for murdering his wife. The evi- -
dence is that the appellant was seen 0-0
ing to his and his wife’s room, upstairs, cy
in the city of Louisville, having his hand
upon his hip pocket; that he entered said
room, and shot her to death, no one, °
however, seeing the act; but the appel. an
lant’s son entered the room immediately
after the firing ceased, and while his fa-
ther was standing over the dead body of
his mother, snapping his pistol at her. ~y
The appellant then left the room, and o
went upon the street, and then ran across ae
the street, and in running across the
street he ran into a wagon and fell; and in 5
falling he dropped his pistol. A little boy
picked up the pistol, and offered it to the @
appellant; but he declined to take it, tell-*
ing him to throw it away. He then ran
on until he was captured, after which he =
stated hehad killed his wife, and he was >
xlad of it; also that his wife had acted b*
wrong, etc.; and when being taken to jail, <t
he said that he was crazy; also he had, ®
previous to the killing, quarreled with big»
wife, telling her that, if he should kill her,
the only thing that could be done with >
him would be to send him to the asylum. ©
The only excuse made for him by counsel +
is that he was, at the time of the killing, IQ
insane. The jury, under correct and full @O
instructions upon that subject, found that Q,
the appellant, at the time he killed his
wife, was not insane. The evidence is tc
clear and convincing that the appellant,
when sober, was peaceable and orderly,
and entirely rational; but, when drunk, he je
was quarrelsome, and would torture lan-
guage and conduct into intentional in- —
sults, which he wonld resent by having ~
personal difficulties with the parties. But
that he was not insane, in the sense that the 4
law holds to excuse crime, there is, to our
mind, no shadow of doubt. bos

But the counsel insist that the court
erred in allowing Dr. Pusy, as an expert,
to give his opinion as to the appellant’s -4
mental condition from the evidence, and
not compelling him to give his opinion ®
upon a hypothetical state of case. It is*
undoubtedly true the doctor should have
spoken from a hypothetical state of case.
See Brown v. Com., 14 Bush, 410. It is also ©
true that the doctor did testify all the Q
way through from a hypothetical state of ®
case, except in the single instance, men-
tioned by counsel, which occurred upon O
cross-exumination, and which was evi.
dently an inadvertence by the common-
wealth’s attorney. But, be that ag it i)
may, the answer to the question did not cp
prejudice the substantial rights of the ap-.O
pellant. The qnestion that was put to;
Dr. Duugan, aud ubjected to by the appel- .
lant, on the ground that it was not hypo-
thetical, was clearly hypothetical. The
judgment is affirmed.

we

(93 Ky. 818)

SMITH V. COMMONWEALTH.
(Court of Appeals of Kentucky. Sept. 24, 1892 )
MaNSLAUGHTER — NEGLIGENT KILLING BY Guakp.

A prisoner and his guard, each having pis-
tols, fired “at the clouds,” and then exchanged


; ae Date ge fos EAS
. 4 j lo He tyes 2 ip TRPih oa
‘ j ‘ Fae ots : ; SADE S YE £20
esp


<9 an Reena neh eos

ee of ee Comnionwealth of Kentucky.
“TO ALL PERSONS WHO SHALL SEE THESE cS aaa GREETING:

WHEREAS, it is represented to me by Uk. hott : of fhe dna, ae ae :

of Mr mrny Movs : tmrihokss op Sih Mone hunin,
‘that U9; ORR sais” one may i ~ i ‘who has been sentenced.

‘by a judgment of the FPQarnis * Cireuit Court; at tee Une ernb Wiles |
Term 1% io ae to the "punishment of A. BAKO by oe ;
hy “the ey 4 aiid . Ef ‘ona conviction for -
“:the crime 16 OF WS karnK aay | Wales peat 4 As a fit subject for
‘the exercise of ae ae MERCY and INDULGENCE; NOW, -therefore,
KNOW YE, That.in consideration of the premises,

and by virtue of the power
rd hy wie? by the constitution, IdoG ot et T-to the Bs -Seyeate ius Senay SMeTTT ae

tho offark ons IPL
a free and as ch ON for the the OFFENCE af Gorenial ae id? and

do release him from thepentence aforesaid, and order and ao ect, that all officers

cig
__of this state respect this BARDON. 7

%,

TESTIMONY WHEREOr, Se ieee: caused these otters ak

ad a nenetitiew

aa bbe made patent, and. the seal of | the Commonwealih . ~ g |

Se, ‘be hereunto affixed. et
. : j ies : under my hand at Frankfort, on » the Donk 3s 28 EE
3 | i of site Y of Decree ‘In Hie year of our Lord one ee
bn temtene 3 : ousand eight hundred and Se TOCNDP — andin
et ; ae Ee year of the Commonwealth,
“BY THE sorepwon, ZCPECL_t Ae eee
ss J a COMER preny fs State,


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706 KENTUCKY REPORTS. [Vol. 197.
without assignment for trial, until Monday, October 9th,
and seventh day of the term, on which day by a further
order it was set for trial Thursday, October 12, the tenth
day of the term, and Claude Mercer, an attorney of the
Hardinsburg bar, appointed to defend the appellant on
his trial under the indictment, which appointment was
accepted and service undertaken by the appointee. It,
therefore, clearly appears from the record that the appel-
lant was unrepresented by counsel until an attorney was
appointed by the court to conduct his defense; and that
this appointment was made two days after the appel-
jant’s indictment and three days before the beginning of
his trial, which allowed the attorney and client less than
three full days’ time in which to prepare for the latter’s
defense on the trial. It also appears that the appellant
arrived in Breckinridge county about the time Haycraft
was killed, and that he was a stranger wholly without ac-
quaintanceship in that county.

When, on October 12th and tenth day of the term,
the case was called for trial, and the attorney for the
Commonwealth had announced its readiness for trial, the
appellant by counsel declared his unreadiness and en-
tered motion, supported by his affidavit and that of coun-
sel, for a continuance of the case until the next regular
term of the court. The affidavit filed by appellant set forth
the absence of one Aubrey Mopley, stating that he was a
resident of Jefferson county, a material witness for the
appellant and would, if present on his trial, testify that
the latter boarded with him before going to Breckinridge
county, and that on the night of October 4, 1922, when
Ilaveraft was shot, appellant was with him as late as 10
o’clock p. m., which, if true, would have made it impossi-
ble for him to have been at the Sugar Tree Run bridge at
the time of the shooting of Hayeraft. That a subpoena
was issued for Mopley October 9th and on that day
mailed to the sheriff of Jefferson county, which by mail
was returned with the following endorsement thereon
signed by the sheriff: ‘‘Oct. 11, 1922, not sufficient time to
find the witness Aubrey Mopley.’’ The affidavit contained
the usual statements as to the truth of the testimony that
would be given by the witness and that his absence was
without appellant’s procurement or consent. Its more
matetial statements, however, were that he was shot and
wounded October 5th, by a ball from a gun or pistol that
penetrated his back and came out in the front of his body,
the shock of which was so great ‘‘as to cause him not to

aera ereaie ener inmeamaneamae

Miller v. Commonwealth. 707

be in fit mental or physical condition to properly advise
his attorney preparatory to his defense;’’ and, further,
that he (appellant) ‘‘is a stranger in this community and
has no money nor friends, and has procured a letter to be
written to his father, who resides near Madison, Ala-
bama, advising him of his trouble and requesting his
presence here, but that his father has not come as yet.’’
The affidavit concludes with an affirmation of the appel-
lant’s belief that for the reasons stated he could not ob-
tain a fair trial at the October term of the court then be-
ing held.

The affidavit of Claude Mercer, the appeilant’s attor-
ney, after reciting his appointment by the court to defend
the appellant, states that on the day of such appointment
he in person went to see the defendant in the jail and
found him in bed apparently suffering from a gun or pis-
tol shot wound, the bullet having penetrated his body,
entering at the back and coming out on the opposite side.
That he attempted to talk with appellant about his case
and found him, either from natural or unnatural causes,
one of which was true, but which he (affiant) did not

know, so reluctant to talk that he would only answer.

questions asked him by the affiant; and that thereafter on
three or four other visits made appellant by affiant at the
jail, he found his condition practically the same. That
on the first of such visits, he was asked by appellant to
write his father for him, which he at once did and at 9
a. m. the same day mailed the letter to the father’s ad-
dress in Alabama. Other material statements contained
in the attorney’s affidavit will more fully appear in the
following excerpts quoted therefrom: se

‘‘Affiant states that said defendant has at no time
been in a proper condition, either mentally or physically,
or for some reason unknown to the affiant, to advise him
properly of his defense. That he (affiant) has
not had sufhecient time or opportunity to investigate the
circumstances of the homicide charged to the defendant,
in order to properly prepare a defense; that the defend-
ant has given affiant the name of one Aubrey Mopley, as
the only witness he has, and that he procured for Mopley
the issual of the subpoena set forth in the affidavit of
the defendant. Afhant states that considering the grav-
ity of the charge and the condition of the defendant, and
the fact that the murder occurred on October 4th, 1922,
in this county, which was two days after the present term
of the court convened in regular session; and that de-


~“l

KENTUCKY REPORTS. [Vol. 197.

court; to procure the attendance of witnesses and their evidence
to establish his innocence, excuse his commission of the offense
charged, or discredit the witnesses for the prosecution; and, also,
reasonable opportunity to obtain, if desired, the presence and as-
sistance at his trial or in making necessary preparation for same,
of a member, or members of his family. And if upon the calling
of the case for trial, by a proper showing on the part of the ac-
cused, it is made to appear to the trial court that these aims,
or any of them, cannot reasonably be accomplished without a con-
tinuance of the case, the refusal of the continuance by it will
amount to an abuse of its discretion and constitute reversible error.

3. Criminal Law—Continuance.—As on the appellant’s motion for a
continuance in this case it was made to appear from the trial
court’s own records, that he was put on trial under an indictment
for murder six days after the death of the victim of the homicide
and return of the indictment, three days after the appointment by
the court of an attorney to defend him and the setting of the case
down for trial; and, in addition, shown by the affidavits of the
appellant and his attorney that the appellant was without money,
a stranger in the community, and from the time of his arrest.
eight days previously, had been confined in jail laboring under the
disability of! a wound produced by the passage of a pistol bullet
entirely through his body; that for want of time and opportunity
he had been unable tc properly advise with his attorney, or the
latter to make the preparation necessary for his trial or to hear
from his (appellant’s) father in Alabama, to whom the attorney
had written and whose assistance was needed at his trial. Held,
that the facts thus shown, together with the further information
furnished by the affidavit of the attorney, that from*some cause
unknown to him, the appellant’s condition of mind prevented him
from giving him (the attorney) any assistance in the preparation
of his defense for the contemplated trial, clearly entitled the ap-
pellant to the continuance asked; consequently, the action of the
trial court in overruling his motion therefor must be declared re-
versible error.

CLAUDE MERCER for appellant.

CHAS. I. DAWSON, Attorney General, and THOS. B. McG@REGOR,
Assistant Attorney General, for appellee. :

OPINION OF THE Courr py JUpce SetrLe—Reversing.

Following his indictment by the grand jury of Breck-
inridge county for the murder of Sam Havyeraft, the ap-
pellant, Charles Miller, a negro, was tried in the circuit’
court of tltat county for the crime, by verdict of a jury
found eniliz and his punishment fixed at death. The
appellant filed a motion and grounds for a new trial, but

Miller v. Commonwealth. 705

ihe motion was overruled by the court, sentence pro-
nounced and judgment entered in conformity with the
verdict. Duly excepting to each of these acts and rulings
of the trial court, he prayed and was granted an appeal
from the judgment, his prosecution of which requires of
this court a review of the judgment and the rulings as-
signed as reversible error.

There were but two grounds urged by the appellant
for a new trial, and these grounds are alone relied on for
the reversal of the judgment. They are that the trial
court erred to the prejudice of the appellant’s substan-
tial rights, first, in overruling his motion for a continu-
ance; second, in admitting, on the trial, incompetent evi-
dence against him.

It appears from the evidence introduced on the trial
that the deceased, Sam Hayeraft, at the time of his death
and prior thereto was in the employ of the Louisville,
Henderson & St. Louis Railroad Company as a watch-
man on what was known as its Sugar Tree Run bridge,
which spans a ereek of that name twelve miles south of
Irvington in Breckinridge county, crossed by its railroad
track. Hayeraft was shot between eleven and twelve
o’clock the night of October 4, 1922, and was found lying
at the west end of the Sugar Tree Run bridge about
seven o’clock on the morning of October Sth, desperately
wounded, several pistol balls having pencirated his body.
He was immediaicly taken to Louisville and placed in a
hospital for surgical treatment, and there died of his
wounds October 7th. On the 5th of October the appel-
lant was arrested near Irvington by an officer and posse.
In effecting the arrest, which seems to have been resisted
by the appellant, he was shot and wounded by a member
of the posse, the bullet passing entirely through his body.
He was at once inearcerated in the county jail at Har-
dinsburg, in which town the Breckinridge circuit court
and grand jury were then in session, the court having
previously convened and the grand jury been em-
paneled and sworn, on Monday, October 2, 1922, that be-
ing the first day of the regular term of the court required
by statute to be held in the month of October of that year.
On Saturday, October the 7th, which was the sixth
day of the October term of the court, and, also, the day
upon which Haycraft died of his wounds, the indictment
charging the appellant with the murder of the deceased,
was returned by the grand jury, and by an order of the
court entered on the same day the case was passed,

Vol. 197—23


c . f . nd \ S
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APPEALS

LAST WORDS

EXECUTION

e e
Lhe Aha Abate? 22, a) Add L773 Le AL AEC i f zs

Gee Counter Sparse ke Lillaa gy

FRANK NEWTON OFFICE SUPPLY-DOTHAN

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7 KENTUCKY REPORTS. [Vol. 197.

said society after the insured became engaged in the oc-
cupation of an electric lineman; that Leitsch did not pay
thirty cents on each $1,000.00 of his certificate per month
in addition to his regular rate nor was any demand made
of him for such payment although the nature of-his em-
ployment was known to the clerk of the Cypress Camp
No. 64; that the additional sum of thirty cents per month
would have amounted to $23.00 in the period between the
time of his acceptance of the hazardous employment and
the time of his death. |

‘It is the insistence “of the appellant society that
Leitsch had become suspended as a member of the society
and his benefit certificate had automatically become null
and void at the time he accepted the hazardous occupa-
tion of an electric lineman in violation of section 43 of
the constitution of the society for the reason that said
section provides, ‘‘Any such member failing to notify the
clerk and to make such payment as above provided shall
stand suspended and his beneficiary certificate be null
and void.’’ While it is tacitly admitted that Leitsch not-
ified the clerk of his new occupation it does not appear
that the clerk notified the Sovereign Camp, Woodmen of
the World, as was his duty. While Leitsch was not in-
jured in the hazardous oceupation which he accepted
after the certificate was issued to him, we think that he
as the insured, and the society as the insurer, had the
right and ‘power to enter into a binding agreement where-
by the acceptance of hazardous employment by the in-
sured would automatically suspend his membership in
the society and render his certificate null and void for a
failure to comply with certain definite rules. It will be
noted, however, that such suspension of membership and
nullification of the certificate could take place only on the
failure of the member to notify the clerk of his change
of occupation and to make such other payments as were
required by the constitution. The failure to make the
payment alone did not void the certificate nor suspend
the member, but the concurrence of the two facts—(a)
failure to notify the clerk, and (b) failure to pay the
extra premiums—would suspend the member and render
his certificate null and void.

It is admited that the society through its agent, the
clerk of Cypress Camp No. 64, in Louisville, regularly
received the premiums paid by Leitsch on his policy after
he changed from the non-hazardous to a hazardous oceu-
pation, and after he had notified the clerk of the Cypress

ee See

2 eth

i

Tee isis

¢ t

Miller v. Commonwealth. 703

Camp No. 64 that he had made such change. The consti-
tution and bylaws of the order required Leitsch to report
to the said clerk and to pay his dues to the said clerk. He
did both. The clerk as the agent of the sovereign camp
received the information and the payments. The sover-
eign camp by receiving and accepting such premiums, al-
though less than the amount to which it was entitled,
tacitly waived the payment of the extra fee of thirty cents
per month to which it was entitled, and it waived, as it
had the right to do, the suspension of Leitsch as a mem-

ber of the society and the forfeiture of his certificate.
This did not, however, relieve Leitsch or his personal
representative from the duty and obligation to pay the
said extra premiums, when demanded by the society. As
the demand was not made for the extra fee until after the
death of Leitsch, the principal sum named in the face of
the policy should have been credited by the total of said

extra premiums, plus interest.
For the reasons indicated the judgment is affirmed.

Judgment affirmed.

Miller v. Commonwealth.

(Decided February 13, 1923.)

Appeal from Breckinridge Circuit Court.

1. Criminal Law—New Trial.—Under the Constitution and laws of
this state every person accused of crime, however great his guilt,
heinous the crime or revolting the circumstances attending its
commission, is entitled to a fair and impartial trial, which includes,
of course, reasonable time and opportunity to prepare and pre
sent his defense. And whenever it has been made apparent to the
Court of Appeals that one accused of crime was deprived by the
trial court of reasonable opportunity to explain away his guilt, or
was forced into trial without reasonable opportunity for prepara-
tion, it has not hesitated to adjudge him a new trial. While in the
interest of justice a speedy trial is much to be desired, it is equally
important that the law be administered and its judgments exe-
cuted in an orderly and deliberate way, to the end that every
person charged with and arraigned for crime may have, in truth,
a fair trial.

> Criminal Law—Continuance.—The object of a continuance is to af-
ford the accused reasonable opportunity to employ and advise with
counsel needed in his defense, or, if unable to employ counsel, to
advise with and obtain the assistance of counsel provided by the

268 Racial Violence in Kentucky, 1865—1940

Sampson failed to act on the case for several months. After receiving a
number of letters from members of the ACLU, Sampson finally con-
tacted Bond on July 15, promising to “conclude the consideration of
the McPerkins case before long and to take some definite action
therein.” By the end of the month, McPerkins’ one-and-a-half year or-
deal had ended with his release from prison.”
On the other hand, the case of John Pete Montjoy concluded in th

more usual and tragic manner of a black accused of raping a white fe-
male. Indeed, as noted previously, his death on the gallows would be
one of the last hangings in Kentucky. On March 23, 1935, Mrs. Irene
Cummings claimed that she had been robbed by two black men and
that one had also raped her. Interestingly, she knew the names of both
men, and they were therefore captured that same evening. After being
in jail for six days, Willie Black and Montjoy finally signed confes-
sions, saying that they had robbed the woman and that Montjoy had
committed rape after Black had left the scene. In court, the prose-
cutor, fearing that the jury might not condemn Montioy to death, re-
sorted to racism. He referred to the teenager as “a slimy, greasy, black
ape” who, if not executed, would return “to rape another white woman
if given only a prison sentence.” Unlike most juries considering the
case of a black man charged with raping a white woman, this one de-
liberated for more than three hours before the jurors informed the
judge that they needed additional materials before making a decision.
The judge responded harshly that “unless a verdict was returned
within ten minutes the jury would be locked up for the night.” With
the mandate from the judge ringing in their ears, the jurymen re-
turned within a matter of minutes with a guilty verdict and a death
sentence for Montjoy.”

20. Numerous letters give details of the efforts of various groups and individuals to
save McPerkins’ life. See the first letter from Mary D. Brite to William Pickens, of the
national office of the NAACP, April 3, 1930. There would also be more than a dozen
letters between Brite and members of the national office. See also the various letters
between David M. Jordan and the national office. Especially see his letter to Robert W.
Bagnall, of the national office, June ro, 1930. In 1931, a series of letters to the national
office concerning the case would come from J. Max Bond. See also copies of letters from
Bond to Mary D. Brite. Especially see Bond to Brite, February 6, 1931, and Bond to Brite,
undated but in early March, 1931. All of the letters cited here can be found in the
NAACP Papers.

21. Montjoy v. Commonwealth, 262 Kentucky Reports, 426—36 (1935); Theodore
M. Berry, of the Cincinnati NAACP, to Walter White, of the national office, May 29,

Color-Coded Justice 269

Just as they had in the McPerkins case, the NAACP, the ACLU,
and the ILD joined hands in an attempt to save Montjoy. Their inves-
tigation produced a startling revelation: A relationship had existed
between Montjoy and Mrs. Cummings prior to the alleged rape. For
several months, he had been providing the white woman with an
illegal commodity, something called “muggle” cigarettes. On the
night of the alleged rape, the pair argued over the amount of money
Cummings was to pay for the cigarettes, and Montjoy, perhaps in a fit
of anger, took money from the woman’s pocketbook as partial pay-
ment and requested sex as payment for the final amount. At this
point, Willie Black fled the scene. As explained by Mary Brite in a
long memorandum to the NAACP:

In her evidence Mrs. Cummings testified that after Montjoy had “driven”
her into the alley he discussed his intention with her, and when she be-
came convinced that she “was in for it,” she requested him to go up the
alley to ascertain if any one was there. In other words, she sent him to see
if any witnesses were around while she waited for him to return and rape
her. Why did she not run from that alley if she knew what was going to
happen and wished to avoid it? No, she saw in this situation, which she
may have welcomed, a means of . . . ridding herself of Montjoy and his
relations with her.”

When appealing Montjoy’s death sentence before Kentucky’s high-
est court, attorney William E. Wehrman raised three major issues, any
one of which, he contended, should result in the conviction being
struck down. Like other lawyers defending blacks during the 1930s,
he argued that the case should be overturned because of the continued
exclusion of Afro-Americans from the jury panel. Wehrman argued
forcefully that the “confessions” of both black youths had been made
under duress and that their original hand-written statements had not
been introduced into the court as evidence but had been replaced
with typed copies. After their arrest, Black and Montjoy were placed
in solitary confinement for six days. Black broke first, telling the po-
lice officers that Montjoy had taken Mrs. Cummings’ money but that

1935, Berry to Charles H. Houston, of the national office, January 13, 1936, both in
NAACP Papers. This collection contains an entire file, with numerous letters and
newspaper clippings, on the Montjoy case.

22. Mary D. Brite’s memorandum, “The Case of John Montjoy: A Sample of Justice
for a Negro” (written in February, 1936), was eventually published in Crisis, XLII
(April, 1936), 105, 114.


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.

* ee ae

Bini”

Sco

the

tic

Rit:

GEORGE C.. WRIGHT.

t ' Racial Violence in Kentucky
| i
: — 1865-1940
| ; Lynchings, Mob Rule, and “Legal Lynchings”
if
i
‘
LOUISIANA STATE UNIVERSITY PRESS
yy Baton Rouge and London
.


1,140 146 SOUTHWESTERN REPORTER (Ky.

murder, and was absolutely ignorant of any
relationship until several days after the ver-
dict was rendered. If the fact of relation-
ship had been known and brought to the at-
tention of the court before the juror was
sworn, he doubtless would have been excus-
ed or successfully challenged for cause; but
it was unknown to the court, as well as the
counsel of both sides, and the juror, after
being examined in the usual manner, was
accepted and sworn. The time to challenge
is before the juror is sworn; if not exercised
then, the right is waived. That waiver may
be relieved against when the party affected
has been intentionally misled or deceived
by the juror or the opposite party; but it is
not even pretended there was anything of
the kind in this case. Neither the fairness
nor the impartiality of the verdict is assail-
ed on any ground connected with the rela-
tionship of the juror to the murdered woman.
It is not and cannot be pretended that he or
any of his fellows were in any manner in-
fluenced thereby. As the learned president
of the court below remarked, ‘His judgment
could not have been affected, even insensi-
bly, by a circumstance of which he had not
the slightest knowledge.’ The newly discov-
ered relationship was therefore no reason
for setting aside the verdict.”

The only case holding differently, in so
far as we are advised, is State v. Williams,
9 Houst. (Del.) 508, 18 Atl. 949, decided in
1890. In that case, Lynam, one of the jurors,
was a second cousin of Wright, who was
killed; but neither the prisoner nor Lynam
had any knowledge of that fact until after
the verdict was rendered: In holding that
the disqualified juror vitiated the verdict,
and was a ground for setting it aside, Chief
Justice Comegys, sitting in the Court of
Oyer and Terminer, held that the person
slain was to be treated as a party to the
proceeding. He cited no authority, however,
in support of his opinion, and made no ref-
erence whatever to the Texas and Pennsyl-
vania cases above cited.

The question came before this court in
the late case of Brooks v. Commonwealth,
144 Ky. 110, 137 S. W. 867. All that ap-
pears in that opinion upon this subject is
contained in the following excerpt: “It also
appears in the motion and grounds for a new
trial that two members of the jury were re-
lated to deceased and to two relatives of
his, who were giving active assistance to
the prosecution. The two jurymen in ques-
tion may not in fact have been influenced by
this relationship; but the court could not af-
ford to indulge the presumption that they
were not. Therefore this ground authorized
the granting of a new trial to appellant.”

It does not appear from that opinion that
the jurors did not know of their relation-
ship to the deceased at the time they gave
their verdict, and we assume they did have
that knowledge. In this respect, therefore,
the case differs radically from Traviss y.

Commonwealth and Baker vy. State, supra.
The ground for holding a juror competent
under these circumstances is to be found in
the fact that, since the juror did not know
of the relationship at the time he gave his
verdict, that relationship could not have in-
fluenced him adversely to the rights of the
accused. Where, however, the relationship
is known, clearly it would disqualify a juror
for cause. Where a juror does not know of
his kinship to the deceased, he stands in
the same relation to the accused as an entire
stranger, in so far as the affinity of blood
might affect his verdict. It is the knowledge
of the kinship and the feeling that arises
from it that works the disqualification; and,
if the knowledge is absent, the disqualifica-
tion disappears. We conclude, therefore,
that Smith’s kinship to Dulcie Partin, being
unknown to Smith at the time the verdict
was rendered, does not constitute a valid
ground for a reversal.

[8] 7. Again, it is insisted that instruction
No. 4, relating to the insanity of Miracle,
was erroneous. That instruction reads as
follows:

(a) “Although the jury may believe from
the evidence, beyond a reasonable doubt, that
the defendant shot and killed the deceased,
Dulcie Partin, yet, if they further believe
from the evidence that at the time of the
killing the defendant was of unsound mind,
then they should acquit him.”

(b) “The law presumes every man sane un-
til the contrary is shown by the evidence;
and, before the defendant can be excused on
the ground of insanity, the jury must believe
from the evidence that the defendant was, at
the time of the killing, without sufficient
reason to know right from wrong, or that,
as a result of mental unsoundness, he had
not then sufficient will power to govern his
actions, by reason of some insane impulse
which he could not resist or control.”

It is insisted that this instruction should
have been so worded as to direct the jury
to find Miracle guilty, unless they believed
from a preponderance of the evidence that
Miracle was of unsound mind when he killed
Dulcie Partin, and that the instruction, as
given, is erroneous, because it only author-
izes the jury to acquit in case they believe,
beyond a reasonable doubt, that Miracle was
of unsound mind when he killed Dulcie Par-
tin. This instruction, however, is a copy of
the instruction approved by this court in Ab-
bott v. Commonwealth, 107 Ky. 624, 55 S.
W. 196, 21 Ky. Law Rep. 1372, and what was
said there in sustaining the instruction need
not be repeated here.

[9] 8. Finally, we are urged to reverse and
order a new trial, on account of the mis-
concuct of the county attorney and the com-
monwealth’s attorney in the argument of the
case. As no objection was taken to-the re-
marks of the county attorney, his alleged
misconduct is not here for review. Travel-

ee a fe

es

i i

Ky.) POTTER v. RAMEY 1141

ers’ Ins. Co. v. McInerney, 119 S. W. 172;
I. C. R. R. Co. v. Radford, 64 S. W. 511, 23
Ky. Law Rep. 886; L. & E. R. R. Co. v. Vin-
cent, 96 S. W. 898, 29 Ky. Law Rep. 1049.

The remarks of the attorney for the com-
monwealth were not beyond the latitude al-
lowed to counsel in argument. Gipson vy.
Commonwealth, 133 Ky. 398, 118 8S. W. 334.
But, if they were improper, there is no er-
roneous ruling of the trial court presented
for review, for the reason that the objection
thereto was made privately to the court, and
not in the hearing of any of the counsel for
the commonwealth.

In Farris v. Commonwealth, 14 Bush, 367,
we passed upon this question, and said:
“It appears that counsel for appellant object-
ed privately to the judge to the statement
of the law by counsel for the commonwealth,
and that the judge said he thought the ar-
gument legitimate, but that, if counsel de-
sired, he would tell the jury that they must
be governed entirely by the law as given
them in the written instructions. To this
suggestion from the court, appellant’s coun-
sel made no response, and nothing was said
to the jury about the matter by the court.
We are not prepared to say that the argu-
ment of counsel for the commonwealth, un-
der the circumstances, was improper; but, if
it was, we are of the opinion that no suffi-
cient objection was made and preserved.”

We have thus carefully considered every
ground for a reversal relied upon in the brief
of counsel for appellant, and fail to find that
his rights have been prejudiced in any sub-
stantial respect. Appellant having had a
fair trial, without any substantial errors
against him, the judgment of the lower court
will have to be, and it is, affirmed. Reed v.
Commonwealth, 188 Ky. 577, 128 S. W. 874.

(148 Ky. 629.)
POTTER v. RAMEY,
(Court of Appeals of Kentucky. M:
1912.) ae A

1. APPEAL AND HRRoR (§ 1001*)—Rreview—
QUESTIONS oF Fact,

The appellate court can reverse on the
facts only where the verdict is flagrantly
against the evidence on the issues made by the
pleading.

[Ed. Note.—For other cases, see Appeal and
Error, Cent. Dig. §§ 3922, 392 ;
Dig. ¥ 10009] ig. §§ 8-3934; Dec.
2. APPEAL AND BPrRRor (§ 993*)—Revigew—
VERDICT—CONCLUSIVENESS, )

Though the jury disregarded the testimony
of the majority of the witnesses, the appellate
court will not set aside their verdict as fla-
grantly against the evidence, where a consid-
erable number of witnesses testified to facts
supporting the verdict.

Appeal from Circuit County, Pike County.

Action by Adam Potter against J. B. Ra-
mey. From a judgment for defendant, plain-
tiff appeals. Affirmed.

Childers & Childers, of Pikeville, for ap-
pellant. Butler & Moore, of Pikeville, for
appellee.

NUNN, J. This action was brought iu
1910 by appellant for an alleged assault
made upon him by appellee during that
year. The cause of action, as stated in the
petition, is as follows: “The defendant at
said time, and at Elkhorn City, in said coun-
ty and state, tried to shoot the plaintiff with
a pistol, and did present said pistol at plain-
tiff and snapped same; that said Ramey, at
said time, was very close to plaintiff, and
plaintiff believes and charges that if he (de-
fendant) had not been prevented he would
have killed plaintiff; that the defendant,
by the wrongful acts aforesaid, put plaintiff
in great fear, and heaped upon him great
shame, humiliation, and indignity, and caus-
ed him to suffer great mental anguish and
bodily harm,” ete.

[1] Appellee’s only pleading was an an-
swer, which denied specifically the charge in
the petition. A trial was had before a jury,
much testimony was introduced by both
parties, and the issues were submitted to
the jury, which returned a verdict for ap-
Pellee. Appellant moved for a new trial,
and assigned as a cause only to wit, “be
cause the verdict of the jury is not sustained
by sufficient evidence, and is contrary to
the evidence and law.”

There is no complaint made of the in-
structions; and they are not copied into the
record. The testimony is copied into the
record and properly certified. Therefore
the only question submitted fo us for deter-
mination, and the only one that we deter-
mine, is: Was the verdict of the jury fla-
grantly against the evidence upon the issues
made by the pleadings?

[2] It is probably true that a majority of
the witnesses supported appellant’s theory
of the case; but a considerable number of
the witnesses testified to facts supporting
the verdict of the jury. The jury saw and
heard the witnesses testify, and were better
able to give the testimony its proper weight
than this court, and we cannot say that the
verdict of the jury is flagrantly against the
weight of the testimony; and, to authorize
us to reverse this judgment, we would be
compelled to believe that the verdict is fla-
grantly against the evidence.

For these reasons, the judgment of the

[Ed. Note.—For other cases A 1
Error, Cent. Dig. § 3900; Dee. Dig. "03.51 °

lower court is affirmed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

[END oF

CasEs.]



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388 K 55 SOUTH WESTERN REPORTER, 2d SERIES
y-

i i ’ Te-
[8] By reason of the gravity of the penalty brought before magistrate, since statute
3y reas H

i lires that he be brought before magistrate
hepa smiponns vam the, Sve eal bare et: soetadyn tte, Code Prec. § 40)
urder 0 ; :
pach ‘alee this appeal to consider = 5. False imprisonment es. pe. tee
great deliberation and seriousness each and Right of person arreste 0 _taken
every claim advanced for the reversal of ae forthwith before magistrate may be
judgment. However, the ee ae (Cr. Code Prac. § 46).
ven though severe, is not a ma 4 SE
within a ys ~ a . eee plaintiff waived right to be tak-
es a na pelea oe en forthwith before magistrate on arrest held
whom his case was tried and in whose hands ace (ie Cate Penk a.
rested the determination of his guilt and the ; Fac
meting out of lawful punishment therefor. 7, False imprisonment : ? ee
They have found the appellant guilty of the Jailer arresting ne ets nian
murder, with which by the indictment he was ¢op three hours without warrant Ha able,
charged. It thereupon becomes our concern ynlesg plaintiff waived ig iit . aken
to here carefully consider the whole record to forthwith before magistrate (Cr.
the end of deciding whether or not the ay § 46).
lant is shown thereby to have received a fair = ‘Chilis aoved .
ed sag rghit Where peace officer acts without authori-
Upon a careful review of this record, we ty in making arrest, his act is that gr in
find that the appellant has had on * Git dividual for which surety on bond is not lia-
wherein no substantial right of his has — ra
prejudiced. Having so concluded, it must a
low that the judgment of the lower cour
should be and is affirmed.

Appeal from Circuit Court, Whitley County.

Action by Demps Goins against T. J. Hud-
son, Jailer of Whitley County, and another.
rom a judgment for defendants, plaintiff ap

peals.
Reversed and remanded as to defendant
AT named, and affirmed as to the other defend-
~ y GOINS v. HUDSON, Jaller, et al. ant.
tuck J. B. Johnson, of Williamsburg, for appe!
Court of Appeals of Kentucky. wae

as me hets Tye, Siler, Gillis & Siler and W. B. Early,

1. False Imprisonment €>13. all of Williamsburg, for appellees.

i for being
Peace officer, arresting one
drunk in his presence, was not liable for CLAY, J. :
false imprisonment, if person arrested was Demps Goins brought this suit against 1. J.
ctually drunk, or officer had reasonable Hudson, jailer of Whitley county, and ie
ofoents to believe, and did believe in good surety, the Fidelity & Deposit Company of
faith, person arrested was drunk (Cr. Code Maryland, to recover damages for false ar ert
and imprisonment. At the conclusion 0
tae ta evidence for plaintiff, the court directed &
i i t 40. . cage
. "Teraiten ox. jailer’s right to arrest verdict 4 pao as fe oes
inti i punk d erroneous be- against the jailer S :
ee rie enya eninge port faith. which returned a verdict in his favor. Goi
cause omitti anna
i i that, if ppeais. ; oe ; a
a wwors, The allegations of the Lengpeemeg ed ott.
aus calecy deal in presence of jail- —— egy ac te sisal ie oe
jal 1s to be- yoins, J odeomend
er, or jailer had reasonable groun¢ Se eee er kacae cuk roma ca ee
kes inti i drunk, or pro- ing . ; wot Sak
lieve plaintiff was ae had right burg to see a dentist, who gave ~ eae
—— In the afternoon while en route 0) ae
—— house he walked by the jail. pies gs Per
3. False imprisonment €10. jailer, was seated on the ate ened
If jailer arrested plaintiff only for drunk- him to come in. Goins acceptec heady go
enness, he could not justify arrest on anoth- tion, and, after talking with Hudson i
, minutes, Hudson asked him if he did no oe
i ent C=8. to see some of the persons — cee
4. OT ice cnreniiur person without warrant Goins accepted the pleased ae aapared
could not retain him in jail until he could be the jail. After remaining VE

er ground.

——
1 Key Number Digests and Indexes

G=For other cases see same topic and KEY NUMBER in al

GOINS y.

HUDSON Ky. 389

55 $.W. (2d)

utes, he called to Hudson, the jailer, and re-
quested that the jail door be opened so he
could go home. Thereupon Hudson wronz-
fully. unlawfully, willfully, maliciously, and
without reasonable or probable cause there-
for, and without legal authority and without
informing him of his intention to do so, ar-
rested Goins without his consent, and con-
fined him in the jail from about 2:30 p. m.
until G p.m. The pretended arrest wags with-
out a warrant, and Hudson, who made the ar-
rest, did not take him before the most con-
venient magistrate or any magistrate of the
county, but closed the jail door and did not
give him an opportunity to communicate with
any magistrate or to procure bond, After-
ward Goins called to some of his friends pass-
ing by and procured his release, but only after
he had been in jail for three and one-half
hours, during which time he was restrained of
his personal liberty, and suffered great pain,
mental anguish, humiliation, and mortifica-
tion. Hudson and his surety filed the same,
but Separate, answers in two paragraphs,
The first paragraph was a general denial. In
the second paragraph they pleaded that Hud-
son was the jailer of the county, and author-
ized to make arrests; that on the occasion in
question Goins was drunk, disorderly, and
Profanely swearing in a public place, and in
the presence of Hudson, the jailer, who ar-
Tested him for the offense of being drunk,
disorderly, and profanely swearing in a pub-
le place; that theretofore the acting county
Judge for Whitley county had by a general or-
der directed Hudson to confine any and all
drunken persons in the jail until they became
Sober, without first bringing any such per-
£0n before him as such magistrate; that, pur-
fuant to and in obedience to said order, he ar-
Tested Goins and confined him for a short time
While he was drunk; that he did not take
Goins in his drunken condition to the nearest
Magistrate, but, ag soon as practicable and

Within two hours, caused the acting county .

Judge to go to the jail, and there took Goins
before said magistrate; that Goins was still
drunk, and the magistrate fixed a later day
for his trial and released Goins on the prom-
ise of relatives that they would take him out
of town and care for him until he became so-
ber. Goins demurred to the second para-
£r.ph of each answer, and also made a motion
to strike the allegation with reference to the
order issued by the acting county judge. The
femurrers were sustained. Thereafter Goins
and his Surety filed an amended joint answer
Pleading in substance that Goins, by express
Statements and conduct, waived any and all
Ticht to be taken before a magistrate, and
fonsented to remain in the jail until the act-
Inc county judge could be procured to come to
the Jail, ana then and there stated in words
and Substance that if Hudson believed he
was drunk to leave him in jail, but to notify
“8 Son where he was, and said Iludson, act-

ing on said statement, left Goins in jail until
the presence of the acting county judge could
be procured, and also notified Goins’ son
where Goins was. The issues were complet-
ed by a reply to the amended answer.
According to Goins, he was suffering from
toothache, neuralgia, and “flu.” Tis jaw was
swollen from an abscess, and he visited Dr.
Davis, the dentist, who treated him. As he
passed the jail, Hudson said, “ITello, Uncle
Demps, come in and have a chair.” After
talking a few minutes Iludson said, “Uncle
Demps, anybody in jail you know you would
like to see?’ He replied that he did, and ac-
companied Hudson into the jail. After re-
maining there a few minutes he rapped on the
door and Iludson came. He told Hudson he
guessed he had been in there long enough.
Hudson said, “Uncle Demps, I can't turn you
out.” He asked what was the matter. Hud-
son said, “You come down here all boozed up
on something. You’re drunk.” He said, “I
deny the charge,” and told Hudson that he
had only taken some liniment that the dentist
had given him. Hudson turned around,
walked off, and left him. It was then about
3 o’clock. He did not know when he walked
in the jail he was going to be charged with
any offense. Hudson had no warrant for
him, and did not tell him he was arrested un-
til the second time he came back. He was not
taken before any magistrate or judge. He
had not committed any offense in the pres-
ence of Hudson, or at all. He was there
against his consent, and it was very “ill-con-
venient.” Afterwards Ez Rains passed, and
he hollowed to him, and told him to tell some-
body to come get him out. They got word to
his wife, and he was finally released by Joey
Bolton. He was in the jail about three hours.
L. D. Moore, city judge of Williamsburg, tes-
tified that he was at his office on the occasion
in question, and did not leave until 4or5
o’clock. Garrett Goins, son of Demps Goins,
testified that, after he learned that his father
was in jail, he started toward the jail and
met T. J. (Hudson), and asked him if his Dad
was in jail. T. J. said, “Yes,” that he had
come down all boozed up, and he would not
have arrested him if he had not been drinking
in front of his house. He got in touch with
the others and came to the jail about 5 o'clock.
Afterward Joey Bolton came and released his
father. Charley Hayes testified that, after
Uncle Demps had called the jailer, he stayed
in jail for a good while. Dr, R. H. Davis, the
dentist, testified that when Goins came to his
office he had an abscessed tooth. He gave
him a mouth wash and a liniment to be ap-
plied to his gums. Goins asked him if he
could take a drink of whisky to help him, and
he replied it would make him worse, L,. R.
Uhl, who saw Goins on his way to the jail,
never saw him commit any offense, and said
that he was not drunk at the time. Cthers
testified as to the condition of Goins’ jaw, and

P< ee

406 Ky.

ing claim that it conditioned jury to be
death-penalty minded.

Judgment affirmed.

1. Criminal Law G=1171(1)

Where only real question in murder
prosecution was whether defendant had
fired fatal shot, statement of common-
wealth’s attorney on voir dire examination
that evidence would show that police officer
had been shot and killed by defendant was
not prejudicial, notwithstanding claim that
it conditioned jury to be death-penalty
minded.

2. Criminal Law €=371(12)

In prosecution for murder of police-
man, evidence that, at time of murder, de-
fendant was on parole under life sentence
for armed robbery was admissible for pur-
pose of showing motive

3. Criminal Law ©=371(12)

Evidence of another crime may be ad-
mitted to show motive for commission of
crime under trial as exception to general
rule that evidence of other crimes is not ad-
missible.

4. Criminal Law €=1172(2)

In murder prosecution, court’s lan-
guage in ruling on admissibility of evidence
that defendant, at time of murder, was on
parole after having been given life sen-
tence for armed robbery was sufficient to
inform jury that such evidence was to be
considered as bearing upon question of mo-
tive and, therefore, was not prejudicial to
defendant.

5. Criminal Law €=703, 1171(2)

Where evidence that, at time of mur-
der, defendant was on parole under life
sentence for armed robbery was admissible
in murder prosecution upon issue of mo-
tive, commonwealth’s attorney did not com-
mit error in mentioning such fact in his
opening statement; and attorney’s expres-
sion of his opinion concerning motive,
while perhaps improper, was not preju-
dicial. Cr.Code Prac. § 220.

268 SOUTH WESTERN REPORTER, 2d SERIES

6. Criminal Law G=1171I(1)

Where, after defendant had been re-
minded, in prosecution for murder of po-
liceman, of defendant’s previous testimony
that he had no reason to kill a policeman,
defendant was asked if he had been wear-
ing certain wrist watch at time of his arrest
and to read inscription on back thereof,
such questions were not substantially preju-
dicial to defendant in view of facts that
reference at most raised an inference that
defendant had been wearing some one
else’s watch, and that proof that defendant
was wearing stolen watch might have been
admissible as tending.to prove motive.

7. Criminal Law C>11I7I(1)

Where, in prosecution for murder of
policeman, commonwealth’s attorney, ap-
parently to discredit defendant’s statement
that he did not see any uniformed police-
man at time of murder, donned, during
course of final argument to jury, uniform
cap and coat which policeman had been
wearing at time of murder and made point
that defendant could not possibly have
failed to observe that deceased was a po-
lice officer, but police officer’s widow then
burst out weeping, as had defendant's sis-
ter and niece at other times, and was led
from court room, incident was not mate-
rially harmful to defendant.

8. Criminal Law @=726

Where, in murder prosecution, defend:
ant asserted that one witness to murder had
not told his story to police on night of mur-
der, commonwealth’s attorney, who, in his
closing argument, stated that such witness
failure to come forward was due to fear
and reminded jury of witness in New York
murder case who had been killed after go-
ing to police with his story, did not act im-

properly.

9. Criminal Law €=942(1)

Where, in murder prosecution, there
were three witnesses who testified positive-
ly that defendant had shot police officer, al-
leged newly discovered evidence, which did
no more than raise doubt as to whether one
of such witnesses was actually present, did

sieenaeuns »

not require new trial, especially in view of
fact that affidavits in support of motion for
new trial merely recited due diligence in
endeavoring to discover such evidence
without stating nature of such diligence.

——————

George R. Ambro, William A. Shumate,
Louisville, for appellant.

A. Scott Hamilton, Commonwealth Atty.,
Laurence Higgins, Carl Ousley, Jr., Asst.
Commonwealth Attys., Louisville, J. D.
Buckman, Atty. Gen., Zeb. A. Stewart,
Asst. Atty. Gen., for appellee.

CULLEN, Commissioner.

Chester Merrifield appeals from a judg-
ment sentencing him to death upon convic-
tion of murder.

Around midnight on November 7, 1952,
Merrifield, with his wife, brother-in-law
and a lady friend of the latter, were at the
stork Club, a roadhouse near Louisville.
The brother-in-law became involved in an
altercation, which developed into a full-
fledged fight outside of the club. As the
tight was going on, two county policemen,
driving by in a patrol car, saw the dis-
turbance and stopped to investigate. Of-
ficer Keown got out of the car on the right
side, and Officer Marcum on the left. As
Officer Keown approached the group of
people he was shot and killed with a .38
caliber revolver. Officer Marcum, a man
named Riggs, and a taxi driver named
Thomas Sanders all testified that Merrifield
fired the shot. Merrifield denied firing the
shot, although he admitted having a .38
caliber revolver in his possession imme-

diately before and immediately after the
shooting.

There is no contention that the evidence
was not sufficient to support the verdict.
The alleged errors relate to the admission
of incompetent evidence, improper conduct
of the Commonwealth’s attorney in the voir
dire examination, in the opening statement
and in the closing argument, and failure
of the court to grant a new trial on the
ground of newly discovered evidence.

MERRIFIELD v. COMMONWEALTH
Cite as 268 S.W.2d 405

Ky. 407

[1] Upon the void dire examination the
Commonwealth’s attorney stated several
times, to different groups of prospective
jurors, that the evidence would show that
Officer Keown, making what he thought
was a routine investigation, got out of the
police car and after walking 10 or 15 feet
was shot and killed by Merrifield. It is
contended that the effect of these state-
ments was to “condition” the jurors to be
death-penalty minded, and that the state-
ments were prejudicial. As we see it, the
statements merely gave the prospective ju-
rors a general indication of the nature of
the offense with which the defendant was
charged, and they did not unduly empha-
size any details of the case. As the case
was developed upon the trial, the only real
question was whether Merrifield was the
person who fired the fatal shot, and under
these circumstances the statements in ques-
tion could not have been prejudicial.

In his opening statement to the jury the
Commonwealth’s attorney, after mention-
ing the importance of finding a motive for
the killing, stated that the evidence would
show that Merrifield was on parole from a
sentence for armed robbery and that it was
a violation of his parole for him to carry a
weapon or to frequent a place where whis-
key was sold. He then said, “In my opin-
ion, Merrifield knew that if he were caught
out there with that pistol it was a good
possibility that he would have to go back
to prison.”

Upon the trial, it was proved that Merri-
field had been given a life sentence for
armed robbery, and was on parole at the
time of the affair at the Stork Club. Upon
objection being made to this evidence, the
court ruled it admissible, saying:

“No, that shows motive. I will
overrule the objection on the ground
that the evidence shows motive or rea-
son. It’s up to the jury as to whether
or not it does. It is competent on that
theory. It is up to the jury to deter-
mine whether or not this evidence does
show motive or reason.”

The appellant maintains that the evi-
dence as to the former conviction for

408 Ky.

armed robbery was incompetent, and that
the court’s language in ruling upon the evi-
dence was incorrect; also that the refer-
ence to the former conviction in the open-
‘ing statement, and the Commonwealth’s at-
torney’s expression of his opinion as to the
motive, were improper.

[2,3] We think the circumstances of
this case were such as to bring it within the
rule that evidence of another crime may be
admitted to show motive for the commis-
sion of the crime under trial; this being an
exception to the general rule that evidence
of other crimes is not admissible. Manz v.
Commonwealth, Ky., 257 S.W.2d 581; Rob-
erson’s New Kentucky Criminal Law and
Procedure, Second Edition, pages 681, 685,
691, 692. The main question here was
whether Merrifield was the person who
fired the fatal shot. On the surface, there
was no reason for him to do so, and there-
fore we think it was proper to establish a
reason or motive growing out of his fear of
reincarceration for violation of parole.

(4] The court’s language in ruling on
the admissibility of the evidence, though
perhaps not well chosen, was sufficient to
inform the jury that the evidence concern-
ing the armed robbery conviction and pa-
role was to be considered by the jury as
bearing on the question of motive. We find
no prejudicial error in the language of the
ruling.

[5] Since the evidence in question was
competent, the Commonwealth’s attorney
did not commit error in mentioning it in
his opening statement. Criminal Code of
Practice, § 220. Although it perhaps was
improper for him to express his opinion
concerning the motive, we think that the
particular expression of opinion, following
in context the statement of the facts upon
which such an opinion logically could be
based, was not prejudicial.

Upon cross-examination of the defend-
ant, the Commonwealth’s attorney, after
reminding the defendant of his previous
testimony that he had no reason to kill a
policeman, showed a wrist watch to the de-
fendant, asked him if he was wearing the

268 SOUTH WESTERN REPORTER, 2d SERIES

watch at the time of his arrest, and asked
him to read the inscription on the back.
Upon objection being made and sustained,
no further questions were asked concern-
ing the watch. However, no admonish-
ment was given. The appellant maintains
that the asking of the questions was prej-
udicial, and that an admonishment was re-
quired. In his brief, the appellant asserts
it was “common knowledge” that the watch
in question was supposed to have been stol-
en in a robbery in Ohio, and that the story
had received considerable newspaper pub-
licity.

[6] It is our opinion that the question
of whether the reference to the watch was
prejudicial must depend upon the char
acter of the reference itself, and not upon
alleged extraneous facts not officially
known to the jury. At the most, the ref-
erence might have raised an inference that
Merrifield was wearing some one else's
watch. Under the circumstances, we can-
not say that this was substantially preju-
dicial. As a matter of fact, proof that
Merrifield was wearing a stolen watch
might well have been admissible as tending
to prove a motive for the killing. Manz v.
Commonwealth, Ky., 257 S.W.2d 581.

During the course of his final argument
to the jury, the Commonwealth’s attorney
donned the uniform cap and coat which
Officer Keown was wearing at the time of
the killing, and made the point that Merri-
field could not possibly have failed to ob-
serve that Keown was a police officer. Ap-
parently, the purpose was to discredit Mer-
rifield’s statement that he did not see any
policemen in uniform at the time of the
shooting. The officer’s widow was sitting
in the courtroom at the time, and when the
uniform was donned she burst out weeping
and was led from the courtroom. Counsel
for the defense made an objection, claiming
that the scene was “staged”. The Com-
monwealth’s attorney then commented to
the jury:

“Gentlemen, such callousness I have
never heard, for a man to stand up here
for an hour and beg you for mercy,
and then to say that a woman’s grief

2B cathe SPN CS

nese srlinewibietie

MERRIFIELD v. COMMONWEALTH Ky. 409
Cite as 268 S.W.2d 405

when her husband has been torn from
her to say that she is staging that grief.
Do you think you should retaliate with
mercy or kindness?”

The appellant contends that the forego-
ing incident was prejudicial, particularly so
because of the failure of the court to ad-
monish the jury as to the impropriety of the
widow’s emotional outburst.

[7] While we do not commend the
histrionics of the Commonwealth’s attorney,
and we feel that an admonishment would
have been desirable, we do not find in the
incident anything of a materially harmful
nature. It appears that the defendant’s
sister and niece sat with him during the
trial, occasionally indulged in weeping, and
were mentioned sympathetically by the de-
fendant’s counsel in the closing argument.
Obviously, each side was playing upon
sympathy to some extent, and we cannot say
that the Commonwealth so overstepped the
bounds as to have deprived the defendant
of a fair trial. There seems to have been
a legitimate purpose for the donning of the
uniform, and there is nothing to indicate
that this was done with the deliberate ob-

ject of provoking an emotional scene by the
widow.

During the course of the trial, some effort
was made to discredit the testimony of the
taxi driver, Thomas Sanders, who said he
was present at the Stork Club and saw the
killing. The defendant made some point of
the fact that Sanders did not tell his story
to the police the same night. In his closing
argument, the Commonwealth’s attorney
mentioned this point, and stated that
Sanders’ failure to come forward was due
to fear. He then reminded the jury of the
witness Schultz in the Willie Sutton mur-
der case in New York, who was killed after
BOing to the police with his story.

[8] The appellant maintains that the
Commonwealth’s attorney went outside the
record and made an unwarranted inference
in stating that Sanders was afraid to give
his evidence. The appellant relies upon
Biggs v. Commonwealth, 196 Ky. 655, 245
S.W. 292. However, in that case the Com-

268 S.W.2d—26%

monwealth’s attorney, in his closing argu-
ment, endeavored to state that the defend-
ants had performed specific acts of intimi-
dation, wholly outside the record. In the
instant case, the Commonwealth’s attorney
did not charge the defendant with intimida-
tion, but only suggested the fear that any
person might have to “put the finger” on a
murderer. We think this was not improper,
particularly when in response to the defend-
ant’s efforts to show that Sanders had
another reason for not coming forward
promptly with his story.

The reference to the Willie Sutton case,
for purposes of illustration, was not im-
proper. Tyree v. Commonwealth, 212 Ky.
596, 279 S.W. 990.

The final major contention of the appel-
lant is that he was entitled to a new trial on
the ground of newly discovered evidence.
The new evidence was addressed to the
question of whether the taxi driver, Thomas
Sanders, actually was present at the time
of the shooting. One of the new witnesses
was another taxi driver, who would testify
that he was present at the time and did not
see Sanders there. Another witness would
testify that he employed Sanders to go on
an errand for him, in a part of town away
from the Stork Club, on a night when there
was some trouble at the Stork Club, “pos-
sibly” the same night that Keown was
killed. There also was some evidence con-
sisting of trip records of the taxi company,
which at the most might cast some doubt on
the question of where Sanders was on the
night in question.

[9] Since there were two witnesses, be-
sides Sanders, who testified positively that
Merrifield shot Officer Keown, and since the
newly discovered evidence does no more
than raise a doubt as to whether Sanders
actually was present, it is our opinion that
the new evidence does not have the “de-
cisive” character that impeaching evidence
ordinarily is required to have in order to
constitute grounds for a new trial. See
Colson v. Commonwealth, 200 Ky. 402, 255
S.W. 60; Stacy v. Commonwealth, 221 Ky.
258, 298 S.W. 696. In addition, the aff-
davits in support of the motion for a new


410 Ky.

trial merely recite due diligence in endeav-
oring to discover the evidence, without stat-
ing the nature of the diligence exercised.

Other minor grounds of error are sug-
gested, which do not warrant discussion.

We think the defendant received a fair
trial.

The judgment is affirmed.

© & KEY NUMBER SYSTEM

aAnme

GLASS v. GUTMAN.

Court of Appeals of Kentucky.
March 19, 1954.

Rehearing Denied June 18, 1954.

Action for declaration of claimant’s
rights and interest in certain real estate
and the business conducted on the prem-
ises. The Circuit Court, Criminal, Common
Law and Equity Division, Kenton County,
Joseph P. Goodenough, J., rendered judg-
ment for claimant for $750 and claimant
appealed. The Court of Appeals, Waddill,
C., held that where claimant, who had
advanced part of purchase price for prop-
erty, permitted his co-purchaser to take
title and to conduct all business on prop-
erty, and held only an unrecorded document
as evidence of his claim to one-half interest,
co-purchaser’s wife, who took conveyance
as a bona fide purchaser, took free of
claimant’s latent equity.

Judgment modified and affirmed.

1. Trusts €=72

The common-law rule that when a
deed is made conveying land to une person
and the consideration is paid by another

a trust results in favor of the one paying

the consideration has been changed by
statute so that no trust results unless the

person furnishing the consideration did
not consent to the other person’s taking

title in his own name. KRS 381.170.

268 SOUTH WESTERN REPORTER, 2d SERIES

2. Trusts €=349

Statute providing that when a deed
is made to one person and consideration
paid by another, no trust results, was not
intended to affect the doctrine that equity
will follow a fund and compel restitution
as long as it can be identified and followed.
KRS 381.170.

3. Trusts €=89(1)

In action for declaration of claimant's
rights and interest in certain real estate
and business conducted upon the premises,
evidence on issue of existence of resulting
trust supported finding that claimant knew
from date of purchase that his name was
not connected with the record title of the
property or with the business. KRS 381.-
170.

4. Trusts ©=357(1)

Where claimant, who had advance.
part of purchase price for property, pe!
mitted his copurchaser to take title and tu
conduct all business on property, eveii
after copurchaser took a position adverse
to claimant’s, and held only an unrecorde:|
document as evidence of his claim of one-
half interest, copurchaser’s wife, who tovk
as a bona fide purchaser, took free of
claimant’s latent equity. KRS 381.170.

5. Vendor and Purchaser €=235

Wife who took conveyance from hus-
band in settlement of her marital property
rights after separation was in a position
of a bona fide purchaser for value, and
took free of equities of which she had no
notice.

6. Vendor and Purchaser €=233

Latent claims founded on instruments,
which affect title as against purchasers for
value and which are unrecorded due to
neglect, are looked upon with disfavor.

7. Vendor and Purchaser €>239(1)

A bona fide purchaser of land with-
out notice of an equity in favor of a third
person is not affected thereby.

8 Quieting Title €=50

Where claimant’s copurchaser’s wife
had taken conveyance of tract in settle-
ment of her marital property rights after
separation, subject to claim of $800 against
property in favor of claimant, judgment,
in claimant’s action for declaration of his
rights and interest in that tract and other
property to which copurchaser had taken
title, for $750, the amount which claim-
ant had advanced toward purchase price
of that tract, was insufficient.

———_»—__—_—

Frank Gofton Ware, Covington, for
appellant.

Andrew W. Clark, Covington, for appel-
lee.

WADDILL, Commissioner.

Chester L. Glass, appellant, brought this
action for a declaration of his rights and
interest in certain real estate in Kenton
County and also in the business being con-
ducted on the premises.

Early in 1941, appellee’s ex-husband,
Max Gutman, called appellant at his home
in Springfield, Ohio and told appellant that
he was interested in purchasing the prop-
erty and asked if appellant would like to
invest some money in the venture. Glass
and Gutman were good friends and Glass
sent Gutman a check for $750. The pur-
chase price of the property was $11,500
of which $1,500 was paid at the time of
purchase and the balance of $10,000 was
to be paid out of the profits from the opera-
tion of a fishing lake on the premises.

Later, Glass and Gutman agreed that Glass’
interest in the business was not to be dis-
closed and it was also agreed that Glass
was not to take any part in the operation
of the lake. Gutman took a deed to the
Property in his own and appellee’s name as
husband and wife. Prior to 1946 there was
no written expression of the interest Glass
held in the property or in the business.
There had not been any distribution of
Profits to Glass except on one occasion

GLASS v. GUTMAN Ky. 411
Cite as 268 S.W.2d 410

when Gutman gave Glass about $40 out of
a slot machine.

In 1946, upon Glass’ request for some
document to show his interest in the prop-
erty Gutman mailed to Glass the following
document:

“Know All Men By These Presents:
“July 24, 1946,

“That Chester Glass of Springfield, Ohio,
is half owner of the ummproved property
known as Hatchet Lake, an area of approx-
imately 38 acres, situated near the intersec-
tion of 16th and Monroe Streets at Cov-
ington, Ky. This property does not include
the buildings now existing or those to be
built in the future nor the reasonable area
necessary for normal living with a right-
of-way to and from said areas.

“s/s Max Gutman”,

Gutman explained the use of the word
“unimproved” by saying that he was build-
ing a house and garage on the premises at
his own expense. Gutman said that the
value of the other buildings was negligible
and that if they ever erected any building
with lake funds, the document would be
changed.

From that time to the inception of this
suit in 1952, Glass received no share in the
profits, no further document evidentiary of
his ownership, and took no part in the oper-
ation of the business. In 1949 he asked
Gutman for some further proof of his in-
terest, but Gutman replied, “I hardly see
how I could give you anything more valid
than the document you hold now.” At that
time Gutman and his wife were separated,
and in 1951 Gutman made her a deed of
general warranty to the lake property as
part of a property settlement, which deed
was duly recorded prior to the institution
of this action. In 1952 appellee and Max
Gutman were divorced. Appellee has con-
tinued to operate the lake business from the
time of her separation from her husband.

Appellant contends that Gutman held the
title to the property on an implied trust in
his favor. He cites 40 Am.Jur., Partner-
ship, Sec. 96, to support his contention.

214 ~+«=X¥Ky.

PER CURIAM.

Motion for an appeal from judgments ag-
gregating $2,150 for damages arising out of
a motor vehicle collision. We have con-
sidered defendant’s contentions with respect
to his motion for a directed verdict and the
competency of evidence admitted and re-
jected at the trial. We find no error.

The motion for appeal is overruled and
the judgments stand affirmed.

EX 12/23/55

Chester MERRIFIELD, Appellant,
v.

COMMONWEALTH of Kentucky, ex rel.
J.D. BUCKMAN, Jr., Appellee.

Court of Appeals of Kentucky.
Oct. 14, 1955.

Rehearing Denied Nov. 18, 1955.

Proceeding for writ of coram nobis
following conviction for murder. The
Circuit Court, Criminal Branch, Second
Division, Jefferson County, L. R. Curtis,
J., entered an order denying defendant’s
motion for a writ of coram nobis, and de-
fendant appealed. The Court of Appeals,
Waddill, C., held that affidavits merely
tending to contradict a statement made by
a witness, who had testified at the murder
trial, that witness was not acquainted with
defendant prior to occasion on which the
police officer was shot and killed consti-
tuted impeaching testimony without pro-
bative value and did not disclose newly dis-
covered evidence of a type to be consid-
ered as basis for writ of coram nobis.

Affirmed.

{. Criminal Law €=997(I, 2)

The writ of coram nobis is an extraor-
dinary remedy which will issue for the

283 SOUTH WESTERN REPORTER, 2d SERIES

judicial correction of a wrong committed
in the administration of criminal justice
resulting in the deprivation of life or lib-
erty without due process of law, but it is
available only after all other judicial proc-
esses have been exhausted.

2. Criminal Law €=997(8)

When writ of coram nobis is sought
upon newly discovered evidence touching
exclusively the merits of the issue actual-
ly tried and determined, relief cannot be
granted unless the new evidence is of
such a conclusive character as to remove
from the case the basis upon which the
conviction and judgment were predicated.

3. Criminal Law ¢=997(8)

Affidavits of two affiants merely tend-
ing to contradict a statement made by a
witness, who had testified at murder prose-
cution, that witness was not acquainted
with accused prior to occasion on which
police officer was killed constituted im-
peaching testimony with no_ probative
value and did not set forth a type of newly
discovered evidence which could be con-
sidered as a basis for coram nobis.

4. Criminal Law ©€=997(8)

Where in support of application for
writ of coram nobis, following conviction
for murder, accused filed two affidavits of
convicted felons who were incarcerated in
same prison as accused reciting that affiant
was- present on occasion when officer was
fatally shot, that accused was not the per-
son who did the shooting, and that accused
did not know affiants had witnessed the
crime until shortly before application was
filed, but which did not identify the person
who fired the shot, or furnish any de-
scription of that person, denial of applica-
tion for writ of coram nobis was not an
abuse of discretion.

« eal
Sandy Paniello, Louisville, for appellant.

J. D. Buckman, Jr., Atty. Gen., Earl V.
Powell, Asst. Atty. Gen., A. Scott Hamil-
ton, Commonwealth Atty., Louisville, for
appellee.

MERRIFIELD v. COMMONWEALTH Ky. 215
Cite as, Ky., 283 S.W.2d 214

WADDILL, Commissioner.

This appeal is prosecuted by Chester
Merrifield from a judgment of the Jeffer-
son Circuit Court, Criminal Division, deny-
ing him a writ of coram nobis. His sole
ground for reversal of the judgment is
that newly discovered evidence has become
available, the effect of which establishes
that his conviction was erroneously ob-
tained. He asserts that in the event he is
granted a new trial, his innocence could
now be established by such evidence.

Appellant was convicted of the murder
of Alvin L. Keown, a Jefferson County Po-
lice Officer, and sentenced to death. The
judgment was affirmed. Merrifield v.
Commonwealth, Ky., 268 S.W.2d 405. Re-
hearing was denied on June 18, 1954. A
petition for writ of certiorari was dis-
missed by the Supreme Court of the Unit-
ed States on February 7, 1955, for want of
jurisdiction. Merrifield v. Common-
wealth, 348 U.S. 935, 75 S.Ct. 360.

[1,2] The writ of coram nobis is an
extraordinary remedy which will issue for
the judicial correction of a wrong commit-
ted in the administration of criminal jus-
tice resulting in the deprivation of life or
liberty without due process of law. How-
ever, it is available only after all other ju-
dicial processes have been exhausted.
Spears v. Commonwealth, Ky., 253 S.W.2d
570; Ford v. Commonwealth, 312 Ky. 718,
229 S.W.2d 470, and Anderson v. Bu-
chanan, 292 Ky. 810, 168 S.W.2d 48.
Where the writ is sought upon newly dis-
covered evidence touching exclusively the
merits of the issue actually tried and de-
termined, there can be no relief granted by
the court unless the new evidence is of
such a conclusive character as to remove
from the case the basis upon which the
conviction and judgment were predicated.
To hold otherwise would create a condi-
tion wherein judgments would have no
finality, and thus be fruitful of greater
evil than would flow from rare cases of
possible injustice.

[3] The newly discovered evidence, up-
on which appellant relies, appears in the
affidavits of C. J. Malone, R. E. Ratliff,
Jr., R. E. O’Leary (all convicted felons)
and Pauline Griffith. The affidavits of
Malone and Griffith merely tend to contra-
dict a statement made by Thomas Riggs,
who had testified at appellant’s former
trial, that he was not acquainted with the
appellant prior to the occasion on which
the police officer was shot and killed. In
effect the statements contained in these
two affidavits are merely an attack on the
credibility of Thomas Riggs. Impeaching
testimony of this character has no proba-
tive value, nor is it a type of fact to be
considered as a basis for coram nobis.

[4] The other two affidavits filed here-
in were made by Ratliff and O'Leary.
Both affiants are convicted felons and are
presently incarcerated in the same prison
as the appellant. Their statements are
peculiarly similar in that each claims he
was present on the occasion when officer
Keown was fatally shot and each states
that appellant was not the person who did
the shooting. Affiants further state that
appellant did not know they had witnessed
the crime until shortly before this action
was instituted. However, neither of these
affiants identify the person they saw fire
the shots, nor attempt to furnish any de-
scription of that person. When we look to
the evidence upon which the appellant
was convicted it appears that three wit-
nesses testified that they saw appellant fire
the shots which killed the police officer.

The appellant seeks by these affidavits
to again put in issue the ultimate fact of
his guilt which has been determined by
regular judicial processes. Giving full
credence to affiants’ statements, we con-
clude that they are wholly insufficient to
authorize a finding that the trial court
abused his discretion in denying the writ.
Cowan v. Commonwealth, Ky., 281 S.W.2d
636.

Judgment affirmed,

(Kentucky)
-MILLIGAN, Francis

QR2R1TR - ere ty aa

Defictency since January 1).

Normal precipitation

EFixcess for the: day...

Deficiency since January 3:.--
(*) Below zero. ,
rd Ne . 8. 8S. BASSLER,

Local Forecast Officer:

FRIGHTFUL EXPERIENCE,

A Train Lond of Passengers Come’ Near
: Freezing: 5

7

Furious’ Snow Storm’ in the Mountains
_ of Pennsylvania—A Night the Trav--
elers Will Never Forget. :

* Johnstown, Pai,” January” 11.—The worst .
storm in many years has been raging for
about twenty hours past. on the mountains
near Ebenburg. Last night the passengers:
near. Ebensburg. Last night the passengers
drifted in, were held: there nearly all night
in the open country, and many of them neafMly
perished with cold. Engineer. Zahn started on
the’return’trip from: Cresson about 6 o'clock;
confident that. he could take. his train ~
through. But at Kaylors,where the Hast:
ings‘road branches off, a half-frozen switch-...
man in the blinding storm turned the wrong
switch, and the train took the wrong track.
It is stated that no provision had been made
for protecting the engineer and fireman in
the cab, and that when the mistake was made
the engineer became so frozen that -he could
not hangle his machine, and the fireman ran
the train back to the misplaced switch. In
the meantime the snow began to pile on the
track so that the engine could not be pushed
through, and in an hour from the time the
train was stalled the drifts had covered the
engjne, and-smothered the drafts, so that the

fires went out, and the machine was help-
less. The disabled engineer was taken to é
coach, ond given the best treatment possible
under the circumstances. A hungry -passenget
managed to find a farm-house, and procurea
some food, On his return trip to the train he
was several times on the point of abandoning
the supplies he was. rrying, “but . per-
severed, and got th h with frosted ex-
tremities, so stiff wit ld that he had to be
lifted into the car.” e storm’ raged all
night, and with the thermometer at that
point 12 degrees below zero, it was actryins
time for’ alle To-day the engineer was Tre-
moved to the nearest farm-house, and to-
night he “is reported to be in a dangerous
condition. ‘The train had to be abandoned,
and the passengers managed to reach the
main line during the day. ‘

PITTSBURG’ CHILLED.» -

No Use for the Bridges Novwe—Schools
“Closed Because of a Natural Gas
Shortage.

Pittsburg, Pa, January 11.—Last night was
the coldest for ‘six years, the thermometer
registering three degrees below at the. Signal
Office, and from six to eight degrees below
at. more’ exposed points. All. the’ rivers are

frozen solid from bank to bank, and for the
first time in fifteen years people were Using
the rivers: instead of. the. bridges. Fiftee!:
electric car-motormen were compelléd — ty
quit their cars on account of the cold, One
motorman was 80 badly frozen that he hau
to: be helped from™the car. Many schools
were. forced to close on account of the
shortage of natural s

A BLIZZARD IN Ss WML DIAKRUIDA

Huron, 8.17. January 1, The heays Snow
and wind-storm which set to this THorhiee
still if progress. ‘Peonis bt the windois fro
the north at aryvelocity of fois) fiileane he
and their ds. filled with tra f
frouretwo. to. five hot ’ teu
communication ds 81
storm $4 PreporGAdk Vify ht


=

Piss 146 SOUTHWESTERN REPORTER (Ky.

without opening it. But if there was a train
or wagon or vehicle passing over the draw,
or a train approaching so closely that it
could not be safely stopped before reaching
the bridge, then it would be the duty of the
bridge tenders to keep the bridge closed until
the vehicle or train had passed over it or
reached a safe place, and any failure to ob-
serve this safeguard for the protection of
life and property would, of course, be negli-
gence on their part for which an action
would lie. But when the bridge tenders
started to open the draw, the train was so
far from the bridge that no question is made
that it could not have been stopped long be-
fore reaching the bridge, if the engineer had
observed the rules governing the movement
of his train.

Under the evidence, the motion for a per-
emptory instruction on behalf of appellant
should have been sustained.

Wherefore the judgment is reversed, with
directions to proceed in conformity with this
opinion.

=—————
(148 Ky. 453.)
MIRACLHD v. COMMONWEALTH.
ourt of Appeals of Kentucky. May 17,
(Court Pp 1912) y. ay 17,

1. HomictipE (§ 237%) — EvipENcE — Surfi-
CIENCY.

In a prosecution for murder, evidence held
to sustain a finding that the accused was not
insane at the time of the commission of the
crime charged.

[Ed. Note.—For other cases, see Homicide,
Cent. Dig. § 500; Dec. Dig. § 237.*]

2, CriminaL Law (§ 369*)—Evipence—Cir-
CUMSTANCES PRECEDING ACT — PREVIOUS
MURDER.

Permitting the admission of testimony of
another murder immediately preceding the one
for which an accused was on trial was not im-
proper, where the theory of the defense, as
outlined in the opening statement of counsel,
was that the accused was insane, and after the
commission of the first murder was “runnin
amuck” when he committed the second; an
the court properly admonished the jury that
they were trying the accused for the second
killing only.

{Ed. Note——For other cases, see Criminal
Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*]
8, Jury (§ 110*)—DisquaLiFICATION oF Ju-

BOR—NECESSITY OF CHALLENGE.

Under Ky. St. as, which provides that,
if a juror drawn has served in any circuit
court on the regular panel within 12 months,
such service shall be ground for challenge for
cause, permitting persons who had served on
a jury within 12 months to serve on the jury
in a prosecution for murder was not improper,
in the absence of a challenge.

Ed. Note.—For other cases, see Jury, Cent,

- §§ 502-513, 515-523; Dec. Dig. § 110.*]

4. CriminaL Law (§ 1035*)— APPEAL AND
ERR0R—RESERVATION OF GROoUNDS—CHAL-
LENGE TO JUROR.

The objection that jurors serving on a
trial for murder had served on a jury within
12 months cannot be raised for the first time
on appeal.

{Ed. Note—For other cases, see Criminal

Law, Cent. Dig. §§ 2633, 2638, 2648; Dec.

Dig. § 1035.*]

5. Jury (§ 72*) — SELEcTION — SUMMONING
FROM BYSTANDERS.

In a prosecution for homicide, the sheriff
properly summoned jurors from bystanders,
without putting their names in the wheel, or
having them shaken up with other names, as
is required when names are taken from the reg:
ular panel.

[Ed, Note—For other cases, see Jury, Cent.
Dig. §§ 333-347; Dec. Dig. § (2.*)

6. CrrminaL Law (§ 1152*)—ApprraL aNpD
EeroR—REVIEW—DISCRETIONARY ACTS.

Under Cr. Code Prac, j 281, which pro-
vides that “the decisions of the court upon
challenges to the panel and for cause, or upon
motions to set aside an indictment, shall not
be subject to exception,” the action of a sher-
iff in summoning jurors from the bystanders in
a criminal prosecution, without putti their
names in the wheel, is not subject to review on

appeal,
(Ed. Note——For other cases, see Criminal
he Dig. §§ 3053-3057: Dee. Dig. §

7. JuBY (§ 90*) —Comprrzency or JuRrors—
RELATIONSHIP TO A DECEASED.

Where, in a prosecution for murder, the
relationship of a juror to a deceased was un-
known to the juror at the time the verdict was
rendered, the verdict will not be vitiated
thereby.

[Ed. Note.—For other cases, see Jury, Cent.

Dig. §§ 413-418, 422; Dec. Dig. § 90.*]

8. HomicipE (§ 237*) — Excuss — INSANITY —
DEGREE OF PROOF.

In a prosecution for homicide, in which
the insanity of the accused at the time of the
killing was in issue, an instruction, authoriz-
ing the jury to acquit the defendant if they
should find, beyond a reasonable doubt, that
at the time he was insane, was not improper as
not — the requirement that insanity
should be found by only a preponderance of
evidence.

[Ed. Note.—For other cases, see Homicide,

Cent. Dig. § 500; Dec. Dig. § 237.*]

9. CRIMINAL Law (§ 1037*)— APPEAL AND
ERROR—RESERVATION OF GROUNDS—OBJEO-
TION TO REMARKS OF ATTORNEY.

Alleged misconduct of the county attorney
in the argument in a prosecution for homicide
will not be reviewed on an appeal from a con-
viction, in the absence of an objection taken
to the remarks.

[Ed. Note.—For other cases, see Criminal

Taw, Cent. Dig. §§ 1691, 2645; Dec. Dig. §

Appeal from Circuit Court, Bell County.

Cal Miracle was convicted of murder, and
appeals. Affirmed.

Frank Baker and Colson & Hurst, all of
Pineville, for appellant. James Garnett,
Atty. Gen., James D. Black, Asst. Atty. Gen.,
and Charles H. Morris, for the Common-
wealth,

MILLER, J. Appellant, Cal Miracle, was
indicted, tried, and convicted of having will-
fully murdered Dulcie Partin, a woman, and
his punishment was fixed at death.

The murder was committed on Sunday,
August 27, 1911, at about 3 o’clock in the
afternoon, on a public road immediately in
front of the residence of Mrs. Mary Goodin,
on Straight creek, in Bell county. Dulcie
Partin, Charlie Jones, Will Jones, Joe Par-

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

_ -

Ky.) MIRACLE v. COMMONWEALTH 1137

tin, Margaret Sampson, Jennie Sampson, and
Mary Goodin were present and witnessed the
killing. Matthew Jones lived about half a
mile from Mrs. Goodin’s residence and upon
the same road. Several of the persons at Mrs.
Goodin’s residence had heard a pistol shot
from the neighborhood of Matthew Jones’
residence, and had just left Mrs. Goodin’s
house, and were walking in the direction of
Matthew Jones’ residence, when they met
appellant coming up the road toward them
from Matthew Jones’ residence with a pistol
in his hand. When Miracle met them in
front of the Goodin house, Dulcie Partin
turned and started to go back into the Good-
in house, when Miracle called upon her to
stop. She immediately exclaimed: “Lord
have mercy, Cal Miracle; I haven’t done
anything in the world to you, or said any-
thing about you.” Whereupon he again
commanded her to stop, adding, “If I can’t
ket your damn brains, I will get your
heart’s blood.” Miracle immediately fired
three shots at Dulcie Partin; whereupon she
ran to Charlie Jones and attempted to shield
herself behind him. She threw her arms
around Jones and appealed to him not to let
Miracle shoot her any more. She had both
hands up, and was begging Miracle not to
shoot, when Jones grabbed Miracle's pistol,
but did not succeed in obtaining possession
of it. Miracle said to Jones, “I ain’t got
anything against you, but don’t you take
hold of my gun,” and, reaching around un-
der Jones’ arm, while Dulcie Partin was
hanging to Jones, Miracle fired two more
shots into her body. She fell to the ground,
aud died in a few moments. During the dif-
ficulty, Miracle told Charlie Jones that he
had killed his “old God damn, long-legged,
black daddy,” and to go to him and do what-
ever he pleased with him, and that Charlie
Jones would not be hurt if he didn’t come
back. As Miracle left the scene of the mur-
der, he “broke” his “gun,” and, throwing out
the shells, said, “I will get some more ammu-
Dition and come back and clean up this God
damn branch.”

While Dulcie Partin was begging Jones to
protect her from Miracle, Mrs. Goodin, an
old lady, 71 years of age, seized Miracle by
his left shoulder and besought him to cease
sLooting Dulcie Partin; whereupon Miracle
said to Mrs. Goodin: “Don’t put your hands
on me. I don’t want to hurt you.”

Immediately after the murder, Miracle fled
the state, and made his way through Ten-
nessee, Georgia, and into Alabama, where he
was arrested at the railroad station in Bir-
mingham, in October. At first he denied his
identity and refused to return to Kentucky
without a requisition, but finally admitted his
identity and consented to return. In speak-
ing of the difficulty shortly after his arrest,
he said: “I got two of them. and now they
have got me; and I am ready to take my
medicine.”

146 S.W.—72

It subsequently developed that about 36
minutes before Miracle killed Dulcie Partin
he had shot and killed Matthew Jones at his
residence further down the road.

Dulcie Partin was the wife of William
Gibson, although both of them seem to have
been best known by the name of Partin
Some time before the homicide, Miracle had
requested Columbus Jones to help him whip
the Partins, adding that if Jones would go
with him he “would dynamite then.” The
record wholly fails to show any previous
difficulty between the Parting and Miracle,
or any motive for the murder. The only oth-
er bit of evidence tending to show ‘any il
feeling between the parties is contained in
the statement of William Partin, the hus-
band, to the effect that Miracle’s feelings
toward him previous to the tragedy “seemed
to be cold.”

Appellant relies upon the following grounds
for a reversal: (1) Insanity of Miracle at
the time he committed the murder; (2) er-
ror of the court in admitting evidence of the
killing of Matthew Jones by Miracle; (3) er-
ror of the court in permitting the jury to be
separated during the trial; (4) that four of
the jurors had served upon the jury within
12 months before this trial; (5) that two of
the jury who were summoned from bystand-
ers were improperly summoned by the sher-
iff; (6) that Tom Smith, a juror, was of kin
to Dulcie Partin, the deceased; (7) that in-
struction No. 4, relating to the insanity of
Miracle, was erroueous; and (8) misconduct
of counsel for the commonwealth. We will
consider these grounds seriatim.

[1] 1. On Christmas day, 1909, Miracle
had a difficulty with Matthew Jones, in
which Joues struck Miracle across the head
with a shotgun. Dr. Corum attended Mira-
cle at that time. He found a wound on the
back of Miracle’s head, near the top; the
flesh and skin were badly lacerated and
bruised, and the outer covering of the bone
was knocked off. Some four or five years be-
fore the homicide, Miracle had fallen from
a train at Wasioto, on Greasy creek, and was
injured somewhat. Dr. Ramsey, who attend-
ed Miracle on that occasion, found him un-
conscious, and he remained in that state for
about a week. It is contended that these
two injuries affected Miracle’s mind to such
an extent that he was not mentally or moral-
ly responsible for his acts. The proof upon
the subject of Miracle’s insanity, is as fol.
lows:

Ben Mason, a neighbor, testified that
Miracle was kept at Mason’s home during
the time he was unconscious from the fall
from the train, and was in an apparently de-
mented condition.

George Mason, a neighbor, noticed that
Miracle’s speech was not like it had been be-
fore he was hurt, and that “he looked queer
out of his eyes.”

Luster Martin, another neighbor, was ask-

*ky *oeTe feqtum *Teo *HT0VHIW

*2T6T~0€-g (TT9¢q)


1138 146 SOUTHWESTERN REPORTER (Ky.

ed what Miracle’s condition was after he
was injured from the fall, and answered as
follows: “I saw him a couple of times be-
fore I observed any difference in him, and
that was at Caney Creek Coal Company one
afternoon, and he was talking, and he was
talking with good mind as I ever heard him;
and all at once he changed off and said: ‘I
have got to leave here; I am subject to kill
Guy Wilder.’ And I never saw Wilder, and
they were good friends as was anywhere.”

Martin Head, another neighbor, testified
that after Miracle’s injury from the fall “he
had a whole lot of change in his looks, and
did not act like he always did before.”

George Fuson, a neighbor, says that after
Miracle was injured “sometimes it seemed
like he had his right mind, and sometimes
I would see him since he got hurt on Greasy
treek, and he would seem to be ‘worser’ in
his mind at times.”

Roark says Miracle would sometimes,
without any excuse, seem to be mad or
moody, and he could not account for it.

Tilford Bowling, when asked if he had ob-
Served any change in Miracle’s mental con-
dition after he was hurt, answered: “Yes,
sir; he seemed different to me; seemed to
me that he was not right.” Again Bowling
said Miracle never held his head exactly
like he did before; did not look out of his
eyes like he did formerly, and “does not
walk like he did previous to the injury.”

In March, 1911, Miracle worked for J. L.
Begley, and Begley thought his mind was
not right at times, because at times he seem-
ed to do good work, and at other times he
did not do the work like he should have
done it.

Dr. Corum says the blow inflicted upon
Miracle by Jones probably would affect the
brain or injure the mind; but Dr. Corum
does not claim to be an alienist, and stated
he had had very little experience with men-
tal diseases.

This is all the testimony upon the subject
of insanity. It will be noticed that no spe-
cialist or person who has had any experience
in treating diseases of the mind was called
as a witness; on the contrary, with the ex-
ception of the two physicians, the witnesses
were all neighbors, who did not claim and
would not say that Miracle was mentally un-
sound. The substance of their testimony is
to the effect that he looked queer, and some-
times acted in an unusual manner, after he
had received his injuries. Admitting there-
fore, as must be done, that there was suffi-
cient evidence upon the subject of insanity
to carry that issue to the jury, it is sufficient
to say that there was ample evidence to
sustain the finding of the jury against the
plea of insanity. Indeed, it is difficult to un-
derstand how the jury could have found oth-
erwise.

[2] 2. It is insisted, however, that the court
erred in admitting evidence of the killing of

Matthew Jones by Miracle immediately before

che killed Dulcie Partin. The record shows

that in his opening statement to the jury
Miracle’s attorney stated that Miracle had
killed Matthew Jones, and that it was that
killing which caused Miracle to become ex-
cited and unbalanced, and in such condition
of mind that when he met and killed Dulcie
Partin he did not know what he was doing.
In other words, it was appellant’s conten-
tion that his killing of Jones constituted his
defense for the killing of Dulcie Partin; or,
rather, that his mind had become so much
disturbed by the first homicide that he was
“running amuck” and not in possession of a
responsible mind when he committed the sec-
ond. It is apparent from the outset of the
trial that Miracle’s defense of insanity was
largely based upon the atrociousness of his
crime of double murder in his unaccountable
killing of Matthew Jones and Dulcie Partin
in quick succession; and, in sustaining that
defense, his attorney necessarily brought out
the fact that Miracle had killed Matthew
Jones only a few moments before he killed
Dulcie Partin. And, although the court admit-
ted this testimony, it properly admonished the
jury that they were trying the appellant for
the killing of Dulcie Partin, and not for the
killing of Matthew Jones. We find no error
in this ruling of the court.

8. It is claimed, however, that the court
permitted the jury to separate during the
trial. There is nothing in the record to sus-
tain this ground; on the contrary, the record
clearly and affirmatively shows that the jury
did not separate at any time during the
trial.

[3,4] 4. Again, it is insisted that four of
the jurors had served upon the jury within
12 months before this trial. Section 2247 of
the Kentucky Statutes provides, in part, as
follows: “If a juror drawn from the drum
or wheel case has served in any circuit court
on the regular panel within twelve months,
such service shall be ground for challenge
for cause; if a juror is summoned as a by-
stander, after having within twelve months
served on any jury in any circuit court asa
bystander, such service shall be ground for
challenge for cause; and if the name of a
juror does not appear on the last returned
assessor’s book for the county, it shall be a
ground for challenge for cause.” It will be
seen, however, from the foregoing statute,
that the former service is a ground for chal-
lenge for cause; but, if the party fails to take
advantage of the disqualification, there is no
error. Furthermore, as no objection was
made to these jurors at the time, it cannot
be taken for the first time upon appeal.

[5,6] 5. It is further insisted that two of
the jurors, who were summoned from by-
standers, were improperly summoned by the
sheriff, in that he did not put their names
in the wheel, or have them shaken up with
other names, as is required by the statute

.

Ky) MIRACLE vy. CMMONWEALTH 1139

in the case of names taken from the regular
panel. This was not error; but, if it was,
it cannot be reviewed upon appeal, since
section 281 of the Criminal Code of Prac-
tice provides: “The decisions of the court
upon challenges to the panel, and for cause,
or upon motions to set aside an indictment,
shall not be subject to exception.” It is
well settled by a long line of decisions of
this court that the decision of the circuit
judge upon challenges to the panel, or for
Cause, or as to the manner in which the jury
is selected, or as to the qualification of ju-
rors, are not subject to exception; .and the
action of the trial court in respect to these
matters, however erroneous or prejudicial to
the accused, cannot be reviewed upon ap-
peal. Smith vy. Commonwealth, 100 Ky. 133,
37 S. W. 586, 18 Ky. Law Rep. 652; Vinegar
v. Commonwealth, 104 Ky. 106, 46 S. W.
510, 20 Ky. Law Rep. 412; Curtis v. Com-
monwealth, 110 Ky. 845, 62 S. W. 886, ,23
Ky. Law Rep. 267; Powers v. Common-
wealth, 114 Ky. 237, 70 S. W. 644, 24 Ky.
Law Rep. 1007; Id., 70 S. W. 1050, 24 Ky.
Law Rep. 1186; Id. 71 |S. W. 494, 24 Ky.
Law Rep. 1350.

[7] 6. It is strenuously insisted, however,
that Thomas Smith, a juror, was of kin to
Dulcie Partin, the deceased, and was there-
fore disqualified to act as a juror in this
case. The kinship is admitted by the com-
monwealth; ,but it further appears that at
the time Smith qualified as a juror and
agreed to the verdict he did not know of the
relationship existing between himself and
Dulcie Partin; and, in .fact, did not know
such a person as Dulcie Partin ever had ex-
isted until the case .was called for trial.
After the verdict had been returned, Smith
learned for the first time that this grand-
mother and the grandfather of Dulcie Partin
were brother and sister; jthat the grand-
father of Dulcie Partin married and had a
daughter, who was the mother ‘of Dulcie
Partin; and that Dulcie Partin’s mother was
never married, but had borne several illegi-
timate children—Dulcie Partin being one of
them. Smith knew the mother ‘of Dulcie
Partin when she was a little girl, but never
knew her after :she reached maturity, and
had no idea she had borne any children.
Smith and the Partins lived in ‘widely dis-
tant sections of the county, and Smith first
learned of the ‘relationship after the trial
from W. H. Ingram, the police judge of
Pineville. In his affidavit, Smith further
swears that his relationship to Dulcie Partin
had nothing whatever to do with the finding
of the verdict, in so far as he'was concerned,
and, had he known of the kinship, he; would
have excused himself, as he had no desire to
serve in the trial of the case.

Strange as it may appear, this question
has rarely been presented to the courts of
last resort for adjudication. The question
tame before the Texas Court of Appeals in

Baker vy. State, 4 Tex. App. 223, in 1878;
and, in passing upon the question, the court
said: “Whilst it is always desirable that no
suspicion should attach to a verdict in any
case, and especially in one involving life or
liberty, still, to set aside a verdict after
conviction, the cause for setting it aside
must be one sanctioned by law. This objec-
tion is that one of the jurors who sat upon
the trial was related to the deceased. The
relationship, as set out in appellant’s brief,
is that the juryman was ‘the husband of the
daughter-in-law and stepfather of the grand-
children of an aunt by affinity to the deceas-
ed.’ To have rendered the juror liable to
challenge because of relationship to the de-
ceased, he must have been related within
the third degree by consanguinity or affinity.
Jury Law 1876, p. 83, § 26. The accused
stated, in his affidavit accompanying his mo.
tion for a new trial, that, at the time the
juror was impaneled, ‘he had exhausted all
his challenges, and that the said juror did
not make known his said relationship, and
defendant did not know his said relationship,
and did not and would not have waived the
same, had he known it. but, on the other
hand, it is not shown that the juror was
interrogated as to said relationship, which
it was the defendant's right to do, under the
law, at the time he was placed upon the
jury; nor is it shown that he used proper
diligence to have discovered it, or that he
could not have made the discovery by the
use of proper diligence. A new trial will
not be granted on account of the disqualifi-
cation of a juror, though unknown, at the
time he was takén upon the jury, to the ac-
cused and his counsel, unless it be made to
appear that the disqualification could not
have been discovered by making proper in-
quiry. Roseborough y. State, 43 Tex. 570;
O’Mealy vy. State, 1 Tex. App. 180.”

It will be noticed that, while the question
was fairly presented, it was really disposed
of as a question of practice, and decided ad-
versely to the claim of the accused, upon the
ground that he had not been diligent in pre-
senting that defense.

However, in the later case of Traviss v.
Commonwealth, 106 Pa. 597, decided in 1884,
the question was fairly presented to and
decided by the Supreme Court of Pennsyl-
vania in the following language: “It appears
one of the jurors by whom the verdict was
rendered was related to the person who is
alleged in the indictment to have been mur-
dered, and the fact of such relationship was
not known to the prisoner or his counsel un-
til after rendition of the verdict. While it
was shown to the satisfaction of the court
below that the juror’s mother and the moth-
er of the murdered woman were cousins, and
the fact was unknown to the prisoner or his
counsel at the time of trial, it was shown
with equal clearness that the juror had nev-
er seen the murdered woman or heard of
her, except in connection with the alleged


jin 1895,

MINERVA (Slave) § $
: S
Hanged, Cadiz, Kentucky, February 9, 1856 ~ >
2 2
See large card Ss) Ss
, <
HISTORY OF TRIGG AND CHRISTIAN COUNTIES, KY., by errins +8 -S
Published 188). Page 58 ay M
, BS) aS
‘Marthe’ ay
7 nge Nannie JO Marina S$
ee ~~
Change date fo 2/9/55 SS
Se
s~
& -—
‘QB e>
— |
Ne)
™
MINERVA +s
| | S 9
Minepva, a slave, was the property of Mrs. Martha Mayes of Trigg Co., ee S
Ky., while her husband, George, was owned by Mrs, Jane Miller of the ™ s
same County. Both were charged with the burning of the storehouse =
o: Messrs. Gardner and Ragon in Cadiz, It was believed bhat George ~
was the actual incendiary but that Minerva was an accomplice before eS
the fact and both were tried, convicted and sentenced to die on & S
wholly circumstantial evidence. George committed suicide in the ‘Be
jail prior to the date set for the executions, but Minerva was hanged “Ss &
at Cadiz on February 9, 1856, *Q ~
. “& ‘=
HISTORY OF CHRISTIAN AND TRIGG COUNTL&S, KY. by ‘errins, Published, ~~ oR
188), Pare 58. ; S 8
ircuit court, $700.00" wz
"Slave, Martha, hung by order cele oes covering period S& 8
Auditor's Report of Reuss ner recompensed for execution of zs S
Tron J5saeiaeo, Seep ns smo’ Own treuler report contams date from LS
slave. These dates are Tricky. This parfreular repor S

ee exce rom above history KENTUCKY + EXCERPTS FROM LOCAL |
: Phe previous fi3ca) ed - as do all of them. sala mara Therefore
G report dated 1855+ 1856 actualhy fells of [854-/855,

Note: Martha and Minerva are not the Same person,

Or if they are, author ferrins put down the wrong dare of

execution. Martha's $700 paid out during The fiscal yen of
Oct. 1854 thru Oct. 855. There 13 10 nention of a Minerva’
in the following year. Thug the execution date of 2/9/56 1s impossible,

More Ikely the date Should be 2/ 9/55.