lue In the
Famous
. SAA
dles, burner controls of
y Keep the grass in
pink of condition
this summer with a
| geod
Grass
a
Héok
fl
‘Choice of two
1 good styles, with
Os
quality.
built-in guaranteed |
The "Per- |
. reelain lined, pen- | fedt’ oth
Sea eek Ee days OG OC
Saturday
large utility drawers,
beautiful ivory
arbleized” finish, large
ier top,
ers,
other days
—s — Bat-
wrday .....
Pl
elal that
as
will
Mop and
ish
handy O'Cedar
{th @ bottle of
seeeeee
iv plenty of ice
1d water with-
out using much
frig-
erator
Water
Bottles
Glass ‘2-s8l-
lon bottles,
built compact
and fitted
with metal
When trimming \ the hedse vou'll
appreciate this|
Hedge —
Disten quality.
cee
Shears
Pull-size, yell-baianced shears of
superior Diston quality.
Other ai” 1$1.50—
Saturday Gm..... BE EP
%
The “Champion” »
230°
Believe it or net. ‘these shears will
really hold jan edge. |
Grass Shears
Smooth-working, ‘easy -tutting
shears that you will enjoy é
using. Other dayf 98c— C
Saturday eoeed “ eeees Feo. if \
! ||
Nothing so good as that old-fazh-
joned home-made ice i
ertam.
Metal Ice
Cream
Freezers
Quick - freés-
ing. metal)
tub,
4
4
2-quart
freezers tha
are wel
acrew 16¢
er %ee
bullt—
Pater-
day...
here to find ‘that
cer im ®& hurry}
*@eeweoves
Bave veer neek as well an the
steps with these rubber
days 0o—Spturday. ¥
ARDWARE CO.
T WALI ; oe
ials on sale! Walnut Street Stere Only
3s ‘e ’
‘i 4 Rees Ha
coms ot
.:
wat
Ls foe
: ate. See
.
as ly
Cash Stair if ot
i Faxes
Or Treads met,
Bond i with
Mahogany ¢olored, jwrttes
Box eurved edge that fits iover
voxes are built to | edge of ster, Metal eyelets
Fete tive A | fer handy, ‘placing: .
bah re 4 8 @ | sie 24 inches. or eG
s% \ ;
3 a\day, anxiously waiting for word from
levery avenue of “escape for traces of
Hi tographs of the pgir. The other Pul-
‘ll looked at the Negro and screamed
| atraid to lire 1nW une érOup jor leer
of hitting Tillery, discharged therfun
f| into the air, and the Negroes fled.
Body Torn and Mangled.
Tillery, already dying when the
fj relatives reached his side, had ‘
pe gg fifty yards acroes his y
d
the. railroad crosaing. His body was
lying on the other set of guards, torn
and mangled.
The entire countryside was soon
ji/roused and thousands milled through
the courtyard at Elizabethtown that
the dozens of sea that examined
the Negroes. It was the presence of
these thousands of angry Hardifi
Countiangs at Qilizabethtown§ that
prompted and hurried remova) of th
three prisoners to Loulsville.
For a time, search was extended
for a fourth Negro, alleged to have
been a member of the gang, but the
three later confessed that they
trumped up this story of a fourth
man to Jessen their own guilt,
It was not without difficulty that
Hardin County authorities secured
ithe right to try the Negroes for the
Tillery murder. Officials at Pulton
4\County, Kentucky, and at East St.
Louis, 01., where four women anda
16-year-old girl were criminally as-
i|saulted, each sought the right to try
Rogers and Holmes.
They relinquished their claims,
i] however, when authorities of Hardin
4\County pledged their untiring efforts
to secure death sentences for all
three Negroes. :
Identified By 5 Women.
The five assault victims identified
| Holmes and Rogers as thetr assail-
ants. All made their idemtification
personally except Mrs. Walter Howell,
| Fulton, who was ill from the effects
of the assault, but who identifled pho-
ton woman assauited was Mrs. Charles
Hafner, Mrs. Howell's sister-in-law. »
i| There were seventeen witnesses in
the group that examined Holmes and
Rogers in connection with the assault
cases. Harry Mason, Bast St. Louis,
knocked Rogers down: when his wife
as she identified him.
Mas. J. W. Midkiff, another of the
East St. Louis group, fainted when
the ‘were brought before her.
giri asssulted there
of the identifying wit-
across a set of cattle guards ati?
Schwarzkopf said authorities in Gen-
eva, Switzerland, had been asked to
confirm a report that part of the ran-
m money had turned up in that
intry, adding that “Switzerland is
cluded in the twenty-nine countries
contacted.” ’
The seria] numbers of the currency
paid to one of the supposed abductors
by Dr. John F. Condon on April 2
were communicated to officials ‘all
over Europe and South America” sev-
eral weeks ago, Colone] Schwarzkopf
said, and they were asked to keep a
sharp watch for any of the bills.
These negotiations were carried out
through the American Departments
of State and Justice, he added, and
so far neither of these agencies has
reported any success... ~
As to yesterday’s statement of the
three Norfolk intermediaries that “we
have overcome a number of obstacles
that have stood between us and our
Objective,” Colone] Schwarzkopf re-
Piied that “nothing further has: been
reported” from that source and ‘'Col-
oriel Lindbergh has no statement to
make” in that connection.
Spitale and Bitz autkorized a state-
ment through iheir attorney, Abra-
ham Willson, saying “Spitale had
pleaded with Colonel] Lindbergh not
to pay this $50,000 through Dr. Con-
don,” the “Jafsie’ of newspaper deal-
ings. They asserted also they had no
idea who the kidnapers were.
Colonel Schwarzkopf was equally
non-committa] on this subject. “Noth-
ing concerning the status of Spitale
and Bitz hag been reported to polics
headquarters up to thig point,” he
said, “either by their attorney or/i
Colonel Lindbergh.”
Message for Harry.
A message for Harry Fleischer,
Detvolt “Purple gangster,’ wanted for
questioning in the Lindbergh kid-
naping was radiocast from 8tation
WOR tonight. It said:
“larry Fleischer—Dear Harry:
Connect with me immediately
through my attorney, Henry A. Uter-
hart, 36 West Forty-fourth Street.
Do ft through a third party. No
danger of tip-off.
who was the main mug of the Ohio
Remember the aouper you and the
Turk gave me?”
Officials said they could not dis-
close any information concerning it.
Reached at his home, Uterhart said
he was “acting mérely as a liaison
officer in the matter at the request
of a friend, a lawyer.” He has not
been approached directly, he aaid,
either by Oolonel Lindbergh or Col.
Henry Breckinridge.
65 CHICKENS ARE
DESTROYED IN FIRE
A chicken house in the rear of the
home of H. B. Richardson, 4034 Hen-
Getaon Avenue, was
Names , dimovered. at 11
ment of $50,000 in ransom py Col.;
Charles A. Lindbergh.
In his daily bulletin Colonel
joint where you and Big Mike grifted.| |
damaged. .by/|
= Soll
te---4
I am the party/|
é
_-¥ all the large cities went
| ad for the
“*yanklin D. Roosevelt's jead
4 HE. Beith. in the Demo-
-w Raven, 1% 8
-phia, April 28 )—While
\re Fabubated.
aine Quioer ol the” unin-
Rroupa and asserted their
ild control the convention.
1928 standard
It's backers expected to win
the amaller communities.
ate Convention, which meets
t “"\y 16 and 17 with 968
elect Connecticut's
{ » National convention.
received p brn
New London elec twelve
‘ed delegates considered fav-
Governor Roosevelt,
‘mate Vele In Doubt.
€
arked the slowly rising tide
tidential preference contest,
‘eaders tonight differed ma-
nh thetr interpretation of
primary vote.
‘’ supporters cited his mar-
434 tn the prefertntial vote
ed the entire eight votes to
* gixteen delegates at large
s9< More than fifty of the
. @istrict delegate votes.
her hand, John R. Col-
* ohairman. who has advo-
usfinetructed delegation and
‘ipent in the Smith ecam-
‘lared Pennsylvania's seven-
~e in the National Conven-
. be “almoat evenly divided”
of the
bill
The
Duffie
'
tonaevelt and Bmith.
rible nature of the dele-
niises and the possibility of
“tion trading, Jeft the uilti-
catineed ca Page 1.)
= Jobs for
mployed Found
‘no In Nation-Wide
‘t of Civic Groups
‘ tucky (11361),
44. Louierille, 160
4, DRAGGED
ILE BY MOTOR
empting $1,000.
tive Connery, Massachusets, Demo-
crat, to strike all salary cuts was
voted doyn.
With this decisive action party
Jeaders apparently regained contro]
of the altuation.
An attempt by Representative Goss,
Republican, Connecticut, to slash the
$10,000 salaries of Members of Con-
(Continued on Page 3, Colamn 1.)
ver revumed tonight ro defeat efforts
of Insurgents to wipe out the remains
11 per cent cut. This assured
a saving of about $12,000,000 for the
The legislators ‘hen turned to
provisions restricting allowances and
extra compensation for Federal em-
ployes,
700,000, but
coalition had been beaten down on
numerous amendments,
estimated to save about $13,-
only after the Insurgent
Hoover five-day week and fur-
lough- without-pay plan, estimated to
save about $82,000,000, was offered as
& substitute to the emasculated Mc-
flat 11 per cent proposal, ex-
Half-Holiday Sticks.
Before the House finished with the
Wwage-cut provision the bi-partisan op-
ponents struck out the provision elim-
inating the Saturday half-holiday for
Pederal employes, estimated to save
$9,000,000. Limitation of salaries of
Reconstruction Finance Corparatien
employes to a maximum of $¥0,000
was approved.
With
the expected
from thé McDuffie wage cut plan and
the 89,000.000 through the defeat of
the Saturday half-holiday provision
the [Insurgents knocked
{rom the omni
Numerous -e
$55,000.000 eliminated from
vings of $67,000,000
measure.
and mem-
than 11 per
‘Why the Holler?” |
big
to 45
man
(wioe
000,
have already made it.
‘wom. la. April 38 UM~An ox” daa an land, farms, homes,
Ae yer arene Anthon atores, vacant kt. You pay year
" waite and eo half and reoed | fe? FOOT eee eather ig
"oY? badty fed) from beneath | eke Ht or Do eT te hia :
Later Poul L. Huddlesten, (¢rty owner it gig
agten, W Va. was arrest- |Ucaled to he eiate, Der cent
¢ wih mensiguabter, (of his pretits hw didn’t st Mig
. a the ériver of the |pay anyunng | WILL ROGERS:
Gpecial te The yg tdbahgaems
Hollywood, Callf, April 29—The
writers a
Congress “soake ch” by rais-
tng the rate after % passed $1,000,000
pn ge
with
your second
8 now that
per cent. Why the holler? A
making 820.000 pays , almost
the rate & one making $10,-
Bo why not the man making
ay twice the rate of one
000 oF
rts to increase the,
cuts in wages of Pederal employes re-
eé#iving more than 82,500
bers of Congress more
cent were defeated.
A last minute effort by Representa-
4
Two charges of electricity were hevceae
sary for Cooksey and three Sor
Rodgers, P
Holmes Wounds Guarda
JA short time before the executionas,
Warden Tom Logan confirmed a ree
part that Holmes, using a knife fash-
foned from the handle of & water
bucket, had stabbed a prison guard,
Claude Ramey, early yesterday, Ramey
was not wounded seriously, it was eald
Ramey and J. Ww. Baldree, another
guard, had gone to Holmes’ cel] with
Deputy Warden W. P. Gillahan to take
the prisoner his breakfast. As Ram
and Baldree stepped inside the os
Holmes lunged at -Baldree mith the
improvised knife. Baldree
aside and Ramey was stabbed in
stomach.
The two guards backed out of the
Cell and Gillahan slammed the door
shut. Holmes, they said refused to
give up the weapon until threatened
with a tear gas gun.
Warden Logan, recently appotnted
to the position, said..all three men
appeared in g
heartily last night and
terday.
For the night meal Cooksey
ate pork chops, eggs, coffee, ‘bDiacults
and peaches. Holmes and Rodgers ate
ham, eggs, peaches and sweet milk,
The men were allowed to order their
;Own meals in keeping with a custom
| allowing condemned men t have
‘what they want for their lost meals,
Dewberry Given Stay,
Walter Dewberry, the third Negro
convicted with Rodgers and Holmes
and sentenced to death, was granted 6
stay of execution recently by Gov,
Ruby Laffoon,
Cooksey was sentenced in Hopkins
Circuit Court while Governor ‘Laffoon
was -presiding judge there. He and
his brother, Houston Cooksey,
wounded Ashby fatally and fired seve
eral shots at Patrolman 8. A. Demoss
when the officers attempted to ar-
rest them after they had terrorized
residents in the Negro. section ,of
Madisonville. Houston Cooksey
shot to death. by a posse shortly af
Ashby was slain. His brother w -
prehended in a boarding house
Clay several hours later. ee
, Confession Heard By Harrison. \
The murder of Mr, Tillery on the
night ef April 8, 1931, was confessed
two days later by the three Negroes
in the presence of Mayor William B.
Harrison of Louisville and high poe
lice officials of Jefferson and Hardin
Counties. In their confessions, each
of the three said his bullets did not
kill] the man whom they dragged
through his bedroom window and left
dying on the cattle guards of g
nearby railroad croasing.
The murder occurred at 1:38
o’clock in the morning. At § o'clock
that morning, Dewberry was arrested
ag he cowered in a brisr patch near
the Tillery home. Pound there y
small boy, Dewberry was held st
‘omen Died After Abortions,
sials In Co-Ed Case Declare
in-law, until a posse closed around
him.
A few hours ater, wae
taken from a southbound freight
train at Munfordville by Sheriff A.
8. Edwards of Hart County. Holmes
Was arrested at 2:45 o’clock that afte
ernoon as he fled through the rear
(Continued on Page 2, Column 3.)
by Flem Straughn, Tilery’s fathers |
.
soe Sit nema ie ERS is «5 ee ete es il ie a tat CERES FEN laa tea
P
| puwid BLU DVe6U UL woWelve, 1 ppusaanly aptenetieerr a thessteren eeementee or more acres of grouna ciose Lo.
stmaster to shift] It aiso accepted a proposal to per-|400r of @ southbound bus at Bo to city. &
er duty and vice;mit Rresident Hoover, the Cabinet of-/|Green, Pos! : Be
ficers and members of the Supmeme/ The murder was preceded py ‘a A ladies’ ready-to-wear store, | | vis
per cent reduc-;|Court, whose salaries are fixed by the two-day trail of terror left th in central location, low over- | | Da
dembers of Con-|Constitution, to return any postion of y by th . | head, wishes partner. Small in- | | Co
) save $56,500, their compensation to the Federal|Negroes as they journeyed southw Mea vestment necessary. , oe
Treasury. from Chicago. On April } OPA = ANE 0
In Senate. A provision to cut salaries of all d 8 igo ii H the eB A mechanical engineer with r
economy _ battle! rederal Judges to $10,000, unless fixed|#24 Rogers were in ten years’ experience in struc- | | ao,
he Senate. by the Constitution, was approved. Jefferson County fall a$ two Negroes tural, heat-treating and survey- ad
| Republican,| galaries of members of the Inter-|who had criminally ulted two ing, wishes connection with firm tre
cw 20rk, DemO/national Joint Cemmission (United women at Hickman, Ky., and three where there will be chance for kn:
eral attack upon|States and Canada) were reduced to women in East St. Louis, Tl. advancement. wi!
policy of slash- 135.000 each from $10.00D. Thirteen robberies in four states, ott
Use your
Char ivi fourth Street, Louisville, where Mr-| representing the Tillery family. stuc
oO h ge Prat Pratt, -his wife and three children Although the trials were held under| Th:
: oy shopping these Were Gagged and tied up, the other/the protection of Kentucky National| war
timely bargains Satur- three marked succesesive stops in the| Guardsmen, one outbreak resulted in dur
day bechan aT trail toward Elizabethtown, | | Tucker being attacked by a group in/ter:
ie he es Will | After the Pratt robbery the next/the courtyard. The Negro attorney,| “
be entered on June. state- stop was at the nome et Mr. and Mrs./returning to the Court House after| wee
et 3 . P. Owings, on the ghway @/eating lunch, was set on by a crowd | tint
— J wt pay able OREO before mile south of the Louisville Speedway,| with cries of “lynch him.” and “beat dea:
; June 10... . If inconvenient to where they tled Owings and his wife/ him up.” The Negro was rescued by/ into
y store—309-11 West Walnut—tomorrow, and escaped with 837.50. Only a|National Guardsmen after being] we
ti ait d f F Del; nominal sum was obtained at the| knocked down and hit several times. D
syour order... of course, Free elivery Pratt home. The last time the electric chair was sto:
Parcel Post cost extra. Ose The next was at the ,home of Mr.| used here was June 13, 1930, when pita
: and Mrs. E. H. Berry, at Kosmosdale,|two Jefferson County men were Put! vest
6368... Open Saturday Till 9 P.M. ‘Where this couple and their 18-month-|to- death. Before tonight's execu-|° 1)
old son were tied up and gagged. The|tions there were nine men awaiting the
last home robbed was that of Mr. andjexecution in the row of little death! day
OLD STOVE Of same fine quality Mrs. W. M. Brown, two miles south of! Cells just outstde the death chamber.| whe
as those ettered yeu Fort Knox. Small sums of nioney "This
. Oring previeus sales and inexpensive jewelry were obtained ' ille
= gs heh van rgga in these last two efforts. The Negroes N f | i) M :
; : were identified later by all their vic- Orro en 3
i lyment Tillery, Wite Asleep, e
ur many beautiful, new The Negroes’ arrival at the Tillery Slip A Ww a y -
: donsole model home found Mr. and Mrs, Tillery | Thu
asleep In a front bedroom. Mrs. Ti]- © belo
3 Ra nges lery, in relating the story at the trial, On New / rtp ville
seccalian: at ' said she and her husband were awak- ! bor!
1 make your selection. eg nag Rana yy ened by knocks. Looking out,. they rep:
urchase $5.00 credit will Long handle affairs saw two Negroes on the porch and (Continued from First Page.) in t
‘the old stove. .To Club | that are excélient for heard them ask for an automobile tire on . tae
‘rs, the old stove applies et eae ot os a pump. early today. It was reported‘that he} Fr
down payment, balance . Steers | | “I told my husband not to go out,|COmmunicated yesterday with Colonel | nia
Meathly Payments ays $1.45— 6 and he told them he didn't know)| Lindbergh by telephone. At one time|yac;
aturday oo. them,” Mrs. Tillery said. “He went to/Guring the day he requested news-|Str¢e
aoe ee es ae the window and again refused to go|Papermen to leave his office while he/in ;
sla basket. If it hes out. and I saw one Negro knock out/®nswered a telephone call. <
. t é
t}mes see theve fatide Aig eee aa cee et oe Spitale and Bits Quit, Fasi
LAS know how many times, for I rolled off| Hopewell, N. J., April 28 ()—The| Thu
Lato hg wed wey crawled peeling official search for the kidnapers of| #ge.
\ Bea “I think they dragged my husband] Charles Augustus Lindbergh, Jr., has |
~~ - through the window. I heard morelexteng to twenty-nine countries inj Ol
i shots and heard him screaming ag ed y ‘ * © |
Willow Clothes they dragged him across the yard. He|Zurope and South America, -
Including four in Louisville aid on
the Dixie Highway, were laid to the
Negroes before their trail ended at
the Tillery home. :.
The last four robberies were com-
mitted early in the night that. Mr.
Tillery was killed. Beginning st the
home of J. L. Pratt, 123 North °
was saying: ‘They're killing me,’”
Haynes Carter and E. J. Wise, ap-
pointed by the court to that duty.
while Dewberry was represented by C.
Eubank Tucker, Negro attorney of
‘Louisville. The prosecution was con-
ducted by Commonwealth’s Attorney
Allen P, Cubbage, County Attorney C.
E. Morgan and Judge J. R. Layman,
disclosed on this, the fifty-eighth day
: Baskets Mrs. Tillery then called Leadford Seen this revelition by Gel.
Larse No. 3 size: : Hall, a boarder, and her son-in-law, H. Norman Sehwarzkopf of the New
built of fine, smooth W. T. Wright, asleep with-his wife in Suse: ftate Police tame aA an-
Cher dave ® A the next room. Wright grabbed a nomnipement that Salvatore Spitale
\ $1.25— shotgun and, accompanied by Hall, 7
e ¢ and Irving Bits, underworld inter
¢ This New Aéturday °.. Sfabbiine Cad hentie Tie ee t| Mediarita-in the case. had withdraws
r clubbing and shooting Tillery. t Bt trom the quest because of the pay-
slue In the > the crass in afraid to fire into the group fer fear
nk of condition of hitting Tillery, discharged the gun Satie A lana =
ous Wee into the alr, and the Negroes fet |r ais daily “bulletin Colonel
wr 944?
ers porcelain lined, pen-
wars.
; 500d styles, with
built-in guaranteed
q lity. The "Pere ’
feat” otherAam
Body Torn and Mangied.
Tillery, already dying when the
relatives reached his side, ry been
yard,
lying on the
ang mangied.
other set of guards, torn
Schwarzkopf said authorities in Gen-
eva, Switzeriand, had been asked to
confirm a report that part of the ran-
H d ed fift ar croas som money had turned up in that
96 afid across 4 ret i cattle ards at|COuntry, adding that “Switzerland is
i Choice of two: a@ set of c a “oli
the railroad crossing. His Y was| cluded in the twenty-nine coun
contacted.” ’
The seria] numbers of the currency
mala ta anne Av tha essmnncnd nhAurtare
sre Oe
vent inthe eee Nii
iy
446 Ky. 213 SOUTH WESTERN
lant would have us pass upon Sparks’ ered-
ibility as a witness and declare him un-
worthy of belicf, but that would necessitate
an invasion by the court of the jury’s func-
tions. The determination of the weight of
conflicting evidence and of the credibility
of witnesses rests exclusively within the
province of the jury. It may believe any
of the witnesses in whole or in part, and
may accept the testimony of one.set of
witnesses to the exclusion of that of an-
other or the testimony of one witness as
against the testimony of a number of wit-
nesses. Thomas v. Smith, 302 Ky. 636, 195
S.W.2d 274; Irvin v. Madden, 281 Ky. 7,
134 S.W.2d 942; Huber & Huber Motor
Express v. Martin’s Adm’r, 265 Ky. 228, 96
S.W.2d 595; Smith v. Ferguson, 256 Ky.
545, 76 S.W.2d 606. In Cheatham v. Chab-
al, 301 Ky. 616, 192 S.W.2d 812, 815, the
testimony of the plaintiff stood alone and
was contradicted not only by the testimony
of a number of witnesses but also by his
own previous written statement, yet it was
- held that the evidence was sufficient to take
the case to the jury. In the course of the
_opinion it was said:
“If the courts take over the prcroga-
tives of juries by saying that substan-
tive evidence, undisputed by physical
facts or nature’s laws and not dependent
upon mere hypotheses of experts, is insuffi-
cient to carry common law causes before
jurics for their decisions, then a lethal and
devastating offensive against free, republi-
can government has begun in earnest. It
matters not that the litigant’s theory is
disputed by probabilities or by an oppos-
ing array of outnumbecring witnesses
against him. The measuring scales of the
common jury must weigh these probabil-
itics and these numerical contracts and
then record the truth as derived from men’s
frequently fallible judgments.”
[5] It is argued that the appellee failed
to prove that the negligence of the ap-
pellant was the proximate cause of his in-
jurics, but this question was disposed of in
the former opinion when the judgment was
reversed for the sole reason that there was
no evidence tending to show the gratings
were not tied when they were stacked.
There was no evidence of an efficient in-
tervening cause such as would short-circuit
the appellant’s negligence in stacking the
REPORTER, 2d SERIES
gratings in a dangerous manner and ren-
der it remote and not the proximate cause
of the accident.
ree It is finally argued that the verdict
is excessive. Appellee, Clark, was 42 or
43 ycars old and had an expectancy of more
than.25 years. He was earning $84.50 a
week, or at the rate of approximately $4,-
500 a year. He suffered a compound frac-
ture of the tibia and fibula, and at the time
of the last trial, two years and three months
after the accident, had been unable to work.
His leg was in a cast from June 22, 1945,
to February 9, 1946, and he was then on
crutches for six or seven months. The
medical testimony is to the effect that his
injuries are permanent. Dr. Charles F.
Wood, an orthopedic surgeon, examined
appellee on September 3, 1947, at the re-
quest of appellant, and testified concerning
his disability:
“I felt that his residual disability would
amount to about forty per cent disability
of the left lower extremity, or twenty per
cent disability to the individual as a whole.
* * * His principal disability was stiff-
ness of the foot and ankle and the weak-
ness of the muscles of the leg and thigh,
with some slight stiffness of the knee.”
It is clear from appellee’s own testimony
and that of the physicians who testified that
he will never be able to follow his former
occupation of a steam fitter-welder. His
earning capacity in the kind of work for
which he is fitted by training and exper-
ience has been totally destroyed. His spe-
cial damages, consisting of loss of time
and medical and hospital bills, alone
amounted to nearly $11,000 at the time of
the last trial, and in a little more than three
years after the trial will have amounted to
as much as the balance of the sum awarded
him. This leaves out of account any award
for mental suffering and physical pain. We
do not find that the award is out of ac-
cord with awards which have been ap —
proved by this and other courts in cases in-
volving somewhat similar facts. A colle¢-
tion of cases on the subject may be feund
in Warfield Natural Gas Company ¥
Wright, 246 Ky. 208, 54 S.W.2d 666. See
also, notes in 46 A.L.R. 1230, and 1@
A.L.R. 1125.
The judgment is affirmed,
Sn ee
McPEAK y. COMMONWE.
Cite as 213 8.W.2d 447 ests Ky. 447
respect to it of little importance, argument
itsclf cannot be deemed to constitute error
of a prejudicial nature.
McPEAK v. COMMONWEALTH,
Court of Appeals of Kentucky,
June 1, 1948, 6. Criminal law €>1171(3)
In prosecution for robbing motorist
with the use of a deadly weapon, wherein
. : .. commonwealth was properly permitted to
sen Ye eee for robbing motorist introduce evidence that Ath bs and his
A Seu et a am photographs accomplices murdered motorist after rob-
phen panels pring nt Ma eg bing him, Prosecuting attorney’s closing
rae at eae ae mitted for argument to jury was not prejudicially er-
eae piste ae . pe real roneous, though several references were
ios Suk cae a ae aa motorist made to the murder, and though prosecuting
' é _ Tia’, and common- attorney indicated that unless jury returned
wealth could not anticipate with reason- a verdict of guilty and a death sentence
able assurance that defense would not ;
, ur 1 i
claim that automobile belonged to defend- pe ag aid ead miele
ant or one of his accomplices. KRS
433.140.
Rehearing Denied Oct. 1, 1948,
1. Criminal law €>438
7. Criminal law €=935(1)
In prosecution for robbing motorist
with the use of a deadly weapon, wherein
commonwealth was properly permitted to
introduce evidence that defendant and his
accomplices murdered motorist after tak-
ing the automobile, court properly refused
a new trial on ground that jury’s decision
finding defendant guilty and imposing
- death sentence was result of passion and
prejudice. KRS 433.140,
2. Criminal law €>369(2)
: Generally, in prosecution for one crime,
evidence of another crime may not be in-*
troduced, but there are exceptions, as where
several felonies are parts of the same trans-
action, in which case evidence of all is ad-
missible on the trial of an indictment for
any one of them.
3. Criminal law €=369(2), 370, 371(12)
In prosecution for robbing motorist
with use of a deadly weapon, evidence that,
after taking automobile, defendant and his Appeal from Circuit Court, Jefferson
accomplices murdered motorist, was proper- County, Criminal Division ; Loraine Mix
ly admitted because murder was part of Judge. 2
same transaction as armed robbery, and al-
So because it tended to prove motive and i
guilty knowledge. KRS 433,140, 3
4. Criminal law €=792(1)
__In prosecution for robbing motorist
with the use of a deadly weapon, defendant
Was not entitled to an instruction on oh
acces-
Sory after the fact, though defendant al- A. E. Funk, Atty. Gen. W. Owen prhes
legedly did not enter automobile until ap- Asst. Atty. Gen., and Frank A. Ropke,
proximately 20 minutes after his accom. Commonwealth’s Atty., and Carl C. Ousley,
Piices had done so, where’ robbery was one Jr, and William M. parm, Aste Com-
of consecutive continuous acts continuing MOnWwealth’s Attys., all of Louisville, for -
throughout and culminating at time of the appellee.
taking of the motorist’s life after defendant
had joined his accomplices, KRS 433.140.
—_—_———
Daniel T. McPeak was convicted of rob-
ig a certain person with the use of a
deadly weapon, and defendant appeals,
Judgment affirmed.
John T. Fowler, of Louisville, for appel-
VAN SANT, Commissioner.
€ ereiel es sais _This is an appeal by the secondly con-
Wie Boe ees _ victed member of a trio, all of whom, on
eS gai a esha a nunal case it- separate trials before different juries, were
Scene’ a i ry as to render any found guilty and sentenced to death for the
of the prosecuting attorney in offense denounced by KRS 433.140, by rob-
ry
subi
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Thet'e nigns, Meng a) the 11; y
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ase tlle, Ky. Dow. y —.\t ‘wubrias
a w shir b Big MeUserty: Stephen
¢, Gran; Whom se sog Nelooy Lawig|!
| Wary, Ovluredg,: |
: .
ed the panalty Of Wiltul. wurde]:
ANT AS Ota k bie Mur condamed inen
WmreT the yet of the Jip
for i be'Qret time the wig u
Y 89 sled them Uy.’ sf
Of the ses aly een Up the atere &
_ doading, he walked 4-
o
—.
wae tow up i
— deeds Thos: at BOG, Ja aye wt n:07,
Hite ab bizy, wotle McCarthy heig
loogest tolife. At 6:18 o'clock Dennis
MecCanhy ju: ou @ peat black sult,
white sunt, edler sod culls, he was ved
hia face at combed his beir ant beard
Father Lyster eutered bis ce!l s moment
later, Father ieidy, seating his priestiy
robes, entered) st 6 'eiuck. They prayed
Wogetber, At tbls moment services
Were goiny on in each of the four ceils,
and ther] co wis wor elemn “Some
prayed, owe sung, and others exhorted
the dovoge) wer, Alt-rihe wen ted
takeu baesrtoet the wher & fread the
Geath wert Chew the death warrel
Wea begun dot if Bell and Jailoe Bul-y
bed, bess Went Turntry Bred Bender
aod Deputies Ludwig and Rig
{and: ‘Slowly - they ° wate} their
Way {hiough tne dene? crowd which
fade senal opening tor them At
Tl Uulock whe eeMios hed berg brunght
foto Ur Jul gerd’ sud placed beneath
the sud = nere was ooly es sual
Crowd (here wt the time, fewer then
bave been pireent eh any previous
Banging tor years. Not more than 34)
people were lu the yard and the pulicr
bad little trounin lo keeping the space
for ten fret prouadl the scsfMold clear
There were @ good many on the wall
end {the winuvows of the city bal) apd
Otber, buildings, from which » yew
would be gsined, were packed. Neith»r
of the condewo- id mrp made BNY Blate-
Ment oa the scoMsid. There wag pot
@ Wor? uttered Lut lo prayer, ;
Lewis’ peck wae bri k-o, bub the
bers struggled for some time.
Dennis McCortby wag baoged for
the murder of his wife and unborn
babe, Be pt. 7, 1891, Neleon Lewis, oul.
Ored, died for kiliing Geo ge Doan on!
tbe wight of Nuveinhes 19, 1891, Stephen
Hite paid the death penalty for the
murder cf Albert Beurmann, Sunday
morning, Sepiember 30, 1891, Grant
Thomas, colored, gave up bis life fe
Billlog Birde Coleman, colired, Sep
tember 9, 1893. an,
oe ew. ames of - - ec?
dead,
Weick’s Death March
Thomas: execution completed, his
body: removed and-the death march
for George Weick,.convicted of mur-
‘dering from ambush Willlam Oecekle
in Jefferson county, began. He met
his fate as had the other, except that
‘he continued to declare his innocence
of the crime for which he died.
Within a minute or two after his!
[body had been removed from the|
death house the third of the three
murderers to pay the extreme pen-
alty of the law, Charles Miller, Negro,
'who slew two ‘railroad guards in
| Breckinridge county, marched Into
the death house. |
_ The same procedure, followed with
machine-like schedule as jn Thomas’
case, Was gone thru. | :
_ * Thomas’ 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 request that {tc be
made public: - oe, i
“As I have But'a few more hours
on this earth, and, sitting jn the
death cell at Eddyville penitentlary,
-l wish to give the following advice
-
to the. world: toe
“lt came from one: of the. best
-familles in the State of Kentucky.
. Young people, keep out of bad carn-
“pany and obey your mother dnd
‘father and go to church and work
for Jesus, For, if we all would, we
‘would have .no. need for. peniten-
laries.and electric chairs. * ,
*_sfMother, watch your children and
see what..kind ,of company they.
\eep. i And ‘see that. they go to
‘church: instead of going. to road-
houses, “and ‘other: places of! sin.
‘The devil.with his cunnning smiles
-tella them to.7come .on “and let's .
‘have a time ce etlhh ee
y “By -having. the experience: ‘of
Sthose things,:l feet like Iam able.
‘to ‘advise; you-‘about them. {To |
“those who read ‘this laat statement
,of ‘mine.:on- this: earth, . I want to,
*paysto all: that ;|]-am prepared. to;
-meet:my God and pray 0g -that-all.
will strike glad hands in that celes,*
fal elty,.whose builder and< maker.
Ae. God.? angie ete heh cette ie
wy! Ee’
€ - Baad Cg AAS EE sf aes
a The «thtee men’ -were baptized ‘by
2
‘and. the |Negro = bad" conte their
‘guilt,:by Nore maintained jhfs In:
nocegce even ‘after the ‘death | warrant
was , read: iJ. By
pee : Lin no he on eed a ‘are deities ide ea oo i ipl ™ e Bi lea vee
be aes “Ballavd Ratcht{e, Kichavd Edmonds _
__THE NEW YORK TIMES, TUESDAY. MAY 6. 1980. _ pat 5
oR ETON AORN CC Rt ee eect
FIRES DESTROYED HOMES. DIRECTS DEATH ORDER |
———---. | TQ BE READ IN PRISONS
AWUVERTOOO maw?
Kentacky Governor Sets Friday,
j ; '
i | Jane 13, for Execation of One ee
*
White and Foar Negroes. sale
° Pige
riadinemmapntserinicinet ete le
FRANKFORT, Ky. May 5 (® '
Governor Flem DTD. Sampson. today he is
set Friday, June 13, as the date on eare
which one white man and four Ne f
groes convicted of murder are to die id
rin the electric chair at Eddyville
Concurrently with fixing the death! Yl
dates, the Governor issued a procia
mation pointing out the penalty of a
crime, and ordered all wardens and He
superintendents of State penal In- proves
stitutions to read the proclamation vale
to prisoners ‘at least once a week" ids
until June 13 Wye
Three of the condemned Negroes, peas
chard Fadmonds, John Keller and FATED a
James (Grigsby, were sentenced ta, ; a
death for the murder of Harry 3. | THE END OF YOUR
Long, a night watchman ino Lanas: |
ville, Nov. 14, 1928. Ballard Rat- a 9 : , “yy
clifte, the wnite man, was convicted SFARCH —1 EBECO!
of the murder of William A Muse. qq, on and
on May 20, 1928 Lloyd Williems, © an¥ men and women grow weary of
Negro, was convicted for the murder Bear hing fora tooth paste that really
of H. R. Porter, Jan. 8, 1925 does what it promises. Don't give up!
« In the proclamation, Governor Sooncr or later you will try PEBECO
Sampson said: —and then your cortidence in tooth
! “Ags old as the Ten Command- ee -
aS manta, ve la ‘aac there Moanlela@ Rate advertising Will be restored,
] Gime upon which all law ts founded, sanc- | Pebeco comes through. Whiter, cleaner |
lL. Aft Brush Fi Times Wide World Photo. !tioned by the great minds down | teeth, a more healthy, refreshed |
” er a Brush Fire Had Started a General through ‘the ages, is the principle | mouth condition—Pebeco’s success in|
upon which the eourts have acted in| bringing these benefits unquestionably
‘+ this irrevocable decision that these : a ve ey ip,
men must die accounts for the amazing public drift
4 “The lesson taught by their fate Is to this tooth paste. Try it maybe you
Ae meant for the living; it will soon be bave been missing something,
| ah too late for it to becol use tO LNeM a eee
hoe As * ¢ ¢ Therefore, the awful vengeance LZ,
of the law will have been in vain if ZF
the lesson taught is not taken to
heart by those who have. sinned
against the law of God and man, and
who are solemnly enjoined to lead
petter and more useful lives through.
out the remainder of the brief
span. * * ©
“And as these five men take up
their solemn march to the death
chamber, may each inmate of every |
pens} institution in the State, and
indeed every resident of the Com-
monwealth, paraphrase a great phi-
losopher and say to himse!f or her-
self, ‘But for the grace of God aid
go],
3
‘
MYSTERY SURROUNDS
COAST GUARD DEATHS
No Trace Is Found of Any Battle
on Lake Erie—One Man |
Died of Exposure. |
3 Trips Daily
Econony of time and cost—maxinum
corvvanenceandcontort.P'ana-bus from
Hotal Poon. at B.lha.m 11:15am 4.18
pn, connects with 14-passenger, 3%
67; 1ed cabin panes. Reservations at
hota *, travel ayercies, Colonial of. .cos,
Air Parcel Delivery Service
3 dagvar6s daly in Boston. Minimum
charje $1.25 Call Western Union for
Moassenger,
TOLONIAL
AIR TRANSPORT EX
Deesten et Ameraan ducwors le.
\\
TOLEDO, Ohio, May 5 (4.--Fn-
Lind
4, A A L237
1080 Ky. 44 SOUTH WESTERN
[4] It is most earnestly and urgently in-
sisted by appellant that the court should not
have proceeded with the trial after his coun-
sel was assaulted during adjournment or re-
cess of court. The record discloses that the
assault was made upon him by some irre-
sponsible, excited person; that soldiers were
present to assist the county officials in main-
taining order; that the soldiers were on
the outside of the courthouse; that the sher-
iff and his deputies maintained order in the
courthouse during court. There is no show-
ing that the jury had any knowledge or in-
formation that counsel had even been as-
saulted. So far as it appears from the rec-
ord, the court had no knowledge of the as-
sault until appellant’s counsel filed his affi-
davit disclosing it in support of the motion
and grounds for a new trial.
Without any knowledge thereof, so far as
the record shows, the court proceeded with
the trial after the alleged assault, and coun-
sel of appellant participated in the conduct
of the trial, and ably and diligently presented
the appellant’s defense. The assault and his
injury therefrom were not made known to
the court, as it appears from the record, until
after the verdict of the jury, and then by an
affidavit in support of his motion and grounds
for a new trial. Counter affidavits of the
commonwealth’s attorney, and the county at-
torney, and the attorney employed to assist
the commonwealth, were filed in resistance of
the motion and grounds for a new trial. It
appears from the affidavit of counsel of ap-
pellant, filed in support of the motion and
grounds for a new trial, that during the re-
cess of court “he was ruthlessly, brutally,
and maliciously beaten by an angry mob as
he was approaching the courthouse,” and that
“svithout the interference of state troops un-
doubtedly would have been killed; that he
was forced to receive medical treatment at
the office of a physician where he was taken
under a heavy guard of the local police and
state troops, who were followed by a howl-
ing mob. * * * That during the trial by
reason of said physical and mental condition,
and by reason of his recent experience with
the mob, he was afraid to ask questions or
to make open objections to the court because
he feared an aggressiveness on his part would
further endanger his life.”
These statements of counsel are incon-
sistent with his conduct of the trial as it is
shown by the record. He was in the pres-
ence and under the immediate protection of
the court and its officials. It would have
been an easy matter for him privately to have
informed the court of his predicament. No
one who knows the court will doubt for one
moment that if counsel had made known to
him at the proper time in any manner his al-
leged condition and state of mind, the court
would haye afforded him not only protection
and security against any threats or violence,
REPORTER, 2d SERIES
but would have given him ample time and op-
portunity for him to have regained his com-
posure so as to enable him to present the
facts he disclosed in his affidavit after the
verdict of the jury.
After his affidavit was made part of the
record, the affidavits of three officials of the
court, known to be of the highest character,
were filed in rebuttal, wherein they say “that
they were each present in the courtroom
when attorney for defendant, Walter Dew-
berry, came to the courtroom during the
progress of this trial, and after he had been
treated by Dr. Taylor and the only wound
appearing being one upon the forehead which
appeared to be slight, and a swollen place on
the right jaw, and at said time they asked
the said C. Eubank Tucker, attorney of de
fendant, Walter Dewberry, if he felt like
going ahead with the trial, and in response
to which the said Tucker replied that he did
* * * that they could not observe any dif-
ference in his voice, nor in his manner, nor
in his demeanor that indicated any signs of
intimidation or distress or fear different from
his attitude before the occurrence mentioned
in his affidavit.’ The trial judge made his
statement a part of the record herein, which
recites “that the usual good order and de
corum obtained in the courtroom * * *
that he heard no threats of violence and saw
no demonstration indicating any; that good
order was maintained throughout with little
difficulty and without any attendant circum-
stances to influence the jury or to prejudice
the rights of appellant; that the trial in its
general aspects was not different from the
average murder case where there is wide-
spread interest.”
The further statement of the trial judge
is to the effect that “itwo of defendants were
charged with serious crimes elsewhere and
for this reason the jail was kept guarded at
night by soldiers; that at no time were
soldiers stationed in the courtroom, armed
or unarmed, but that their duties were out-
side, mainly about the jail and special officers
attended by the court.”
[5, 6] It should be conceded that this court
would be going far afield, without law or
precedent, to hold that the trial court erred
in not continuing or delaying the case with-
out even a request and on his motion, on ac-
count of the alleged assault upon the attorney
of appellant. The trial court is not required
to continue or delay a case except where he
is of the opinion the ends of justice demand
it. Vick v. Com., 202 Ky. 845, 261 8. W. 616.
The failure of appellant’s counsel to object
after he received his alleged injury to pro-
ceeding with the trial constituted a waiver
of the appellant’s right to complain of the
court’s failure to continue or delay the trial
until his counsel could recuperate or regain
possession of his faculties necessary to en:
Secreta fe PSE ONES, MP TITS NPR PE NEI RR RN RN RS RN i Ait 5) ay
DEWBRERRY v. COMMONWEALTH
44 8.W. (2d) Ky. 1081
Zage properly in the trial. Elkins vy. Com.,
213 Ky. 202, 2S0 S. W. 970.
[7] In Vowells v. Com., 15 Ky. Law Rep.
574, a certain showing was made that de
fendant’s attorney was not well enough to
try the case; it was held that it was not
sufficient to authorize a new trial. It is an
established rule that an accused is bound by
the acts or nonaction of his counsel in the
conduct and management of his defense.
Hughes v. Com., 80 S. W. 197, 25 Ky. Law Rep.
2153. The failure of his counsel to make
known to the court the fact, if it were one,
that he was unable for any reason properly
to go on with the trial must be regarded as a
waiver of appellant’s right to raise here an
objection to the trial court proceeding after
his counsel was assaulted and injured. Rose
v. Com., 181 Ky. 337, 205 S. W. 326; Hall
v. Com., 189 Ky. 72, 224 S. W. 492; Lewis
v. Com., 190 Ky. 160, 227 S. W. 149; Denni-
son v. Com., 198 Ky. 879, 248 S. W. 878;
Overton v. Com., 202 Ky. 35, 258 S. W. 941;
Roark y. Com., 221 Ky. 253, 298 S. W. 683.
[8-10] The accused and his counsel may
not go on with a trial, taking chances with
the verdict, and, failing of success, ask a new
trial on a ground that should have been pre-
sented by an objection during the progress
of the trial. Wolff v. Com., 211 Ky. 62, 276 S.
W. 1067. It was the duty of appellant and
his counsel, although he may have been
severely injured by the assault, to act
promptly and to present his ground for de
lay to the court. Epling v. Com., 233 Ky.
407, 25 S.W.(2d) 1022. The appellant, in
the affidavit of his counsel filed in support
of his motion and grounds for a new trial,
complains of the presence of the soldiery,
but nowhere, either in the motion and grounds
for a new trial or bill of exceptions, does ap-
pellant 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 de-
prived him of a fair and impartial trial, the
mere fact that the soldiers were in attendance
furnishes no ground for a new trial or re-
versal. The refusal of the court to grant a
continuance or the postponement of the trial
because of the presence of soldiers, or on ac-
count of local sentiment or prejudice arising
from a defendant's crime, will not be dis-
turbed by this court unless it be made to
appear affirmatively by other evidence than
by the affidavit of the accused or an oral
statement of his counsel that the court abused
its discretion. Smith v. Com., 42 S. W. 1138,
19 Ky. Law Rep. 1073.
[11] One of the purposes of a bill of ex-
ceptions is the presenting to this court ques-
44 S.W.(2d) 68%
tions for its consideration on an appeal. This
court cannot reverse a judgment in a criminal
case unless for an error of law occurring on
the trial and appearing in the bill of ex-
ceptions as provided in the Code of Practice.
Glass v. Com., 26 S. W. 811, 16 Ky. Law Rep.
108; Crouch v. Com., 238 Ky. 5, 36 S.W.(2d)
653; Turk v. Com., 239 Ky. 55, 38 S.W.(2d)
937; Puckett v. Com., 235 Ky. 340, 31 S.W
(2d) 383; Miller v. Com., 234 Ky. 135, 27 S.
W.(2d) 683; Manns v. Com., 235 Ky. 325, 31
S.W.(2d) 390.
As we have stated, during the admission
of the evidence heard by the jury, the ap-
pellant objected to two questions. No objec-
tion or demurrer was entered to the indict-
ment. No objection was made to any in-
struction given by the court. The only
grounds urged for reversal are failure of
the court on appellant’s request to continue
the case, and the failure of the court, on his
own motion, to delay or continue the trial of
the case because of the alleged assault on
his counsel by some unknown person.
A careful examination and close scrutiny
of the record convince us that no error was
committed by the trial court, and that the
appellant received at the hands of a court
and jury of his country a fair and impartial
trial. His defense has been as well present-
ed by his counsel as was permissible under
the existing facts.
The Legislature in its wisdom has provided.
and authorized, the infliction of punishment
at death in a certain class of cases. Accept-
ing the admissions of the appellant, when
on the witness stand, no room is left to
doubt that this is a case coming within that
class. There is no doubt that the appel-
lant and his companions in crime, actuated
by a predetermination to rob him of his au-
tomobile to enable them to escape from the
vicinity of their predatory crimes, not only
atrociously, but fiendishly, murdered their
overpowered, helpless victim. The mind of
the humane is scarcely able to conceive, and
cannot comprehend, the brutality displayed
by them in the taking of his life.
The law, through the instrumentality of
a jury, has fixed the appellant’s punishment
for his part in this crime, or, another
way of saying it, the law has provided
its own instrumentality for the payment,
here, of the appellant's wages for his own
wicked sin, which, according to the ver-
dict of the jury, is death. It is our duty
to administer the law as it is written, and
according to the facts shown by the record
in each particular case. No reason is shown
by the record authorizing or justifying our
interruption of the jury’s verdict. Wherc-
fore, the judgment is affirmed.
Whole court sitting.
1076 Ky.
ceries, and that her aunt had a home these .
long as she was there. Thereupon decease
threw a plate at appellant, seized her by her
hair, and forced her to the floor. Ilis wife
and another daughter, 14 years of age, rushed
in from the adjoining rooms and attempted
to break his hold on appellant. Several of the
boarders were standing near, but made no at-
tempt to interfere. In the struggle waich en-
sued, the dining room table was overturned,
and the deceased, his wife and two —
struggled out of the dining room onto k
porch and into a hallway, the deceased drag:
ging appellant by the hair; he had a case
knife in his hand, which was finally wrenched
from his grasp. He then caught hold ofa
poker, which was also taken from him.- Aft-
er the struggle had continued several Pore
the appellant broke loose and struck decease
with the poker which had been taken ee
his possession. One of the bystanders sai :
“Turn him loose, he has a knife. Appellan
went into the dining room, procured a pistol,
and, upon her return to the scene of the ~~
gle, observed her father advancing upon 8
mother with a knife and saying, “I am going
to cut your damn head off.” He then oer
toward the appellant, made a like threat, an
advanced on her. She told him to stop, he
continued to advance, and she fired two shots.
facts were established by the testi-
BiSongee the witnesses both for the common-
wealth and the appellant. There is but slight,
if any, conflict in the evidence. The testimony
of all the eyewitnesses to the homicide was
substantially to the effect that the appellant
committed the homicide in self-defense. ee
dinarily, the question of self-defense is one 0
fact to be determined by the jury under ap-
propriate instructions, but, where the evidence
in support of the right of self-defense on the
part of the defendant is clear, positive, and
44 SOUTH WESTERN REPORTER, 2d SERIES
21 Ky. 126
DEWBERRY v. COMMONWEALTH.
Court of Appeals of Kentucky.
Dee. 18, 1931.
Rehearing Denied Feb. 2, 1932.
1. Criminal law €=371(12).
In homicide case, defendant’s confessions
relating to commission of crimes by him and
companions during trip, which ended at time
of killing, held competent.
The confessions of defendant were
competent and should have been admit-
ted, since the evidence of crimes which the
defendant and his companions made while
making the trip tended to establish their
motive in going to the home of deceased
and robbing him of his automobile, in
which they evidently intended to escape
from the vicinity of their crimes, as well
as to prevent a discovery of their identity.
2. Homicide €=253(6).
Evidence held sufficient to support convic-
tion of willful murder committed while en-
gaged in crime of robbery.
3. Criminal law €=603(2).
Court’s refusal to grant continuance on
mere request of defendant’s counsel, there be-
ing no written motion for continuance sup-
ported by affidavit, held proper (Cr. Code
Prac. § 189).
4. Criminal law €=578.
Failure of court on its own motion to
continue trial of homicide case because of al-
leged assault on defendant’s counsel by some
unknown person held not error under circum-
stances.
Rieti wi oR EH
Siena RAED eset tebe sex 3 bene
DEWBERRY vy. COMMONWEALTH ‘Ky. 1077
44 S.W.(2d)
8. Criminal law €=659.
That soldiers were in attendance during
trial furnishes no ground for new trial or re-
versal, unless accused’s rights were substan-
tially prejudiced.
9. Criminal law C=1151.
Refusal to grant continuance because of
soldiers’ presence during trial will not be
disturbed on appeal unless it affirmatively ap-
pears from other evidence than by affidavit of
accused, or counsel’s statements, that court
abused discretion.
10. Criminal law C1151.
Denial of continuance because of local
prejudice arising from defendant’s crime will
not be disturbed unless it affirmatively ap-
pears by other evidence than by accused’s affi-
davit, or oral statement of counsel, that court
abused discretion.
11. Criminal law @=1114(2).
Judgment in criminal case will not be
reversed unless for error of law occurring on
trial and appearing in bill of exceptions.
Appeal from Circuit Court, Hardin County.
Walter Dewberry was convicted of willful
murder, and he appeals.
Affirmed.
C. Eubank Tucker, of Louisville, for appel-
lant.
J. W. Cammack, Atty. Gen., and James M.
Gilbert, Asst. Atty. Gen., for the Common-
wealth.
RICHARDSON, J.
This appeal brings to us for review the
indictment, trial, and conviction of Walter
five miles across the country through the
fields. They came to a railroad track which
they followed until they came to the home of
Thomas Tillery. This appellant claims that
while crossing a fence in making the trip, and
before they came to Tillery’s home, he
sprained his ankle, and for that reason he
was walking behind his two companions. He
States that before reaching the home of Til-
lery his two companions “passed a motion”
to rob Tillery of his automobile. When they
reached Tillery’s home, his two companions
went onto the porch of his residence, and he,
the appellant, stopped at the edge of the
porch. One of his companions knocked on the
door, while he himself was resting on the
porch. He got up and went toward them
while they were stating to Tillery they want-
ed to borrow his automobile pump. He heard
Mr. Tillery state that he had no pump. His
companions stated to Tillery, “we will leave
money for the pump.” He saw one of his
companions break and enter through the
window, and the other one turned to go in.
They began to fire pistols on the inside of the
room. There were two shots fired inside the
house and when he heard the shots he be
gan to shoot his pistol, and continued to
do so until he had no more cartridges in
it. He claims that a white man came out
of the home of Tillery and struck at him with
a stick, and he grabbed him and they scuffied
until he felt the arm of Tillery, or the man he
was grappling with, give way, “the man was
shot”; that he saw blood come through his
shirt. He used this language; “I don’t know
whose pistol he was shot from—I don’t know
whether it was my pistol that shot him, but
it was not in my mind anyway to kill him.
* * * The shot was fired but it was done
unintentionally by my pistol, anyhow after
that I got a chance to get away from him, I
felt he was weakening and I left him to lay
Circumstances disclosed that the court
proceeded with trial after the alleged as-
sault without any knowledge thereof, and
stimony or
uncontradicted by either express tes
by circumstances, it is the duty of the court
to direct an acquittal. Patrick v. Common-
Dewberry of the charge of willful murder al- on the ground and when I got up to run off
leged to have been committed in Hardin coun- and leave him he was up on his feet again
ty, Ky., by the shooting and killing of Thomas just like a jack-out-of-the-box, * * * I
wealth, 234 Ky. 33, 27 S.W.(2d) 387. In the
instant case there was no material conflict in
the evidence on this point. The witnesses in-
troduced by the commonwealth made out a
clear case of self-defense. The evidence with-
out dispute shows that the deceased was @
quarrelsome and brutal husband and father.
He brought on the difficulty without provoca-
tion, and made a murderous attack upon ap-
pellant and her mother. Appellant was in
great danger of losing her life or suffering
great bodily harm at the hands of the de-
ceased, and, not having provoked the difficulty,
she was fully authorized under the circum-
stances in taking his life. There was no ques-
tion for the jury to pass upon, and the court
should have sustained the appellant’s motion
for a directed verdict of not guilty.
Judgment is reversed for further proceed-
ings consistent herewith.
that the assault and the attorney’s injury
therefrom were not made known to the
court until after the verdict of the jury,
and then by an affidavit in support of
motion and grounds for a new trial.
5. Criminal law €=589(1).
Trial court is not required to pre
case except where ends of justice demand it.
6. Criminal law €=617.
Failure of defendant’s counsel to a.
after alleged assault, to proceeding —_— .
constituted waiver of defendant s rig Ar
complain of court’s failure to continue trial.
7. Attorney and client C92. ;
Accused is bound by acts or nonaction 0
counsel in conduct of defense.
—_
y cey-N and
€=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests
Indexes
Tillery on the 8th of April, 1931: He was
convicted by a verdict of the jury and his
punishment fixed at death, and from the judg-
ment sentencing him, he appeals.
Walter Dewberry, Charles Rogers, and
Walter Holmes, alias Jack Strong (negroes),
about April 6, 1931, left the city of Chicago,
Ill., for Nashville, Tenn. They were armed
with pistols and traveling in an automobile.
They arrived in Elizabethtown, Hardin coun-
ty, Ky., in the nighttime. On observing men
trying to flag them to stop, and hearing shots
which they construed as an effort to stop
them. they turned their car into a short street.
Coming to the end of it they turned the ear
with the intention of returning, when on ob-
serving another car coming into that street,
and hearing another shot, they jumped out
of their car and ran. They traveled four or
ran on down to the highway and saw this boy
Charlie * * * and I said, ‘I don’t know
whether I shot him or who shot Rim, 2?
we better move on out of the way before we
get caught.’” He claimed that on account of
his sprained ankle he went to a field and re-
mained all night. When he awoke next morn-
ing he heard voices calling, when a man came
out of the field and asked him if he was in the
killing.
Dewberry made a confession to the county
attorney of Hardin county and, on another
occasion, to a detective in Louisville. His con-
fessions are more favorable to him than his
testimony before the jury.
The appellant and his two companions ar-
rived at the home of Mr. Tillery about 1
o'clock in the nighttime, on April 8,1931. Til-
lery and his wife were occupying a bed in one
For other cases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
°CC6T-OT=TT (UTPzeH) *sY SoeTe SyoeTQ SaeqTem ‘XuNaaMaC
*2C61~6e~1] (UsprzeH) *AY *oeTe *syoeTq SseTzeyg *suuEmOoY pue S‘aeqTem *SmTIOH
RMT ERT PTs Tt wT
m4 ts
1078 Ky. 44 SOUTH WESTERN
room; a boarder was occupying a room di-
rectly over their bedroom, and his son-in-law
and daughter were occupying a bedroom in a
different part of the residence. There were
double windows in the room occupied by Til-
lery and his wife. Mrs. Tillery, on hearing a
knock at the door, got out of bed, looked
through a window and saw a negro passing it;
a knock was heard by her at the door opening
onto the porch. Then her husband got out of
bed and went to the window which opened on-
to the porch. On reaching the window, Til-
lery raised the shade when a negro addressed
him, saying he wanted to get an “auto pump”;
wanted to borrow it. Tillery stated to him
that he did not know him, and did not want to
let bim have the pump. Then the negro pro-
posed to leave money for it until he could
bring it back. Her husband then told them
that he would not go out and get it for them,
and he refused to do so; then the window
pane crashed, a shot fired, her husband
screamed and groaned, when she leaped and
crawled under the bed. She heard two voices
inside the room saying “stick ’em up, stick "em
up.” She did not know when her husband
went out of the house. There was no light in
the room at the time the shooting was occur-
ring. She could only see by the flash of the
fire of the pistols. After Tillery and the
men left the room there was firing outside;
the bullets went through the walls of the
house; two of them striking the door facing
over the bed. She aroused her daughter and
son-in-law, and they listened on the porch
where they heard and recognized her hus-
band’s voice, coming from the direction of the
cattle guard on the railroad; he was ealling
for help. They got him to the house, found he
was shot through the abdomen, the bullet
passing through the body. A doctor was
called and examined Tillery and advised that
he be taken, and he was taken immediately, to
the hospital, arriving there about 5 o’clock
the next morning. He died at 12:10 p. m.
There were other wounds and lacerations on
Tillery, one on the scalp, one along the frontal
region of the head, one along the hair line,
superficial wounds on the left hand and the
bottom of his feet. The gunshot entered
directly under the rib, practically at the nip-
ple line, and its exit was almost directly be-
hind, just below the rib posterior. The gun-
shot wound produced his death.
The appellant, Dewberry, was arrested next
morning in a field and immediately conveyed
to, and confined in, jail. On April 20, 1931,
a special term of court was held, a grand jury
was impaneled and an indictment returned,
charging the three negroes with the crime of
willful murder committed by the shooting and
killing of Tillery. The defendants were
brought into court and the Honorables Haynes
Carter and J. E. Wise, able and distinguished
attorneys practicing at that bar, were ap-
pointed by the court to represent the appel-
REPORTER, 2d SERIES
lant, Walter Dewberry. They accepted the
appointment and undertook to, and did, rep-
resent him in the preparation of his defense
of the crime charged, until the calling of the
prosecution for trial on the day the trial he-
gan. After waiving formal arraignment and
entering a plea of not guilty, the case was set
over to April 28, 1931; the defendants were
remanded to jail in Jefferson county. On the
28th day of April, the prosecution against
Walter Dewberry was again called for trial
and Carter and Wise again appeared as his
counsel, when defendant informed the court
that “he had employed counsel in the person
of CG. Eubank Tucker before he was indictcd
herein.” Thereupon Carter and Wise asked
permission of the court to withdraw as at-
torneys of appellant, and with the consent of
the court they withdrew from the case, when
CG. Eubank Tucker assumed charge of appel-
lant’s defense. The commonwealth announced
ready for trial; the appellant moved for a
severance, which was granted. The common-
wealth elected to try Walter Dewberry. By
his counsel, C. Eubank Tucker, the appellant
asked for a continuance. No written motion
was offered to be, or was, filed, and no affi-
davit in support thereof was offered or filed.
The court declined the request and proceeded
with the trial.
The jurors, as they were called and sworn,
were examined with unusual caution, atten-
tion, and care by the court himself. It is
shown by the record that when any juror,
while being examined by the court, or by
counsel of the commonwealth, or of the ap-
pellant, touching his qualifications, intimated
slightly or otherwise that he had an opinion,
or for any reason could not, or would not,
give the appellant a fair and impartial trial,
the court, on his own motion, excused such
juror, The record is unusual in that it shows
an extreme effort and a plain, positive desire
on the part of the court and the attorneys
representing the commonwealth to obtain for
the trial of the appellant a fair and impar-
tial jury. It is not even intimated by coun-
sel of the appellant that the jury was not
fairly and properly selected, or that it was
unfair or influenced in any way. After hear-
ing a portion of the evidence, court was ad-
journed for the noon hour; the attorney of
appellant was passing to or from the court-
house, when some imprudent, thoughtless,
though probably excited, person, engaged in
a colloquy with the appellant’s attorney,
which resulted in an assault upon him.
Slight injury was inflicted upon him by some
person whose name is not shown by the rec-
ord, which required treatment by a physician.
After receiving medical attention, the attor-
ney of appellant appeared.in court and con-
tinued to participate in the trial. So far as
the record shows, he presented the appel-
lant’s defense ably and well. So far as ap-
pears from the record, appellant’s counse+
Seay ian
9 8 CR PN a A NE DERN TLE ARTO INTREPID I MaRS PER Mess HEE Pe Alas 2
DEWBERRY v. COMMONWEALTH
44 8.W.(2a) Ky. 1079
did not make known to the court the fact he
had been either assaulted or injured in any
manner, or molested by any person whatso-
ever, until after the verdict of the jury. He
made no suggestions to the court relating to
himself or his alleged injury, but proceeded
regularly in the conduct of the defense of
his client. He asked for neither delay nor
a continuance, not even for a recess. He con-
ducted the defense and the trial proceeded
regularly and formally to a conclusion, not-
withstanding counsel’s alleged injury.
[1] The record discloses that counsel of ap-
pellant, during the trial, objected to the ad-
mission of evidence offered by the common-
wealth relating to a bullet that had been
fired from a pistol, a .88 special. On his ob-
jection, the court advised the commonwealth
that other evidence was necessary to show its
competency before it was admissible. No
objection was taken to the ruling of the
court by the appellant. To so much of the
appellant’s two confessions as related to the
commission of crimes committed by him and
his companions between the city of Louis-
ville, Ky., and Elizabethtown, Ky., while
making the trip from the one city to the
other, which was finished up at the home
of Tillery at at the time of the killing, the
appellant objected to the same being admit-
ted as evidence against him. The court sus-
tained his objection. This evidence was com-
petent and should have been admitted. The
evidence of the crimes which the appellant
and his companions committed while making
the trip was competent, as it tended to es-
tablish their motive in going to the home of
Tillery and robbing him of his car, in which
they evidently intended to escape from the
vicinity of their crimes, as well as to prevent
a discovery of their identity. Sneed v. Com.,
256 Ky. 838, 34 S.W.(2d) 724 and cases cited.
[2] Without an elaborate detailed state-
ment of the evidence, it is sufficient to say
that the testimony of the appellant and of
Mrs. Tillery establishes his guilt beyond a
reasonable doubt. P
In his own testimony before the jury, he
confessed that the purpose of himself and
his companions in crime was robbery at the
time they went to the home of Tillery and
engaged in shooting, both in and out of the
house, which resulted in Tillery’s death.
While he claims that on account of his
sprained ankle he was traveling behind his
companions at the time they “passed a mo-
tion” to go to the home of Tillery, and, if
necessary by force and violence, rob him of
his car, he admits being on the porch and
engaging in the shooting which brought about
Tillery’s death. Powers v. Com., 197 Ky. 154,
246 S. W. 436; Carsons v. Com., 248 Ky. 1,
47 S.W.(2d) 997 (decided Dee. 15, 1931). Un-
der the proven facts and the law as laid
down in the Powers Case and the Carsons
Case, the appellant and his associates by the
killing of Tillery committed the crime of
willful murder while engaged in committing
the crime of robbery.
[3] The appellant complains because the
court refused to continue the case, when his
employed counsel in his behalf merely re-
quested it, although he admits that he failed
to comply with the requirements of section
189, Cr. Code Prac. It is a fair presumption
that the two distinguished attorneys who
had been looking after the preparation of his
defense disclosed to appellant’s employed
counsel, when he came into the case, any
facts within their knowledge relevant to the
defense, and that if they, or his employed
counsel, had any grounds for continuance,
knowing the provisions of section 189 of the
Criminal Code of Practice, his employed
counsel, upon their withdrawal, would have
properly presented a motion for continuance,
supported by an affidavit, as required by the
Criminal Code. Counsel of appellant cites
and relies upon Miller v. Com., 197 Ky. 703,
247 S. W. 956; McDaniel v. Com., 181 Ky.
766, 205 S. W. 915; Cass v. Com., 236 Ky.
462, 33 S.W.(2d) 332, in support of his con-
tention that a continuance should have been
granted to his client. In each of these cases
the motion for continuance was supported by
an affidavit. They are easily distinguished
from the present case, in that in it no affida-
vit was made or offered to be filed or filed.
If counsel was not prepared to enter into the
trial for want of time to acquaint himself
with the facts of the case, he should have
made known that fact to the court in some
manner other than merely making request of
the court to continue, without assigning any
reason whatsoever therefor. The cases cited
by appellant are suflicient authority for this
view of the present case. ‘The rulings of
trial courts on the motions for a continuance
have been before this court in hundreds of
cases, and in no one of them will it be found
where it was held that a continuance should
have been granted when the motion was not
supported by an affidavit. The contrary rule
prevails in the absence of a showing by the
record that a motion was made and the
grounds therefor supported by an affidavit;
the failure of the trial court to continue
without such a showing will not be consid-
ered. Clark v. Com., 58 S. W. 429, 22 Ky.
Law Rep. 517; Parks v. Com., 145 Ky. 364,
140 S. W. 544. Since justice must be swift
to be effective, and delays lessen both the
chance and effect of convictions, it is the poli-
cy of the law to affect a speedy trial. Fuson
v. Com., 199 Ky. 804, 251 S. W. 995. For
this reason a delay or continuance should not
be granted on a mere request without valid
grounds therefor, supported by an aflidavit.
Parks y, Com., supra,
73
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i. THE LAST HOUAST . ‘ Cage said, “I want to goof at two o'clock;
Algus' aung, from Loulaville, vitited bim | 1 want to be otf on the two o'clock train.
: p Uithle before elght o'clock. He seemed to be | Hut Algus, while this operation was being
very little ‘moved, and rather regarded her © performed, was observed to shed tears. He
ero(tion as uncalled for, expressing his joy st elvan ebony cross vin his right band, and
het] departure, | Thie lady had nursed the | faid, showing it, “We'll all meet again, some
Srtdoper, and declared un ardent attachment" time, gentlemen.” At this juncture Goetz’
for tim.’ She fainted ag she left the prison,,) Nrother entered the inclosure, and be called
and@ had to be, borne to a carriage and con- | to him to come up on the scaffold. The
yveted to her hotel. t . ' lice, not knowing who he was, Tefused to
tan early hour aclergyman held a‘pro- | let bifn pass, wheu Goetz said, ‘He is m
‘tragted Interyiew With Goetz, and those on, mth et him come up, to shake hands
- thefoutside of the cell could distinctly hear - a
the| earnest responses of the convicts, min- With. Neither of the br hers seemed to be
' gled with the exhortations ‘of the man of Much afected By the meetin under 80 extra-
i! ‘h ' | ordinary ‘circumstancesr Another ‘of his
t half.
ast ten we Visited Goetz 1h his brothers came in and went\on the scaffold
“cell an cogaged in conversation | aud, after shaking hands with bim, with vis-
with him.’ ' He peemed very little | ible emotion said, *(ieorge, ypu ought not to
de reneed, dnd Answered all our queries in a | have brought this on our fanfly: e
yaaa leasant mood. seeming to have no . LEAYK TAKING,
e
me te eepany thing.connected with ‘his
history back. In answer to our quesfion
The Sheriff, Deputy Sheriff, the ministers
Pp e
oi How do you feel?’ he said, “Kirst irgte;
| in attendance, and officials on the. scaffold
; : | pow took eternal leave of the doomed men
although, of course, not so well ag 1 did.gt my ; Deputy Hart kissing cach of them, an
trikk forthen:T had hupes of escaping. I ; Phaking them warmly by the hund. Goetz
tp bave prated an alibi if there bad beea j Was on the right ficing the rear of the Court-
no} confessions made."” He furthermore said | pouve, Algus in the middle, and Case on
thatibe felt hig sentence was just; he bad done | the left. Case asd -Alyns shook hands and
thé crime, and though he did not intend to kill | kireed eneh. When thé white caps were
thi¢ tuan ee! (id, ag be hal been hired: po | phout ty be placed over the heads of the orim-
aoitder Mr, Smith, aud he felt he deserved |, nals, knowing that their last. moments on
wiiat was fast approaching. 4 7 | earth were drawing nigh, Goetz and Case
One of the bystanders remarked that “mur- | hastily — among the spectators whom
det will out,” but Gottz shook his pead, and they kidew, good-by, but maintaining the
paid, “I don {know about; that. 1 know of wonderful nonchalance which they exibited
beyeral. murders that have been comiuitted’ from the beginning. « The most’ solemn faces
eg wag found gut, and never will now, , on the sentluld, even now, were not ‘those of
j tha S | the ¢riminals, t ose : officials. minis-
: ee Hn the Sisters of Mercy, who ¢¢riminals, but those of the officials, minis
J % , ters, and epectatars.|
n Algus's céll, came and bade Goetz | ic hd
guod bye; and as they departed he remarked, | . THM WHITK CAPS,
| “Pf bese pre very nice ladies. Thry converted The white caps which shut out forever the
“mar: Np priegty,could teach me like them. [ light of day from these poor mortals, were
could listen to them all the time.” We next now put on and drawn down over the faces
- Wat to cell 101, whete we found of the three criminals., Goetz said: “Don’t
2 {
| | CASE AND MIS sisT RS, rm ers hf ac afisif see again.” Tht
bf . : ‘i x ts “ i. Zz
Tygethér with a male friend and'a clergy- | were “God have ‘Snrey upon Cc eee ee
of ws Methodist | perruusion,from Cove Gingrs.” | ,
ipyion. Cage was seytéd with hisbacktothe ~ |) i erie
1 Ne window, his chin resting o his clasped : : eis gti ;
h4nds, that lielda white handkerchiel,.while _, At precisely twenty-two minutes after one
thé rest rat ins semi-circle around him. Rey, © clock the trap-door, aa and the thread un-
‘Ewery occupied ph great portion of the fortunate men were writhing with the ago-
broing in'teading, praying aud other devo- , Nits of death. Goetz's and Case's struggle
ipbal exercises. THis gentleman informed” With death was short, their necks evidently
4 that|he bore from Cases mother her pthipe broken zi the full; but . fe ang bs
8 im — , dle 80 easy dere. Were signs of Iife in the
i 4. bast paBsAcy ' | body of Algug nineteen minutes after the
) ber erring boy. He visited her the day drop. The bodies hung twenty-five minutes,
mide to the ‘execution, and found her in the ‘ when they were pronounced dead, ¢nd cut
tt stages of. consumption, She baid, “Tell down. They were placed in the plain stained-
ma my heart is breaking, and beg of him to | pine coffins, and ‘given into the possession of
Wipent, and put bis faith in Jesus. | Tell-him ;
| to
|
j their friends respectively. 7
hopeito meet him in Heaven.” | Thas ended the last scene in the Hughes:
On receiving this’mesaage young Case wept | tragedy. - :
ic’ the first time sinch bis arrest. ;
| .) PARTING SCENR. RNonpyry aT CumMinsvittr.—Last. Monday
At ten minutes ttwelve the city bells ; ® colored man, nefaed Albért Cassiday, called
gain jtotoll, their Holeful melody echding ; 8t the house of # white man,who resides at
through the gloomy corridors of the stilf | Cumminsville, and st | that he came from
prison likes ft ee fdr the departing soul, the city in search of employmeht, wag out of
| Case's visters now arose to take their final money, and almost starved. The gon-
Irdve, and guch a acene as fyllowed, webope | Ueman gave him food and dodging for
H¥verito be called upon to witnessagain, , | the ight. Marly next = morning he
(ne of the women threw her arms convul- | Went out to attend ‘to some business,
sively mround her’ brother's neck, bursting | Jenving the colored individual alone in the
itito loud |, sobs, and: finally into violet | house, On returning home he discovered he
a exclaiming in a onizing accents: had been robbed of nearly all his clothing, to-
mT NORT Lord Godt vey don't they have | ðer with about $20 in money. He came to
Blerey—why don't they have mercy? ”: the city yesterday and gave information.
‘|The clergyman interposed, ‘and put.an end: ster
a the scone, when the women quitted the How. Scuvytyn Corrax,—This- gentleman,
1, peoing out along! the corridors, weeping | Whoge lecture “Across the Continent” has ex-
Tver ‘that their cries could be hoard cited considerable attention, and drawn very
til the clanging of the iron gate announced | large audiences, has been prevailed-upon to
that they had guined the qpen street. - visit Cincinnati, ard the same Iccture will
—- —-4 @ p——______--
‘ene roihe OF Daath 7” be delivered atthe Mozart }fall to-morrow
if evening, Itis descriptive pf the Mormons,
en began in each of the condemned cells. | and embraces graphic pictures of the trip
“pac threw off a light coat he had been wear- | across the plaina, the gold mines, the mineral '
ing al} motning, and donned a suit of com- | regions, and the Pacific Railroad. ‘Thig will
plete black, seeming fo be wey anxlous to } constitute the. best lecture of the season.. The
y
Appear to tbe best; possible advantage, . All {advertisement will ‘be found in the regular
the Une lie was dressing, he talked freely, } column. |
‘gpd lavahad oosaldually with those who ——J0%
¢re assisting him. > = . fi
| ders dete ina light pair of faded cash ’ PULurp.— Detealites Carey and I ippianots
; eute lored individual named
sel or” erage a ny oat ably cote sarge preferred ainst
; Is Téet & pair oO i f harbori; ~«U h
w pated leather slippers with wile, ilk forfeits his ball of $50), be will make bis de-
: | i hee ber on will make his de-:
ey ; ert stot tat the Po is morning. ,
‘hi Algus jes —_- 4 rusty black suity that The same officers arrested Mary Warren
rqaned hae or wear, and hung Uly | ang Mary Tungst,,/charged with vagrancy,
ron bis limbs. : ‘Udeder pain of losing $100 each, they will pay.
jij. LEAVING THE CKLLS, 3 s ||] their compliments jto Judge Straub at an’
At «twenty minuths to one o'clock thd early,hour thietmorning, =
heriff announced+Pthe prisoners that their |‘ ™: x alee oh. ;
our bad come, and) threw open ‘their cell Feit FRoM A, Dow .—@no of the work-
ty. Op stepping into the corridors, Goetz | men employed in the porkoehine establish-
@ in # firm voice,/turning to the prisoners | mentof Messrs. Ney & Co. on Sycamore stres
s from pos. 3 cell-grating, “I accidentally fell from a*rindow of the secon
say, oak that: ia, | story, and,’ straiige to say, ho broke no bones,
¢and: when, you | With the assistance of two policemen he was
. Hye to | able to walk to his house, on Fifth street,
ng | near Elm. Je | | .
~ ree — ’ ‘ gah Gramp Lane " . Barrett - er
, 7 t jan neinns
ers called out farewell, and the. ne nal i iat renin ui
p Officers Vonseggern an ner, for stealing a
See ptaloneheting " watch from his room-mate. | He was taken
e thrown ground thelr. the Ninth-street Station-house. “His chase
eS
“| pecks, They were then led beck to the vaulted | Will be tried at the: Police Cou:t to-day.
ze-way tbat | tothe Court-house,and | _.' I
berice to thi R ‘poaf- | > V' eros Dente rmation was made yes-
“ee aes the foal. Pal ca by Owe’ nier against John Harsh,
charging him with keeping 's vicious dog;
also nat Ball McGrew for the same offense,
cache sppeas ‘baiphe. cht Polos: Court thls
. ce
"| morning. © | an Saneenes A ot ee hay
Fasting ‘axy’ Phayex.—The s Froane Men's
Bvanpeticel Ministerial A ion, of this
‘city, have intdn text Threday's day of
| fasting ’ and pra that ;
soured of sheen seal be -averted from the
Se Mente eee Fant Sener! CGR Rey aan
; cn ing : , YT ae
‘From ana
| year is $5,000,000, ofjwhich nearly one-half is
ith me,” which, of Conese, was complied 4
oth
‘been white, he wopld have no hesitation in
man on Baker street, in this city, was to be '
carried into execution, we know, the ¢xtraor-
_| Baia
ass ssed upon eight tities and towns within
five miles of Lostgn, as follows: Boston,
$1,691,150; Cambridge, $126,050; Charles- t
town, $92.400; Roxbury, $113,700; Chelsea,
$40,250; Brookline, $51,250; Dorchester,
$59,700; West Rogbury, $48,950. | Total,
$2,229,450. i; f
. Lord Stantey’bag announced in the Brit-
ish Parliament that there is every prospect of
a peaceable solution pf the French and Prus-
‘sian difficulties. i
The manufucturerg of Illinois have determ-
ined to pay the workmen by the hour, at the
rate of ten hours por day. A gencral) strike
is anticipated,
It is confidently ptedicted that there will be |;
a grasshopper plagné in Missouri this year.
+ The Upper seine Hd is subsiding, and the’
Minnesota Valley Hailroad ig again in run-
ning order. Great|damage has accrued by
the floods. .
The receipts at the Sub-Treasury for the
month of April werd $184,000,000. The dis-
bursements were $1/15,000,000, . The custom-
house receipts were }$9 500,000. | i
The opinion of the Attorney-general upon
the high-hunded proteedings of Gencrat Suxa-
IDAN, i8 said to be to the effect that he is ex-
ercising unwarranted power. ' c
Letters from the South to the Relief Com- | v
mission at Washington convey the alarming | t
intelligence of the iy crease of destitution and
starvation, ° 8
The London Standurd of, the 15th says that | 8
“General” Massxy,} the Fenian leader, who | t
fainted away when he was'arrested: at Lime | ¢
erick Junction, bas kurned Queen's evidence; :
“and it is said that his testimony haanssisted
materially in establishing true bills against
the prisoners charg¢d with high treason at | }
Dublin. His evidente in open court is'looked
forward to with th¢ greatest interest, as af- | i
fording « completd ezpose of the Fenian
scheme and intentidns.” ; H
The French Government has discontinued
military preparatiops. 1 3
An extensive fire}occurred last night in St.
Louis, by which pyoperty to the amount of |
$200,000 was destrolyed. :
The Death Knell and Its Philosophy.
While we are writing, the bells are tolling
the ‘death-knell of the murderers of Mr.
Hvaurs, and not a voice is raised in opposi-
tion to their execytion. . The justice of the
punishment reconciles the public gentitment to
the legal tragedy. t that is nat alvtays so.
Had these men beeh negroes they would not
havo suffered death. They would, had they
been blacks, have Heen acquitted or punished
by imprisonment 4v the Peniténtiary. As
they were whites, jthey were hung. | That is
the truth.
Just like the cast in Loudon County, Va. | |
the past week. Al negro was convicted of |
raping ® young girl under the most aggra-
vated circumstances, and, on conviction, was | |
sentenced to the Penitentiary instead of tothe | |
gallows. The Judke, while a rl the
enormity of the offfinse, and that! the Jeath of
the negro was what the law demandéd, con-
fessed! that military despotism ‘ameliorated
punishments so fay as crimes by Blacks were
concerned, He saijl that, had thé perpetrator’
When thenegro | Minas, convicted and or-
dered to be hung
q
‘
|
consigning the criminal to the gallows.
rthe murder of & white
dinary exertions that were a shag wi his
life. He was a Hlack. The three hung to-
they been poor bl
been bung. It is
i
The Case pt Dr. Blackburn.
Dr. Luxe Bracksuay, who has petitioned
the Government | for permission to, return,
from Canada. to the United States, was ac- |
cused by the notorious perjurdr, SAxpronp
Coxoven, with attempt.to latrofince the
yellow fever into the Northern States. It
was a remarkabl$ evidences of human credul-
ity that credence, was ever given td such
charge.|*Conovek -has been’ convi and
sentenced to a” sation in the’
‘Albany! _peniten Bracmavury,
he is wilng hrough the ofa
untry. It is
this case
fabricar
1 Pi apes Gee
"|. Phe Intervention of Engiind. ©’
:, For|the first time in inany years, Great:
has apppared 28.8. mediator jor inter-
vener jim ‘ithe \¢ ntests and .stragglie of. the
‘great Continen States, arid she has done it
with rfiect.”, Her long absenbo, it ts
foun deapite , he talk of the ero feta, has
1 Into the scale that is to do-
tora A ponde’ “ox War, 'She tam
gtd. ie heeded evepihy, the
monarchies. of the Contl-
ner.
did before
e knew he
> pis yellow
police tele-
ut asking all
closely for
iobile of that
c would soon
whereabouts
pg toward the river
oe eu stood. “Hey!” th
. “Come on. We'll help you!”
be obtained, encouraged all to believe
that the mystery of the disappearance
would be quickly solved.
But time passed and there was ‘no
news of the missing man in spite of the
wide publicity.
On Friday, Dr. Boaz Adkins, living on
Sandlick Creek, was driving along Route
15 near Whitesburg, Kentucky, in the
southeastern part of the state. Seeing
something glistening in the sun, he
stopped his car and picked up from the
roadway a small piece of metal. He
recognized it at once as an Army identi-
fication “dog tag” such as is furnished
every service man. On it was the name
of Vernon Hodge, his rank and service
number. .
Dr. Adkins took it home. The follow-
ing day he recalled having read about
the disappearance of a Louisville veter-.
an. He couldn’t recall the man’s name.
Could this by any chance have belonged
to him? It seemed scarcely possible.
Whitesburg is more than two hundred
miles from Louisville. The more the
physician mulled over the matter the
more he became convinced that while
it might be one chance in a thousand,
still it was a chance. The “dog tag” he
held in his hand might prove an im-
portant clue.
Dr. Adkins drove to Whitesburg and
gave the tag to Sheriff Herman Combs
of Letcher County.
As soon as the sheriff read the name
on the tag he exclaimed: “Doc, that’s the
man the whole state of Kentucky has
been looking for. He’s the paratrooper,
missing from Louisville.”
The physician beamed. His hunch
had been correct.
“IT can’t figure out how the tag came
to get lost in this county,” said the
sheriff, “but we’re going to find out.
I want to see the place where you found
this. Can you come along?”
The physician was happy to oblige.
Taking Deputy Jim Short, the sheriff,
guided by the physician, returned to the
spot where the identification tag had
been picked up. They made a search of
the road and of the land immediately
adjoining it, but found nothing further.
With the news that Hodge’s “dog tag”
had been found in southeastern Ken-
tucky, all officers of the Kentucky High-
way Patrol were alerted to use extra
vigilance in watching for the missing
yellow coupe. Particularly those men
working out of the London and Hazard
barracks, the nearest to the spot where
the “dog tag” had been found, were
urged to watch for the car on their
highways. j
The Hodge family was questioned
again; each member was urged to go
back into his memory to recall some
observation. Vernon had made which
might be of aid to the investigation.
No one could remember anything more
than what he or she had previously told
the officers, with one seemingly unim-
portant exception. When he was a lad
walking to school, Vernon had been
daily passed by car after car, the drivers
of which ignored his attempts to thumb
a ride. “If I ever get an automobile,” he
had.-often said, “I’ll never pass a hitch-
hiker.”
Chief of Police John Belcher (above) no-
ticed a strange Packard in the neighbor-
hood. “A hand-painted job!” he commented
When Captain Bert Feltner, in charge
of the Hazard Barracks of the Highway
Patrol, heard this he recognized its sig-
nificance. He sent out a message to all
his men that Hodge might have picked
up a hitch-hiker. As the family had
stated the missing man carried little
money, it could be that he had been
kidnapped for the car he was driving.
If so, then there seemed little hope for
him. The Kentucky law which makes
highway robbery a capital offense
doesn’t encourage a robber to spare his
victim. Unfortunately some of them re-
gard it as safer to remove the principal,
if he happens to be the only witness
to the crime.
Sheriff Combs, when he heard of
Hodge’s remark, believed that in all
probability the veteran, while in the
hands of his captor, had managed to
unfasten the tag and throw it into the
highway to give searchers a clue to his
whereabouts.
HIS suggested that Hodge had been.
in Letcher County and had probably
been alive when the tag was thrown
away. Desperate for a further clue, the
sheriff, accompanied by Deputy Short,
returned to the spot where the identifi-
cation tag had been found. This time
the two men weren’t satisfied with a
search of the immediate neighborhood,
but covered all the ground within a
radius of more than a mile. The more
thorough search produced the freshly
Suspicions ,
were arouse,
a black Pa,
_ Convinced
important be
torn it up ha
portions the
turned to w
torn letter, |
diligently, th.
address. “In ;
to Short, “we’
Pieces in the ;
if we ever m:
him.”
Combs con
Police and as}.
with the Hodge
Whether Vern
complete nam
from “Her
. failed. 7
The sheriff
search of Letch
hope that as Hc
in the neighbor
Bht be disc
Their search p
asked the sheri:
to check the g:
nities, :
‘Nothing was u
vestigations.
]* SOON struck
for the car h:
Scope. He had
Color of the Pack:
cluded, with all t}
disappearance of
torn fragments of a letter. Short gath-°@" the first thin
ered them up and the two officials drove
back to Whitesburg.
In his office Combs examined the
it repainted a |,
utomobile would
he color chosen ;
pieces. Putting them together, he had Was a common co
a complete letter, but beyond giving 7©SS attention tha
sample of handwriting, it was valueless*2eck with this ;
There were some pieces left over an
these proved to be part of an envelope
ade, but nothing
bout this time
When put together, however, all tha”8Y Patrol realize
was learned was that the envelope ha@ust not be misle,
been addressed to someone nami
ORE iPS eae s man.”
Se plate or ¢o)
-dme intervening ha
The remainder of the name, the citf@Ve€ been used to
and state, were missing.
ar. -This had bee
McPEAK, Daniel t wh, elec KY
. 11-5-1948; NEASE, J KY
MAAONKREXAK and WORKMA y Skaper, Why, eles
and WORKMAN, Herbert, wh, elec. KY (Jefferson) 3/4/1949 7/30/1948
Se ee
~~)
2 ——
ae
“Pll never pass up a hitch-hiker,” the missing man had told his friends. It
was a kindly, well-meaning promise, but one that he should never have kept
by Gene Dix
Tuaheway EVENING, March 13th, 1947, Ver-
non Hodge, a veteran paratrooper, left his home
on Maslick Road on the outskirts of Louisville,
Kentucky. He said. he was leaving to attend a
meeting of Sunset Lodge, at 25th and: Market
Streets, where he was to receive a Masonic de-
gree. When he waved good-by as he stepped
into his yellow Packard convertible, it was with
the expectation that he would be back home in
a few hours. Hodge never returned.
Members of the family of William Steedley,
with whom Hodge lived in close friendship, be-
came alarmed. They got in touch with Mrs.
Jean Arnold of 121 North Shawnee Terrace, the
missing man’s married sister. She could give no
explanation for her brother’s continued absence.
Immediately she called officers of Sunset Lodge
and learned that Vernon had not attended the
meeting.
The county police were notified and Colonel
Tom Dover alerted all his men to keep their
eyes open for the missing man or for a yellow
Packard coupe. He also assigned two officers to
cover the route Hodge would take from the
Steedley home to the Masonic Hall. Soon all
highways leading out of Louisville were being
scanned by squads of police. Hospitals were
checked for victims of accidents, as this seemed
the logical explanation of the man’s continued
absence.
However, every effort to trace the whereabouts
of the young paratrooper failed and the local
police had to give up the search for the time —
being.
Days passed and neither the Hodges nor the
Steedleys received any word from Vernon. Spec-
ulation was rife. Had he left home with the
ILLUS TRATLON
BY PHIL BERRY
a
intention of not coming back? Men had done
such things before. An investigation - into his
activities since he returned from overseas was
made. Friends and acquaintances of both sexes
were interviewed. .
As far as the officers could learn, Hodge had
no love entanglements and none of the girls he
was known to be acquainted with had left home.
His sister and brother were quite positive in de-
claring that he would never have gone away
without telling them. He was too forthright for
that. And they felt sure that, unless prevented,
he would get in touch with them to explain why
he had not returned. He had no enemies and
was scarcely wealthy enough to have become the
victim of: kidnappers.
When Hodge left home he was wearing a blue
gabardine suit, a gray topcoat so dark it was
almost black, white shirt and brown shoes. He
wore no hat. He was described as being six
feet. tall -with light brown hair and weighing
145 pounds. Young Willard Steedley who, apart
from immediate relatives, was probably the
closest to the absent paratrooper, described him
as an engaging but level-headed chap who sel-
dom took a drink and who had always been open
and honest with himself and his mother. “When
he told her he’d be home, which he did before
he left,” said the young man, “we knew he
meant what he said.”
The description of Hodge and of his yellow
Packard convertible was put on the police tele-
type. A five-state alarm was sent out asking all
law-enforcement officers to watch. closely for
the car. Confidence that an automobile of that
make in such an outstanding color would soon
be found and a clue to the man’s whereabouts
TRUE DETECTIVE, July, 1948
Hopefully, the
turned toward |
the three men
shouted. “Come
bove) no-
shn Belcher (ai
ackard in the neighbor-
ated job!” he comment
in Bert Feltner, in charge
Hodge might have a
iker. As the family nts
yuld
or the car
here seemed |
-entucky law
ybbery 2
ittle hope for 7
which makes
nis captor, h
he tag and
o give searchers
its.
age had been
vethad probably
thrown
sgested that
aer County an
re when the
Short,
da by Deputy aa
where the identifi-
found. This time
+ satisfied with a
hborhood,
diate neig
yf the imme a within a
un
ered all the grot
yf more than a mile.
Convinced that the letter must be
important because the person who had
torn it up had removed these particular
portions the sheriff and his deputy re-
turned to where they had found the
torn letter, but though they searched
diligently, they failed to find the missing
address. “In all probability,” said Combs
to Short, “‘we’ll find the missing envelope
pieces in the pocket of the man we want,
if we ever manage to get our hands on
him.”
Combs contacted Jefferson County
police and asked them to get in touch
with the Hodge family and try to learn
whether Vernon knew anyone whose
complete name could be figured out
HTONT EROL eos og PS als man.” This lead
failed.
The sheriff and his men began a
7 search of Letcher County garages in the
hope that as Hodge’s tag had been found
» in the neighborhood, the yellow Packard
. might be discovered in one of these.
| Their search producing no results, he
' asked the sheriffs of adjoining counties
to check the garages in their commu-
nities. ?
‘Nothing was uncovered from these in-
vestigations.
~¥T SOON struck Combs that their hunt
for the car had been too limited in
scope. He had emphasized the yellow
color of the Packard, but surely, he con-
cluded, with all the publicity given to the
‘disappearance of Vernon Hodge and pis
car, the first thing the possessor of the
h search © eater: Short gath-
ts of a :
pie and the two officials drov
olete letter, it was valueless
> of handwriting, i
were some pieces lef
a to be pa
e remainder 0} |
state, were missing.
rt of an envelope
automobile would do would be to have
it repainted a less conspicuous color.
The color chosen might be black, as this
‘was a common color and would attract
less attention than any other.. A re-
heck with this thought in mind was
ade, but nothing came of it.
About this time the Kentucky High-
ay Patrol realized the fact that they
ust not be misled by a change of li-
ense plate or color. For though the
.fime intervening had been short, it could
ave been used to disguise the hunted
r.:This had been brought home to
Suspicions of Sergeant Curtis Hall (above)
‘were aroused by the actions of a man in
a black Packard, accompanied by a girl
them by an experience of Sergeant
Curtis Hall of the Hazard Detail.
Coming upon a drunken driver whose
car had gotten out of control, he waved
a right of way. to several cars which had
been stalled as a result of the accident.
Among these was a black Packard coupe.
Hall just had time to notice that it was
driven by a man in his thirties, before
it was gone.
A short time later he saw what he
believed to be the same Packard, driven
by the same man. This time a. girl sat
in the front seat beside him: Hall shouted
to the driver to stop, but instead he
increased his speed.
Taking time to jot down the license
number, Hall. followed in_ pursuit.
Whether it was due to the rapidly deep-
ening dusk or to a fear of arrest, the
driver successfully eluded the officer.
The following morning, Sergeant Hall
got in touch with Frankfort and learned,
the name of the owner of the Packard
through the license number. He was
living in Middlesboro, and’ when con-
tacted, was able to explain his action
on the highway. It was the old story
of a married man having an affair,
fearful of exposure.
Jefferson County police, spurred to
new activity by the belief that Hodge
must have been kidnapped in the
neighborhood of Louisville, began an-
other extensive questioning of residents
living between the Hodge home and the
Masonic’ Hall. where the missing man
was to have received his Masonic degree.
However, it wasn’t until a request for
help was published in the newspapers
that they obtained information. This
came from an insurance man named
Prentice Knopf. He reported to the offi-
cers that on the night of March 13th he
had been waved down while on Old
Third Street Road, about a mile south of
New Cut Road, not far from the Hodge
home. Three hitch-hikers piled into his
car when he drew to a stop.
“TI let them off at New Cut Road about
‘two miles west of Louisville,” he said,
“telling them I wasn’t going any
further.” ;
This was a step forward, but a ques-
tioning of residents of highways leading
from New Cut Road brought no help.
About this time Chief of Police John
Belcher of the town of Neon, a short
distance from Whitesburg, Kentucky,
began noticing there was a strange car
in.the community. It was a Packard.
“That’s what you might call a hand-
painted job,” he remarked to his deputy,
Gene Adkins, who was standing near
him. “Whoever painted that car didn’t
know much about painting.”
“Took who’s driving it,” replied Ad-
kins. “Where did Brack Nease ever get
hold of that boat?”
“Brack is okay,’ answered Belcher,
“but I think we ought to look into his
having such a car and find out where he
got it.”
Two days later Belcher and Adkins
saw Nease driving the car again and
they stopped him. Immediately, two
young men who had been seated in the
car jumped. and fled into the woods
lining the highway.
The officers (Continued on page 83)
19
A ivik
aa
ene y
iY OF fF
a; %
'
\oi
Crise
UNIVE!
598 Ky. 44 SOUTH WESTERN
(5) a plan, system, or scheme of perpetrating
crime; (6) to cover up previous crime or the
evidence of a crime for which he is at the
time being tried; (7) or a crime, the proof
of which is so interwoven as to be inseparable
from the crime for which he is being tried,
that the evidence of the two acts cannot be
separated.” Clearly the evidence complained
of comes within one or more of the enumer-
ated exceptions, and, in view of the admoni-
tion given to the jury by the court as to the
purpose for which this evidence was admitted
and was to be received and considered by
them, its admission was proper.
{$] Counsel for appellant make further ar-
gument that the court erred in not instructing
the jury to find appellant not guilty if they
believed from the evidence that he had aban-
doned the purpose for which he went to the
home of Mr. Tillery and had left the scene
before the fatal shot was fired. This conten-
tion is wholly without merit, as there is no
evidence to warrant such an instruction. Ac-
cording to his own evidence, appellant and
his two confederates went to this home with
an agreed purpose to rob its owner of his
keys and automobile, and, in furtherance of
that agreement and with concert of action,
the home was broken into and a deadly as-
sault was made upon Mr. Tillery. There is
ample evidence to show that Mr. Tillery was
shot before he left the room and that appel-
lant continued the assault down onto the
railroad track. Appellant cannot escape the
ultimate consequences of his own acts be-
cause he left to hands no less cruel than his
own the task of completing his own pitiless
and murderous assault.
In the case of State v. Forsha, 190 Mo.
296, 88 S. W. 746, 757, 4 L. R. A. (N. 8.) 576,
cited in brief for the commonwealth, the court
disposed of a similar contention in the fol-
lowing language: “We are unwilling to sanc-
tion as the law of this state that a defend-
ant can first, by words and actions, put in
operation a difficulty, or aid and abet in the
commencement of it, and, after having by his
course of conduct brought the principal actors
into a deadly contest, that he can then flee
from the scene of the struggle and thereby
relieve himself absolutely from the results
of such fatal difficulty. Such is not the law
of this state, and the court very properly re-
fused the instructions requested upon that
subject.”
We approve and adopt the language of the
Missouri court as expressive of our views of
the question presented here.
[10] It is finally urged that the substantial
rights of appellant were prejudiced by im-
proper argument made by attorneys for the
commonwealth before the jury. Judge Lay-
man, who was employed to assist in the pros-
ecution, made the following statement: “The
court permitted evidence in this case of acts
REPORTER, 2d SERIES
occurring at various places in order to shor
you motive and admonished you that it wag
competent to show motive, purpose and in-
tent, and to show the identity of this defend-
ant, that they had entered houses, sticking
together and going on through in the things
they were doing.”
As hereinbefore indicated, the trial court
properly admitted the evidence referred to
for the purpose indicated in the admonition”
given to the jury; therefore the argument
was not improper.
[11] In the closing argument, the common-
wealth attorney said: “If this defendant Is
not given the death penalty he just ought to
be acquitted. Why doI say that? I say that
because life imprisonment is not life im
prisonment as those that are sent to the penl-
tentiary for life—when people are sent to the
penitentiary for life in this state, they do not
ordinarily remain there for life; they are
paroled in a few years.”
This and similar statements have so often
come under the condemnation of this court,
it is to be wondered that the attorneys for the
commonwealth do not refrain from making
them. However, our attention has not been
called to any case holding that such state
ments, standing alone, will constitute revers!-
ble error except the case of Berry v. Com.
2°97 Ky. 528, 18 S.W.(2d) 521, where it was
so held under the peculiar facts therein. The
cases of Chappell v. Commonwealth, 200 Ky.
429, 255 S. W. 90, and Postell vy. Common-
wealth, 174 Ky. 272, 192 S. W. 39, in which
similar arguments were criticized and con
demned, were not reversed because of the
improper argument. There are numerous
cases which give recognition to the impropri-
ety of such argument yet hold that it does net
constitute such prejudicial error as will war-
rant a reversal. Bolin v. Commonwealth, 28
Ky. 608, 268 S. W. 306; Hall v. Common
wealth, 207 Ky. 718, 270 S. W. 5; Moore *¥-
Commonwealth, 223 Ky. 128, 3 S.W.(2d) 1%
It is gratifying that the machinery of the
law was set in motion in such prompt and
orderly fashion following the commission of
this crime. The trial judge and other of
cials of the court are to be commended for
the orderly way in which the trial was co
ducted. Over one hundred pages of the te
ord consist of the examination of prospectir®
jurors, and we have been impressed with the
candor and intelligence displayed by talesme®
in answering questions propounded to them
as well as with the care displayed by the
court and attorneys for the prosecution te
see that no one was accepted as a juror w
entertained the least prejudice or bias of
had any opinion as to the guilt or innocem®
of the accused.
Appellant was represented by able counsd
appointed by the court, and be it said to =
credit that they faithfully and efficiently
RODGERS v. COMMONWEALTH Ky. 599
44 S.W. (2d)
charged their duty to him, both in the lower
court and on this appeal.
The unfortunate position of appellant is not
due to any violation or refusal of the rights
guaranteed him by law, but is due to his
own disregard and violation of the laws of
the land and of the most sacred rights of
others.
Yinding no error in the record prejudicial
to appellant’s substantial rights, the lower
court’s Judgment is affirmed.
Whole court sitting.
|
M1 Ky. 593
RODGERS v. COMMONWEALTH.
Court of Appeals of Kentucky.
Dee. 18, 1931.
Criminal law G>1171(3).
In murder prosecution, commonwealth at-
terney’s reference to other offenses shown in
evidence, if improper, held not prejudicial.
The argument was in substance that,
wherever there was a home that seemed
inviting to defendant and codefendants,
their motive was getting money, and they
went into those homes and got money in
way that was most ruthless and high-
handed; that they would go in and at point
of pistol make people stick up their hands,
and in their homes took whatever they
found of value and put it in their pockets;
and that the statements were made to
show what motive of defendant was.
Appeal from Circuit Court, Hardin County.
Charles Rodgers.was convicted of murder,
and he appeals.
Affirmed.
J. E. Wise, Haynes Carter, and Frank .
Handley, all of Elizabethtown, for appellant.
J. W. Cammack, Atty. Gen., J. M. Gilbert,
Asst. Atty. Gen., Allen P. Cubbage, Common-
Wealth Atty., of Leitchfield, and C. BE. Mor-
fan, Co. Atty., and J. R. Layman, both of
Elizabethtown, for the Commonwealth.
CREAL, 6,
This is a companion case to that of Wal-
ter Holmes y. Commonwealth, —— Ky. —, 44
&.W.(2d) 592, this day decided. Appellant was
Jointly indicted in the Hardin circuit court
with Walter Holmes and Walter Dewberry
for the murder of Thomas Tillery. On sep-
trate trial he was convicted and given the
ath penalty. His appeal from the judg-
eat of the lower court was heard and con-
Resa
sidered with the appeal of Holmes, as the
evidence in the two cases is practically the
Same and the motion for change of venue
and for a continuance in each of the cases
was heard on the same aflidavits and eyi-
dence in the court below. Due, however, to
some difference in facts and circumstances
shown by the record, the appeals are disposed
of in separate opinions. A full statement of
the evidence will be found in the Holmes
opinion.
On the trial of Holmes, both he and Dew-
berry testified that Rodgers followed Holmes
into Mr. Tillery’s house. Rodgers did not
testify on the trial of that case, but in his
own case denied that he went into the room.
He did state, however, that he started in at
the window, but that Mr. Tillery attacked
him and he was forced to retreat. In this
ease, victims of robberies committed by ap-
rellant and his codefendants prior to the at-
tack on Mr. Tillery were called, identified
him, and were permitted to give evidence as
to the details of the robberies. The same
objection is made to this evidence as was
made to the written statement admitted on
the trial of Holmes. The same rule under
which we held the evidence competent in the
Holmes Case has equal application here.
In his argument before the jury, it is
shown that Judge Layman, who was em-
ployed to assist the prosecution, stated the
following: “Wherever there was a home that
seemed inviting to them, their motive was
getting money and they went in to those
homes and they got the money in a way that
was most ruthless and high handed and it
is one of the most awful situations ever
heard detailed in a court of justice—going in
a man’s own home where he was sleeping.
They go in and say: ‘Stick ’em up, stick ’em
up, stick ’em up’ and at the point of a pistol
they make them stick ’em up, and there, in
those homes, they took whatever they found
of value and put it in their pockets and they
came—I am making these statements show-
ing what the motive of this defendant was.”
‘While evidence of other offenses is ad-
missible for the purposes indicated in ‘the
opinion in the Holmes Case and counsel may
properly refer to such evidence and the pur-
pose for which such evidence is admitted, he
should not play upon this evidence or upon
the commission of other crimes in such a
way as to divert the minds of the jurors from
a proper consideration of the issues submitted
to them. In this instance, in the heat of ar-
gument, counsel may have slightly transcend-
ed the limits of proper argument, but we are
convinced that the jury was not misled: by
this argument, and, if in fact it was improp-
er, it certainly could not be held prejudicial
to appellant's substantial rights. Most of
the statement complained of refers to things
For other cases see same topic and KE Y-NUMBER in all Key-Numbered Digests and Indexes
Ky.Dee44A7 S.W.(2d)—9
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592 Ky. 44 SOUTH WESTERN
sentative a statement as to how this accident
happened, and at that time defendant paid
me and Mr. Beutel $1,500.00, or rather paid
that amount to my attorney and after my at-
torney, Judge Peak, received the check for
$1,500.00 he gave me a share of said check
and Mr. Beutel a share of said check or mon-
ey. The statement that I gave Mr. Wiley’s
representative was as favorable as I could
possibly make it for Mr. Wiley, and the mon-
ey was paid me at the time I made the state-
ment. This was before the ecoroner’s inquest
and before the hearing in the county court.”
The rule is well settled that, if in the same
accident two or more persons are injured, a
compromise with one cannot be shown in an
action by the other. 22 C. J. p. 320, § 354,
note B, and cases cited; Ferry’s Adm’r Vv.
Louisville Railway Co., 165 Ky. 747, 178 S. W.
41087. The reason for the rule is that the
law favors the settlement of controversies
out of court, and, if a man could not settle
6ne claim out of court without fear that this
would be used in another suit as an admis-
sion against him, many settlements would not
be made. For this reason, offers of compro-
mise are always held inadmissible, and for
the same reason a man’s buying his peace
from one party can no more be used against
him in the suit of another party than the de-
fendant could use the settlement against the
plaintiff in the action to reduce his recovery
if for only a nominal amount.
[3] It is insisted, however, that the evi-
dence should be admitted to show Hall’s bias.
But that was not the real object in getting
the matter before the jury. The real effect of
the evidence, if admitted, would have been to
advise the jury that Wiley had admitted lia-
pility to Beutel and Hall. The fact that Hall
had received a part of the money that Wiley
had paid in this settlement did not really go
to his credibility. The fact that he had been
settled with simply showed that he had no
further interest in the matter. The state-
ment referred to in the above, that he had
made, was not read or offered in evidence,
and the court is satisfied that no substan-
tial right of the plaintiff was prejudiced by
the refusal to admit this evidence.
[4] Complaint is also made that the court
allowed the defendant to show that Powers
was dissipated, but it was also shown that
he suffered from myocarditis, and this proof
only went to the amount of recovery, as af-
fecting his expectancy of life and earning
power. As the verdict was for the defendant,
no substantial right of the plaintiff was af-
fected thereby.
{5] It is also earnestly insisted that the
verdict is palpably against the evidence. But
questions of this sort are peculiarly for the
jury. This court does not disturb the ver-
dict of the jury which has been approved by
REPORTER, 24 SERIES
the circuit court, who saw and heard the wit-
nesses, unless it is palpably against the evi-
dence. The evidence here was conflicting.
There were facts shown from which it may
reasonably be inferred that the accident oc-
curred by reason of the fact that Wiley was
blinded by the light of the other car, and so
set his brakes, and the car then skidded by
reason of the road being wet and the surface
inclined. The court i8 unable to say that
the verdict of the jury is palpably against the
evidence.
Judgment affirmed.
241 Ky. 573
HOLMES v. COMMONWEALTH.
Court of Appeals of Kentucky.
Dee. 18, 1931.
1. Criminal law 130, 134(2).
Application of defendants in criminal
cases for change of venue must be made by
petition in writing with supporting affidavits
(Ky. St. § 1110).
2. Criminal law €=121.
Granting or refusing application for
change of venue opposed by commonwealth is
within trial court’s sound discretion.
3. Criminal law C1150.
Denial of change of venue in murder case
would not be disturbed without affirmative
showing of abuse of discretion.
4. Criminal law €7134(4).
There must be other evidence besides
newspaper articles to show condition of pub-
lic sentiment preventing fair trial to warrant
changing venue.
5. Criminal law €=586, 1151.
Trial court has reasonable discretion in
granting or refusing continuance, and ap-
pellate court will not interfere, absent show-
ing of abuse thereof.
6. Homicide €=203(5).
In murder prosecution, evidence respect-
ing deceased’s statements, while he had no
hope of recovery, regarding what happened
at time of assault, held properly admitted.
7. Homicide C200.
After proper preliminary foundation has
been laid, statements of a wounded person are
competent. ,
8. Criminal law €=673(5).
In murder prosecution, written statement
referring to other offenses committed by him
—=—
€=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
HOLMES v. COMMONWEALTH Ky. 593
44 8,W.(2d)
and codefendants held properly admitted,
with proper admonition.
The written statement referred to ac-
tivities of defendant and codefendants in
holding up other people on way to place
where killing occurred, and stated that,
when they came to house of deceased, they
tried to get in through the door by ask-
ing for tire pump so that they could get
keys for car and make a get-a-way in it;
that, when deceased did not come to door,
defendant kicked in window and went in
house.
9. Homicide €30(1).
Defendant could not escape ultimate con-
sequences of his own acts where he and con-
federate agreed to rob deceased, and in fur-
therance of agreement deadly assault was
made, because defendant left scene before fa-
tal shot.
10. Criminal law €720(1).
Commonwealth attorney’s statement in
argument that court permitted evidence of
other acts to show motive, purpose, and in-
tent and to show defendant’s identity, held
not improper.
{{. Criminal law Crii7i(t).
In murder prosecution, commonwealth
attorney’s argument that people sentenced to
penitentiary for life are ordinarily paroled in
a few years, standing alone, eld not reversi-
ble error,
Appeal from Circuit Court, Hardin County.
Walter Holmes was convicted of murder,
and he appeals.
Affirmed.
J. E. Wise, Haynes Carter, and Frank
Handley, all of Elizabethtown, for appellant.
J. W. Cammack, Atty. Gen., J. M. Gilbert,
Asst. Atty. Gen., Allen P. Cubbage, Common-
wealth Atty., of Leitchfield, and C. E. Mor-
gan, Co. Atty., and J. R. Layman, both of
Elizabethtown, for the Commonwealth.
CREAL, C.
On April 20, 1931, the first day of a special
term of the Hardin circuit court, Walter
Holmes, alias Jack Strong, Charles Rodgers,
and Walter Dewberry, all negroes, were
jointly indicted for the murder of Thomas
Tillery. Separate trials of the defendants
at the same term resulted in judgments of
conviction carrying a death penalty. They
have prosecuted appeals. As much of the
Tecord in two cases is the same, the appeals
of Walter Holmes and his codefendant
Charles Rodgers were heard together. Owing
to some difference in facts and circumstances
attending the trial, their appeals will be dis-
posed of in separate opinions.
The questions argued and relied upon by
counsel for reversal of the lower court’s judg-
ment call for an extended statement of the
case.
The home of Thomas Tillery is situated in
Hardin county near the boundary line be-
tween that county and Larue. The residence
is about 100 yards from state highway No.
61, and a portion of the yard surrounding
the home abuts the right of way of the
Hodgenville & Elizabethtown Railroad.
About 1 o’clock on the morning of April 8,
1931, appellant and his codefendants went to
the Tillery home and first knocked at the
front door. Failing to receive a response,
they went around to a side porch, where
Holmes knocked on a door leading into a
room to the side and rear of a bedroom oc-
cupied by Mr. and Mrs, Tillery. A window
to this bedroom opens on the side porch.
Mr. and Mrs. Tillery were both awakened,
and he went to this window and pulled aside
the curtain to look out. He then raised the
window a few inches and asked these negroes
what they wanted. They told him they want-
ed to borrow an automobile pump. He stated
that he did not care to lend them the pump
as he did not know them. They then offered
to leave money with him until they returned
the pump, but he again refused to comply
with their request. Thereupon Holmes kick-
ed the glass out of the lower sash of the
window and entered the room. He was fol-
lowed by Rodgers. Immediately after the
window was kicked in, a shot was fired, and,
following this, a terrific struggle ensued be-
tween Mr. Tillery and the two negroes. Be-
fore this struggle began, Mrs. Tillery sought
safety under the bed, where she remainded
until her husband and his antagonists had
left the room. Some time during the strug-
gle another shot was fired in the room and
two or three shots were fired on the outside.
One of the shots fired on the outside entered
the ceiling on the side porch and one went
through the wall of the bedroom near the
front corner of the house.
Mrs. Tillery testified that after the first
shot was fired her husband screamed and
groaned as though in agony. The condition
of the furniture, the floor, and the walls of
the room bore evidence of the determined
struggle in which Mr. Tillery and his assail-
ants engaged. The fight continued out into
the yard and through the gate or over the
fence to the railroad track, where appellant
and his associates finally left their victim
beaten and mortally wounded.
It appears from the evidence, however, that
the attack on Mr. Tillery was not abandoned
until W. T. Wright, his son-in-law, who was
asleep in the bedroom across the hall from
€>FKor other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
44 S.W.(2d)—38
Vi
“at
a7
594 Ky.. 44 SOUTH WESTERN REPORTER, 2d SERIES
that occupied by the Tillerys, had been pected Mr. Tillery to live, and replied, “No, he
aroused and had gone out to the front of the said he could not live but a short time the way
house, where he fired a shotgun. During the he was suffering.”
struggle, Mr. Tillery was continually calling
to his son-in-law to come to his aid. Mr.
Wright did not hear the struggle going on in
the room, but heard the firing on the outside,
and even then did not realize that his father-
in-law was being assaulted.
Mr. Wright testified that when he was
awakened he immediately ran to the front
door and learned that the shooting was in
the yard and that a fight was in progress.
He then procured a shotgun and went out
into the yard. He heard a pistol snap twelve
or fifteen times and also heard a lick, and
following that a man cried, “Shorty come to
me, they are killing me” (Shorty being a name
by which Mr, Wright was known to his fam-
ily and friends). Mr. Wright then fired two
shots, following which he saw one man pass
around the end of the cattle guard of the
railroad track. He went into the house and
left his gun, but returned immediately to the
yard, when he heard one man running
through the barn lot and two running down
the highway. He then assisted Mr. Tillery
back into the house and put him on the bed.
Mrs. Tillery testified that after her hus-
band got back into the room and on the bed
he stated that he could not get well, and later
told Dr. English, who had been called to treat
him, that “There was no need to send him
to the hospital, that he could not get well
and he thereafter stated that he was shot in
the room and that there were two negroes in
there.”
An ambulance was called from Elizabeth-
town, and Mr. Tillery was hurriedly conveyed
to the Baptist Hospital in Louisville, where
he arrived about 4 o’clock. Dr. Hart Hagan,
a surgeon, was called, and in an effort to
save his patient’s life performed an opera-
tion, which, however, was to no avail, as Mr.
Tillery died about 12:10 the following after-
noon.
Ben Perry, who drove the ambulance, and
Noble Perry, a neighbor and friend, who ac-
companied Mr, Tillery to the hospital, testi-
fied as to statements made by him when they
told him the surgeon had decided to operate.
Ben Perry testified that he went to the room
and told Mr. Tillery the doctor had decided to
operate in a few minutes, and the latter said:
“T would a whole lot rather he would give me
something to ease me. I am not going to live
very long. I will be dead in a little bit.” On
being asked how many men were in the room,
he replied, “There were two men together in
the room, * * * and they dragged me
through the window.” He was then asked,
“How many were on the outside?” He replied,
“There were three that beat me up on the rail-
road.” On cross-examination this witness was
asked if Dr Hagan indicated how long he ex-
Noble Perry stated that, when informed
that an operation would be performed, Mr.
Tillery said, “An operation would do no good
and that he would rather they would give
him something to ease him as he would not
be there very long.” Mr. Tillery further stat-
ed that “he was in the house and the first
shot hit him—that he was shot and that
there was two negroes come in the room
through the window and dragged him out to
the railroad track and that there was an-
other negro outside and the three of them got
over there across the railroad track and that
those three were beating him out there.”
The commonwealth introduced in evidence
the following typewritten statement, which
was signed by appellant in the presence of
Elmer Smith, a notary public, and a number
of police officers:
“T have known this man called Walter
Dewberry by the name of Walter and Charlie
Rodgers under the name of Charlie about a
month and a half, and I met them both in
Chicago. I never did go under the name
of Jack Strong and they both knew me by
the name of Walter Holmes. The first hold-
up job we ever pulled together was last
Monday night in Chicago, Ill. We went into
a house there and held up two women and
three or four men and took some automobile
keys off of one of the men for a Ford sedan
which he had parked in front of the house
and we three got in it and drove away. We
eame thru Indiana and went in one house
and held them up and we did not get any-
thing as they said they were poor people and
did not have anything.
“We arrived in Louisville Tuesday morn-
ing April 7th and slept all that day and that
night we three got into the automobile and
drove up to some man’s house here in Louis-
ville and rang the door bell and when the man
come to the door we all stuck pistols on him
and backed him in to the house and we tied
him and his wife up and two or three chil-
dren that were in there, and I got two or
three dollars out of the man’s pocket.
“Then we drove down the Dixie Highway
and held up three or four different places in
about the same way and got some money
from each of them and we would also tie
them up like we did these other jobs. Then
we drove into some small town and some men
tried to head us off and we turned into a
street to the left and this was a blind street
and the three of us had to jump out of the
ear and leave it.
“We down across some fields some distance
until we came to a house and I went up to the
door and knocked-on it and some man 4n-
swered it from inside and I told him I wanted
to borrow a tire pump that I had had a punc-
HOLMES v. COMMONWEALTH Ky. 595
44 S.W.(2d)
ture. My idea was to get this man to come
to the door and open it so we could hold
him up and get the keys for his car so we
could make our getaway in it. He did not
come and open the door so I kicked the win-
dow in next to the door and I went in first
and the other two followed me in and I
went around the corner into the next room
and I hollered stick ‘em up and I made one
shot and this white man was hitting some
thing up against the wall, and these other
two colored boys were in the same room that
the white man was in and I heard two more
shots fired and these other two boys backed
out thru the window and this white man went
out behind them, and he was out in the yard
hollering for help to somebody upstairs who
asked him what was the matter and he told
him robbers to get his gun and come on down.
When he said that I unlocked the door and
stepped out on the porch and went around to
the back of the house, and this white man
was standing in the yard, and there was
some more shots fired and as I was going
out across the field there was some more shots
fired and the white man was still hollering.
I only fired one shot during the whole time.
And I still had my pistol when I was ar-
rested and I had taken the empty cartridge
out and had put a loaded one in its place.
“T have read this statement before I signed
it, and have made same without any threats
or promises from anyone and it is true.”
Holmes testified that he was coerced into
signing this statement, but the evidence of
police officers and also Mr. Morgan, county
attorney of Hardin county, is to the effect
that Holmes was in no way threatened or
coerced, but, on the other hand, that his
statement was made freely and voluntarily
and that he knew and understood the con-
tents of the writing before he signed it.
Appellant and Walter Dewberry, who was
introduced as a witness in his behalf, admit-
ted that they went to the home of Mr. Til-
lery and asked to borrow a pump, but that
this was merely a ruse, and their real pur-
pose was to take from Mr. Tillery the key
to his garage, and their ultimate purpose
was to take this automobile. Appellant ad-
mitted that he entered the room followed by
Rodgers and that he fired the shot for the
purpose of frightening Mr. Tillery and com-
manded him “to stick ’em up.” Holmes tes-
tified that he did not shoot in the direction
of Mr. Tillery. He stated that when he fired
the shot Mr. Tillery was hitting him with
something, but that, when Mr. Tillery discov-
ered one of the other negroes coming in at
the window, he attacked and forced the latter
to retreat and followed him into the yard.
He further stated that, when Mr. Tillery left
the room, he (appellant) unlocked, the door,
and left the scene, seeing nothing more of
his associates or of Mr. Tillery.
Dewberry testified that Holmes and Rodg-
ers went in through the window, but that
he stayed on the outside, and, after he heard
the shots in the house, went back toward the
cow gate; that when he got there Mr. Tillery
came out through the window. He stated
that he saw nothing more of Holmes after he
went to the window, but that Rodgers came
out ahead of Mr. Tillery and went out on
the highway. He further testified that when
Mr. Tillery came out of the house he had a
stick in his hand which he was using as a
weapon; that Mr. Tillery started toward him
and he began firing. When asked what Mr.
Tillery was doing at the time, he said, “He
wasn't doing anything—He was groaning at
the time—At first I though it was erying—I
don’t know whether he was crying—he was
in pain, I suppose the reason was he was
hollering.” He further testified that he got
hold of the stick which Mr. Tillery had and
that they were in a grapple until Mr. Tillery
weakened to such an extent that he was able
to get away. Altogether he fired five shots
and after that snapped his pistol several
times.
Rodgers and Dewberry were arrested on
the day of the tragedy. Dewberry, who had
suffered a sprained ankle and was unable to
walk, was apprehended in Larue county some-
thing over a mile from the Tillery home be-
tween 8 and 9 o’clock the next morning.
Rodgers was arrested later in the day at
Munfordsville, and on the following day
Holmes was arrested in Bowling Green. All
the prisoners waived examining trial before
the county judge of Hardin county, and as
a precautionary measure were transferred to
the Jefferson county jail for safe-keeping.
On April 20, after the indictment was re-
turned, the defendants were brought back to
Elizabethtown and their cases set for hearing
on April 28. Counsel was appointed to de
fend them, and they were remanded to the
jail of Jefferson county.
When appellant’s case was called for trial,
he entered a written motion for a change of
venue and in support thereof filed his own
affidavit and the aflidavit of the two attor-
neys who had been appointed to defend him.
Attached to and made a part of these affi-
davits were a number of newspaper articles
which had been published in the local news-
papers and in daily papers published in the
city of Louisville giving accounts of the kill-
ing of Mr.:Tillery as well as accounts of oth-
er crimes committed by appellant and bis co-
defendants, including outrages committed
against white women at Hickman, Ky., and
Sast St. Louis, 1l., and also accounts of a
number of robberies committed by them on
their way from Louisville to Elizabethtown
on the night of the attack upon Mr. Tillery.
In the affidavits it is made to appear that a
high state of feeling and prejudice existed
against all the defendants in Hardin county
and that threats of mob violence were being
596 Ky.
made which would likely be carried into ex-
ecution. It was further made to appear that
during the progress of the Dewberry trial the
negro lawyer who was defending him was
set upon and assaulted by an angry crowd or
mob in the public square, and that at the re-
quest of the circuit judge a number of na-
tional guardsmen had been detailed to pre-
serye order and to protect the defendants
from violence; that these with special depu-
ties had been stationed around the court-
house and the jail and had accompanied the
officers in conveying the prisoners to and
from the jail; that following the assault on
the negro lawyer some of the soldiers came
into the courtroom, where they remained for
some time.
In opposition to the motion for change of
venue, the commonwealth attorney filed his
own written statement, together with the af-
fidavits of sixteen citizens residing in widely
scattered sections of the county, including
the sheriff, county attorney, superintendent
of schools, county judge, county road en-
gineer, one justice of the peace, the present
representative in the General Assembly, and
the associate editor of the Elizabethtown
News. From the statement of the common-
wealth attorney and affidavits of these citi-
zens, it is made to appear that there was no
such feeling of prejudice or bias against the
defendants as would preclude them having a
fair trial at the hands of a jury in Hardin
county, and that there were no threats nor
danger of mob violence. In one of these af-
fidavits, it is stated that the affiant was re-
quested to count the number of persons pres-
ent In the courtroom while the motion for
change of venue was being heard, and that
such count revealed the presence of 242 per-
sons, exclusive of court officials, in a room
which had a seating capacity of about 500.
It is also made to appear in the record that
the assault upon the negro attorney was not
the concerted action of an angry crowd or
mob, but was the action of some misguided
individual or at least of a very few persons.
A number of witnesses who made affidavits
were called and testified at length on the
hearing of the motion. They testified that
they had mixed and mingled with the crowd
and made some inquiry and although there
were a large number of people in town, they
found no evidence of threats or anything to in-
dicate probable danger of mob violence.
It is insisted by the Attorney General and
associate counsel that the application for
change of venue should not be eonsidered on
appeal because it was not made in conformity
with the requirements of the statute, and it
cannot be said that this argument is without
merit. Under section 11 of our Constitution
relating to criminal cases, “The general as-
sembly may provide by a general law fora
change of venue in such prosecutions for both
the defendant and the Commonwealth,” and
44 SOUTH WESTERN REPORTER, 2d SERIES
the General Assembly has provided by gen-
eral law for change of venue in such cases
and has prescribed the method by which the
right granted may be invoked and the limits
within which it may be exercised.
[1] Application of defendants in criminal
eases for change of venue must be made by
petition in writing with supporting affidavits
in conformity with the provisions of section
1110, Ky. Statutes, and, in the absence of
such petition and supporting affidavits, the
court is without authority to grant to defend-
ants a change of venne. Miller v, Common-
wealth, 175 Ky. 241, 194 S. W. 320: Taylor v.
Commonwealth, 240 Ky. 450, 42 S.W.(2d) 689,
692; Graham v. Commonwealth, 164 Ky. 317,
175 S. W. 981.
But, aside from any question of compliance
with technical requirements of the statute,
it does not appear from the record that the
court erred in refusing appellant’s applica-
tion. The burden of proof is on the applicant
to show sufficient grounds for change of ven-
ue, and this burden is met when he makes ap-
plication in conformity with the requirements
of the statute, and the court has no discre-
tion in the matter, and must sustain the ap-
plication unless the commonwealth offers
proof in opposition to the motion. Neace v.
Commonwealth, 233 Ky. 545, 26 S.W.(2d) 489;
Combs v. Commonwealth, 160 Ky. 386, 169 S.
W. 879; Hill v. Commonwealth, 232 Ky. 453,
23 S.W.(2d) 930.
[2,3] But when, as in this Instance, the
commonwealth controverts the allegations
and produces proof in opposition to the appli-
cation and supporting affidavits, an. issue
is made. In such circumstances the granting
or refusing the application is a matter ad-
dressed to the sound discretion of the trial
court, and, under a well-established rule in
this jurisdiction, its decision in the matter
will not be disturbed unless it affirmatively
appears that there has been an abuse of that
discretion, Greer v. Commonwealth, 164 Ky.
396, 175 S. W. 665; Stroud v. Commonwealth,
160 Ky. 503, 169 S. W. 1021; Hall v. Com-
monwealth, 207 Ky. 718, 270 S. W. 5; Vaughn
y. Commonwealth, 204 Ky. 229, 263 S. W. 752.
In this case we may with propriety adopt
and apply from the opinion in Heck v. Com-
monwealth, 163 Ky. 518, 174 S. W. 19, 20,
the following: “The right to a change of
venue is only bestowed by the statute, and
the Legislature has authority to provide for
the extent and manner of its exercise. In the
case at bar, evidence was heard upon the mo
tion, and we presume all was heard that
either party desired to offer. The judge of
the trial court, in deciding upon such a mo-
tion, has a sound discretion, and has better
opportunity of properly estimating the con-
ditions which exist in the community where
he is then engaged in holding court, a better
acquaintance with the witnesses, and is able
HOLMES vy. COMMONWEALTH Ky. 597
44 S.W.(2d)
to know better what weight to give their
evidence, than we can possibly know.”
(4] It docs appear that Louisville dailies
and the local newspapers gave wide publicity
to this and other crimes committed by appel-
lant and his associates. While newspaper ar-
ticles are admissible and may be considered
on a hearing of application for change of
venue, there must be other evidence tending
to show such a condition of public sentiment
in the county as would prevent the applicant
from having a fair and impartial trial. Mans-
field v. Commonwealth, 163 Ky. 488, 174 S.
W. 26, 18.
Naturally when a home is invaded and its
occupants assaulted and slain with ruthless
savagery by a band of armed men, public in-
terest is aroused, and newspapers, seizing up-
on an opportunity to supply the demand of
the reading public for details of the crime,
carry articles similar to those complained of
here. Louisville dailies carrying these arti-
cles are of wide circulation, and it would have
heen impossible to have removed this prosecu-
tion to a county where accounts of this crime
and of the criminal record of accused and his
associates had not been read. Tt is also natu-
ral that there was a prevailing sentiment in
Hardin county against this crime and a de-
mand that its perpetrators should be brought
to justice. Such sentiments prevail among
law-abiding citizens everywhere, and, if held
grounds for change of venue, it would like-
wise be difficult, if not impossible, to find a
county in which to try an offender.
As said in the case of Mansfield v. Com-
monwealth, supra: “The judge, who presided
when this motion for a change of venue was
heard * * * was, as we may well as-
sume, acquainted with the people and public
sentiment of the county. After hearing the
witnesses introduced in behalf of both par-
ties, his conclusion was that the defendants
could have a fair trial in (Hardin county),
and in this conclusion, after carefully reading
the record. we concur.”
In support of his motion for a continuance,
appellant, in addition to a reiteration of
grounds stated in his motion for change of
venue, stated that he had not been able to
employ counsel and had been confined to the
jail at Louisville without opportunity to con-
fer with the attorneys appointed to defend
him and prepare his case for trial. It is
made to appear by affidavit of the county at-
torney in opposition to the motion for contin-
nance that attorneys for appellant did con-
fer with him at the jail in Louisville and
that arrangements were made whereby funds
were provided to pay the expenses that might
be incurred by counsel at any time they de-
sired to confer with appellant.
The Constitution gives to every one accused
of crime the right to be represented by coun-
sel, and this carries with it the right of the
accused and his counsel to have reasonable
time and opportunity to make preparation for
trial. McDaniel v. Commonwealth, 181 Ky.
766, 205 S. W. 915; Vierey v. Commonwealth,
195 Ky. 725, 244 S. W. 52,
[5] Appellant and his codefendants admit
practically everything charged and attempted
to be proven by the commonwealth except
that they disclaim having had any intention
or purpose of killing Mr. Tillery. In view of
their admissions and the failure to name any
witnesses of whose evidence they were de-
prived, it is not apparent that delay would
have been of any advantage to counsel in the
preparation of his case. It is well settled
that the trial court is vested with a reason-
able discretion in granting or refusing con-
tinuance, and, in the absence of any showing
of abuse of that discretion, this court is not
authorized to interfere. Jamerson v. Com-
monwealth, 230 Ky. 704, 20 S.W.(2d) 711;
Browder vy. Commonwealth, 232 Ky. 205, 22
S.W.(2d) 615; Brandriff v. Commonwealth,
227 Ky. 389, 18 S.W.(2d) 273.
[6] It is further urged as ground for re-
versal that the court erred in the admission
of evidence as to statements made by Mr.
Tillery after he received his wounds. The
evidence clearly indicates that Mr. Tillery
died of the gunshot wound, and that it was
in its nature necessarily fatal. While he was
rushed to the hospital and an operation per-
formed, there is no evidence that any hope
of recovery was held out to him or that he
ever entertained such hope; on the contrary,
the evidence indicates that he fully realized
the serious nature of his wounds and that
the end was rapidly approaching.
{7] After proper preliminary foundation
has been laid, the statements of a wounded
person are competent and admissible. For
a full discussion as to the competency of such
evidence and the theory upon which it is ad-
mitted, see Whitehead v. Commonwealth, 200
Ky. 440, 255 S. W. 93, and long list of authori-
ties therein cited.
[8] It is further insisted that the court
erred in admitting in evidence the written
statement signed by appellant, and especial-
ly so much thereof as relates to other offenses
committed by him and his codcfendants prior
to an attack upon Mr. Tillery. There is a
general and well-recognized rule that, in the
trial of criminal cases, evidence as to the of-
fenses other than that for which defendant
is being tried should not be admitted, but
there are equally well-established exceptions
to this general rule. In the recent case of
Sneed v. Commonwealth, 236 Ky. 838, 34 S.W.
(2d) 724, this court, after stating the general
rule and the exceptions thereto, sets forth
that evidence relating to other offenses may
be admitted to establish ‘(1) identity; (2)
motive; (8) intent; (4) guilty knowledge;
He NTO
Magia ss
‘nse number. The
ained his speeding
ing with a married
ad the car was not
ard. But the quest
sers highlighted the
returning to Louis-
read the newspaper
the Jefferson County
ht of March 13th,”
thhikers waved me
3treet Road, not far
Hodge lived. They
out them out at New
miles west of Louis-
a’'t going further.”
possibility that Ver-
set upon by the same
vy determined to get
rather than depend
questioning of resi-
; leading from New
>» results.
short distance from
community, its resi-
with one another’s '
2 of Neon know all
n’s Chief of Police
ed that there was a
rtible in the com-
Chief Belcher gave
that car didn’t know
”’ he commented to
who was with him.
call a home-painted
t driving it,” Adkins
e he got a car like
chief answered. “Just
e ought to find out -
‘kard.”
wo officers again saw
ar. In it with him
As Belcher signaled ,
> youths leaped from
the woods lining the
ys seared of, Frank?”
2y been up to some-
wouldn’t know. You
I will do.” Belcher
ret hold of those boys,
nly. “I want to talk
iing to Pratt, he said,
t here. Where’d you
it’s none of your busi-
ie chief said evenly.
Packards. There’s a
issing. The owner’s
2.” Pratt turned on
ank,” Belcher warned.
is a repaint job. You
stter than this.”
ank Pratt said shortly,
sh of something that
ear in his eyes. “It
bought it.”
bill of sale,” Belcher
1y license plate on the
bill of sale with me,”
rasily. “It’s down at
g it to you sometime,
ning this way again.”
ik. I like to get things
i. “I think you'd bet-
Y’d like to ask you a
while I have some of -
m the car.”
us protests Frank Pratt
of. The car was im-
locked up temporarily.
isi
Chief Belcher promptly got in touch with
Sheriff Combs at Whitesburg. He had seen
a glint of yellow beneath the black on one
fender of the Packard, he told Combs.
. With Deputies Galloway, Short and
Cook, Sheriff Combs drove to McRoberts,
in Letcher County, where the Pratts lived.
While’ the sheriff talked with Mrs. Pratt,
his deputies roamed about the place. They
discovered in Pratt’s barn several cans
which recently had held black paint. Talk-
ing with various people in the vicinity, they
learned that Jasper Nease had been seen
driving a yellow Packard convertible. Jas-
per was a relative of Frank Pratt and was
said to be stationed at Fort Knox.
Back in his office Sheriff Combs called
up Fort Knox. Jasper Nease, he learned,
was AWOL. Two other servicemen also
were missing. The officer with whom
Combs talked said the three men had been
in the stockade for infractions of army
regulations while in Europe. Recently,
while working with a road gang near Fort
Knox, the three had slugged the guard,
taken his gun and escaped. The names
and ages of the three men were: Jasper
Nease, 21, Daniel McPeak, 21, and Herbert
Workman, 17.
The last name was a clincher, fitting
the torn fragments found near where the
missing veteran’s dog tag was picked up:
“Her... 7 and... ian.”
Meanwhile Adkins, with the assistance
of other officers, was pursuing the two
youths who had jumped from the Packard
driven by Frank Pratt when Chief Belcher
had stopped it. One was soon picked up,
but he was released when he proved to
their satisfaction that he knew nothing
relative to the case under investigation.
It took an 18-hour chase over almost im-
penetrably wooded mountains to corner
the other youth. Finally caught near Am-
burgy Creek in Knott County, he proved
to be Jasper Nease. He was. arrested and
placed in the Whitesburg jail.
By this time the car found in the pos-
session of Frank Pratt had been positively
identified as Vernon Hodge’s Packard con-
vertible coupe. Seeking to learn the fate
of the missing ex-paratrooper and to estab-
_ lish when and how Hodge’s car had come
into the possession of Frank Pratt, offi-
cials questioned the man intensively.
“Look, Frank,” Chief Belcher said per-
suasively, “a man is missing. You’re found
driving his car. Suppose we establish that
the owner of that car is dead—murdered?
' You're facing a serious charge. Now I know
you’re not a killer. But you could be
charged as accessory after the fact. Do
you understand what that means?”
Pratt said nervously, “I don’t know any-
thing about the car.”
“You told me you bought it,” Belcher
reminded him. “You said you had the bill
of sale down at your house.”
Pratt looked uncomfortable. “Well, that
wasn’t so.”
“We know it wasn’t. How did you get
the car?” The chief waited a minute. Then
he said, “Suppose I tell you? Jasper Nease
brought it to your place. He painted the
yellow Packard black in your barn, so it
wouldn’t be identified as the stolen car.
Right?”
“Did Jasper Nease tell you anything like
_ that?” Pratt asked quickly.
“Jasper isn’t talking to us right now.
But he will,” the chief answered. “We're
going to know all we need to know, very
soon.”
“Honest, I don’t know anything more
about that car or about who owned it,”
Frank Pratt pleaded earnestly. “Believe
me, Chief, that’s the truth.” He mopped
his sweating brow.
' Afterward the officers conferred togeth-
er. They concluded that Frank Pratt
probably was telling the truth when he
said he knew nothing more about the
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City. ZONE_. STATE
Packard, other than that his young rela-
tive had brought it to his home and re-
painted it there. The next step was to get
Daniel McPeak and Herbert Workman,
Jasper Nease’s two AWOL companions. A
search was immediately begun for them.
McPeak’s home address was given as Dub-
lin. Workman was said to live with his
parents in Tesla, West Virginia.
Sheriff Combs soon learned that three
young men, two of them in army uniforms,
had been seen in the Packard car in the’
neighborhood of the Pratt home. They also
had visited relatives of Jasper Nease at
McRoberts and at Carbon Glow. A resi-
dent of Whitesburg said that three young
men, two in uniform, had driven a Pack-
ard coupe into her yard one day. However,
when .she went toward them, they drove
off hastily into the hills.
Sheriff Combs now had warrants for the
arrest of Jasper Nease, Daniel McPeak and
Herbert Workman on the charge of steal-
+
*
ing an automobile. Jasper, of course, was
already in custody. He refused to talk
about his companions, but it was believed
that they might be hiding in the neighbor-
hood where they had trapped Jasper.
Posses from Letcher and Knott Counties
scoured the forest-covered mountains, but
the roughness of the terrain made follow-
ing a trail almost impossible. Thinking
that the two fugitives might now be mak-
ing their way toward their homes, the
sheriff called on Virginia and West Vir-
ginia authorities to have all officers on the
alert for McPeak and Workman.
Two days later Trooper S. V. Shelton of
the Virginia state police caught McPeak
making for his home near Dublin. Told
that he was to be returned to Whitesburg,
Kentucky, for questioning in regard to a
stolen automobile, and then turned over
to military police from Fort Knox, he be-
came sullen and refused to talk.
The following day West Virginia State
Trooper L. L. Gum captured Herbert H.
Workman near Sutton. Questioned, he
freely admitted his identity. He acknowl-
edged that he had escaped from Fort Knox
with two buddies, after overpowering a
guard, and that he recently had been in
the neighborhood of Whitesburg, Ken-
tucky. He declared that he knew nothing
about an ex-paratrooper named Hodge,
nor of his having been slain.
With all three suspects now locked in the
Letcher County jail at Whitesburg, offi-
cers attempted to learn the fate of Vernon
Hodge. They no longer had any hope of
finding the former war hero alive and
they wanted information to support more
serious charges than car theft against the
ee youths.
Assisted by Captain Bert Feltner, Ser-
geant Curtis Hall and Officer Thomas
Eversole of the Kentucky Highway Patrol,
sheriff’s posses from Letcher and Perry
Counties, headed by Sheriff Combs of
Whitesburg and Sheriff Green Holliday of
Hazard, beat through the woods between
Whitesburg and Hazard, but it proved a
fruitless search. They finally concluded
that Hodge’s body had been thrown into
the river and that unless one of their pris-
oners could be induced to talk, efforts to
locate it would be useless.
Workman being the youngest of the
three, they decided to concentrate on him,
but all their questioning elicited nothing
which threw any light on the fate of Ver-
non Hodge. Nease, too, remained uncom-
municative. It was Daniel McPeak who
finally broke.
“The day we left Fort Knox,” he stated
in his confession, “we walked toward
Louisville. We walked all night and all
the next day, up to about 6 p.m. We got
one lift, but only for a little way. Nease
and Workman wanted to get a car to get
home in. I said that was dangerous, we
would get picked up.
“We ‘hit a highway at the fork of two
roads and started trying to hitchhike. The
Packard convertible coupe came along and
stopped. There was only one man in it.
Later we learned from his papers he was
Vernon Hodge. I got into the front seat
beside him. Nease got in on the other
side and drove. Workman got into the
back seat and held the gun on Hodge.
“Nease made Hodge tell him the road to
Harlan. About 10 miles out of Louisville
Nease made Hodge change clothes with
him. We hadn’t hurt Hodge then. He just
told Nease where to turn. We got into
Hazard about 4 a.m. on Friday and drove
east.”
According to Dan McPeak’s confession,
Hodge pleaded with them when he was
forced to change clothes with Nease.
“Please let me go,” he said, “and I’ll sign
this check and give it to you.” He signed
the check and gave it to Nease, asking him
to return the wallet and the other papers
it contained. Nease took the check, but he
did not return the wallet. Later, when
they became threatening, Hodge asked
them not to strike him on the head as he
had a metal plate in it, the result of war
wounds. :
The Packard, with Nease at the wheel,
McPeak’s confession went on, sped into
Harlan, in the southeastern section of Ken-
tucky. From Harlan Nease swung north-
east until they reached the north fork of
the Kentucky River near Viper, a few
miles southeast of Hazard. They had now
traveled more than 200 miles from the spot
where Hodge had picked them up on the
New Cut Road two miles from his home.
Here Nease parked the car while the three
engaged in a heated discussion as to how
to keep the car and cover their tracks.
Hodge, McPeak related, sat between him
and Nease. He was gagged and blind-
folded with handkerchiefs, his ankles and
wrists bound with straps. At his strug-
gles to loosen the gag, which was nearly
suffocating him, his captors laughed. But
when it looked as if he might succeed in
loosening the gag, Workman thrust the
carbine deeper into his back, while one of
the others struck him with his fist.
Finally the three captors reached a de-
cision. While one held the gun on Hodge,
another unbound his ankles and the third
got a large rock. They jerked Hodge from
the car. Prodding him with the gun, they
fotced him to walk to the river bank.
When he struggled, two of his tormentors
held him. The third bound his ankles
again. Then they attached the heavy rock
to his waist. “We’re going to leave you
here,” they told him. Then, with a con-
certed push, they flung him from the bank
into the Kentucky River.
They stood on the bank, the confession
continued, watching their victim struggle
in the yellow water, getting grim amuse-
ment from the sight. Then suddenly the
watchers on the bank realized that the
rock had come loose. It wasn’t holding
him down as they had expected. And he
had torn the handkerchiefs from his
mouth and eyes. He was swimming some-
how, his ankles still bound. Their amuse-
ment changed to fear. “We’ve got to do
something,” they muttered.
Hodge, finding that he was able to keep
himself afloat, cried for help as the current
bore him along. In the gray dawn he
slowly began to work his way up the-
river, still calling, “Help! Help!”
His torturers held a hasty conference.
They must do something before someone
heard those cries, before help came—some-
‘thing that would put them in the clear. A
plan was quickly decided upon.
BUY U. S. SAVINGS BONDS
“Hey!” one of the three. called out.
“Come over this way. Come over to the
bank and we'll help you.” And the others
urged the struggling man to swim to the
shore.
Hodge hesitated, McPeak’s confession
went on. Obviously he doubted their sin-
cerity. But he was growing weaker. Al-
most exhausted, he turned and swam
slowly toward the shore where the prom-
ised rescue awaited him. Nease and Work-
man, their arms outstretched, stood on the
bank, waiting for him to come within
their reach.
When he was about 10 yards from the
bank, Nease and Workman jumped into the
river. Hodge gasped, “Thank you.” They
were his last words. With a heavy blow
the butt of the carbine crashed on his
head. The struggles of the ex-paratroop-
er and war hero were over. The trio
watched till no more bubbles rose to the
surface. Then they returned to the Pack-
ard and drove away.
They left the yellow car at the home of
one of Nease’s relatives. Later they drove
it to the home of Frank Pratt in McRob-
erts, where they painted it black. The
following day McPeak and Workman left
McRoberts and began hitchhiking toward
their homes.
Daniel McPeak told the authorities that
they would find the body of Vernon Hodge
in the Kentucky River between Blackey
and Viper. He was taken there and the
river was dragged at the spot he indi-
cated. The searchers worked all day, but
found no body. It was surmised that the
prisoner might be purposely misleading
them as to the spot where Hodge had gone
under, but he insisted he was telling the
truth.
“The current might have carried the
body further downstream,” McPeak sug-
gested, “because the heavy rock we tied to
him had come off.” °
Another search was made later with
grappling hooks brought by Chief of Po--
lice R. L. Lester of Jenkins. Deputy Sher-
iff Collins of Perry County and a number
of state police officers assisted. And on
March 23rd the body of the unfortunate
Vernon Hodge was recovered about 75 feet
downstream from the place indicated by
McPeak. The victim’s feet were still bound
with a leather strap and the handkerchiefs
with which he had been gagged were still
about his neck. The body was removed to
Hazard for an inquest.
And at Hazard, in Perry County, mur-
der charges were immediately placed
against Jasper Nease, Daniel McPeak and
Herbert Workman. Preliminary to their
examination trial in circuit court the three
youths were taken before Judge Taylor
Witt. The judge offered to provide coun-
sel for them, but McPeak, acting as
spokesman for the trio, declined the offer.
At the examining trial on March 28th all
three were held for the grand jury. By
now each of the three had signed a con-
fession. All agreed in most of the details
of the crime, but each blamed the actual
killing of Hodge on one of the others.
The Louisville authorities meanwhile
had taken action to obtain the three pris-
oners for trial in Jefferson County on
charges of armed robbery, which in Ken-
tucky is a capital offense. But Circuit
Judge S. M. Ward, sitting at Hazard, re-
fused to release the trio for arraignment.
Frank Pratt was indicted in Letcher
County on a charge of receiving stolen
property. Later he went to trial, was con-
victed and given a 1-to-5-year sentence.
Louisville finally won custody of the vi-
cious trio on the basis of priority and Jas-
per Nease, Daniel McPeak and Herbert
Workman were removed to Louisville, to
be tried on charges of armed robbery. The
trial was set for May 19th, 1947.
News of the arrest of the trio and the
revelation of the hideously brutal nature
of their crime had so inflamed public
opinion that mob violence was feared. As
a precaution, after their examining trial,
McPeak was taken to the jail in Lexington,
Nease to Richmond and Workman to Win-
chester.
On May 19th, 1947, Jasper Nease went on -
trial in Louisville. He was quickly found
guilty and sentenced to death. The trial
of Daniel McPeak began on June 10th, and
again the verdict was guilty.and the sen-
tence death. The youngest of the trio,
Herbert Workman, went on trial on Sep-
tember 22nd. And for him, as for his two
companions, the verdict and the sentence
were inevitable. No voice asked mercy,
even for a 17-year-old killer. .
And on July 30th, 1948, Jasper Nease
went to his death in the electric chair.
Daniel McPeak followed him,.on Novem-
ber 5th of the same year. Herbert Work-
man was executed on March 4th, 1949.
The war hero, ex-paratrooper, who wore
a silver plate in his skull as the result of
wounds received in‘ honorable action
against foreign foes and who, his friend
said, “would be a match for almost any-
one,” had struggled gallantly to save his
life. But, bound and nearly helpless on
that fatal night of March 13th, 1947, he was
no match for three fiendish torturers who
lauighed at his struggles and lured him to
certain death.
04
Eprtor’s NOTE:
The name, Frank Pratt, as used in the
foregoing story, is not the real name of
the person concerned. This person has
been given a fictitious name to protect
his identity.
mmmenniacenii.
sik,
aren.
. ished bottle.
The Key to
Helen's Kil
(Contini
told the inspector, “wh
on my door. I didn’t k:
one had knocked or
it. I got up, opened tl
out, and there was th
there. She was writir
little pad I keep on
door with a pencil, for
looking for me. I di
speak to, but I reco;
neighbor. She was \
raincoat and she had on
“Before I could say ai
around and scurried off
ward her own room, I
sage pad. There was s
on it but I couldn’t mak
she was just drunk and
she was doing. I tore
threw it in the wasteba
door and went back to
A little later, about 2
the homicide man, he h.
over tne pay telephone
his door. She was a fr:
phone and he recogniz
recalled only that she
pleading with someone
peating “but—but—but-
person on the other
wouldn’t let her get a
she hung up and Raec
further.
Piro recovered the cru
of paper from Raeder’s
could make nothing of
scrawl. A routine chec}
and others on’ the floo
other guests, completely
man and other guests
shred of suspicion. Th:
of any violence on the
a woman who had beer
A.M. said she had heard
after Helen made her
several people overhear
it had been a few minut
There was no indice
in the hotel had known
casually as a fellow g
brunette divorcee’s sok
confidant, it appeared, h
Still, Piro
Nelder, she had beer
someone, and the 2 a.n
be linked to the murde:
least it was established
left the neighborhood.
Oakland and Berkele
back that they had ar.
old Helen Ivey Parker
arrests for drunkenness
1944. Her most recent
had been in Berkeley la
when she forfeited $50
mother and two brother:
- tragic news of her death
seen Helen since she mc
cisco in mid-September
partment store job. S)
the time that she would
and rehabilitate herself
divorced in 1949 from
Oakland teamster. Nelc
spector Arthur Christen
interview the former hu
Inspector Walter Kre
Curtin by this time had
out the last of the peopk
parked at the service st:
satisfied that all the car o
pounds. When he
was wearing a blue
ay topcoat, white
noes. He wore no
to him than anyone
aid. “If he’d had
nd, he’d have told
able fellow, has no
t money enough to
.dnaper and he had
xy with him.” He
uld be a match for
> was a hero in the
lerted his men to
‘low Packard con-
the missing man.
fficers to cover the
i have taken from
ic Hall. Squads of
king all highways
uisville. Hospitals
‘ictims of accidents.
all his friends were
hope of uncovering
ite.
‘ffort failed to de-
formation, descrip-
his car were put on
e and a five-state
, asking all law-en-
forcement officers to be on the lookout
for the yellow Packard. Newspapers
throughout the state gave further pub-
licity to the search.
But more than a week passed before
anything concrete turned up. On Fri-
day morning a physician, driving along
Route 15 in Whitesburg, Kentucky,
200 miles from Louisville in the south-
eastern part of the state, saw some-
thing glistening in the sunlight. He
stopped his car, got out and picked
up from the road a piece of metal
which he saw at once was a service-
man’s dog tag. On it was the name,
rank and service number of Vernon
Hodge. The doctor did not recall the
name, but. he did remember reading
about a Louisville veteran who had
disappeared. He drove on to Whites-
burg and gave the tag to Sheriff Her-
man Combs of Letcher County.
“That’s the man the whole state of
Kentucky is looking for!” the sheriff
exclaimed, as he read the name on
the tag. ‘He’s the paratrooper miss-
ing from Louisville.” The sheriff
stared thoughtfully at the small tag.
“Can’t figure how it came to be found
in this county,” he said. “But we'll
find out. I want to see the place
where you (Continued on page 76)
Capt. Feltner on bank of river where hero fought a losing battle
“xe
Patrol car at spot. where
Sgt. Hall, who spotted suspicious Packard
ory APY
“We'll soon know,” stated Chief Belcher
bound victim’s captors callously discussed murder plan
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They Killed
Him Twice
(Continued from page 43)
found this and take a good look around.”
,With his deputy, Jim Short, Sheriff
ombs followed the doctor’s car to the
place where he had picked up the tag.
The two officers made a careful search of
the road and the adjoining terrain, but
could discover no further clue.
Vernon Hodge’s sister, questioned again,
suggested that he might possibly have
picked up a hitchhiker who had slain him
and stolen his car. ‘Vernon never would
pass up a hitchhiker,” she said sadly. “He
often told me that. He’d been hurt as a
kid, when someone refused him a ride.”
It seemed a reasonable theory. The offi-
cials now inclined to the belief that Vernon
Hodge was dead. If they could locate his
car, they might get a clue to his slayer.
“He must still have been alive when
he was here in Letcher County,” Sheriff
Combs reasoned. ‘“He must have man-
aged to unfasten his tag and throw it from
the car, to give searchers some idea of
where to look for him.” .
Captain Bert Feltner, in charge of the
Hazard Barracks of the highway patrol,
also theorized that the former paratrooper
had been slain for his car. “The Ken-
tucky law makes highway robbery a capi-
tal offense,” he commented. “So the rob-
ber may have felt no incentive to spare his
victim.”
Combs and Short returned to the spot
where the tag had been found. This time
they covered an area within a radius of
more than a mile in an exhaustive search.
This resulted in the discovery of some
torn bits of paper with writing on them.
Piecing these together as far as possible,
they proved to be parts of a letter and
an envelope. But the only fragments of
writing discernible were the beginning of
one word, apparently a name, on the en-
velope, and what might be the last syl-
lable of a name: “Her...” and “... man.”
Combs promptly got in touch with the
Jefferson County police and asked them to
check with Hodge’s family and friends, to
see if they could suggest a name fitting
those two fragments. But none of those
questioned could do so. No name of any
of Vernon’s friends fitted the fragments.
Since the tag had been found in Letcher
County, garages there were checked for the
yellow Packard, but without result. Ad-
joining counties also made a check, again
with negative reports. And with the
search for the yellow Packard consistently
fruitless, it now became an obvious con-
clusion that the car had been repainted to
escape detection. Now the order went out
to check on any Packard, regardless of its
color.
Sergeant Curtis Hall of the Hazard Pa-
trol, straightening out a traffic tangle
caused by a drunken driver whose car
had gone out of control, presently waved
the other cars on. As they sped past him
he noticed that one was a black Packard.
The driver appeared to be a man in his
30s. But before Hall could catch up with
this car, it had disappeared.
' Cruising around, he saw, a short while
later, what he believed: to be the same
car, with the same driver at the wheel.
This time a girl sat beside the driver.
Hall shouted to the driver to stop, but he
only increased his speed. However, the
sergeant got the license number,
The following morning Sergeant Hall
phoned Frankfort and got the owner’s
bihakbo it
name from the license number. The
man, however, explained his speeding
away. He was “driving with a married
woman,” he said. And the car was not
Vernon Hodge’s Packard. But the quest
went on and newspapers highlighted the
investigation.
An insurance man, returning to Louis-
ville after an absence, read the newspaper
stories and called on the Jefferson County
police. “On the night of March 13th,”
he said, “three hitchhikers waved me
down on Old Third Street Road, not far
from where Vernon Hodge lived. They
piled into my car. I put them out at New
Cut Road, about two miles west of Louis-
ville, told them: I wasn’t going further.”
This suggested the possibility that Ver-
non Hodge had been set upon by the same
three hitchhikers, now determined to get
a car for themselves rather than depend
on hitchhiking. But questioning of resi-
dents along highways leading from New
Cut Road brought no results.
Neon is a town a short distance from
Whitesburg. A small community, its resi-
dents are familiar with one another’s
affairs and the police of Neon know all
of them. Now Neon’s Chief of Police
John Belcher observed that there was a
new Packard convertible in. the com-
munity. It was black. Chief Belcher gave
it an inquiring eye.
“Whoever painted that car didn’t know
much about painting,” he commented to
Deputy Gene Adkins, who was with him.
By what you might call a home-painted
jo ted
“That’s Frank Pratt: driving it,” Adkins
said. “Wonder where he got a car like
that?”
“Frank’s okay,” the chief answered. “Just
the same, I think we ought to find out .
where he got the Packard.”
The next day the two officers again saw
Pratt driving the car. In it with him
were two young men. As Belcher signaled
Pratt to stop, the two youths leaped from
the car and fled into the woods lining the
highway.
“What are those boys scared of, Frank?” |
Belcher asked.
thing?”
Pratt shrugged.
better ask them.”
“That’s just what I will do.” Belcher
turned to Adkins. “Get hold of those boys,
Adkins,” he said firmly. “I want to talk
to them.” Then, turning to Pratt, he said,
“Some car you’ve got here. Where’d you
get it, Frank?”
Pratt scowled. “That’s none of your busi-
ness, is it?”
“Maybe it is,” the chief said evenly.
“I'm interested in Packards. There’s a
yellow Packard missing. The owner’s
missing, too.”
“This car is mine.”
the ignition.
“Wait a minute, Frank,” Belcher warned.
“Take it easy. This is a repaint job. You
should have done better than this.”
“I didn’t do it,” Frank Pratt said shortly,
but there was a flash of something that
might have been fear in his eyes. “It
was this way when I bought it.”
“Let me see the bill of sale,” Belcher
said. “I don’t see any license plate on the
car, either.”
“I haven’t got the bill of sale with me,”
Pratt explained uneasily. “It’s down at
my house. I'll bring it to you sometime,
Chief, when I’m coming this way again.”
“Never mind, Frank. I like to get things
myself,” Belcher said. “I think you’d bet-
ter come with me. I’d like to ask you a
few more questions, while I have some of
the boys check up on the car.”
Against his vigorous protests Frank Pratt
went with the chief. The car was im-
“They been up to some-
“T wouldn’t know. You
Pratt turned on
pounded and Pratt locked up temporarily.
¥
Chief Belcher prompt);
Sheriff Combs at White
a glint of yellow benea
fender of the Packard,
With Deputies Gal
Cook, Sheriff Combs d
in Letcher County, wh«
While the sheriff talke
his deputies roamed ab
discovered in Pratt’s
which recently had helc
ing with various people
learned that Jasper Ne
driving a yellow Packa)
_ per was a relative of F)
said to be stationed at F
Back in his office Sh
up Fort Knox. Jasper
was AWOL. Two othe
were missing. The o
Combs talked said the t)
in the stockade for in
regulations while in |
while working with a rc
Knox, the three had s
taken his gun and esc:
and ages of the three }
Nease, 21, Daniel McPea
Workman, 17.
The last name was :
the torn fragments foun
missing veteran’s dog ta
“Her...” and “. .. me
Meanwhile Adkins, wi
of other officers, was I
youths who had jumped
driven by Frank Pratt w)
had stopped it. One wa
but he was released wh
their satisfaction that }
relative to the case un
It took an 18-hour chase
penetrably wooded mou
the other youth. Finally
burgy Creek in Knott C.
to be Jasper Nease. He
Placed in the Whitesburg
By this time the car f
session of Frank Pratt he
identified as Vernon Hod;
vertible coupe. Seeking
of the missing ex-paratrox
lish when and how Hodg
into the possession of F
cials questioned the man
“Look, Frank,” Chief E
suasively, “a man is missir
driving his car. Suppose
the owner of that car is ,
You're facing a serious che
you’re not a killer. Bu
charged as accessory aft«
you understand what tha
Pratt said nervously, “I
ft
H. thing about the car.”
ud
4
a
“You told me you bou
reminded him. “You said
. of sale down at your hou
Pratt looked uncomfort:
wasn’t so.”
“We know it wasn’t. B
the car?” The chief waited
he said, “Suppose I tell you
brought it to your place.
yellow Packard black in :
wouldn’t be identified as
Right?”
“Did Jasper Nease tell yi
that?” Pratt asked quickly
“Jasper isn’t talking to
But he will,” the chief an:
. going to know all we neec
soon.”
“Honest, I don’t know
about that car or about -
Frank Pratt pleaded earn
me, Chief, that’s the truth
his sweating brow.
' Afterward the officers ec
| er. They concluded tha
probably was telling the
said he knew nothing r
|
. | i
fe on Ved is : |
oy See ee R) es a peroneal Depend gegen ve eke | ee vy a
: . " |
.«¥ , ry , MD i if
od er fo. 4 4 | | an ‘
‘ }
ae ate >: . : x +
oe “7 $m }
mt a ci ser crea LC WOE | nv | he Di One Ae. et fe —
‘tiog, of a lebding fiend, if I led him evda to.| {the ipfuence of iiquor when I did it, Onb 6f) tow 2” tae 1 ‘ Kf LF bapa
‘thé g i aah @ roarcd}Ps > + [the party is now in Cincinnati. You y 9 »: rhe Aine
He could! never, gern ‘criminal a9 hig'i||find bim atthe Lone Star Saloon, oa it | Ma pane G ‘
, ‘own t, ab bid imind jwas Woshalluw. to:|letrect, near Vine. His name I have atréady Wy | seem to f
H coneect aiggplest plaa-¢r plot fi thet! piven. This-is a fact. Gentlemen, I am : i | grief agai
furtber' of hig designs.; | 3. _«fiready to appear before the tribusal of God { party, is won
' The yo of to, te oan | "or va peg a opr Master, in whom | PRINTED AND HUBLISHED BY | { with epithets
os | | :.p[ Place all my bopes, and with whom 1 ly: Wit
rhe noty » prope t year, higld » {{to live ticle, pee lad to inform pet FAR AN &| McLEAN. ccntempt: abi
n born ia Covi fh ag ha 24,|}852, BF 4] is campoded } at ve crime Of | mice, HT Vino st., bet. Sixth & Seventh “Foes, that ”
Ne M4 fe bad a lithe, © frame, very boy! 4 I will: ale like i Chri leader, _ and a ‘ |. not altogethe
; — { dé mold, with deepest dive eyes and |Hebi His dewth? ihe ib considered verible, bat ernis of the (Dail dey « ; Ccreomstratin,
/ jad bel x frente wl at e, high ball is not 80 yal to the Christian as it ap- T of { y Enquiter : .tleman ¢onne
His mouth hetvactay from |the pears to the onerality| of mankind.” Your } py set, year! pecuene _ineoe | guard. Thus
of his features, being fat Se image of God, and jy immortal, |" gry mootiia st’ ea | Demoortey fe
his nse stood oat, prominent, incliai hapa Sted daa to live forever. - If the soul | ure months, | » 32 |. washed Dem
“drop at theand!) | . ‘epare aay it will takea position | on» month 338 af
ng devoid of all education, tom en live hasbeen to me Like ® |. per week, delivered by caters... , a9; 0 be easy fo
b+]. ] ‘wqondered, ht that hie fell i mor. will «not chpmerate my crimes. ad iis 4 | to: Dem
4 velf witht deeper hses & i] spectable. TT fmm J the velige | os. | | CAUTION. | | phrase of de
Lan olay a a fa fy | ious instructions of my home, I would got | . The unusnal number of fetters lost in the mall of | an individu
. ; eed 4 } i
head |e ik | be on the scaffold to-day: Y, God! hear my,}. late make it absolately nepeesary that our patrons rsonal ins
H ' af: (4)PRIBOM LIFE. iM He rayers Have mercy on my sins on thia last | Should usé every precautiqn in forwarding money. rn Tienes
‘ From day Of ventence uptil within a He I ask the parfohotthe widow of Mr, | Send st our riak by Express, Postofice Moncy
> |. few days tothe excdution the prisoner 1 Hughes, of my frien.14, and all those whom | | Orders, Draft, or in Regibtered Letters, We wii | tbe people in
iT] were visited by friendzand scquainbgnces | have offéuded. 1 thank the priests who | not be reeponsible for letprs sent in the mall with | so neatly
. whose Ln penibiyr maps actin aay mayo out sane the etalde, ig “and who | out a en 3 $ ity, when ar
wet . Come, never hexi & to! of the | ';thave been ‘teaching me, I thank all who have RAN MAM, Cinctnnat!, Ohio. tla ot
|! for Beye MAM oni Ue oh | Atbated me stad yee Iwas in jail. Now + there ane di
‘ |) omtbe scaffold, .. as: upbt by. | \[ am ready, to dic.’ ' WEDNESDAY... max x) user | Party wil &
* || ‘Father Hicken, lic| priest, at hit own! | | cish’s usuanxe a considerable
14 net, praosed rty efittrition for hen TH :
MS lo Sil dete Fer eneae tz wdhid nos fisted’ | | When Goetz bad finished, Case stepped for- | |THE NEws.. | whethet ecor
By li * igo thoselitrhe vidted hita to prepare him ward with the light boyish ‘air with which . ae te , |, | the present c
( Hs | + SPlriveally fort at chi Ket at was s00n Fe Real een peceeen nd anid, sia . The. Honorable Buxbasiy Eoctestox was | nority {o the
| i | I oo qiace,. pe — fi Seedan ties ae 4 touch, gentlemen. | Apt tal ask te hen f married yesterday, ¥ New York, to Miss | This imino
| ‘% | .. Gneincerd| and guilty of the meanest hypoc- 4 If there was a-crowd of young boys hero | | Many E, Davis of thiy city. unable to me
| : risy.. Ope day @ couple p+ Piva of Mares : ret ther. Metpe geations.-2 Bare only = Wholesale smuggling is being carried on aphrese indi
i ne : y BY, ery well. : { , F
te: i i — an pen dae wt ge a tot We have had every thing we win tad since |, 0m Canada to the United States. A! large - suggestive of
rig 2 poi xg pret beet we bave been here. I thank every body for | Capital {s invested in {He business, and ft is | ness which,
a | visit he} embrared the Catholic faith\ and fi the kindness they bave done for me, in prays said that the Canadian Custom officers are 4 Democtatic |
| ‘aeemed to be very devout, up until the Last! — ped lia another. | that isall | siding. , ; | -| it and! the
Y “nomen me | ee] PANe, ’ j It is said that Sc i
d: : Casey daring thé last few weeks of his lif ow ON THE FATAL TRAP, 7 is i ick Ged weak ta tea 8 Sranars feet s el
iy)’. kept that ‘buoyancy jand exuberance nm Cose, then turned round and commenced | ¢nink steam filled with - ey ee
if} apseit | ~ eae 20 ie ag Meat pibiag to those peat him ipa lively, easy, + bok = ers : ets star teal coy ings ly a
: t rough aad wou equently break of), familiar manner, | ben ie Sheriff told the | Yor a & week, ned for New York. | gions 0 :
4 titking wed <7 ra pore pre Jes He § doomed meh to stand n the trap-door | The Minnesota and |Kangaroo, both from missiles whi
H || abscess very tirone a Step bates, Gamer zemee eLenas he mere stent 10 | Liverpool landed ainbters hundred ppsen- | suficienty
yi the dayk wore wtay aad be became Aware of, rity, without betraying any signs of |emo- | S¢ts at the Castle Gargen last Saturday. Now! we a
rt 4 the d preparations L¢ing made for his) as~) tion. Alyus was evidently not so uncon- |! The Prince of Walep has recelved.a press- | pleasure in
[ |; | ~ : Suabaeher botlttes to whthla's fow boute bey | b proper seams af tresttulness ot tncte dooer | '>f i2yitation to vali Hhe Red River Ipdinds, } party ae f
Y ' fore tb closing wene, be| had etill left him w ‘Goetd straightened: hignself under the cross. |'' 7b¢ Virginia ture has passed a Dill | learning, eru
fy i . gum of bope. | : ot} besmiof the scaffold, os if to measure with | *ppropriating . $20, for the education of | of books, re
ae. ye |, ! re Last MIGHT ee pbs gye “ ones opin age Jhead and oo white and black children, ~ | ., :,| readerd of t
A Bes aad, ei 7 “if am, and similin made some remark to | - : i 3
“Bel ae Was apent by the doome }inen in praying and. | 1), qs near him. ie abaded and spoke to sev- | . The Abbe Cuascns, = been imprisoned their bparars
Bi! _ costering with! their fripads and ht he tral persons whotn he recognized among the | |= Paris for blowlag stock-bubbles to the ex- | mirers; the |
4 ap hoe erat oe Seclomgholt sa thr tpectators in a very unconcerned manner, | tent of 4,000,000 francs. |b)" | followers: i
4 itors , Or ® a sone To one he nodded and said, “I looked for you A bold attempt wag discovered receatly to | sider thems
r ' wart path, provided the- Sheriff.) Thay:
j p _ retired) before midnight, and slept very qui-.
t
7 afin | : Py baal
Fm oon a! throw a Jarge quantity of untaxed whisky on | civilization,
| Culy, with the vexception of Case, whb ap: | The sentence of the Court and the order for
heir execution’ was read to each separately | the Boston market by|means of exporting six | tianity—coll
} § ' peared somewhat reativg in his slumber, o¢- |}, 1, : fry ; |
4 f) A] : °° | by Deputy-sheritf Hart. While the Deputy | hwwdred barrels of weter and- reporting the | school teach
9 tain inven out a bis a, a, wan engaged reading this document to Goetz, | dame as whisky. i and all the k
it eh waletall ble.| On ‘aeaiing in the mabrieee Tape Was sling and jnsseice 30 those whe . Mr. Ltoyp Puowrx|was elected Rear-Com- | ° With all |
bit PRY P a lite after five, he said| he had been drpam- Pengmney) yor
“i: | dtanding near the scaflold, or looking from | modore of the squadyon by the New York | by the confe
i sae ec 1G page it t be tbe Court-house windows; but Algus was.| Yacht Club on Saturdpy evening. Mr. Paat- bodiment of
. wet
" “| engaged in tmore serious conversation with | , : ; Les:
r + ~ Uiire to Jee tbe day bhenlth One of the CathoJic clergymen in attendance, nyx served during thd war in the blockading | corruption:
1Godts had a). da or
j bie t ' Goetz listened unconcernedly to the reading squadron. He has gecently purchaped the | diseasé. It
; vip * pe t time, wnd’accord =a) aoe carly bid | of bis death- warrant. Adgus was not visibly | yacht,Widgeon from Mr. Francis Oscpop. the abusers
ee himselfihiy hit grated window, gwalted affected by it; but list it with ; . ‘ i:
\ : ‘ vo | afte y it, but listengd to it with avery |. The crews of Yale and Cambridge, the rep- | hangefs-on 1
1 | _ the coming of morning. ; 1), |eerious countenance, {$80 showed signs Of | pcontatives of America ramen, af thievigh con
‘a wi A paynagar on ‘ri \/impatience while thé document was being ve BR osrempn, aro DOW $
i t he ‘nt Last, hall aed gray, from itd chai 4, | Feud to him, and looked 4s if he would rather in training for the July race, and the. public | the blood a:
sd i, i te the east; Sesind a the great have such formulities dispensed with. He | interest jin that event will be quickened by | all thd defat
ba i i pluosbering city with noiseless tread, add idndf ooera in the slightest degreo affected by | ihe report of the splndid contest between | lators; All
Cee ei: ra eg taat'I eto tit narrow cel} where it. As soon as the Deputy was through, he sa Cahied ond Ginaabidira beaks i to
} beng? tong fortiinute toab, earnestly. watching |-tvrned and resuined. ‘talk{ag and lnughing'| te Oxtord and Vambfidge boats. 1 served tom
eto 8 r ia Prog the ne. ft camae with, ak with thgg around him on the scaffold. The néw Mayor of New Orleans has changed ful in |the ar
: | olgdu sunlight pr rosy flush, but liké a gray | CONDUCT) ov are CRIMINALS, the entire police force of the city. , ligion| Chri
is riar,|breathing, ia its vbiceleasmomberhess, a | |The conduct of neither Goetz nor Case | The eight-hour law wifl go into) operation | thropy, are
‘ : sl tty for|Abe wretch it fell qpon $0 ne, to 7 eatrirnghat oF adected. ad in Illinois to-morrow. It will be celebrated | put on toh
| ghtly. by be r ytd havior of Goetz wus thitt o nan Cy . ;
? |. What feelings were his, as he gat there’| wus conscious of Kuvin ecommitted a great by the workingmen roughout the State. prectices
} le sdond, with nopaigg but his melancholy etd | crime, and wus resplred to meet the conse- At the latest advices some 10,000 of the But the t
i inthe near future, reviving his short’ but quences of it: fi imly, and unflinchingly. | tailors of, Paris were gna strike. Théy abso- | sion the
cheqtered Life ‘that, in hia own word:
Deeg] but 4 dreary stotm to him.”
that night, which! was fe departing,
“had : The conduct of Cote, it struck us, was that | jutely refuse to work| except for a considera- |. which it ms
fore of aboy of a will, ungovernable, reckless i
spirit =pich even the apful circumstances | ble advance of wages. Ly portion of «
by which be wag eprcol could not sub- The minimum exponses of the St.’ Louis | who, |by the
vie of any reflection, | Board of Health, exclusive of street cleaning, | country. I
rossed the threshold,
a4 that form.) now so) ‘due. He seemed incapa
At
9 +f
} folllof life and youthful vigor, would be but a and incapable of tealizing his position, In | a ;
ad heats of loathaome clay. ; L his youthful vanity, the poor fellow, perhaps, for the engning yrar, are estimated = less spiltion
ee e that invisible sun that was mounting | thought he was acting the partof a ‘hero, _°| $195,000. This does pot include any antici- | the war, ev
} the|¢ky would sidk - the ee Nog 44 ee , ADJUSTING THE KNOT. . ~ | pated necessities growing out of the presence ployed in it
id greeted 2 crmieg the coffia lid and the | , While-the fatal knot was @cing adjusted | ofan epidemic. the ‘great
+) | {
|
* |. ° gals
f' that now. thrilled) with the approach of about the necks ofthe doomed men, Goetz The total amount of State tax to be raised | paid jin tax
death would be stilled forever! and Case maintained their. apparent uncon-
| |
HH | ebro, the latter talking and ‘lnuging' gaily. by the sities and romps in Massachusetts this +} ment and |
1, qme LAST NOURS ‘+ | Guse gaid, “I want to go.off at two o'clock: | Year is $5,000,000, ofjwhich nearly one-half is | pal or inte
gus’ dung, from Id ulaville, yitited him J want to be off on, the two o'clock train.” | assessed upom eight tities and towns within | must! first b
© before elyht 4 geo biny cor gt : urea en shee ™ apie five ‘milgs of Boston, as follows:| Boston, | citizens w
ittle fmoved, “and rather regar er FP € rved to shed tears. He | ¢) 160: C: dad: ‘ae peers wel
em as unealied for, expressing his joy at Feta an ebony crogs in his right hand, and $1,691,150; Cambrifige, $126,050; Charles- |; thin-minde
Mpegs Sa”
{ he departyse, | Thie lady had nursed the | said, showing it, “(We'll all meet again, some town, $92.400; Roxbury, $113,700; Chelsea, great unwa
a * Weidober, and declared an ardent attachment" time, gentlemen.) At this juncture Goctz's | $40,260; Brookline, $54,250;' Dorchester, | . If the co
“4 evi dy.” i m. She fainted ay sbe left the -prison,,! rother entered the |inclosure, and he called $59,700; West Roxbury, $48,950. | Total upo to pa
ee and had to be borne to acarriage. and ton- | tp bim to come up on the goaffold. The | o, oo 4x9 ' ry toe
mae tg veted to her hotel. - |. | police, not kngwihg who he was, refused to | Ss°o")"""- | hb ters pf boo!
Poe 1: ; tan early hour acletgyman held a pro- | let bifn pane, Wore) Hosts said, ‘He is m Lord Stanteyhay announced jn the Brit- | mighty flo
j 444 tragted interview with Moets, and those ga. With gia"' whices or ialieg —. oy 7. ish Parliament that {here is every! prospect of | once out v
ae Gin) “th fi the cell could distinttly bear: Wi e,"" | gf course, complie . . ;
Sf bia + , - Naealit, Hepacoce of the peat at oad : with. . Neither of th brothers seemed to be he pégceable solution pf the French antl Pres presidents
a aun ies r lad iwith| the exhorthtions ‘of the maa of much affected by the\neeting under so extra- | sian difficulties. |} ing pestile
Sa , 8: ‘lela r 41 | granary ircumdtahgesry pother ‘of his The manufacturerd of Illinois have determ- | untimely t
ie ! At half. ‘tea wel visited Goetz in his brothers cae in) and went'on the scaffold | ined to pay the workmen by the hour) at the | be the pect
‘ie ‘an engaged’ in’ conversation | nd, after shaking) hands with bim, With vis- is Uf hen boars Sek da A ger i trik ieiens
FF with bim.! ‘He med very little | {ble emotion said, “George, you ought not to | T*' 0° fen hour Ee ET AE MeTen PIKE | SOC privas
th ts a depressed, and Answered all our queries in a | have brought this on our family.” ~ wo | 38 anticipated. | f | religion: {
‘ | esa, pleasatit mood. seeming to have no ‘ LEAVH TAKING. _ It js confidently pfedicted that there will be |; should a
Ath Bee || : Ap moc P: . A} of ‘ aay theres i PP
| . he ay ey thi g.ceorected with “his” The Sheriff, Dejuty Sheriff, the ‘ministers | ® grasshopper plagn¢ in Missouri this year. fiand, leavir
. pe y — HH 15 w reba Pg otf q ee’ nattendance, anil officials on the scaffold | 4 The Upper Mississippi is subsiding, and tho'| the rest, it
| ; <i 7 atyhnd a oak aa N'as I die i || pow took eternal leave of the doomed men Minnesota Valley Iailroad Is & ain dn run- | wletler tl
* pogo wy aaa 50, WE e : my Jepury Hart kidsing cach of them, and wy repin 4
rt. & id bar en, 4 Lee ie th eed oT) bhaking them warmly’by the hand. Goetz | ing order. Great|damage has accrked by | it would b
4 pap thd a pe He farthermert id | Qwas on the right {icing the rear of the Court- | the floods, | | | pensation
an th4f'be felt his veatenc was just; he bad Hone | gale iy el _ omy = The teceipts at the Sub-Treasury fpr the The wor
|) frime, andtbough e didnot {ntend to kill’ hip et Hus shook hands an month of April werd $184,000,000. The dis- | pack of th
| t they did sb: hal hired: to! issed each. When, ‘tha white cans were t | “mt
al Ree lie. bith tna pe toh ue’ dobenyeal | bout to be placed over thd heads me orim- | bursements were $1}16,000,000, | The chatom- | critts, suc
yi) . : ils ‘
; ian
|
whiat was fast ‘approaching. als, knowing that 'tholr .Jast momenta on | house receipts were|$9 500,000. | |
& vee ‘| parth were drawing nigh, Goetz
¢ of the bystandets remarked that “mur- i ite those Tee atte specta
d Case
one
toe { nd
+ whee The opinion of the Attorney genera upon | and|Gomo
4 ne i {will put;"; but Gottz'shook bis head, and” jh.y “knew, goo-ty, but imaintgning the the high-handed proteedings of ieperal Sura- swallowed
i Mel \ eee bnew "sacl ese 1 ee wonderful nonchdlance which thgy exibited | 1DaN, id sald to be to the effect that hé is ex-.| The clas
Rie : | ° tht never walt found me } en wilt t CC. from the beginning. The most Mem faces | etcixing unwarrantel power. ; | ‘| country—t
ower, |, | TW found.dut, and never WHT DOW/ du the scafluld, even now, were Mr + Lhoee of a ae i 7
}
ww. oe | ds
eT haguagto)
ug
(sero Courcatid off Gf Uf 2! Gf Pnuder
of royhle, a 7 ae
My had baned (poylls. tb tate Fo
Vey vuglo~ To eet Geshe - bbs udp
Nucles' frou Cotumtin, Yrs
Aiur pes fs drive Cor boYene
tall ot. 72. nel. books
THE BREWER MURDERS
This occurred at Argillite, in Greenup County, Ky., on
the waters of the East Fork of Little Sandy River, around 1850,
Turner and Reuben Clark, John and Bill Hood and John Collins
were accused of the murder of Mrs. and Mrs. William Brewer.
There were supposed to have beaten the victims to death with
clubs, over a line fence dispute,
From History of Greenup County, Kentucky, by Nina Mitchell
Biggs and Mabel Lee Mackoy (1951) the authors state that three
of the accused were hanged in June 1852, from a scaffold on Main
Street in Greenup, near the confluence of Little Sandy and the
Ohio River, <A cart carried the condemned men to the location,
while they were seated on their coffins. A drum and fifeccorps
played the death march, and, as usual, hundreds of people were in
attendance,
Author Biggs, in A Supplementary Edition of A History of
Greenup County, 1962, states that John Collins hung (sic) himself
in the jail prior to the day of execution. John and Bill Hood,
who were the only two to be given life sentences, were later re-
leased from prison and served as soldiers in the Civil War. One
of these met his death by drowning while attempting to cross the
Cumberland River, The other lived to an advanced age,
Evelyn Scyphers Jackson
Box 1834
Ashland, Ky. 41101
=
e, Vernon Hodge picked
e and Workman, who
ride. From there the
rlan in the southeastern
. Hodge was no longer
car swung northeast
spot on the north fork
tiver near Viper, Ken-
s southeast of Hazard
miles southeast of the
the car was parked
captors began a heated
at it was best to do to
ssession of the car and
nt between two of the
gags were over his
Repeatedly he strained
opting to free his wrists
1e thongs which bound
C REMEDY
bridge, Mass., citizen
termites. Five hun-
ched while he burned
a, recently, and re-
1 sure way to get rid
Reid
rked helplessly as he
remove the bandages
ind which were almost
captors merely laughed
s if he might succeed,
im beat him with his
the rear seat thrust the
deeper into his back.
: been finally reached,
om the car. While one
ver him with a gun,
lis ankles. The third,
d, came back carrying
» gun and followed by
the rock, Hodge was
bank. Here he con-
Two of his tormentors
re third rebound the
d his ankles. Straight-
to his companions and
ptive, ‘We’re going to
vas attached to Hodge’s
ynecerted effort by the
ooper was pushed over
yellow waters of the
es he bobbed up and
toy of the current.
ted happened. The
k who had been view-
vith grim amusement,
forts were succeeding.
tely, he had finally
ose and torn the band-
h and eyes. The dia-
) was changed to fear
t Hodge was beginning
have come loose,” ex-
vho held the carbine.
nething about it.”
t he was able to keep
make some progress,
He shouted for help
ries sounding eerie in
wly he began to work
er and away from the
turers stood watching.
conference. Something
help came; something
n in the clear. A plan
| upon, and one of the
ne harried swimmer,
the bank and we'll
took up the cry and
LAAN Es
soon the three youths were urging him to
swim toward the shore.
Hodge hesitated. Apparently he doubted
their sincerity. But as they continued
their offers of help he was finally per-
suaded. Now almost exhausted, slowly he
turned and swam toward the shore where
his promised rescuers stood awaiting him.
Workman and Nease were holding out
their arms in a gesture of friendliness.
When he was about ten yards from the
bank, these two jumped into the river.
The grim lines of Hodge’s face softened.
He shouted his thanks to them. He was
answered with heavy blows of the butt of
the carbine on his head. With a low moan,
his last faint appeal for help, the struggle
of the ex-paratrooper and war hero ceased.
As the three watched, the surface of the
river became calm except where bubbles
told of Hodge’s last effort.
The two youths waded back to the bank
with water dripping from their clothes.
They were safe at last. Vernon Hodge
would never tell the story of his kidnap-
ping and death agonies to any human
being. They returned to the Packard and
quickly drove away.
After the murder, the three killers had
driven to the home of one of Nease’s rela-
tives. They had left the car there and
later driven it to McRoberts, where Brack
Nease lived.
Later the car was repainted and Monday
morning McPeak and Workman left Mc-
Roberts and began hitch-hiking to their
homes.
* * ve
McPeak told the assembled officers that
they would find the body of Vernon Hodge -
in the Kentucky River between Blackey
and Viper, and he accompanied them to
the spot. Searching parties were immedi-
ately organized and the river was dragged
at the spot indicated by McPeak. All day
long the searchers worked, but no body
was found.
Some of the officers were convinced that
their prisoner was not so contrite as he
appeared; that he was purposely conceal-
ing information as to the place where the
body had sunk. But he insisted that he
had indicated the exact spot where Hodge
had gone under, as near as he could tell.
“The river might have carried the body
downstream,” he said, “because the heavy
stone came off.” i
With the aid of Chief of Police R. L.
Lester of Jenkins, who brought grappling
hooks, and Deputy Sheriff Collins of Perry
County, State Officers John Gose, Jim
Short, Keesling Hogg, with Sergeant Cur-
tis Hall, Corporal Curtis Pfaff and Officer
Tom Eversole, on March 23rd, 1947, recov-
ered the body about seventy-five feet down
the river from the place McPeak had indi-
cated.
The feet of the victim were still bound
with a leather strap and two handker-
chiefs with which he had been gagged and
possibly strangled, were still around his
neck. The body was removed to Hazard
for the inquest.
Murder charges were immediately
placed against the three killers at Hazard
in Perry County. They were taken before
County Judge Taylor Witt preliminary to
their examination trial in Circuit Court.
McPeak, acting as spokesman for the trio,
declined the judge’s offer to provide coun-
sel. At the examining trial in Hazard,
March 28th, all three were held for the
grand jury. The three had signed confes-
sions which agreed in substance, but each
intimated that Hodge had been slain by
someone other than himself.
But Hazard was not to see the trial of
this vicious. trio for murder. Louisville
authorities had already taken action to
obtain the prisoners for trial in Jefferson
County on charges of armed robbery, a
capital offense in Kentucky.
However, Circuit Judge S. M. Ward,
sitting at Hazard, refused to release the
men for arraignment in Louisville.
On the basis of priority, Jefferson County
finally won, and the three men were re-
moved to Louisville where their trial date
on charges of armed robbery was set for
May 19th, 1947.
Meanwhile, Brack Nease, sixty, father
of Jasper, was indicted in Letcher County
on a charge of receiving stolen property.
Later he was tried and given a 1-to-5-year
sentence.
After their examining trial, McPeak was
taken to the jail at Lexington, Nease to
Richmond, and Workman to Winchester, as
a precaution against possible mob violence
as public feeling ran high.
Jasper Nease went on trial in Louis-
ville, May 19th, 1947; was found guilty and
sentenced to death.
Daniel McPeak was next. His trial
opened June 10th. He, too, was found
guilty and death was decreed.
Herbert Workman, the youngest of the
three, was given the same sentence when
he went on trial September 22nd.
Epitor’s Norte:
Photograph below shows, left to right:
Herbert Workman, Jasper Nease and
Daniel McPeak. ;
“We began trying to get a hitch. The Packard you’re talking about stopped,”
was the story told by these three deserters when questioned by investigators
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None of them had any hope of finding the
paratrooper alive. But before they could
make charges against at least three of the
prisoners, more serious than that of having
stolen a car, they would have to know
something definite as to what had hap-
pened to Vernon Hodge.
They were soon convinced that Brack
Nease knew little or nothing about this
phase of the puzzle; and the three young
soldiers from Fort Knox seemed deter-
mined to keep what they knew a secret
from the investigators.
Sheriffs’ posses from Letcher and Perry
Counties, headed by Sheriff Combs of
Whitesburg and Sheriff Green Holliday of
Hazard, assisted by Captain Bert Feltner,
Sergeant Curtis Hall and Officer Thomas
Eversole of the Kentucky Highway Patrol,
beat through the woods between Whites-
burg and Hazard hoping to find evidence
that would disclose some clue to Hodge’s
fate. It was a stupendous task and a most
discouraging one. They finally gave up in
despair, the officers concluding that in all
probability the paratrooper’s body had
been thrown in the river and that, unless
one of the prisoners could be induced to
talk, to locate it might be impossible.
It was decided to concentrate all their
skill on the prisoners. At first, Workman,
being the youngest, was thought to be the
most approachable of the three. But this
proved a fallacy. Each was given periods
of questioning and by close observation
during these periods, the officers came to
believe that if anyone would break, it
would be McPeak.: They exerted all their
effort on him and he finally came through
with a confession.
“The day we left Fort Knox,” he ‘stated
in his confession, “we walked toward
Louisville. We walked all night and all
the next day up to about six in the eve-
ning of Thursday. On the way, Nease and
Workman wanted to get a car some way
to get home in. I told them we would get
picked up.
“We hit a highway at the forks of two
roads. We began trying to get a hitch-hike.
The Packard you’re talking about stopped.
It was a convertible coupe. One man was
in the car and his papers later showed him
to be Vernon Hodge. ... I got into the
front seat beside him. Nease drove. Work-
man held the gun in the back seat...
Nease made Hodge tell him the road to
Harlan. About ten miles out of Louisville,
Nease made Hodge change clothes with
him. We hadn’t touched Hodge then. He
just told Nease where to turn... We got
into Hazard about four Friday morning
and drove east.”
According to McPeak, Hodge had pleaded
with them when he was forced to change
clothes. “Please let me go,” he had said,
“and I’ll sign this check and give it to you.”
He signed the check and gave it to Nease,
asking him to return the wallet that had
been taken, because of the papers it con-
tained. But though the check was taken,
the wallet was not returned. When they
had become threatening, Hodge had asked
them not to strike him on the head as he
had a metal plate in it. This was a result
of one of his war wounds.
At this point it might be well for me to
give to the reader the sequence of events
that followed, as they are reflected in the
official records of the case. They follow
below as I have pieced them together
from the three separate signed confessions
made by the three killers.
After leaving New Cut Road, about two
“When I found the body, rigor mortis had set in and—that reminds
me—you’d better take care of that cold, Your Honor—”
oooh IK
miles from his home, Vernon Hodge picked
up McPeak, Nease and Workman, who
were seeking a ride. From there the
Packard sped to Harlan in the southeastern
section of Kentucky. Hodge was no longer
at the wheel.
From Harlan the car swung northeast
until it reached a spot on the north fork
of the Kentucky River near Viper, Ken-
tucky, a few miles southeast of Hazard
and more than 200 miles southeast of the
Hodge home. Here the car was parked
and Hodge’s three captors began a heated
discussion as to what it was best to do to
obtain complete possession of the car and
cover their tracks.
Hodge sat in front between two of the
trio. Handkerchief gags were over his
eyes and mouth. Repeatedly he strained
at his bonds, attempting to free his wrists
and ankles from the thongs which bound
DRASTIC REMEDY
A certain Sturbridge, Mass., citizen
strongly dislikes termites. Five hun-
dred persons watched while he burned
his house down, recently, and re-
marked “That's a sure way to get rid
of ‘em.”—C. G. Reid
them. His arms jerked helplessly as he
strove to grasp and remove the bandages
covering his mouth and which were almost
suffocating him. His captors merely laughed
at his efforts.
When it looked as if he might succeed,
the youth beside him beat him with his
fist, and the one in the rear seat thrust the
barrel of a carbine deeper into his back.
A decision having been finally reached,
Hodge was jerked from the car. While one
of the trio stood over him with a gun,
another unbound his ankles. The third,
who had disappeared, came back carrying
a large stone.
Prodded with the gun and followed by
the youth carrying the rock, Hodge was
forced to the river bank. Here he con-
tinued to struggle. Two of his tormentors
held him while the third rebound the
leather strap around his ankles. ‘Straight-
ening up, he nodded to his companions and
then said to the captive, “We’re going to
leave you here.”
The heavy stone was attached to Hodge’s
waist. A sudden concerted effort by the
three and the paratrooper was pushed over
the bank into the yellow waters of the
Kentucky River.
For some minutes he bobbed up and
down helplessly, a toy of the current.
Then the unexpected happened. The
watchers on the bank who had been view-
ing his struggles with grim amusement,
realized that his efforts were succeeding.
Struggling desperately, he had finally
worked his hands loose and torn the band-
ages from his mouth and eyes. The dia-
bolic fun of the trio was changed to fear
when they saw that Hodge was beginning
to swim.
“The stone must have come loose,” ex-
claimed Workman, who held the carbine.
“We've got to do something about it.”
Hodge, finding that he was able to keep
himself afloat and make some progress,
gathered courage. He shouted for help
continuously, his cries sounding eerie in
the gray dawn. Slowly he began to work
his way up the river and away from the
bank where his torturers stood watching.
They held a hurried conference. Something
must be done before help came; something
that would put them in the clear. A plan
was quickly decided upon, and one of the
three called to the harried swimmer,
“Hey! Come over to the bank and we'll
help you.” Another took up the cry and
rasa iT
soon the three y:
swim toward the
Hodge hesitate:
their sincerity.
their offers of |
suaded. Now alr
turned and swar
his promised res
Workman and
their arms in a ;:
When he was
bank, these two
The grim lines
He shouted his ¢
answered with h:
the carbine on hi
his last faint apr
of the ex-paratro
As the three wa
river became cal
told of Hodge’s
The two youths
with water drip
They were safe
would never tell
ping and death
being. They ret
quickly drove av
After the mur:
driven to the hor
tives. They hac
later driven it tc
Nease lived.
Later the car v
morning McPeak
Roberts and be;
homes.
McPeak told t
they would find
in the Kentuck)
and Viper, and
the spot. Searct
ately organized :
at the spot indic
long the search:
was found.
Some of the o!
their prisoner \
appeared; that |
ing information
body had sunk.
had indicated tr
had gone under
“The river mig
downstream,” h«
stone came off
With the aid
Lester of Jenki
hooks, and Dept
County, State
Short, Keesling
tis Hall, Corpor
“We began
was the stor
PASCLION:
2-12 P AGES
ctric Chair Suit Urges
E REG es
his time reading Mis Bible - Hys
mother. fram MeKonerts: Ky:
“two sisters Mra. Dessie Whitaker
and Mre Beuieh Sexten, feoth-
inielaw,: Kerineth Whitaner. aad
an aincie and aunt, Mr: and Mere
) Herman Sian. “visited him
~ Wednesday. Trey spent.3 her
at fis cell doer. : ;
» Nease was convicted Ar an
armed-robbery charge in mA
son Circuit Court: May 392-1947
~ Shortly afterward the two other
" eek Read, ‘Lauisville, also . World
War ti veteran, 2)
-Nease was pronounced dead
Ba 10 am. hy the: prison physi-
cian, De Luther. Nichols. Th
freee siete hand Lam ready.
to gn to the chaif.t- aid
ata. go.over I am-trusting in Jesus
- for everything.” Then: Buchanan
extended his right hand through
thecopening in the grating over
eee pak thevdnor.in Nease's celbin Death
‘T want everynody tp know Fm. Row. The condemnes man clasped
«ready -to mest» new. world im, at Wi oe
wunK to meet Jesus.” ‘Nease saton a sin trae which
nen he walked ta the chait=ne-nad=remavelt- from his punk,
‘Analsed and sat Aca folded ‘once. ana placed on: tne
tinder Si ate tae a ’ Neuse wat conerete. floor” “He sat at the ceil
permitted to aavite only three” door A newspaper reporter asked
persona, other than metibpers ot Nease why he: took. (part in thes
“his” family $ to the sesecution Stetingagt@s " odgze ohne replied.
He saliced inte the
“ber calmly, | stopped
paces from | the chat
the witnesses. oj 7 |
soldiers. McPeak and Workman
also were. eonvicted oon armed-
robbers charges,
All three aiso are under indict-
ment on murder charges in Perry
‘County, where Hodge's clubped
' body was found in the icy Ken-
‘lucky. River in Mareh; 1947. The
armed-robberv .charge resulted
from © the fact tat they had”
hitchhiked. a ride in 9 Hodge's
car, which they boarded > near
Louis iile at Old Seventh Street
Road ane: New Cut Roach “The
three, armed with a “carbine.
overpowered Hodge and tek him
to: Perry County. They kept the
car after kKiliing Hodge :
“The three were escapees: fram
the military mpound “at Fact
‘Knox. They Like serving cours
martial; sentences giveo them,
Pureps ‘Nease had been
ited: oo the -Army of
rRWwO 2 ATA Using. an:
eae cee ee
Tye’s Wi ill
Be Set Aside.
Florida Relative.
Alleges Widow
* Coerced Judge
: Spertet is The ( verter. Jouraat
Wilamspure Kyo Juin 29 -A
fuit-was filed vestercay in Whait-
ley Ciseust Court to set aside the
last “wil of Judie Pienza, H. Tye,
“ho ced duly .
The sult was 4.4 bye ataraers
for his Fe ERE, -law, Mrs.
Margaret: vTve. a: guardian for ;
\e
hec: Som andthe jucge’s grandson,
Witham Gosper Tye. bf Fics j
It Bsa that apres sous willbe
sibstittited forthe’ Teast mii!
petition “states thet Dro Le
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kie Collins for years but
[ was hazy on his back-
o checking into the story
vhite, new Warner Bros.
seeing shortly, if you
ught up with it. As I
nth, this novel is gen-
one of the first of the
naracterization of Count
: film by Sydney Green-
f more than one villain
‘ough the pages of mys-
recent years.
e the original story, was
{ educated in Italy. He
decome a lawyer, but
e line he got sidetracked
g and acting. Then he
s, who encouraged him
‘specially urged him to
ve style in which each
rtion of the story. Col-
e Woman in White was
a. Dickens’ weekly, All
Harper’s Weekly pub-
rk late that year and
e story was so well re-
or was invited to come
lecture, which he did.
e of which is southern
adapted for the screen
ise Avery, produced by
nis seventieth produc-
s., by the way), and di-
dfrey. In addition to
includes Alexis Smith,
Young, Agnes Moore-
The innuendos carried
‘rs have been to the
sterious person tainted
closet. Gentlemen, if
» down and shook me,
1 a quarter.”
Men, and OPA sleuths
The $800 a month rent
house on R Street and
1ess which didn’t war-
dn’t sound consistent.
ivities under a magni-
scrutiny they learned
which he was placing
disposal of “persons
to show them how to
Of course, there was
0-cent to 40-cent per
»wledge. During the
1945, for example, it
come of $195,670.
ts,” said United States
ohey, when he asked
in New York for an
charges,” insisted
d true sided with the
matter came 'to trial
ment, $100,000 fine,”
irold P. Burke when
up for sentencing.
> all the way to the
Ss arguments fell flat.
a review of his con-
The next day, after
‘riggle off the hook,
t R Street left for a
Penitentiary
—FLoyp Carson.
The Kentucky River Horror
(Continued from page 19) approached the
car. ‘“What’re those boys scared of, Brack?”
asked Belcher. “Looks like they’ve been up
to something.”
Nease shrugged. ‘Better ask them.”
Vowing to himself he certainly would,
the Chief continued, “Get hold of those
boys, Adkins. I don’t like that.”
Turning back to Nease he said, “That’s
some car you’ve got there, Brack.”
“Yeah, not so bad, is it?”
“I’m sort of interested in it,” remarked
the Chief casually.
Nease did not reply. He merely scowled.
Belcher continued good-humoredly.
“Where'd you get it, Brack? Hereabouts?”
“That’s none of your damn _ business,
is it?”
Belcher’s eyes had been busy. He had
seen a glint of yellow beneath the black
in a corner of the fender.
“There’s been a yellow Packard missing,
and the owner’s missing, too. No chance
this could be it, I guess.”
“No, Chief. This car’s mine.” He turned
on the ignition, impatient to be on his way.
“Wait a minute, Brack. Take it easy.
This is a repaint job. You should have
done better than this.”
A trace of fear flashed in Brack’s eyes
as he said, “I didn’t do it. It was that way
when I bought it.”
“T’m_ still curious, Brack. What about
letting me see the bill of sale. I don’t see
any license plate.”
“Haven't got it with me, Chief. It’s back
at the house. I’ll get it for you sometime
when I’m coming this way.”
“Never mind, Brack. I like to get things
myself. Just now I believe you’d better
come with me. I’d like to ask you a few
more questions and have some of the boys
check on the car.”
Brack Nease protested vigorously, but
the Chief was firm. The car was im-
pounded and Nease was locked up tem-
porarily. Belcher got in touch with Sher-
iff Combs at Whitesburg and told him
what had happened.
Le Deputies Dave Galloway, M.
Short and George Cook, Sheriff Combs
drove to McRoberts in Letcher County,
where the Neases lived. Incidentally,
Galloway was later killed, on December
20th, 1947, when in the act of arresting a
lawbreaker. While Combs talked to Mrs.
Nease, his deputies roamed about the place
and Galloway discovered some used cans of
black paint. Further investigation revealed
that Jasper Nease had been seen driving
a yellow Packard. Jasper was Brack
Nease’s son and in the Army. He was
supposed to be stationed at Fort Knox.
The sheriff, when he got back to his
office, called up Fort Knox and learned
that Jasper Nease was AWOL. He learned
also that two other service men were being
sought. According to the officer in charge
of the Fort Knox reservation, they had
been placed in a stockade for infractions
of Army rules when in Europe. Whil
working with a road gang near the Fort
they had slugged the guard, taken his gun
and escaped. Their names were Jasper
Nease, twenty-one; Daniel McPeak, twen-
ty-one; and Herbert Workman, seventeen.
The last name clicked in the sheriff's
mind. It tied in with the incomplete
name on the torn envelope which he had
tried to piece together.
Meanwhile, pursuit of the two young
men who had been in the Packard driven
by Brack Nease had been taken up. One
of these was soon caught. However, he
was released when it was found he knew
nothing of importance relative to the case.
But the other led a posse in a wild,
eighteen-hour chase over wood-covered
mountains that were at times almost im-
penetrable. For miles the officers hunted
him. They finally cornered him in a
declivity of Amburgy Creek in Knott
County, near the Carr Creek Church. He
proved to be Jasper Nease, one of the
AWOL young men from Fort Knox. Ar-
rested, he was placed in the Whitesburg
jail.
A search now began for Daniel McPeak
and Herbert Workman. The former’s home
was given as Dublin, Virginia, while the
latter lived with his parents at Tesla,
West Virginia. By this time, the car found
in the possession of Brack Nease had been
positively identified as the Packard belong-
ing to Vernon Hodge.
ae COMBS now sought to learn,
just when Nease had come into posses-
sion of the car and whether the two other
escaped soldiers from Fort Dix had been
seen either in the car or in the neighbor-
hood of the Nease home or at the homes
of kinfolks.
He soon learned that three young men in
Army uniform had been seen in the
Packard car and had visited with relatives
of Brack Nease, both at McRoberts and at
Carbon Glow. A Mrs. Claude Andrews,
living near Whitesburg, revealed she had
seen three men in uniform drive a Packard
coupe into her yard. They remained but a
short time before driving into the wood-
covered hills. :
The fact that the three escapees had
apparently lingered in his county gave
Sheriff Combs some exciting hours. He
now had warrants for the arrest of Jasper
Nease, Daniel McPeak and Herbert Work-
man on a charge of stealing an automobile.
Jasper Nease was already in custody.
Nease refused to talk and his refusal
seemed to give substance to the idea that
his two companions were in hiding in the
immediate neighborhood of where he had
been trapped.
This country is filled with natural hiding-
places and the roughness of the terrain
makes the following of any trail. most
difficult.
Posses from Letcher and Knott Counties
scoured the forest-covered mountains but
they flushed no quarry.
Realizing that the news of the arrest
of Jasper Nease might reach the two
other fugitives and cause them to make
tracks for neighborhoods near their homes,
the sheriff called on Virginia and West
Virginia authorities to have all lay officers
on the alert for McPeak and Workman.
Within two days Daniel McPeak was
caught making for his home near Dublin,
Virginia, by Trooper S. V. Shelton of the
Virginia State Police. Told that he was
to be returned to Whitesburg, Kentucky,
for questioning regarding a stolen auto-
mobile, and then turned over to military
police from Fort Knox, he refused to talk.
The following day Herbert H. Workman
was captured near Sutton, West Virginia,
by State Trooper L. L. Gum. When ques-
tioned by the latter, he freely admitted his
identity. He acknowledged that he had
escaped from Fort Knox with two buddies
after overpowering a guard, and that he
had recently been in the neighborhood of
Whitesburg, Kentucky. But, he said, he
knew nothing about a paratrooper named
Hodge nor about his having been slain.
The three suspects were locked in the
Letcher County Jail at Whitesburg for
questioning.
The officers now intensified their at-
tempts to learn the fate of Vernon Hodge.
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4418 Ky. 213 SOUTH WESTERN
bing Vernon Hodges with the use of a
deadly weapon. Jasper Nease and Herbert
Workman were appellant’s accomplices.
Nease was convicted first, and the opinion
affirming the judgment in that case was
rendered by this Court on April 23, 1948,
and is reported in 307 Ky. 640, 211 S.W.2d
826. Since the evidence for the Common-
wealth in this case, except as to the letters
. hereinafter referred to, is identical with that
of the Commonwealth in Nease v. Common-
wealth, supra, even to the confessions of
Nease and McPeak, we will not iterate
those facts, but will refer the reader to that
opinion. . :
Appellant took the stand in his own be-
half, and admitted all the facts introduced
by the Commonwealth, except that he con-
tended that he did not participate in the
crime, but was forced to accompany his
accomplices through fear of death at their
hands. He admitted, however, that he
knew Nease and Workman to be desperate
characters; but despite this fact, while all
three were military prisoners at Fort Knox,
he helped them overpower a guard from
whom they secured an Army carbine, which
is the deadly weapon alleged and proved
to have been the one used in the commis-
sion of the crime. He further admitted
that when they escaped imprisonment at.
Fort Knox; he knew it was the intention
of his accomplices to steal an automobile.
He testified that, after they had walked
for some distance, they obtained a ride
with Prentice Knopf, who let them out at
the intersection of Old Third Street Road
and the New Cut Road in Jefferson County ;
that shortly thereafter Nease and Workman
obtained a ride with Vernon Hodges, the
victim of this atrocious crime. He testified
that he did not enter the Hodges car at that
time, “because I knowed they (Nease and
Workman) was going to get into some kind
of trouble sooner or later.” He stated that
- about twenty minutes later the Hodges car
returned; Nease was driving and “Work-
man was sitting in the back seat with the
carbine on Hodges, in Hodges’ back, and
Hodges had his hands up.” He then related
that he was compelled by Nease and Work-
man to get in the car. That between Louis-
ville and Frankfort Nease exchanged
clothes with Hodges and took $20 in cash
and a $12 check from Hodges. They
REPORTER, 2d SERIES
stopped at a filling station near Frankfort
and filled the gasoline tank of the automo-
bile, bought three beers, one for appellant,
one for! Hodges, and one for Workman,
and Néase drank one beer inside “the
joint.” After they drove through Frank-
fort, Nease stopped the car on the side of
the road, took the gun from Workman, and
directed appellant to tie Hodges’ hands,
which, under compulsion, he did. Work-
man then tied handkerchiefs around Hod-
ges’ mouth and eyes, thereupon they placed
Hodges in the back seat. He then related
that they drove to or near Hazard on High-
way No. 7, where they forced Hodges to
get out of the car; there they fastened a
rock to Hodges’ body; and, at Nease’s
direction, Workman pushed him into the
Kentucky River. Thereupon Hodges freed
his hands and removed the handkerchief
from his face; but Workman tore a piece
.from his shirt and gagged Hodges with it.
Appellant testified that he immediately left
the scene and returned to the road; started
toward Hazard to report the crime; and
on his way thumbed a car which happened
to be occupied by Nease and Workman.
‘He stated that then he was threatened by
both Nease and Workman if he reported
the crime to the police. That afterward
they went to the home of Nease’s aunt,
where they obtained something to eat and
refilled the car with gasoline. They then
went to the home of Nease’s mother and
father, who were absent. This was early
on the morning of Friday, March 14, 1947.
Nease instructed Workman and appellant
to remain at his father’s house while he
endeavored to find his mother and father.
Nease returned after dark on Friday night
after his mother and father had returned
tothe house. On Saturday morning Nease’s
father drove to the town of Neon, purchased
a can of black paint which he gave to Nease,
and the three then caught a bus and went
to the home of Nease’s sister, where the
car was parked, at which place Nease and
Workman painted the fenders of the car.
Nease called on his “girl” that night, and
appellant stayed at the home of Nease’s
parents until Tuesday morning, when he
hitchhiked a ride to his home in Virginia.
Appellant thereafter was arrested in Vir-
ginia, and confessed his participation in the
crime. While he was confined in jail he
McPEAK vy. COMMONWEALTH Ky. 449
Cite as 213 S.W.2d 447
and his accomplice Workman exchanged
letters, of which appellant was the author
of three. The letters from Workman to
him were not introduced in evidence, but
the Iectters from McPeak were. These
letters, with their implications, conclusively
show appellant to have been one of the
principal participants in the crime of which
he was convicted. Some of the language
contained in the letters is so obscene as to
impel us not to publish them in full. Delet-
ed of the obscene language, the letters read
as follows: ;
First Letter
“In answer to your letter—now, this is
what I want you to say and nothing else
but this, for I have made my statement and
if I change it, it will look bad for you and
me. So this is what I want you to say.
My statement: Fort Knox, I hold the guard
and Jasper grabbed the gun and you got the
belts and Jasper tied him up, and we stayed
in the field until dark and walked all night.
The next day we came to a farm house and
some man gave us fifty cents and we got the
bread and doughnuts, and we went on walk
all day. About 5:30 we got the first car
and went to the forks and Jasper said it
was a coupe car that you and he would
leave me, that we was going * * * that
I didn’t know that you was going to take
that one. That you and Jasper left me
to get another ride home. In about twenty
minutes later that you and Jasper came
hack to me with this car and Jasper said,
get in’ and I said ‘no,’ that I would get
another ride.. But he made me get in. He
said that he was afraid that I would tell
on him, and Hodge showed Jasper the way
and the route; and somewhere on the road
Jasper changed clothes with Hodge and
bought some beer and gas, And next to
Hazard he stopped and told you to give him
the gun. And he got out of the car and
put the gun on Hodge and told me to tie
him up, and I said ‘no,’ and he put the gun
on me and said, ‘make it fast.’ So I had to
tie him and I didn’t have anything to do
with the rest. And I was the first one back
to the car and you next, and Jasper last.
But tell them Jasper did make you go in
the water but you did not hit Hodge and
you and he painted the car and the rest of
your statement is like mine. And I will
remember it. So, that’s all pal, you don’t
213 S.W.2d—29
tell them that we sleep on the way. So,
that’s all pal and the best of luck to you
and write me often. So long.”
Second Letter
“Well, pal, it looks like that Jasper might
get enough money to* * * you and me
up. But he can’t me so bad, but you have
not got a lawyer, and he can * *~*
you good. So it looks like that I will have
to work hard for you so the best thing we
can do is for you to tell them when you
make your statement that Jasper done all
the talking and you done all the work, and
you and he made me get in the car and when
Hodge was tied up that Jasper had the gun
on me and Hodge and you helped me to tie
him up. And that was all that I had to
do with it. So pal, it is best if you tell this.
You know that you said at his house and
his mother and dad and the rest heard it,
that you did the most of it all. And if
they get on the stand and say this, you are
* ¥* * and Jasper may get enough money
to * * * you and get out of it himself.
So you know that we don’t want that. I
think if anyone get out of it, itis me. How
about that? And if you will promise me
that you will do this, and will, I will promise
you the blades and I will go out with you.
But I want them to know here that I had
nothing to do with but what I was forced
todo. And anything you say like this will be
the same as my statement. So you answer
right away and tell me if you will do this
or not. So I can tell my brother to get the
blades and put them in a shoe and send
them to you, and I will pay you good for
this: “So. pal;: we can: -* ~*~ him, But
this is the only way. So long pal.”
Third Letter
“Listen, you * -* *, tell them that I
thought you were backing Nease up, and I
knowed you had the gun and told me to
get in that he was not going to take any
chances on me, so I got in. Do you get me
now? And will tell them if I knowed then
that you was not backing Jasper up that I
would have not got in the car. But I
didn’t know and you can tell the rest
the way you said. But if I get what
TI want I won’t worry about these * * *
trials. What I mean by make it good, that
is to keep me out of it like we said, and if
w
be 43
oF Uetes i
2 S383
wd ‘
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ee dew
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Bi PARE Re Ak Bay ois tale
3
i.
He pe Raa ME Sos 9 ae a a
oe
Ca 8
SCHOOL OF LAW
UNTVERSITT. OF ALABAMA
S26 Ky. 211 SOUTH WESTERN
[6] In their answer appellees set up a
plea of adverse possession hut make no ref-
erence to such claim in their prief. Clearly
there could be ‘no adverse possession as
against his co-owner Mary Morgan, and
since her children acquired no interest in
the property until after her death in 1936,
appellees could claim no title by adverse
possession as against them.
Conclusions
[7] On’ the whole case we are of the
opinion ‘that Mary Morgan acquired title
to a one-half interest in the property de-
scribed in the petition by virtue of the deed
dated December 19, 1931, and that her
heirs at law acquired title to that interest
upon her death on May 8, 1936, and that
the Chancellor erred in dismissing their pe-
tition for sale of said property for division.
The judgment of the lower court is there-
fore reversed.
Judgment reversed.
SN
> E KEY NUMBER System
T
307 Ky. 640
NEASE v. COMMONWEALTH..
Court of Appeals of Kentucky.
April 23, 1948.
Rehearing Denied June 25, 1948.
1. Witnesses 345 (1)
Witness for commonwealth was not
subject to cross-examination as to whether
he had a criminal record or had ever been
accused of crime.
2. Criminal law €>1169(1)
Admitting irrelevant testimony con-
cerning personal life of victim in prose-
cution for robbery was not prejudicial er-
ror, where testimony was not brought out
by repeated questions so as to unduly im-
press jury and was not objected to. KRS
433.140.
3. Criminal law C=! 169(1)
Admitting over objection in prosecu-
tion for robbery irrelevant testimony that
witness had lectured victim in lodge de-
REPORTER, 2d SERIES
gree work was not prejudicial error. KRS
433.140.
—_————
JAppeal from Circuit Court, Jefferson
County, Criminal Branch, Criminal Divi-
sion; Loraine Mix, Judge.
. Jasper Nease was convicted of robbery by
use of a deadly weapon and he appeals.
Judgment affirmed.
James William Brown, of Louisville, for
appellant.
A. E. Funk, Atty. Gen., and W. Owen
Keller, Asst. Atty. Gen., for appellee.
MORRIS, Commissioner.
On April 2, 1947, a grand jury returned
an indictment charging appellant and twa
others (McPeak and Workman) with the
offenses denounced by KRS 433.140, rob-
bery by the use of a deadly weapon. When
the case was called for trial appellant
moved: for severance and the Common-
wealth elected to try him; the jury re-
turned a death verdict.
In motion for new trial appellant set up
only two grounds: (1) Because the court
erred to his prejudice in admitting incom-
petent evidence against him and rejecting
competent evidence offered on his behalf;
(2) Because the verdict is contrary to the
Jaw and evidence.
The facts developed were that Vernon
Hodges was last seen alive by relatives and
friends on March 13, 1947. Ata later date
his body was recovered from the Kentucky
River in Perry County. The feet were
bound; a handkerchief tied around his
neck, and he had on clothing not the same
when he was last seen alive in Jefferson
County.
A sister testified that Hodges had lived
with her for some time after he came out
of the Army in 1946, but at the time of his
disappearance he lived with Mr. Steedly on
Manslick Road. She was shown pictures
of the deceased and identified and intro
duced them. She testified that her brothet
owned a convertible Packard car, with
cream color body and black tép. She wa
shown a suit of clothes and a pair of shoes
which she identified as the same he wore
on the day of his disappearance. The ef-
NEASE vy. COMMONWEALTH Kj 827
Cite as 211 S.W.2d 826
fect of the testimony as to clothing and
automobile will develop under other proof.
Mr. Steedly testified that Hodges had
lived with him after his return from the
Army. Hodges left his home about 7:00
p. m., March 13, driving his cream colored
car to attend a lodge meeting. He identi-
fied the suit and shoes as the same he wore
when he left home. Earl Elmore was a
friend, a member of the Masonic Lodge,
and was preparing Hodges for advance-
ment to the third degree in the Lodge.
Hodges had an engagement to come to his
home on the night of the 13th, but failed to
show up.
Prentice Knopf lived on Poplar Road,
and at about 5:30 p. m. was driving into
Louisville over the Old Third Street Road;
it was raining, and he saw a boy thumbing
for a ride. He stopped and two other boys
came out from behind a tree and all three
got in his car. He asked where they were
going and they answered “Lexington.” He
told them he would take them as far as he
intended to go. He drove in the Third
Street road to its intersection with the New
Cut Road, stopped in front of a grocery
store and the boys got out. One of the boys
had a rifle about the size of one exhibited
which appeared to be an Army rifle. He
identified Nease as one of the three who
had ridden with him.
Kessling Hogg, a military police investi-
gator, was doing duty in central and east-
ern Kentucky, Perry County being in the
area. He learned of the holdup and disap-
pearance of Hodges and agreed to assist lo-
cal officers. The party located McPeak in
Virginia. From him they learned the prob-
able whereabouts of Nease, and looked for
him, but he was found by another party.
After Nease was apprehended he was tak-
en from Whitesburg to Hazard, and on
this trip he told Hogg that when they left
Camp Knox they walked all night and
got something to eat. They went out on
the road and flagged Hodges down. Mc-
Peak stood in the road and Workman and
Nease got in the car, Nease had the gun
and held it on Hodges, while Workman got
in the back seat. Nease then handed the
gun to Workman, and he stuck the gun in
Hodges’ back and Nease got under the
wheel. They picked up McPcak and drove
over Route 60 to Perry County. He said
that Nease said he held the gun on Hodges
and held him up as the other boys got in
the car; that they got out and took Hodges’
clothing and shoes, and Nease put them on.
Nease told him the holdup occurred at the
intersection between Fort Knox and Louis-
ville, the intersection referred to in Knopf’s
testimony. He learned that Hodges’ body
had been thrown into the river. Follow-
ing this information he dragged the fork of
the Kentucky River in Perry County and
found Hodges’ body. “He had on general
prisoner’s clothes which they wear at Fort
Knox.” He described how his feet were
strapped.
He said that the pants, Army pants,
looked like the ones that Hodges had on.
He identified the shoes, shirt and a fatigue
jacket. He said that when he questioned
Nease he had on slacks; that Nease told
him that a rock had been tied to Hodges’
body before throwing him in the river. He
found the rock with an Army waist belt
around it. He was shown a rifle or car-
bine and said it was a carbine used by the
United States Army. He continued that
Nease had told him he and his companions
had painted the automobile black.
George Blades, a detective in the office
of the Commonwealth’s Attorney, was as-
signed for investigation of the case. He
introduced pictures of the intersection of
the Third Strect Road and the New Cut
Road. The witness said that while the Com-
monwealth’s Attorney and his assistant
were present, Nease had made the state-
ment that he and the two others had robbed
Hodges at the intersection; they held him
up and took his car, drove to Perry County
where Hodges was thrown in the river;
that he, Nease, had the gun and that the
three had conducted the assault as was de-
tailed by Sergeant Hogg.
Blades said that Nease told them that they
took some change and a check for $13 dated
3/5/47, payable to Hodges and drawn on
the Lincoln Bank, Louisville, Ky. It was
endorsed “V. C. Hodges,” and cashed at
the store of the A. & P. Company in Neon,
Letcher County. This witness goes more
into detail as to the journey from Louis-
.
Tinea
RPA piggy i a ASPB GG ites area ir —_
ear mt
.
“ae
AN
450 ~=sOiWKy.
you broke out and I get out free I can
hide you and keep you straight; now do
you get me? I hope we can get out anyway
so we can get some of that good * * *
out there. So long, you * * *. An-
swer.”
Appellant assigns five grounds for re-
versal of the judgment: (1) “The Court
erred in the admission into the evidence of
posed photographs of Vernon Hodges taken
before the time of the alleged commission
of the armed robbery”; (2) “the Court
-erred in the admission of evidence of other
9-4
offenses or crimes on the part of appellant” ;
(3) “the Court erred in his instructions, in
failing to instruct the jury on-the crime of
accessory after the fact”; (4) “the Court
permitted and allowed, over the objection
of appellant’s counsel, improper conduct
on the part of the Commonwealth’s At-
torney”; and (5) “the Court erred in re-
fusing a new trial where the decision of
the jury is obviously the result of passion
and prejudice.” We will discuss ‘the con-
tentions in the order named.
[1] The article of which the Common-
wealth contended Hodges was robbed was
a cream colored Packard convertible coupe.
Necessarily it was incumbent on the Com-
monwealth to prove that the property be-
longed to a person other than the appellant
or his accomplices. The Commonwealth
could not anticipate with reasonable assur-
ance that the defense would not claim the
automobile belonged to appellant or one of
his accomplices; that being true, it was
competent for the Commonwealth to in-
troduce the photograph of the real owner
of the automobile, to show the jury that the
owner was not the defendant on trial or
either of his accomplices.
[2,3] The basis of the second contention
relied on for reversal is that the Common-
wealth introduced evidence that appellant
and his accomplices, following the robbery,
committed the additional crime of murder-
ing their victim. The law is well settled
that, in the prosecution of a defendant
for one crime, evidence of another crime
may not be introduced. But there are
exceptions to this rule, the most notable
of which is applicable in this case; that is:
Where several felonies are parts of the
213 SOUTH WESTERN REPORTER, 2d SERIES
same transaction, evidence of all is ad-
missible on the trial of an indictment for
any one of them. Snapp v. Common-
wealth, 82 Ky. 173, 6 Ky. Law Rep. 34;
Keller v. Commonwealth, 230 Ky. 815, 20
S.W.2d 998. The evidence likewise was
competent in proof of motive and guilty
knewledge, in that the jury reasonably could
infer from the fact that the victim of the,
robbery was murdered that it was the in-
tention of the perpetrators of the robbery
to eliminate the only innocent eyewitness
to the crime of which appellant was con-~
victed.
{[4] The complaint in respect to the
instructions is that the Court erred in fail-
ing to instruct on the crime of accessory
after the fact. Counsel for appellant vir-
tually admits in his brief that this con-
tention is without merit, when he says:
“Although we apparently have no justi-
fication for saying so, it is the contention
of the counsel for appellant that the de-
fendant, McPeak, according to the evi-
dence in this case was.entitled to an in-
struction on accessory after the fact.” (Our
emphasis)
The basis of the contention is that appel-
lant did not enter the automobile of Mr.
Hodges tntil approximately twenty minutes
after his accomplices had done so, and that
the crime had been committed in full by his
accomplices before he participated in any
unlawful act.. But the robbery in this case
was one of consecutive continuous acts,
commencing, if appellant’s testimony be
taken as true, twenty minutes before he
became a participant, but continuing
throughout and culminating at the time of
the taking of the life of the owner of the
automobile. That being true, appellant was
either a principal or no participant at all;
therefore, he was not entitled to an instruc-
tion on accessory after the fact.
The alleged improper conduct on the part
of the Commonwealth’s Attorney, which
is the basis of the fourth contention that the
judgment should be reversed, is: (a) The
closing argument of the attorney for the
Commonwealth “dealt with murder and
mentioned armed robbery as only a side
light”; and (b) he “made remarks to the
jury which led the jury to believe that un-
ae eee ee eee Se
:
{
McPEAK vy. COMMONWE c -
Cite as 213 S.W.2d 447 pais pe 4k
ghee cians ideas gas lac rvilte this boy. No, gentlemen, you have
done their duty as jurors in this case.” The ot ris . pr grease
Hc vheeadbed bee vee : = gee in. your mind about this man’s
since the penalty is the most aides hed ce : isa mes oes ieee ot
si rae “i ¢t me remind you bricfly; he said he knew
; quote it at length: that Workman and Nease were going to get
By. Mi Ousles, “Anshan? “Cotman, into trouble, but he went along with them,
wealth’s Attorney: He admitted that Hodges had his hands
“May it please the Court, Mr. Fowler, and in the air when he got in the automobile.
geatienen bf the jury, I leictle wade ahce: Of course, he admitted he had his hands
call to your minds the evidence that the - ba: pean begting dee exteeeo
Commonwealth has presented from’ this a eek ee MEP eee Neti (See
stand today. We have shown you that this bit dene ao we 30 0, thay: Foret
defendant and his co-defendants escaped one pane une City he inh aa toey
iris: Reet Know, bik, Ia dakeae Se forced him to overpower the guard at Fort
Satay, ‘were WE Guk wax ta! Gla Taiea Knox, but they forced him to get into the
Steet Send: that sey’ stopped this, bey. car, forced him to ride in that automobile
Vernon Hodes, with this rie. sad ite. for two hundred miles—I suppose that took
Fowler says this is uncontradicted, ‘McPeak = eons = oe ae Se
never touched this gun; but there was me a: . a oe bee aay and sci
only one gun when the other boys icuphie him to throw him in the river; then he was
Hoddotis hgick: anit tke icu idiecgthky eee forced to stand on that corner twenty
Bk wad towekcels het to See. 31 he had « minutes, if that is what happened, waiting
weapon. There is no evidence that this a esaty = share. - Let se elk youd Sais,
man stole the car, says Mr. Fowler. Well, pee ne this, gentlemen know: abet J
thin: ter oa hie They. took. am talking about ; today is the first time
heeak Sass ie Basal Mista); neat since your detective and Commonwealth’s
two hundred miles; they Bettis Sat a Attorney have questioned this defendant,
fig tas or & edhe: pid aia ta tod and we questioned him many times, this
conceal that crime that was committed here, 2 ie wie HnSS COETEHOM, WS Eee Sat
in addition to taking the check and the woned; i is purely an afterthought: Of
twenty dollars and the very clothes the man course, each one is blaming it on the other,
had on his back, in order to hide that they sate UY trying we ave thet owt sting;
took him down to Perry Consihiciien xia put them all in a bag and pull one out and
it: Srving- thie’ for- murder, -buk to com: they are all the same. Of course, he is go-
ceal the crime they committed here, armed mE to sy the other: Show did-is) ee,
slibety.< ten and his ev-deSieidants toate these letters—these letters that this man
Mls teak down & the Kenhicky River tx wrote to Workman show the cunning and
Perry Conuirty. and threw hice ix the aser criminal mind, in my opinion, of this man—
ith this “ick aceid hiss: My God you say this over there, referring to the
Sentlemen, have you ever heard in this Fata House, Criminal Court—you say
Court Rooin. dein sity dther Court Room this, ‘and I will walk out and I will send
in the United States or in the State where ¥°% the Blades and you can get oitt,’” No,
tere dna howe gbbeented any. such: tripe there can be doubt, gentlemen, about this
as we have presented to you. There is man’s guilt; I have no fear of that, and
nothing more the Commonwealth could do; ' nevene B gitey eal of feat alvin: the
we don’t have a motion pictare machine or punishment. I know it is a tremendous
& dictaphone to take everything down: we responsibility upon you jurors to write the
brought you witnesses and those witnesses ‘¢ath penalty; it is a terrible responsibilty
told you facts. There is no reason why Upon your Commonwealth’s Attorney to
Sergeant Hogg, of the United States Army, tecommend it. I too didn’t sleep very
eae pnt - Commonwealth well last night, and I too said some prayers
an 8 ee — ere and lie; they last night and Sunday at Mass that I would
y and they have nothing be given power to do my duty in this case,
,
—
ae i
rt 7
WAV mse h BZ
ct a
ws
a ee
SRE MMI 2.8
at
eed fete a eee Gee
‘eae A ahh Oa RARE Harte tga thlgse titanate aa Tee METER ae
wo a PRG ae AG Sa Ales ane
“eit
an
452 Ky. 213 SOUTH WESTERN
and I think I can sleep tonight after I sit
down. Did this boy show any mercy to
Vernon Hodges? If any of you waver back
there in the jury room take this picture
with you of that twenty-six year old boy
now dead ir the cemetery. Did he give
him the right to see the only mother that
he ever knew before he died, Mrs. Arnold,
his sister? Did he give him a right to see
the only father he ever knew, Mr. Steedly?
No, he did not. Did he give him a right
to make an act of contrition before he was
thrown into the river? There is no reason
in God’s world to show this man any
mercy, and if anybody gets back- in the
jury room and talks about life imprison-
ment I want to say this to you—you were
qualified as carefully as your Common-
wealth’s Attorney knew how this morning,
and you said if warranted by the evidence
you’ would inflict the death penalty, so
if there is any man that thinks about giving
. this man life imprisonment there will be
one or two of you gentlemen I know who
will stick with your Commonwealth’s At-
torney and hang the jury and we will get
a jury that will try this man and give him
what he deserves. And gentlemen, let me
remind you of something—something was
said that this man is not being tried for
murder; he is not. Something was said
about passing the buck, so: to speak, to
Perry County. Let me tell you this, gentle-
men, and I know what I am talking about,
if justice is to be done in this case it must
be done in this: Court Room and in this
County tonight.
“Mr. Fowler: I object to that.
“The Court: We are trying the case on
the law and the evidence we have heard
here.
“Mr. Ousley: I repeat, if justice is to be
done it must be done in this County and in
this Court Room tonight, and every one
will have done their duty, gentlemen, in
this case. In fairness to what has gone
before and in fairness to those that have
received the supreme penalty in this Court
Room or any other Court Room death must
be written in this case; there can be no
other verdict. If you don’t give this man
the electric chair then tear up your Con-
stitution and wire your Governor to break
up the electric chair, There is a great re-
REPORTER, 2d SERIES
sponsibility off my shaulders,- Judge Mix
has done his duty, he has instructed you
in the law, it is up to you gentlemen, and I
pray God! that you will do your duty and
give thi’ man death in this case today.”
[5,6] We often have condemned argu-
ments of prosecuting attorneys which are
calculated to arouse the passions and preju-
dices of juries; but where the evidence it-
self is so inflammatory as to render any
argument in respect to it of little import-
ance, the argument itself can not be deemed
to constitute error of a prejudicial nature.
23 C. J. S., Criminal Law, § 1105, page 579;
Carter v. Commonwealth, 278 Ky. 14, 128
S.W.2d 214. We know of no case wherein
the evidence is more inflammatory than in
this; and whilst some may not be in sym-
pathy with the infliction of the death penalty
in any case, there can be no doubt that, if
it is just at all, it should be inflicted in this
instance.
[7] What we have said disposes of the
fifth ground urged for reversal.
The judgment is affirmed,
© «© KEY NUMBER SYSTEM
sams
THOMAS et al. v. SPRAGENS et al.
Court of Appeals of Kentucky.
June 25, 1948.
Rehearing Denied Oct. 5, 1948.
1. Schools and school districts €=30
Under statute, counties are the prin-
cipal school district units. KRS 160.010,
160.020.
2. Municipal corporations €=39 :
City school districts are independent
of the city government and a legislative
provision for annexation of territory tor
school purposes must be considered apart
from the statute authorizing cities to annex
territory for other purposes involving other
considerations. KRS 81.210 et seq., 160.020,
160.050.
'
‘
THOMAS v
. SPRAGENS Ky. 453
Cite as 213 S.W.2d 452
8. Schools and school districts @=32
Statutory amendments giving Superin-
tendent of Public Instruction closer super-
vision of changes in school district bound-
aries and requiring him to consider pupil
wealth of territory proposed to be added to
independent district, that of county district
as a whole, and probable impairment of ed-
ucational program of county district by loss
of some of its territory before approving a
change in school district boundaries indi-
cate legislative intent that such boundaries
should not be haphazardly changed without
weighing the stated factors. KRS 160.050.
4. Municipal corporations ¢=39
Schools and schcol districts €=32
Sections 160.045 and 160.050 provide
the exclusive procedure by which independ-
ent school districts may annex territory of
county school district, and boundaries of
Lebanon Independent School District were
not extended by virtue of annexation of ad-
jacent territory by city of Lebanon by pro-
ceedings having no relation to school pur-
Poses. KRS 81.210 et seq., 160.010, 160.020,
160.045, 160.050.
——o—__..
Appeal from Circuit Court, Marion
County; W. H. Spragens, Judge.
Suit by D. B. Spragens and others
against J. S. Thomas and others for a dec-
laration of rights to determine whether ter-
Titory annexed by the city of Lebanon be-
came a part of the Lebanon Independent
School District by virtue of such annexa-
tion. From a judgment that such territory
became a part of the Lebanon district, de-
fendants appeal.
_ Judgment reversed for proceedings con-
Sistent with opinion.
: Ben B. Fowler, of Frankfort, for appel-
ants,
_Robert M. Spragens and Henry G. Bold-
tick, both of Lebanon, for appellees.
CLAY, Commissioner.
This is a controversy between the Board
of Education of Lebanon and the Board of
Education of Marion County. Members of
the former Board filed suit for a declara-
tion of rights to have determined whether
°r not certain territory previously a part
of the Marion County school district is now
a part of the Lebanon independent school
district. The Court adjudged that this ter-
ritory had become a part of the Lebanon
district when annexed by that city (one of
the fourth class) on January 1, 1948.
The question presented is one of law and
involves the construction of statutes relat-
ing to school districts,
[1] Under our statutes, counties are the
principal school district units. KRS 160.-
010 provides: “Each county in this state
constitutes a county school district, except
that in counties in which there are inde-
pendent school districts the county school
district consists of the remainder of the
county outside of the boundaries of the inde-
pendent school districts,”
KRS_ 160.020 establishes certain inde-
pendent school districts in the following
language: “All school districts embracing
cities of the first five classes together with
the territory within their limits, including
any territory that has been added for school
purposes outside of the city limits, * * *
constitute independent school districts.”
KRS 160.050 makes provision for the an-
nexation by an independent school district
of any part of.a county district lying ad-
jacent to the former. This may be done
under certain conditions with the approval
of the county board of education and the
Superintendent of Public Instruction, and
upon the vote of the people living within
the territory proposed to be annexed.
The city of Lebanon by proper proceed-
ings under KRS 81.210 et seq. (which does
not relate to school purposes) annexed cer-
tain adjacent territory. Included in this
area was some valuable industrial property
‘which apparently lies at the root of the
controversy. It is the contention of the
Lebanon district that the extension of the
city limits by annexation automatically ex-
tended the district limits. On the other
hand, the county district contends that the
only manner by which an independent dis-
trict may absorb additional territory is by
the procedure prescribed in KRS 160.050,
referred to above.
It is conceded by both parties that under
the statutes enacted in 1920 pertaining to
this subject matter, the annexation of addi-
tional territory by a city would automatical-
ly extend the boundarics of the city’s school
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Dr. Jones, who will be 40 next
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but rhoved to Herian when 7
years old. He has made his home
there since.
fi
State th and sanitation Hospital. He has had a private
gram and then decide which anal Prastion in Harlan since 1941.
need attention most urgently. As soon as practicable, Dr.
health voust build up our State Jones will’ move his wife, Mrs.
he th work on a unit-area basis” Florence Jones, and three chil-
aticg coy, Combining ‘several’ dren to Louisville. "The thilnun
ranties into 'a single health unit, are Bay 6, Bronwyn, 8, and
‘bara,
we may be able to get enough fi- Mary Fairchild, 4 months.
By HARRY BOLSER
4 Stall Correspendent, The Courier-Journal, cA
Eddyville, Ky., Nov. 5
early today in the electric €
Wary for the robbery-slaying in Ma.
Hodge, Jefferson ‘County, World War II veteran.
‘He ‘Daniel T. McPeak/22,
Dublin, Va. He received the first
of three shocks at 12:08 am. He
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McPeak 2d to Die In Chair:
In Hodge Robbery-Slaying | ss" =
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get federal financial ald, the
equipment were omitted.
He said that would account for
the fact the federal agency cited
the h
d
the incinera but
burners. themselves,
shown in the equipment plans.
Hi ded
the commission hoped to have
this requirement waived by the
agency “because there sare ade-
quate w: ilities near
the fact that the
a bene blueprints: f
ue; ts for the hos-
pitals had been i
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of;
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McPeak
Pesree theta
and ice cteam.
ee
said sufficient incireretors .were
He continued that minimum
jingle
a
"i aR es op
alms Inia € Saar eens
He walked intothe depth ohams
; ; Ba “he: taimiv “et st Agr pect aDot.2zWwT
4 paces from the cehair and tele
; the witnesses ie
‘ “t want evters body tn know fim
: ‘so Teadv.to meapt a new cworin Im
guing to meets Jesus” —
nadiod and sat i
' Uneder State awe tNtsses was
permitted to invite only” three
peraans, other than members ef.
his. family.’ to. the © execution:
Nease invited wo, ‘his ‘attorney.
dames W Brown, ‘Lowitville, and
ee ori the Rev, J Lester McGee, pastor:
ee of the - Beechmont “Methodist .
he CAcrch, Louisville, ;
Lito: Ne Postponement Sought, —
MArosieyihe Aileorenine Sibiirueigas il Tie
eA ye
- Eattieroin’a telephone call, ‘ty the
, warden. the “minister - stated.
aK, Be "pital following aw operation.
ra The warden said there w
execution either by a plea for an»
“ot habeas corpus. .
ae
Oe “pale face yesterday at $:30° p.m...
. ae Warden W. clesse Buchanan’
peat started. to” tead: the. death MAR ws
Teaveae « fet seme man ? } :
SRN The warden’. sisi,"
never knew you until 1
here as warden, You ‘have ‘made.
tse
aa
_ here IT now must, perf “one of ©
a een en lg te ng Se ptt
- death warrant. ae
Brown was in a- Louisville’ hos- <e
. ‘Yast-minute- effort. to stay the ©-worre> “eatily
bs ansanity bearing or a federal writ =
4 E ites
abe oe
& good prisoner since l have been=} boys, a:
“my duties by Sention. At) yd ahis- cot
re: ot Am Ready. «5
et Atter ‘reading - the. Toles
pe Marhpeia remarked, “Itjlooks to.
an fee lke this execution with he.
oe i ‘ec orted ont Your destiny is now :
5 tp the hands of the Almights * i
Hit bas Ethie wiped: his Brow’ wath -
3; 44) go lo the
5 Lamont afraid
th. g0 aver [
Mm tcustng in Jesus
"Then Buchanan
the ope inga thie gralingrovet
* ee Neer Nease’s reti in’ Death
Row. The core rants man clasped
it. i
Nease. cae ‘on a mattress whic A
hen he walked . ta the chair he nat removed from. hix bunk,
felted. once: sera ‘placed of the
. conerete flapr.” ‘He kat at the cell
door, A newspaper reporter asked
rere p.and he replied:
tsorry, but
know that 1 amosorry. | suppose
‘that we. were drinking whisky too
ik th Ithough T don’t —
as Only Mr. McGee ‘arnved here beter anon ERD OUE
ft us, was drunk. >
e Says_All 2 4
~. 22, Dublin, Va. and
* Hecbert: Workmiin, 19, Tesla, W:
were, sentenced ito - ‘death in ss
‘robbecy-slaying,. The €ourt”
om ‘still
from. hi
“you: hay
WN case ae hie
zp cand. gravy, toma.
“Eacaped. From. Fort Knox...
“oPpnere” were: he Viaitars {0 see
iaeont oo aes
> Nease: yesterday: He. spent most pt 4
1 UF CC ( thief Praises WHAS-
erate peth menial 5
r
. * ia, Wes
etek: ee til Saas al aa
tidarded neat :
ns “ville, at Old Seventh Stree, Peston: states | that: Dro Linh
Brit hand through, a’med > with
Pot Bian ag Sedsi Hodge and tack him
to Perry Cadnty
car atter killing Hoage. ant. ato Vavisvilie:. where -'s
“The three were escapees from “heacs* the department of ba
the miyitary compound at Fort “teralegy
Dhey were serving cairt-
martial, sentences giver. them in >
Europe Nease. had heen’ con- ‘20 &rerdsen as the chief bene
the. “Army: of -being ticuary ,
and using oan Army +
truck without. permiss.orn Me- .
Peak alto had been AWOL
Wipr ken, was! convicted: by the nevs for Mrs Matgaret”
ighting ‘with a Ger- :
They kept the
victed by’
eg “he* took part in the:
“T've Digi eo able to: figure .
tout 1 don't know’ why T did it
1 realize it's too tate now to be-
‘want everyone to. man ly; isn.
Denies He's Married.
“f “After the Court of: Appea als ut
held Nease's sentence. Governor Tye used undue influence in havig
Earle Clements declined to ram- ‘ es
emute it to life imprisonment or iwill a week before his death. IE
to grant a@ stay. of’ execution, =.
Commutation “had” been te- using persuasion and “coercion
quested by Nease'’s mother. Tne. on the judge decause of his weak
‘BGsday stay had been requested * ened condition.
by the condemned man’s father,
: ‘Brent Niece, “who. spelis his last “heen im it! health for some %
. A half-smile crept over Nease’ BeVas: in-aear-by celis. They also “name” tifferently.:
“wrote to. the Governor from. a Hie est ;
In the | reformatory «at La- - AULouinyilie yesterday De. Te
‘Grange ‘where he” as. serv ing a
Sentence. He was. convicted; of |
receiving the stolen automo le allow if to be .
ouied aS Hodge.” ne “a jewed himseif to be influeri
en ULL aS the” ‘other. one, al! three.
no. of us did the murder" Nease's
as audible: to his.
twp partners. inverime, Daniel T.
Sayed their:
fi day Nease” duouieds
“cell te tnbm; (1 hope’ - : hoo .
lot of. duck. Re good. © The father ’ “wrote.that the. av two davs before his
jose Would ceive his son's wife dnd wrote his column, “Broomsedae
tan habies: time to arrive here Philosophy.” whith appeured vf
from Belgium to sey good-by,-He The Corbin Tribune. He ‘alse
atated.the wife and babies are was contemplating writing of hi
en conte (Governor Clements i boyhood days, she “added, * >
vestigation revealed the balnes
‘are dead, and the woman ‘has .no_ “Were Married In 1926.
“intention of leaving Belgium. *
Yesterday, however, Nease said eee of Health since 1917. Sh
he was not married, but was the: married Judge Tye in 1926 Sh
: father. of twins shore toa girijin came here on wee gftds Bus: ih
mal! portion.
» Betved-in his -
m7 It” consisted. of:
“Wen, tried corn, smashed potatoes,’
emotes biscuit, milk, Choco.
Jate cake“and ire Fream,, mee
SRE 38
24305 a ‘
Suumere a uted for the Jast wiih
Roas The Souths Tye. the | judge x iwido
a earthiness wus thee prinvipal: “beneticia
unger the ‘ast wilt She hives he
n, the State Board
Health, The previous wii! nam
‘Less Than $106,000."
CR Uptan. one of the i at
Sail the judges estate “was ins #
/ “less than $100,000" The judg
had been consisered one Bs
“areas wealthiest men. :
The petition states Dr. Lithal
>
ing her husband. make the ne
added that she was successful
Judge’ Tre was | 89 and i
eed
The father Dr Tye is. 681»
denied the charges made in t
petition. She said. a man of t
judges Mental :ty would not have
unduly. She aaded that onl
death «he
De Tye has been with tne Stat
itt ; > other times.
rs Site: “Gene 3 Charter}
To. Legion Post. Here
The new will lea the judge: r
-$30,000 home. and
‘sonal property to hit
oq tight, the rest 10:
~The previous: will
Tg
et Se Te ae eee
a ees
THE COURIER TOURN IT: POUvSvIbLE KS
_|Workman Is Electrocuted
In Vernon Hodge Slaying 6
i San Francisc es
Eddyville, Ky., March 4 (AP) (Friday)— Young Herbert |<:
| Workman died in the electric chair at eae Shls Peni- peatete ee rssh
' tentiary early today. “General amnit
| He was sentenced to death for the robbery-slaying of | long operation
| 26- -vear-old Vernon L. Hodge of Manslick Road, Louisville. remove an egg-
on Warden Jesse Buchanan said her spine. oe
_| Workman.was pronounced dead | Not interfere with the execution.! The baby at
at 12:12 am. The youth made no| — All three found guilty in the} morning 41 hot”
statement before walking calmly | case were soldiers. They were} Tokyo aboacd 3
to the chair, Buchanan told 4) convietee in Louisville of armed | was taken to Le
ae Neither did Workman make a robbery. Also indicted in Per-} here. T
statement when the death war- ry County on mufder charges, } that it wou
f Bb fata rant was read to hint last night, they never went to trial there. ‘before any def:
Sune a cea - Workman was given a final }to her manaitias
Br oteroner nideh ped in Louise ; Supper last night of chicken and Her. father, ©:
i ville and robbed. His body was | gravy, hot biscuits, potatoes, peas, | tenant David
found in the Kentucky River in | a aa tao esshccra bas ie ‘Shreveport, La.
ae a Neaset24, ot fs piel it 541 Warhtek: thesten Sead ©
McRoberts, Ky., and Daniel ‘T. 1 to be GitheWerkmene yesterday Zab chbkias
eee ee eee: Peak, 25, were executed last
ager go Soom year.
“ Market ‘St. } Native of West Virginia.
: i Workman was from Tesla, W.'
Va. Army records show he was |
| 22 this vear. “His attorney said |
een oaes he was only 19, having |
{
Ae ies’ Street
BRESSES
Hied about his age to. get in the |
| Army.
His atidrnev, E. T. Sawyer,
rent to Frankfort yesterday to
lask executive clemency © for |
i Workman. Unable to see the}
i
| Governor, he talked to his sec--
retary. On his return to Louis. |
ville he found a message saying |
Governor Farle Clements woyld
: ai
RES
Ladies’ Spring |
: SUITS eS) Unif icalion-A cl
Bab eeat hue | Reviston pepe :
W thie prite
By E isenhou er
a Amal Hee
ian .
anty
New 2a
Mac hoa
Third Man Dies
For Gl 's Slaying
Gladnaicea Refuses
Tq Intervene *
Eddyville, Ky., (F) — The third
former soldier sentenced to death |
for the robbery-slaying of a
Louisvillian was executed in the.
Eddyville State. Penitentiary’s
electric chair early today.
Young Herbert Workman of
Telsa, W. Va.. was pronounced
dead at 12:12 a. m. (CST), said
|Warden Jesse Buchanar. The
Warden said Workman made no
statement before walking calmly
ito the chair and none when the},
death warrant was read to him|)
earlier. '
Workman's attorney E. T. Saw- |!
yer said in Louisville he went to |
Frankfort yesterday to seek ex-
ecutive clemency from Gov: E4rle
C.Clements, Unable to see the gov-
ernor, Sawyer. said he talked with
Clements’: secretary. Upon return-
ing to Louisville, Sawyer report-
ed he found a message saying
Clements would not intervene, ©
The attorney said Workman was
19 years old, having given another.
age when he entered. the Army.
State: Welfara, Department pecords
a em oe
—
is
Sr ee ome
executed last year. Hodge, 26, a
former paratroope, was kidnap-
ed near Louisville two years ago.
The three soldiers had escaped
from detention barracks at near-
by Fort Knox.
Testimony st the trials didi
Hodge had given the trio a ride
when the men hail! his auto-
mobile. He was robbed and Gciven |:
to Perry County in his car. His
body was found a few days later
in the Kentucky River. The three
Soldiers were convicted in Louis-
ville of armed robbery, a crime
which may be punished by death
in Kentucky. They also were in-
dicted at Hazard on murier
chacges but never were tried
there.
— oe
—
~ «
ae ae eee
416 Ky. 216 SOUTH WESTERN REPORTER, 2d SERIES
on June 1, 1948, 308 Ky. 29, 213 S.W.2d. side of the road and-the gun was between
447, me and Nease * * * I was sitting in
The grounds urged by appellant on this the qindie Bee ae stopped god earned
appeal for a reversal of the judgment are the lights off and picked up the rifle and
substantially the same as those urged by = igged gut S. *. © soe and MeFoak
his two codefendants, Nease and McPcak, slipped out of the car and McPeak reached
all of which we overruled. They are: (1) back and untied his feet and we started
prejudicial testimony adnittel . over. te- down to the river and when he got down to
fendant’s objection; (2) improper ied the river Nease told me and McPeak to
prejudicial argument of prosecuting coun- = a rock and J Somod stock and picked
sel fo the jury; (3): “the combiet. ek Wot it up and rolled it down by the railroad
thianie opinion of some of the jurors”; tees and McPeak picked it up and he-said
(4) the court erred in instructing the jury, Mica would be big enough’ and he taken
and (5) the punishment inflicted violates , = aon wees ttodge ae and Nease was:
the constitutional provision agaifst cruel a, by the side of the railroad; so, after
and inhuman punishment. a while they hollered for me to come on,
it was okay, and I went down there and
The records on the appeal from the con- they had the rock tied on him and I got on
viction of Nease and McPeak depict acrime the left side of him and Nease was on the
that is one of the most atrocious, beastly right and McPeak got behind and we
and savage that could be imagined, and pitched him over into the water.” They
one that the era of the Dark Ages seldom, then drove away in Hodge’s car pursuant
if ever, produced. ‘ to what defendant stated was their purpose
from the beginning, i. e., getting a car to
carry them to their respective homes in
Eastern Kentucky and Western Virginia.
The last question propounded to appel-
lant by his counsel, and his answer was:
“Can you give the jury any reason why
you did it?* A. Well, I hadn’t been home
for a long time and I wanted to go home
The events leading up to the commission
of the crime for which defendants were
indicted occurring in Jefferson County, as
-well as the final murdering of Hodges by
drowning him in the Kentucky River in
Perry County, appear in the two opinions
referred to,above. The deadly weapon em-
ployed by defendants was a rifle carried by
appellant when the trio ‘first got into’ and see my mother and dad then, so when
Hodge’s car. Appellant was the sole witness we run off we got with Hodge in the car
who testified in his behalf. He was asked by and I never taken the second thought. I
his counsel “to:begin at the very beginning don’t know what I was thinking about when
and tell, if you can, why this happened I done it.”
and just what happened.” His answer to We will now determine the grounds for
that question covers more than seven pages reversal in the order named.
without interruption by anyone. In it he . :
told how he and his codefendants escaped [1] @) Ths alleged sera sates node samees sae
from Fort Knox; how they thumbed Hodge —- of in ground (1) consisted
to give them a ride with which he com- lepsiagts Me pares ico ys Fadge and
plied; how they robbed him of his clothing, uis car, both of w ich were also introduced
cash and other valuable articles, all of at: fhe trials of Nease and McPeak, ag
which was done in Jefferson County; what “° ei ae = ree nd vie
occurred after passing through the city of eee round as prejudicial to their aid
Louisville until they got to the point where tential Fights, Reference to ee —
they murdered Hodge in Perry County by ions is made for our reasons in so con-
drowning him in the Kentucky River and
their final driving away from that point [2,3] (2) The argument of prosecuting
in Hodge’s car. When they reached the counsel on this appeal is practically the
end of their journey on the banks of the same as that complained of in the other
Kentucky River in Perry County appellant two trials. It consisted of a vigorous ap-
stated that they “parked the car by the peal in his argument to the jury for the
cluding.
tan an
CORNETT v. CLEMENTS Ky. 417
Cite as 216 S.W.2d 417
infliction of the maximum punishment of Legislature to so prescribe, and that in
death in which he stated that the enormity. doing so the constitutional provision
of the crime justified it, since there were against the infliction of cruel and inhuman
no mitigating circumstances authorizing punishment is not violated. If there ever
the infliction of a lower degree of punish- was a case wherein it was justifiable it ap-
ment prescribed by the statute. The Com- pears to us that the crime committed by the
monwealth attorney in the performance of defendants, including, of course, Workman,
his duty is not only justified in urging a is one deserving such extreme penalty.
conviction of the defendant on trial, but = Finding no error authorizing a reversal
to likewise insist on the degree of punish- of the judgment, it is accordingly affirmed.
ment which he concludes should be admin-
istered, and in doing so he violates no rights
of the accused. In answering the same ar- .
gument urged on the appeal of McPeak, we
said [213 S.W.2d 452]:
“We often have condemned arguments
of prosecuting attorneys which are cal- 309 Ky. 80
culated to arouse the passions and prej-
udices of juries; but where the evidence CORNETT et al. v. CLEMENTS et al.
itself is so inflammatory as to render any Court of Appeals of Kentucky.
argument in respect to it of little import- Nov. 19, 1948.
ance, the argument itself cannot be deemed Rehearing Denied Jan. 28, 1949.
to constitute error of a prejudicial nature.
23 C.J.S., Criminal Law, § 1105, p. 579; !. Courts 45
Carter v. Commonwealth, 278 Ky. 14, 128 The Legislature was authorized to es-
S.W.2d 214. We know of no case wherein tablish an additional judicial district and
the evidence is more inflammatory than to make changes in other districts. Const.
in this; and whilst some may not be in §§ 134, 138.
sympathy with the infliction of the death 9 pjstrict and prosecuting attorneys €=2(3)
penalty = ie Pace. sere boeny be no doubt The judicial re-districting statute pro-
that, if * Sy jor at all, it should be in- viding that commonwealth attorneys of two
flicted in this instance.” districts, who no longer resided in their
[4] (3 & 4) Neither grounds (3) nor former districts, could retain office by mov-
(4) are mentioned, much less discussed, in ing into a county of changed district before
brief of counsel for defendant, nor does the ¢€XPiration of their terms could be con-
record disclose upon what facts either of Strued as requiring attorneys to remove
them is supported. However, we have their residences within a reasonable time
examined the instructions (which are prac- prior to expiration of term, and, as so con-
tically the same as those given in the strued, would not violate constitutional pro-
trials of Nease and McPeak) and find no vision directing district officers to reside
error in them. Every issue that the evi- Within district. KRS 23.040; Const. § 234.
dence calls for was presented by an aP- 3 Constitutional law C=48 ‘
propriate instruction thereby forcing us to A statute will be upheld rather than
conctede ate neither ground (3) nor (4) invalidated where subject to different con-
is sufficient to authorize a reversal of the : : .
Poon structions.
jucgment.
. . 4. Constitutional law C—68(1)
[5,6] (5) Gromet @) saeea completely Courts in construing statute may not
unfounded ye ” —" = consideration, inquire into political controversies or mo-
mruch. 168s CAE Whatever may be tives which preceded enactment thereof.
thought of the infliction of the death penal-
ty for certain crimes, when authorized by 5. Statutes =64(3)
statute, the courts throughout the country A provision of judicial re-districting
have constantly upheld the right of the statute that commonwealth attorneys no
216 S.W.2d—27
"Se
ie Sos le
te et *
em,
ere
UNIVERSITY Of ALASABA
SCHOOL OF LAW
RgS Ky:
ville to Eastern Kentucky, but in substance
the statements tally with those given by
Hogg. There was no objection on the part
of appellant’s counsel to the testimony of
either Hogg or Blades; on cross-examind-
tion Blades said the statements made in
the presence of the other officers were free-
ly made. “We asked him if he would tell
us about the case and he said he would;
there was no coercion; he just told these
things without hesitancy.” It appears that
the statement was afterwards reduced to
writing and signed by Nease, and Nease
was told before signing that his answers
would be used against, him. That he was
also told that he did not have to answer
unless he chose to do so. Hogg was re-
called for further identification of certain
articles, and on cross-examination stated
that Nease’s statements were voluntarily
made.
Nease was placed on the stand by his
counsel, and recited the story of the hold-
up and final disposition of Hodges. He
cleared up some points that were not men-
tioned in Commonwealth’s proof. For in-
stance he told how Workman had taken a
tifle (the one exhibited) from a guard at
Fort Knox, and he and his companions ef-
fected their escape. He also made it clear
that after taking charge of Hodges’ car he
had been bound.and gagged, and that at
some point on the journey toward Frank-
fort he and Hodges had changed clothing,
at Workman’s suggestion.
His testimony as to occurrences from the
time of the holdup to the final act of the
tragedy was substantially as stated by both
Blades and Hogg, except that he insisted
that from the start to the finish, Workman
and McPeak were the principals. He was
forced to drive the car; to change clothes
with Hodges, and said that he objected to
the throwing of Hodges into the river, and
recounted how he had used his efforts to
save Hodges, but this effort was thwarted
by Workman, who from the first had kept
possession of the Army carbine. However,
under cross-examination it was apparent
that at times he could have readily aban-
doned his companions on the long journey
from Jefferson to remote Perry County.
He admitted that he had made statements
to both Hogg and Blades, but insists that
211 SOUTH WESTERN REPORTER, 2d SERIES
their statements were in part incorrect. He
‘also said that his statements to Hogg were
made through fear of a mob, which was
being discussed in Perry County, and while
he was being taken from Hazard to Win-
chester, but admitted that when he signed
the statement referred to by Blades he was
told before signing that it would be used
against him. He admitted the taking of
Hodges’ car to his father’s home where it
was repainted, and that some of the three
had theretofore changed tlie license plates.
He also said that Hodges was bound and
gagged soon after they held him up.
[1] Appellant’s brief does not point out
any item of competent testimony offered
by appellant, subjected to exception by the
Commonwealth, and overruled by the Court
One witness for the Commonwealth was
asked on cross-examination whether he had
a criminal record, and the Court interrup-
ted to suggest that the witness might be
asked if he had ever been convicted of a
felony. Counsel then asked, “Will you tel
the jury whether or not you have ever been
accused * * *;” objection was inter-
posed and sustained. There was no errot
here prejudicial or otherwise. When Blades
was testifying he was asked if he had read
the statements made by the three boys :1
Letcher County, and he said he had, and
the Court ruled that any testimony as to
statements made by codefendants was it
competent. We have checked the testimony
and find no objections by appellant’s coun:
sel relative to the exclusion of testimony
offered by the Commonwealth’s witnesses
[2] Appellant complains that Hodges
sister was permitted to say that her brother
went into the Army in 1942, and was die
charged in 1946; that when he was a child
he lived in an orphanage and was taken &
the home of Mr. Steedly; that he was 4
member of the Baptist Tabernacle, and 4%
tended regularly; that he was burie
March 26 in Evergreen Cemetery; that s9¢
saw his body at the funeral home. It may -
be admitted that these questions and a*
swers were in part irrelevant, though 9
brought out by repeated questions so as ®
unduly impress or bias the jury. The tram
script shows no objection to any qucs*4
asked or answered by the witness.
GILBERT v. WILLIAMS Ky. 829
Cite ns 211 S.W.2d 829
There were introduced several photo-
graphs of the deceased and of the auto-
mobile which had been repainted, and cop-
ies of registration certificates of Hodges’
car.. We find no objection to their intro-
duction. In fact when the certificates were
introduced the court asked if there was ob-
jection and counsel replied “No.”
When Mr. Steedly was testifying he
said that he had taken Hodges from the
Children’s Home where he helped him on
his farm and attended school until he was
16 years old. Again this testimony appears
irrelevant, but there was no objection ex-
cept when Mr. Steedly said, “I sent him to
school while he was at my place,” appel-
lant’s counsel said “I object to all this,” and
the court said, “Let’s don’t go over this
any more,” and no exception was noted.
[3] Elmore, the witness with whom
Hodges had the engagement to attend a
Masonic Lodge, said that Hodges had tak-
en the two first degrees and he was prepar-
ing him for the third. He was asked: “Do
you know who lectured him in his degree
work?” and objection was © overruled.
Again we conclude that while irrelevant
there was nothing to make the question and
answer “I did” incompetent or prejudicial.
It is contended that Mr. Ropke, who is said
in brief to be a Mason, took over the exam-
ination of Elmore, but no objection was
made on this ground. Most all. the above
objections appear for the first time in ap-
pellant’s brief.
The next and final objection, in brief
alone, appears to be the testimony relative
to the statements made to Hogg and Blades.
A survey of the tesimony of the witnesses
fails to show objection to their testimony
as a whole, or to any question asked them,
except in one immaterial instance.
As is customary in cases where the ex-
treme penalty is inflicted, we have given
this case the closest scrutiny. While there
is no criticism of instruction we have ex-
amined and find them to be correct on
every phase of the case. The court was
Careful to give an instruction on Nease’s
Contention that he had been forced to par-
ticipate in the holdup and all that followed,
by duress on the part of Workman. The
Court instructed the jury to the efféct that
if they believe him they should find him
not guilty. The Court admonished the
jury as to the effect and weight to be given
the testimony. of the officers. It follows
that finding no prejudicial error in the rec-
ord we are compelled to affirm the judg-
ment.
Judgment affirmed.
© ¢ KEY NUMBER SYSTEM
samme
307 Ky. 638
GILBERT et al. v. WILLIAMS et al.
Court of Appeals of Kentucky.
March 26, 1948.
Petition for Rehearing Withdrawn
June 25, 1948.
{. Landlord and tenant ©=280, 288
Ejectment rather than forcible detain-
er action would lie on behalf of lessor to
obtain possession of real property held by
assignees of original lessee under alleged
assignment made in violation’ of original
lease.
2. Equity ¢=53(1)
Jury €=28(5)
In suit by Iessor against alleged as-
signee: of lease for cancellation and to
obtain possession of land on ground of
void assignment, where lessor had ade-
quate remedy at law by way of ejectment,
but assignee made no objections by way of
demurrer or otherwise, assignee consented
to trial of the action without a jury and
equity could grant relicf demanded.
3. Appeal and error ©>193(9)
Where petition was defective in some
respects but stated sufficient facts to au-
thorize relief prayed, and subsequent plead-
ings clearly defined the issues and defend-
ants filed no demurrer, defendants could
not after trial raise objection that peti-
tion did not state a cause of action,
4. Cancellation of instruments C=3
Landiord and tenant ©=76(3)
Under lease wherein lessees specifi-
cally covenanted that they would not as-
PERRIN NTN
Hi
retype
bth
2 SP ae
i
2
£3
HEE
PR
i
iB
Ipaeebfasid At
RATT
l,?
“ing to the contract entered into” *
414 Ky. 216 SOUTH WESTERN
On May 23, 1947 Mr. Goedecke, Presi-
dent of the corporate appellant, met ap-
pellee who had become a partner of Long
in the construction and excavation business.
After negotiation, appellee agreed to pur-
chase the machinery individually and to
assume the indebtedness of Long. This
transaction was consummated by the exe-
cution of a written contract between appel-
lants and appellee. This contract recited,
among other things: , (our italics) “That
for and in consideration of the agreements
and assigmments made herein, and the as-
sumption by the first party of a certain con-
tract for the sale of certain machinery,
which -is set out and described in a mort-
gaze: * * .* dated the 18th day of
April 1947," * * *
the machinery “is this day turned over” to
appellee who “hereby agrees to keep up
and pay the said indebtedness as set out
in the mortgage, and will pay same accord-
*
This agreement was not only signed by
_ appellee and appellant, but also by Long.
Thereafter the bulldozer was -used by
appellee in excavation work, and it was
operated at various times by the original
purchaser, Long, as appellee’s partner or
employee. No part: of the purchase price
was paid, and about a month later, appellee
expressed dissatisfaction with the machin-
ery and abandoned it.
Appellee attempted to prove that: he did
not know anything about bulldozers; he
informed the seller of the use which he
intended to make of the one here involved;
the seller assured him the machinery was
in good working condition and suitable to
perform general excavation work; he re-
lied on such representations; and such
representations were false because the bull-
dozer was worthless. Appellee’s defense
is based on misrepresentation and an implied
warranty under KRS 341.150, subsec-
tion 1.
[1] These defenses must fail if the
original contract between appellants and
Long was a constituent part of the new
agreement. If so, the written terms of
sale are controlling and appellee cannot
rely on oral representations of a contra-
dictory nature. Hopkinsville Motor Com-
REPORTER, 2d SERIES
pany v. Massie, 228 Ky. 569, 15 S.W.2d
423. Nor may he rely upon an implied
warranty inconsistent with the writing.
KRS 361.740; Graves Ice Cream Co. v.
Rudolph W. Wurlitzer Co., 267 Ky. 1, 100
S.W.2d 819.
[2] It’ is appellee’s contention, that he
never saw the sales contract between ap-
pellants and his partner Long. However,
the facts and circumstances convince us
that appellee had knowledge, or must be
charged with knowledge, of its terms. The
agreement between appellants and appellee
in two places specifically referred to the
“contract” between appellants and Long.
This in itself gave appellee adequate no-
tice, without considering other factors, that
a sales agreement existed under which this
machinery was originally purchased by
Long.
[3] Even had the new agreement
failed to refer to the contract with Long,
this transaction was a novation and ap-
pellee was simply stepping into the shoes of
his partner. He was acquiring title to the
same machinery, for the same price, and
undertook to pay the obligation under the
identical terms set out in Long’s mortgage.
He could not accept the benefits of this
contract without assuming its unfavorable
incidents. Under the original terms of sale,
all warranties were expressly excluded.
Thus appellee could not rely on a breach
of warranty to offset the purchase price.
The conclusion just reached also disposes
of appellee’s counterclaim for damages.
His further contention that the contract
was rescinded when he complained of the
bulldozer’s operation is wholly lacking in
merit.
[4] . The lower Court correctly adjudged
appellant was entitled to recover the sum
of $250, the sale price of the complemen-
tary equipment. There was no sufficient
defense to appellants’ claim for the sale
price of the bulldozer ($3,500), and the
Court erroneously dismissed such claim.
Appellee’s counterclaim was properly dis-
missed, and the Court rightly refused to
set aside appellee’s conveyance on the
basis of the evidence introduced in this
action.
WORKMAN vy. COMMONWEALTH c
Cite as 216 S.W.2d 415 vege ose
The judgment is reversed on the original
appeal and affirmed on the cross-appeal,
with directions to enter a judgment for
appellants consistent with this opinion,
w
© § KEY NUMBER SYSTEM
T
309 Ky. 117
WORKMAN v. COMMONWEALTH.
Court of Appeals of Kentucky.
Oct. 22, 1948.
Rehearing Denied Jan. 28, 1949.
1. Criminal law C>1169(1)
In prosecution for robbery of motorist
with use of deadly weapon admission of °
photographs of victim and his automobile
was not prejudicial to defendant. KRS
433.140.
2. Criminal law €=723(1)
Prosecuting counsel’s argument, vig-
orously appealing to jury for infliction of
maximum punishment of death for rob-
bery with use of deadly weapon and stating
that enormity of crime justified such pun-
ishment because there were no mitigating
circumstances authorizing lower degree of
punishment, was not improper or prejudi-
cial to defendant, where evidence itself
was so inflammatory as to render any argu-
ment respecting it of little importance.
KRS 433.140,
3. Criminal law ©=723(1)
The commonwealth’s attorney, in argu-
ment to jury, is justified in urging, not
only defendant’s conviction, but degree of
punishment which he concludes should be
administered, and violates no rights of
defendant in so doing.
4. Criminal law G=1172(1), 1175 .
Where every issue raised by evidence
was presented by appropriate instructions
to jury, reversal of conviction was not
authorized on ground that verdict was not
true opinion of some jurors or that court
erred in instructing jury.
5. Criminal law C1213
Infliction of death penalty on convic-
tion of robbery with use of deadly weapon
was not improper as violating constitutional
provision against “cruel and inhuman pun-
ishment.” KRS 433.140,
See Words and Phrases, Permanent
Edition, for all other definitions of
“Cruel and Inhuman Punishment”.
6. Criminal law C1213
The Legislature has right to prescribe
death penalty for certain crimes, includ-
ing robbery with use of deadly weapon, and
in so doing does not violate constitutional
provision against infliction of cruel and
inhuman punishment. KRS 433.140.
ed
Appeal from Circuit Court, Jefferson
County; Loraine Mix, Judge.
Herbert H. Workman was convicted of
robbery with use of a deadly weapon and
he appeals.
Affirmed.
E. P. Sawyer, of Louisville, for appel-°
lant.
A. E. Funk, Atty. Gen. and Walter
C. Herdman, Asst. Atty. Gen., for appellee.
THOMAS, Justice.
On April 2, 1947, the grand jury of
Jefferson County returned a joint indict-
ment against Daniel T. McPeak, Jasper
Nease, and appellant, Herbert Workman,
in which they were accused of jointly com-
mitting the offense denounced by KRS 433.-
140, that of robbery of another with the use
of a deadly weapon, their victim being Ver-
non Hodge. They were arraigned before
the court and each of them entered a plea of
not guilty, following which, on their mo-
tion, they were tried separately. Nease was
the first one tried, which resulted in his con-
viction and punishment by death. He ap-
pealed to this court resulting in an af-
firmance of the judgment in the case of
Nease v. Commonwealth, 307 Ky. 640,
211 S.W.2d 826. Later McPeak was tried
and the same verdict was returned against
him with like punishment. He appealed
his case to this court which was affirmed
het Sand
ee
SCUOOL OF LAM
i haeaateandat beans hd
os arte
emmy tenseres er tn say may inte 8:0, OI,
“aerate
McPEAK, Daniel T.;
__wh, elec
end WORKMAN, Herbert H., wh, elec KY (Jefferson
42
KY (J
oF ale
Herbert, Jasper and Daniel (I. to r.), AWOL from Fort Knox
by E.M.POMEROY
\ J. ERNON HODGE was in excellent
spirits when he set out from his
friends’ home on the outskirts of
Louisville, Kentucky, in the early eve-
ning of March 13th. An ex-paratroop-
er, he was now a civilian and he was
on his way to Sunset Lodge in Louis-
ville, where he was to receive a Ma-
sonic degree. He listened with satis-
faction to the smooth purring of the
new yellow Packard convertible coupe
he was driving. It was the first car
he had ever owned, almost his only
possession, and he was proud of it.
“T’ll be home at 11 p.m.,” he told his
friend’s mother, as he kissed her good-
bye. They were almost like family
to him, his only other relative being a
married sister who lived on the other
side of Louisville, and he loved them
as if they were his own. He always
told them where he was going and
when he would return. They knew
they could depend on him.
The yellow Packard rolled smoothly
along the highway. But for Vernon
Hodge it might well have been an un-
dertaker’s black car, for it was not
taking him to Masonic Hall. It was
taking him to his grave.
WEXK, wh, elec. KY (Nov. 5, 49
As he slowed down at a fork in the
road three young hitchhikers flagged
him down, their thumbs jerking hope-
fully. Vernon Hodge never could pass
up a hitchhiker. He remembered his
younger days when he too had stood
by the roadside, wistfully hoping for
a lift. Smiling, he stopped the Pack-
ard. Then his smile faded.
The following day Vernon Hodge’s
friend was talking with Colonel Tom
Dover of the county police. ‘When
Vernon told Mother he’d be home at
11 p.m.,” he said, “which he did be-
fore he left, we knew he meant what
he said. He’s always open and honest
and level-headed. And he doesn’t
drink. And he never came home at
all.”
“Maybe he went off with some girl,”
the chief suggested.
“T’ve called all the girls he knows.
They’re all at home. He didn’t have
any entanglement with a girl. And I
called his sister. She hasn’t heard from
him. She called Sunset Lodge. Vernon
did not show up there for the degree
he was to take last night.” The young
man shook his head worriedly. “Some-
thing’s happened to him. This is seri-
ous.”
He described Vernon Hodge as 6 feet
to certain death
MASTER DETECTIVE, March, 1957
Vi
MaAarcn
When the war hero paratrooper
refused to drown,
his slayers lured him
tall, weighing 145 pounds. When he
left their home he was wearing a blue
gabardine suit, gray topcoat, white
shirt and brown shoes. He wore no
hat.
“We were closer to him than anyone
else,” his friend said. “If he’d had
anything on his mind, he’d have told
us. He’s a very likable fellow, has no
enemies. He hasn’t money enough to
be a target for a kidnaper and he had
only a little money with him.” He
added, “Vernon would be a match for
almost anyone. He was a hero in the
war.”
Colonel Dover alerted his men to
watch for the yellow Packard con-
vertible coupe and the missing man.
He assigned two officers to cover the
route Hodge would have taken from
the home to Masonic Hall. Squads of
police began checking all highways
leading out of Louisville. Hospitals
were checked for victims of accidents.
Vernon’s sister and all his friends were
questioned, in the hope of uncovering
some clue to his fate.
When all this effort failed to de-
velop any new information, descrip-
tions of Hodge and his car were put on
the police teletype and a five-state
alarm was sent out, asking all law-en-
Capt. Feltner on |
forcement officers
for the yellow P
throughout the ste
licity to the searc
But more than <
anything concrete
day morning a ph:
Route 15 in Wr
200 miles from Lo
eastern part of t
thing glistening }
stopped his car,
up from the roa
which he saw at
man’s dog tag. ¢
rank and service
Hodge. The doct
name, but he di
about a Louisvil)
disappeared. He
burg and gave th
man Combs of IL
“That’s the ma
Kentucky is look
exclaimed, as he
the tag. “He’s t
ing from Loui
stared thoughtful)
“Can’t figure how
in this county,”
find out. I wa
where you (Cor
9,
1932.
aes NON a ENR Fn tt eae cee ae ne a
ON TRAINS A
THIRD ZONE.
NP sEroxp
CENTS.
Seabury to
Walker
Pounsel In New York
Roosevelt for Action Against
Tammany Mayor. ,
é By ULBIC BRLL.
“The Cowrier-Jeurne) Warshinstoa Bureau.
‘Washington, Apri) 28.—Pranklin D.
_Oonevelt surveyed the While House
might as the guest of the man he
apes to oppose before the voters in
sovem ber.
Warher, from a hotel suite, he can-
aased With supporters hia own situa-
‘on a8 a Democratic Presidential
ontender—the outstanding one at
‘we present time.
Governor Roosevelt's news from his
a Waa mostly agrerabig news,
aA ia etandpoint. but. while the
waferences were gaing on, it devel-
ped that Judge Gamuel Seabury, in-
satigating municipal scandals in New
‘ork, ta preparing to cal) upon the
‘overgewr ta remove James J. Walker
« Magor of New York City.
Thia rather sensational proapect |
omeg for lar Ronsevelt aa a polili-:
al fattor of no littke import.
Probe Reade to Ask
reaching many quarters here, is pre-
Daring to back his recommendation
for the ousting of Walker with an
array of damaging facts. New York
is already agog over the progress of
the Hofstadter committee’s§ efforts.
under Judge Geabury’s guidance, to
‘ink the Mayor with conditions which
already have ‘caused much political
decapitation.
According to information reaching
here, the Seabury recommendation
may be presented late in June, pos-
sibly before the Chicago Democratic
convention bas acted.
If that is done, Governor Roosevelt
may be obliged to act in the face of
Tarmmanys present insistence upon
withbolding a decision on the course
lo be taken at Chicago by the New
York delegation of ninety-four until
the ¢onvention assembles. John F.
Curry, (he Tammany leader, has de-
(Contineed on Page 3, Column 1.)
Judge Seabury, acearding to word
ITH LEADING
si
IN CONNECTICUT
{as Big Majority of Pledges
_ to State Meeting
: of Party.
comrve{ lenight fer instructed dele-
ales te Uy Biate Demorratic coa-
ent
. o@ the baels of returne from
OF, ball the town cavewe: and
orm Wruid eomiral ine eon er leg
VuGeay oll the oe fitim weal
‘\ pened fer (ihe
2 39
HOUSE RALLIES
~ TO SAVE BILL
Insurgents’ Efforts to Riddle
Economy Measure
Halted,
Washington. April 28 ()—gwingin
pehind ie headers, 9 weary and pring
driven fear tonight approved sec-
cnonay Bil! designed to
This assured
$12,000,000 for the
then
pill
TRIP TO CHAIR
Last-Minute Delay Follows
_ Stabbing of Officer At
Breakfast. :
2 OTHERS ARE EXECUTED
Partner In Hardin Slaying,
Madiscnville Chief’s Mur-
derer Also Forfeit Lives.
Eddyville, Ky., April 29 ()—Aftep
standing off for an hour and a half,
prison guards who sought to take him
to the electric chair at the State Peni.
tentlary here, Walter Holmes, 31
years old, Chicago Negro, was exee
cuted at 2:25 o’clock this morning.
He was the third Negro electrocuted
for murder here today.
Smiling and smoking a cigarette,
Holmes surrendered and walked out,
of his cell in death row at 2:10
o'clock, after three gas bombs had
been hurled at him by the guards he
defied. When officials went to his
cell to lead him to the chair, Holmes
tossed hot water on them and then
threatened them with a lenath of pipe
torn from plumbing fixtures. |
At 2:12 o'clock he was strapped {
the chair and thirteen minutes la
was pronounced dead after current
hd been sent through hig body
twice.
Holmes died for the murder of
Thomas (Tillery, Hardin (County
farmer. The other two Negroes ex-
ecuted were Charles Rodgers, 323,
Chicago, Holmes’ confederate ‘in the
Tillery murder, and A. B, ‘“Pegleg”
Oooksey, who killed Chief of ‘Police
John H. Ashby of Madisonville.
Cooksey, the firat to go, was prow
nounced dead at 12:21 o’clock and
Rodgers was dead at 12:35 o'clock,
Two charges of electricity were neces-
sary for Cooksey and three for
Rodgers. :
Holmes Wounds Guard.
7
trenad
ta
__/A short time before the executions,
sie
y *oojte *SyoeTq *seqTFa ‘xu mama
a
*ZE6T 662 Trady (uppaeH) °xy S*oaTe SsyoeTq
C6tOTW1Tl (UppseH) °A
fsaqazeyg ‘sugmmoy pue z04T’m *ouwion pue §¢
276 Racial Violence in Kentucky, 1865—1940
men passed a resolution to show the white community that they, too,
stood for law and order and the punishment of criminals. Black em-
ployees of the Illinois Central Railway expressed, in a resolution,
their regret over the officer’s death and offered their assistance in
bringing to justice the blacks responsible. Howard and Porter re-
mained at large for almost six weeks before their capture on a train in
Maysville in northern Kentucky. Within a week, Paducah authorities
had returned the men to stand trial, refusing their request for a change
of venue, despite all of the violence that had happened in the area.
The trial of the two men was quick; the jury was out for less than two
hours. Howard, accused of pulling the trigger, was given the death
sentence, and Porter, his accomplice, received a life sentence. After
delays for more than a year, Howard died in Eddyville on June 6, 1919.¥
Very little change occurred over the next two decades. Blacks on
trial for the murder of whites still had to be escorted by heavily armed
guardsmen; whites still flocked to see the “event” and let it be known
that if the jury did not have the stomach to fully punish the accused
blacks, they would. Three blacks were tried for murder in Elizabeth-
town on April 28, 1931, in a courtroom filled, as usual, with hostile
whites. They had been arrested for the murder of a white farmer dur-
ing a crime spree through Illinois, Indiana, and Kentucky. Much of the
mob’s anger was directed toward one of the defendants, Walter Dew-
berry, because he chose C. Eubank Tucker, a black civil rights activist
from Louisville, as counsel instead of one of the white attorneys ap-
pointed by the court. During the court’s recess for lunch, Tucker was
physically attacked by a group of white men; one of the assailants
struck him repeatedly in the face with brass knuckles. Several guards-
men took Tucker to a doctor and then back to the courthouse and
remained with him for the duration of the trial. Upon returning to
court, Tucker “filed a change of venue upon the grounds that no jus-
tice could be given in a Court where the State Militia was needed to
guard the prisoners and where the defense attorney narrowly escaped
death at the hands of an angry mob.” The judge ignored the request
and ordered the trial to continue. The all-white jury found Tucker's
client guilty of murder after deliberating for thirteen minutes.
Charles Rodgers and Walter Holmes also received the death penalty.
28. Jim Howard and Harry Porter v. Commonwealth, 178 Kentucky Reports,
844-48 (1918); Paducah News-Democrat, August 12—15, September 26, 1917.
Color-Coded Justice 277
As had become routine, appeals and delays lasted for almost a year,
but eventually the three men died in the electric chair: Rodgers and
Holmes on April 29, 1932, and Dewberry almost eighteen months
later on November 10, 1933.”
Given how easily many blacks were convicted of murder and sen-
tenced to death or to long prison terms, it is surprising to discover
that on several occasions they succeeded in challenging their convic-
tions or in having their sentences commuted by the governor. Several
such cases occurred in Lexington in the first decade of the 1900s. On
Sunday, November 20, 1904, a fight occurred in a saloon between a
group of whites and three blacks, John Taylor, Ed Taylor, and James
Garfield Smith. During the struggle, a pistol was fired three or four
times; one of the shots proved fatal to William Moore, a white man.
In the chaos immediately after the shooting, most of the whites left
the saloon, including the man the blacks said was responsible for the
incident. The police, upon arriving, arrested the three blacks and
charged them with murder. Although tried separately, each man re-
ceived a death sentence. One of the jurors in the trial of James Garfield
Smith told a reporter that “a verdict could have been reached without
the jury leaving their seats.” The attorney for John Taylor had asked
the court to overturn the indictment on the ground that “the jury
commissioners had discriminated against negroes in their selection
of names from which the grand jury was drawn.’’*°
The Kentucky Court of Appeals overturned the death sentences
and ordered new trials. But in doing so, the court refused comment on
the failure of the judge to grant a change of venue or on the continued
exclusion of Afro-Americans from the jury selection process. Instead,
the justices said that errors had been made in how the men were
29. The account of Tucker’s beating comes from the Louisville Leader, May 2, 9,
1931. When calling upon the state’s highest court to uphold the death sentence of Dew-
berry, the prosecutor said that Tucker had not requested a delay or a change of venue
because he had been attacked by a mob, a view substantiated by the judge. When
making its ruling, the Kentucky Court of Appeals said that the statements made by the
whites, and not those of the Negro lawyer, were correct. The appeals for the three men
were heard separately by the court but decided on the same day. See 241 Kentucky
Reports (1931) for Holmes v. Commonwealth, 573-87, Rogers v. Commonwealth,
593-94, and Dewberry v. Commonwealth, 726-38.
30. Lexington Herald, November 22—December 4, 1904, and for all of January and
February, 1905; at the Kentucky Department for Libraries and Archives, see Fayette
County Circuit Court Judge Criminal Dockets, 1899—1905 (December 14, 1904), 506.
g 0 2d SERIES
44 SOUTH WESTERN REPORTER,
600 =Ky.
which appellant and his confederates nan
occurred in the home of Mr. — —
other questions raised on this — a ee.
been disposed of in the opinion in the Ho a ©. dca tuk eee. &
‘apa Holifield, Asst. Atty. Gen., for appellant.
a indi d, and on the au- ington, for ap
For the reasons cog judgment of the Robert C. Simmons, of Covington
thority of that opinion, pellee.
lower court is affirmed.
Whole court sitting.
On motion to dismiss appeal and discharge
surety on appeal.
Granted in part, and overruled in part.
DIETZMAN, C. J.
[1,2] The commonwealth of Kentucky on
relation of Walter F. Jacobs, its revenue
agent, filed in the Kenton county court the
stat&ment required by section 4260-1 of os
eo Kentucky Statutes for the a of ~ red
24 y. 5 uck} 0 or hes
COMMONWEALTH by JACOBS, Revenue certain property alleged to have een om tel
" EXECUTOR. sessment for taxation asses
Agent, v. DOUGLAS from: a3 eas for
as that purpose against the estate 0 p
3
COMMONWEALTH v. DOUGLAS’ EXECUTOR Ky. 601
44 8.W.(2a)
has two years from the date of the judgment the parties may take it by appeal. The cause
in the Kenton circuit court to take an appeal is the same in every court, and the question
in this court (Civil Code of Practice § 745). in each is the same, to wit, whether the first
Hays vy. Jenkins, 190 Ky. 518, 227 S. W. 797. judgment—that appealed from by the defend-
Should it elect to do So, and this court should ants’ principal—was erroneous and should
reverse the judgment of the Kenton circuit be reversed, or was right and should be aflirm-
court, and hold that the property or any part ed. The condition is, in Substance, for the
of it ordered to be assessed by the Kenton ultimate affirmance of the judgment appealed
county court should be assessed, the judg- from.”
ment entered in the Kenton circuit court pur- This R
suant to our mandate would, when so entered
by that court, be the final judgment in that
court on the appeal from the Kenton county
court. The condition of the bond executed by inapplicable in the Foo Long Case.
the appellees is that they will perform the
judgment that shall be rendered upon the __Im the case of Crane v. Weymouth, 54 Cal.
“ppeal in the Kenton circuit court, and that 476, there was an appeal in an action of eject-
appeal is not finally disposed of so far as the Ment from a judgment of the district court
lability of the sureties on the appeal bond t® the Supreme Court of California, which re-
obinson Case was cited with ap-
proval in the case of Foo Long v. American
Surety Co., 146 N. Y. 251, 40 N. E. 730, al-
though the principle of that case was held
Ft ee aad
Tac Y |
t
YUNIVERSI OY OF Ff:
or
Court of Appeals of Kentucky.
i Dee. 18, 1931.
1. Appeal and error ©1231.
Dismissal because transcript on —
from circuit court to court of appeals was
filed in time does not release sureties on cio
sedeas bond on appeal from county to anni
court; such dismissal not being a ames eee
ment” (Civ. Code of Prac. §§ 724, 738, ,
745).
Such sureties having undertaken to nen
isfy and perform the judgment that shou :
be rendered on appeal to the circuit ee
as required by Civil Code of Practice, :
724, were bound by that undertaking unt:
the judgment of the circuit court =
made final by lapse of two years in whic
to take appeal to court of appeals as -
vided by Civil Code of Practice § 745, or
until a final judgment was rendered on
appeal by the court of appeals; the 3
missal of the appeal under Civil Code o
Practice, § 740, because transcript of ate
ord was not filed within the time provide
in Civil Code of Practice, § 738, not being
a final judgment in the case.
oe ther definitions of
[Ed. Note——For o le
“Final Decree or Judgment,” see Words
and Phrases.]
2. Courts 185. Redes re
Appeal from county to circuit c
sor aianouad of until reversed or amenee
in court of appeals, or until time for appealing
to latter court has lapsed (Civ. Code of Prac.
§§ 724, 745).
Appeal from Circuit Court, Kenton County.
Action by the Commonwealth of Kentucky
on the relation of Walter F. —— its sil
ai alph J. Douglas’ e3 -
nue agent, against Ra : :
; The Circuit Court re
and administrator. ec ;
venved a judgment for plaintiff in the Coun
ty Court, and plaintiff appeals.
Douglas, deceased. On December 13, =
judgment was entered in the Kenton count)
court adjudging that taxes to the amount of
$15,821.82 had been omitted from —
and should be assessed against the named es
ate. Thereafter the personal representative
of this estate took an appeal to the pa
circuit court and, as required by law, ras
ed the supersedeas bond provided for by §
tion 724 of the Civil Code of Erect?
bond being to the effect that the appe oH
would satisfy and perform the judgment we
should be rendered upon the appeal. oe
case coming on to be heard in the ue ngaetenl
cuit court, a judgment was rendered se a
aside the judgment of the Kenton peor
court and dismissing the eagle a,
statement. The commonwealth swt Pos
revenue agent objected and excepted ae
judgment of the Kenton circuit sew re
prayed an appeal to this court, eer "A
granted by the circuit court. sag aie oe
transcript of the record was not filed Na oo
court within the time required by 0p i
of the Civil Code of Practice to gages ote
peal granted the commonwealth by . ne pion
court. The appellees have filed in this nese
a copy of the judgment of the Kenton - a
court and a motion asking this court Awe
miss the appeal granted by the ceagatn po
court, and to discharge the surety on a
peal bond executed in the circuit bang
perfect the appellee’s appeal from the pd
ment of the Kenton county court. oe
as the motion embraces the —. ol
court to dismiss the appeal grantec ad Bat
Kenton circuit court, it will have to pose
tained, as the commonwealth — ia
Code of Practice § 740; oe . Bogert
meling, 224 Ky. 107, 5 S.W.(2d) & a seid
ever, a different question is —* “
discharging the surety on the genre sedi
executed in the circuit court to per a
appeal from the county court. prion sail
appeal granted by the Kenton c Seth
must be dismissed, the commonwea
G—Fo cases see » & 2 ey- m vests and Indexes
IR in all Key-Numbered Dige
F same topic and KEY-NUMB
r other
are concerned, until this court has affirmed or
reversed the judgment of the Kenton circuit
court, or unless the time allowed for the tak-
ing of an appeal to this court has expired.
In the case of Robinson, Receiver, v. Plimp-
ton, 25 N. Y. 484, the plaintiffs brought suit
upon an appeal bond given under section 335
of the then New York Code on an appeal by
ene cf the stockholders of a bank to the Gen-
eral Term of the Supreme Court from an
order of the Special term confirming the re-
port of a referee apportioning the debts of the
bank among the stockholders, and rendering
Judgment against the appellant for his share
of the debt. The appeal bond was to the
eTect that, if the judgment appealed from or
any part of it should bé affirmed, the appel-
lant would pay the amount directed to be paid
by the judgment or the part as to which it
should be affirmed. The judgment at the
Special Term was reversed at the General
Term, but, on an appeal to the Court of Ap-
Peals of New York, the judgment at the Gen-
eral Term was reversed and that of the
Special Term affirmed. It was held that the
fureties on the appeal bond above mentioned
*ere liable on the ultimate aflirmation by the
versed the judgment of the district court. On
appeal to the Supreme Court of the United
States (Huff vy. Doyle, 93 U.S. 558, 23 L. Ed.
975), the judgment of the Supreme Court of
California was reversed, and that of the dis-
trict court affirmed. Suit was brought upon
the appeal bond executed at the time the
appeal was taken from the district court to
the Supreme Court of California, and, in hold-
ing the sureties liable upon that bond, the
Supreme Court of California said: “The con-
tract of defendants was, that if the judgment
of the District Court should be aflirmed by
the Supreme Court of the State, they would
pay, ete. The judgment was affirmed, and
their liability accrued. The legislation of the
State is to be construed in view of: the pos-
sibility that a judgment of this Court, re- .
versing a judgment of the District Court,
might in turn be reversed, and that no final
judgment of this Court could in such case
be entered until the cause had been disposed
of in the Supreme Court of the United States.
Assuming that the last judgment of this Court
is not absolutely void, it is a judgment, ana
the only one afiirming the judgment of the
District Court.” ©
|
ae
mee
i
Wwe UW
svi
Court of Appeals of the judgment of the Bae, sino, Babbitt v. Finn, 101 U. 8. 7, 25
Special Term, The court said: “In terms, L. Ed. 820,
Se undertaking does not restrict the liability | It may be, as is shown in this case, ‘that
the defendants to the contingency of an it works a hardship on the Douglas estate to
“Trmance of the judgment by the Supreme be kept waiting by the commonwealth dur-
-ourt. The condition may as well refer to ing the two-year period within which it has
£2 affirmance by the judgment of any court 2 right to appeal, but the estate, when it took
‘© Which the cause may go by appeal, or the the appeal to the Kenton circuit court, did
! decision of the action in the court of SO charged with notice that the contingency
fast resort. There was no reason for making Which has happened might happen, and with
‘de undertaking effectual only upon the first this notice, if it chose to secure corporate
*ppeal, and for the judgment of a court which Surety with the attendant expense, it can-
13 not necessarily final; and the statute, Rot now complain. The motion to discharge
8Sd the undertaking given in pursuance of it, the surety on the appeal bond will have to
*e respect to the final determination in the be overruled.
®urt of last resort, or the last court to which Whole court sitting.
44 S.W. (2d)—381%4
Ke
LEEW is. hye RSS eS
oe
lege
Y
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Anntenites eater
rept 7a OD ieee,
nad
TATUM GET gt ted oe
HHI A TRU
Rr : aS
DEWBE® ¥, Walter, black, elec. Ky. (Hardin) 11-10-1933 and
‘ HOLMES, Walter & ROGERS, Charles, elec. l-29-1932
F i “i
“GEORGE C.. W RIGHT. 9 |
reve Sed ;
Apel ip ma OEP LR
“ tp 8 SE
Rainn acer CO Si OLR SR IOLA LOE EE, er
ss RTE a sacn nex E ERE Sea ee CI wets EAH:
Racial Violence in Kentucky
1865—1940
Lynchings, Mob Rule, and “Legal Lynchings”
LOUISIANA STATE UNIVERSITY PRESS
Baton Rouge and London
. red at
AED Sleves, hange ;
P os RETR g and ROBER}, 5 B= -~1809
Columbia, Adair County, Kentucky, 8-I
Colu ae
ie Jane Clemens
a = |
The Story of Mark Twain’ Mother
, SUG
Doubleday & Company, Inc.
Garden City, New York
> PA Se ei tore oki
how things were: a blur there, forcing her to turn her head with
birdlike quickness to catch the vision through the other eye.
Her loss was only a baffling inconvenience to her, a dimness that
she tried to wipe away with an impatient little hand. She could
not explain that she had almost ceased to see through: the hurt
eye, for the mechanism of sight was still uncomprehended. Be-
sides, she had already acquired that admiration for the stiff upper
lip which was held in such esteem by the Montgomerys, Grand-
mother being the high priestess of this cult.
Jane’s trips to town were not always ahorseback, for the farm
wagon was sent often for supplies and she was allowed to ride in
it. The vehicle was driven by a slave named Silas and staffed by
Green Casey, Jane’s uncle, ten years her senior. Green tolerated
her. Silas treated her kindly. In cold weather they spread straw
On the wagon floor to keep her feet warm.
Going to town with Silas afforded Jane acquaintanceship with
many colored persons in Columbia, for he.was a gregarious man.
As he toted supplies from the stores and loaded the Casey wagon
his hooting voice and carefree laughter announced his presence;
the male and female servants of other folk, errand bound, were
drawn to him, as bees to clover. Jane, listening in the wagon, was
enthralled by the gaiety of their persiflage.
Then, suddenly, all that was stopped. Silas was replaced on
x te wagon by Abraham, a very taciturn man. Perhaps Colonel]
Casey restricted Silas to the farm at the request of the town
trustees, for local mores were being corrected; henceforth, Ne-
groes would not be allowed to congregate. A severe jolt had come
to that complacent community by way of murder. A prominent
farmer had been done in by his own slaves, Joseph Chapman, not |
regarded as a hard master (though God alone knows the facts),
had been attacked by three of his people—Peter, Nance, and
Robert—bludgeoned with a handspike and thrown into a log fire.
There was irrefutable evidence of the Negroes’ guilt, and though
Peter, the well-spoken one, was permitted to testify a second time,
the trial moved swiftly. By nightfall the three were sentenced to be
hanged one month hence—that sentence common to criminals of
both races. Before being remanded to jail the condemned ones
18
a i a iA
were appraised, for th
Chapman estate for
estimated at four hu;
Strange whimsey of ¢
currency of an earlier
said her estimators.
From the time of {
relations were not the
The Negro had replace
African’s attitude beca
to turn out work. If a }
of planning some say;
houseservant, though a
voodoo or sprinkling ar:
albeit lazy, was “a good
amenable nursemaid w-
The slaveholders tigk
active on the roads agai
espionage as well. They
and investigate any pla:
The townfolk were mc
and Columbia became 01
nies to put its fears on
Resolved, that al
Columbia, and those
the age of fifteen yec
from ten o’clock in
be classed in seven (
shall be the duty of t,
Mulatto who may be
his, her, or their lo,
lashes not exceeding
from his Master whic,
and said Negro using
hour, except at his \
Soon the tension eased,
but a feeling of rectitude w
were appraised, for the Commonwealth must. prepare to repay the
Chapman estate for what it destroyed. Peter and Robert were
estimated at four hundred dollars each. Nance, through some
strange whimsey of the appraisers, was evaluated in the sedate
currency of an earlier day; a hundred pounds was Nance’s worth,
said fhe? estimators, :
From the time of the murder and its implacable punishment
relations were not the same between the two races in that place.
The Negro had replaced the Indian as a symbol of danger, and the
African’s attitude became of as much importance as his ability
to turn out work. If a Negro grew sullen, his owner suspected him
of planning some savage reprisal for his captivity. A morose
houseservant, though acceptable in her work, might be making
voodoo or sprinkling arsenic. On the other hand, a jolly field man,
albeit lazy, was “a good Negro” in the new scale of values, and an
amenable nursemaid was a prize to be coveted.
The slaveholders tightened their grip. County patrols, always
active on the roads against highwaymen, were advised to take on
espionage as well. They were urged to watch for slave uprisings
and investigate any plantation gatherings that seemed secretive.
The townfolk were more methodical, leaving nothing to chance,
and Columbia became one of the first towns west of the Alleghe-
nies to put its fears on record:
Resolved, that all the male inhabitants of the town of
Columbia, and those on the donation lands adjoining, above
the age of fifteen years, be compelled to patrol the said town
from ten o'clock in the evening until daylight. Citizens will
be classed in seven classes, with a Captain in each. . Res
shall be the duty of the patrollers to apprehend any Negro or
Mulatto who may be strolling about, or who may be from
his, her, or their lodging, and give them any number of
lashes not exceeding twenty, unless said Negro has a pass
‘from his Master which specifies the place where he is going,
and said Negro using pass is not to remain more than an
hour, except at his wife’s house.
Soon the tension eased, and so did the harshness of the patrol,
but a feeling of rectitude was not regained. Possibly, some argued,
i9
Salina oA <3
waa 3 .
—-
day Prmnneniedesee ad
a a —S mi ~
; i ; oe . -
ae
inpatpchishindeane es
ES
oN ELEGTRICCHAR
First. "Triple Execul ‘Execution’ “in: the
-; State’s History ‘Carried. Out
~ at Eddyville ‘Prison; Slaftr
‘of Arbegust* |ssiles: State-|
ment’ Giving “Advice © to
-. World;””-. Asks: ‘Mothers. to
Send d Children to: Church.
‘BULLETIN °
pa tener May 9.—A special to
Tho Times from 4. staff correspondent
at Eddyville today sald that after
George Weick had malntalned his in-
nocence: of the cflme foe -which he
waa convicted, he, confessed a few
minutes before he was executed. “I
shot and killed that man, but no one
saw me do it,” ae in quoted as
having sald. ‘ ae
° eke ee
WESTERN STATE PENITEN.-
TIARY, Eddyville, Ky., May 9.—Ken.-
tucky’s’ first triple execution by elec.
trocution was completed in Eddyville
prison this morning, when Frank
Thomas, George Weick and Charles
Miler died in the electric one In
the order named.
Thomas died at 12:39 o’clork.
Weick died at 12:58 o'clock.
Thomas, 73 years old, slayer of
three men, one of them his best
friend and benefactor, Lee Arbeguent,
was the first to pay the penalty: Hin
march to the death hous~ just a few
feet from the cell in w a he spent
his last hours, began a ‘tew minutes:
after midnight,” eRe
Quickly he was strapped in the
death chair, the electrode was applied
to head and ankles, the attendants
atepped back and, as ‘Chaplain AcE:
Hanberry muttered a. prayer, the of-
ficlal elecutioner threw a switch, a
convulsive ‘tremor ‘passed: thru . the
aged man’s body and he was atill.
‘\ The current was turned off for half
a minute and. then reapplied. Prison
physiciana - then “stepped forward, j
Nstened for heart betas,’ felt for his
pulse and, finding no dig ‘of a ae
pronounced him ‘dead,
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