Kentucky, Q-S, 1853-1974, Undated

August, 1930

pool. Then I went over on Third
Street between Walnut and Chestnut
Streets and ate dinner in a restaurant.
1 went back to the Y.M.C.A. and
read for a while. Then I took another
walk about the downtown section and
came back to the ‘Y’. I was just going
to my room when you stopped me.”

Questioning him as to the streets he
had been on during his walk showed he
had never been off the pavement.

“Ratcliffe, that’s a good story—but
what | want to know is how did you
get this clay on your shoes if you never
got off the sidewalk?” I asked him as |
brought the shoes from under the suit
and shoved them under his nose.

He stared at the shoes and reached
out as if to touch them. Then he
drew back and said in a cold, expres-
sionless tone, “Why, I don’t know.
Those are the ones | wore, but I don’t
remember walking in the mud. Say,
what are you fellows trying to dof
What’s all this about? I told you all
] know. You haven’t got anything on
me. Let me go. I told you I got caught
in the rain. If I wanted to change
clothes and shoes, it’s none of your
business. Besides, I didn’t have any
reason to do anything to Mr. Muse. |
didn’t hurt him. He was a good friend
of mine.”

HE man was almost in a frenzy. The
muscles of his face were twitching
nervously.

We left him then. With all my sus-
picion, I felt that the case against Rat-
cliffe was hardly strong enough to con-
vict him. He might have got the mud
on his shoes in some gutter. After all,
the evidence so far was purely circum-
stantial.

My biggest chance was to have Muse
regain consciousness long enough to
take a look at Ratcliffe or to name the
man who had accompanied him to the
cemetery.

About 7 o'clock that evening, Ser-
geant Pittelko called me by telephone
and told me that Muse was coming out
from under the influence of the anaes-
thetic and would be conscious in a very
few minutes.

Without telling Ratcliffe where we
were going we hustled him into an au-
tomobile and drove to the hospital.

Carricato and Pittelko were await-
ing us just outside Muse’s door. | was
hoping that the old man would be
enough in his right mind either to
identify Ratcliffe or to say we had
made a mistake; for, although every-
thing pointed to his guilt, | wanted to
be sure we had the right man. If any-
body ever deserved the death penalty
it was the perpetrator of this deed.

I shall never forget what happened
shortly after we shoved Ratcliffe into
the hospital room. Sergeant Pittelko
stood at the head of the bed on one side,
and Sergeant Elmer Smith sat at a
table on the other side, his pencil
poised.

A white-clad nurse, her face a mask
of bewilderment and expectancy, stood
like an image near the window. Carri-
cato, grim and silent, was beside me.
Ratcliffe was between and slightly be-
hind us.

The Master Detective

On the bed lay Old Man Muse. His
head was covered with gauze and band-
ages. He stared toward the ceiling with
glazed eyes. '

| pushed Ratcliffe closer to the foot
of the bed and said to Muse gently:
“Can you listen for a minute?”

With an effort the old man focused
his eyes on me and then stared past me
at Ratcliffe. In a fleeting instant |
glimpsed Ratcliffe’s face. He was like
a man hypnotized. His eyes were fixed
on the feeble figure in the bed; his
lower lip hung limp and blue as if he
were suffering from a terrible nausea.

N anguished cry, more of a scream,
high-pitched and terrible, rang

through the room and echoed far down
the white corridors.

“That’s the ——- who done it!”

Old Man Muse suddenly jerked up
in bed and pointed a trembling finger
at the man who stood transfixed be-
tween Carricato and me. He gasped
after his terrible accusation and sank
back on his pillow, muttering incoher-
ently. Ratcliffe, speechless, his face
drawn, hung his head as we’ led him
from the room. The nurse who had
rushed to the head of the bed informed
us that Muse was again unconscious.

All the way back to headquarters
Ratcliffe protested the accusation.

“My God, this is terrible. He don’t

. know what he is thinking about. He

didn’t know what he was saying. He
might have been pointing to you or
anybody else in that room. I tell you,
I don’t know who hurt him. I didn’t
do it!”

I never before had seen a man in
more anguish nor have I since.

Close-up of the tombstone of Annie Muse,
whose husband was brutally murdered
while placing flowers on the grave

I told Ratcliffe we were going to
hold him on a charge of malicious as-
sault and if Muse died it would be
changed to murder. | informed him
also that if he wanted to say anything
more he had better say it now. He in-
sisted he was innocent and that we were
locking up one of the best friends Muse
ever had.

The first thing I pulled from his
pocket when we searched him was a
wallet. He stood there hopelessly as we
opened it, revealing $625 in bills.

79

Once more I took him to the back
office.

“Ratcliffe, listen to me,” | said. “We
have the goods on you. | will tell you
exactly what you did. You needed
money. You owed for your rent and
several debts. You knew Muse had-
that money on his person and asked
him to let you go to the graveyard
with him. He had no reason to suspect
you and told you he would be glad to
have your company. You got on the
street car with him, sat with him and
went into the graveyard with him.
When he knelt to place the flowers on
his wife’s grave you hit him on the
head with this hammer. Then you took
his money, jumped over the wall and
caught a street car.”

Ratcliffe denied his guilt as strongly
as ever and insisted he did not accom-
pany Muse to the cemetery. This was
his story, and it looked like he would
stick to it.

THE next morning we arraigned him
in police court on the malicious as-
sault charge and had the case continued.
During the afternoon I assembled ad-
ditional facts and proofs pointing to
Ratcliffe’s guilt. A man named Martin
Wieble stated he was on the street car
and saw Muse and Ratcliffe together.
H. Walters, salesman for a_ baking
company, was positive he saw Ratcliffe
running from the cemetery; and others
who lived in the neighborhood partially
identified him as the man they had seen
running along the cemetery wall short-
ly after the time of the attack.

Muse died at 4:30 o'clock Wednes-
day morning without regaining con-
sciousness. Two hours later we slated
Ratcliffe on a murder charge. When
arraigned that morning his case was
continued until the following Saturday.
He waived examination then and was
held to the grand jury without bond.

The grand jury indicted Ratcliffe for
murder, and his first trial started June
25th. Just before the trial, four repu-
table physicians, appointed by Judge
A. T. Burgevin, examined the defen-
dant and pronounced him sane, quash-
ing the defense of insanity his attorney,
Thurman B. Dixon, was considering.
Dixon offered to enter a plea of guilty
provided the Commonwealth would
consent to a life sentence. The Com-
monwealth’s attorney, W. Clarke Otte,
turned down the offer.

The trial lasted two days. Ratcliffe
did not take the stand, and his defense
was that the identification made by
Muse for testimony was that of a semi-
conscious man. The trial resulted in a
hung jury, eight of the jurymen voting
for the death penalty and four for life
imprisonment.

The case came to trial again on
Thursday December 6th, 1928. The
Commonwealth occupied a day with
testimony. This time Ratcliffe took the
stand in his own defense.

I shall never forget him sitting there
in the gloomy court-room, his strange
black eyes burning contemptuously at
me where I sat at the table with Mr.
Otte. The Prosecutor had something
wrapped in a newspaper on the table
before him.


ee

80

Ratcliffe made a sweeping denial of
the assault and everything that might
implicate him in it.

In his cross examination, Mr. Otte
attempted to show that Ratcliffe, with
his vague knowledge of race tracks and
betting, had never been inside a track
and consequently could not have won
the money through betting.

The climax came when Otte turned
swiftly from the witness and snatched
the bundle from the table. He tore the
Wrappers from the blood-stained ham-
mer and shoved it under the nose of
the man on the witness stand.

“Take a look at this, I tell you, and
tell this jury where you bought it,”
Otte bellowed.

Ratcliffe. pale and frightened, shrank
from the hammer as though it were a
Viper.

“T did not buy it or any hammer like
it.” he gulped.

Otte towered closer: “Well take it—
touch it—look at it!”

I thought Ratcliffe would jump out
of the witness chair.

“T won’t touch it,” he screamed in
high falsetto, “and you can’t make me.”

His attorney objected, and such hub-

The

about five feet, five inches tall. He had
on dark clothes, a dark overcoat and
dark Fedora hat.”

Lieutenant Osborne spread his men
around the Thompson house for clues
as Thompson, accompanied by Patrol-
man Billingham, was placed in an am-
bulance and rushed to Mountainside
Hospital. As the officers lifted Thomp-
son into the ambulance, the wounded
man said, faintly:

“T almost had him!”

Those were the last words he spoke,
for a few hours later, after Police Ser-
geant Timothy Clancy, of Bloomfield,
had given blood for a transfusion futile-
ly, Thompson died.

As Billingham aided the doctors in
cutting the clothing from Thompson
a few minutes before he expired, some-
thing fell with a thud to the floor of the
operating room. Billingham stooped
and picked it up.

It was the bullet which had taken
Thompson’s life. It had passed through
his body and stopped between the folds
of his clothing!

Not dreaming the important part the
bullet was to play in events to come,
Billingham placed the gruesome relic
in his pocket and returned to Ampere
Parkway to break the news of Thomp-
son’s death. Mrs. Thompson. prevented
by her deafness from hearing the stir-
ring events around her, had known
nothing of the fatal wounding of her
husband until after the dying man had
been taken to the hospital.

Early on the morning of February
Ist, Gannon and Rowe were notified of
the murder of Thompson and _ they
joined the Bloomfield police in the hunt
for the slayer. Signs of the struggle in
the Thompson home were plain, in the
broken door and scattered kitchen furni-

* AR BRE eRe

The Master Detective
bub prevailed in the room that Judge
Burgevin had to recess the trial until
that afternoon.

Dixon pled for an acquittal on the
grounds that no one saw the murder
and that the Commonwealth was trying
to send a man to the electric chair on
purely circumstantial evidence.

One hour and twenty-five minutes
later the jury returned a. verdict of
guilty and fixed Ratcliffe’s punishment
at death in the electric chair.
A NEW trial was denied, and on Oc-

tober 30th, 1929, the Kentucky
Court of Appeals upheld the verdict of
the lower court. In handing down the de-
cision, Appeal Judge S. S. Willis at-
tached a note in which he said Ratcliffe
had a fair trial and described the crime
as a horrible one without any extenuat-
ing circumstance.

On April 9th, Governor Flem_ D.
Sampson set June 13th of this year as
the tentative date for Ratcliffe’s execu-
tion.

As this is written, the condemned
man sits,in a green-tinted concrete cell
in the death house at the State Peni-
tentiary in Eddyville. There are gaudy

cretonne curtains over his door and a
certain disguise of comfort all about.

Were the curtains three times as thick
they could not hide from Ratcliffe the
yawning entrance of the room across
a four-foot hall from his cell. This
room is a concrete box, windowless and
cold. Its sole furnishings are chairs.
About thirty of them are yellow and
sit in rows around the wall. At one
end of a quadrangle is the electric chair.

Since Ratcliffe has been in the death
cell two other men have walked across
the hall to the chair room and were
brought out lifeless. In all, sixty-nine
persons have paid for their crimes in
this little room.

To this day Ratcliffe maintains he
did not kill Muse, although he knows
he has little or no chance of reprieve.

I have an idea that Ratcliffe will
have but one picture in his mind when
they buckle the straps around his arms
and legs, the electrodes about his fore-
head, arms and knee, and when the
black cloth is dropped in front of his
face. And that will be of a cemetery

. a rainy, misty morning ... a man
bending over a grave... lust...
blood. ...

Clue of the Buried Bullet

(Continued from page 51)

ture. The burglar’s means of ingress
was revealed by the marks of a jimmy
on a kitchen window. But the ground
was frozen hard and there were no foot-
prints from the porch to the point
where the intruder had climbed. the
fence in his escape. And not a single
finger-print was left in the Thompson
house by the intruder.

But Gannon and Rowe, in their hunt
for the elusive Anthony Boccadoro, had
turned up one important bit of informa-
tion. They had secured from the Law-
rence, Massachusetts, police a good de-
scription of Mrs. Rose Tiffany, and the
two detectives believed that when they
located Rose they would be hot on the
trail of Anthony. They learned, also,
that Rose had a sister living in Brook-
lyn, New York; so the dragnet was
spread for Rose Tiffany.

ON the night of February 2nd, a wo-
man about twenty-one years old left
Newark and boarded a tube train of the
Hudson and Manhattan Railroad. She
was about five feet seven inches tall and
weighed in the neighborhood of one-
hundred-thirty-five pounds. Her hair
was dark chestnut and her eyes brown.
Her expression was sullen and her man-
ner furtive. And right behind her was
a plain-clothes man of the Newark po-
lice department! The woman answered
the description of Mrs. Rose Tiffany
and the officer was on her trail.
Leaving the tube train at Fulton
Street, New York, the woman hurried
east to Brooklyn Bridge, where she
boarded a Fulton Avenue street car
over the bridge to Brooklyn, leaving
the car at Prague Court. She walked
three blocks north to Front Street and
entered a house at 262 Front Street.
When she disappeared into the building

the plain-clothes man was not far be-
hind her.

Later that night Rose Tiffany—for
the woman who had made the trip from
Newark to her sister’s home in Brook-
lyn was Rose Tiffany—was on her way
back to Newark to tell the police of
the days she had spent in the New
Jersey city as the companion of the
much-wanted Anthony Boccadoro.

At 7:45 o'clock the next night—Feb-
ruary 3rd, 1928—four men stood in
casual conversation at Gold and Front
Streets'in Brooklyn. They were Detec-
tive Gannon, Detective Sergeant |.ark-
in, of Glen Ridge, and Detectives
O’Connor and Jordan of the Brooklyn
police department. Apparently the four
men had nothing in the world on their
minds. They talked idly at the corner
and finally turned and walked down
Front Street, keeping their eyes on the
entrance of the house at 262. As they
neared the house a short, dark man
approached from the opposite direction.
He walked swiftly, watching the house
numbers as he walked. Just as he
reached a point in front of 262, Lieu-
tenant Gannon stepped from the group
of four men.

“Come on, Tony,” Gannon said as the
three others closed in. “We want you.”

“I’m not Tony,” replied the little
man, apparently in surprise. “My
name is Johnny—Johnny Toronto.”

“Take a look at this picture, Tony,
Gannon retorted—and he showed a Ber-
tillon picture of Anthony Boccadoro,
ex-convict wanted for burglary in New
Jersey. “You are Anthony Boccadoro!

‘ou can’t hoodwink me.”

“Yes, you've. got me right,” said
Tony with a sigh, I guess you
want me for those Jersey burglaries.”

“Those Jersey burglaries, yes,” re-

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FreVseNOry

440 Ky.

executing surety bonds, with its chief office
in this state in Louisville, Ky. The Grand
Lodge obtained a surety bond as of February
15, 1924, containing, among others, these pro-
visions:

“This bond, made this 22nd day of March,
A. D. 1924 between the Grand Lodge of Ken-
tucky, Free and Accepted Masons, Louisville,
Ky. (hereafter called the Society) and the Na-
tional Surety Company (hereafter called the
Surety), effective from the 15th day of Feb-
ruary, 1924,

“Witnesseth:

“That, whereas, the principal offices of the
Society are located in Louisville, Ky. and
connected with said Society are local Lodges
having certain officers known as Treasurers
and Secretaries, a list of which Lodges to-
gether with the titles of the positions to be oc-
cupied by said officers or their successors and
the amount of suretyship required for each,
is set forth in the schedule attached and
made a part hereof; and

“Whereas, these aforesaid officers have on
hand and in their respective possessions, mon-
eys, funds, securities and other personal prop-
erty belonging to the Society, and which mon-
eys, funds, securities and other personal prop-
erty aforesaid, are collected by such oflicers
from members of their local Lodges, and from
other sources, and are kept and afterwards
disposed of by them in their official capacity,
as prescribed by the by-laws and constitution
of the Society and its local Lodges; and the
Society desires suretyship for itself and its
local lodges, in the event of the loss of said
moneys, funds, securities, and other personal
property, or any or either of them, so com-
ing into the hands and possession of such of-
ficers.

“Now, therefore, in consideration of an
agreed annual premium the Surety will, at
the expiration of two (2) months next after
claim and proof of loss, verified by affidavit
(if required by the Surety), make good and
reimburse the Society for any and all loss of
moneys, funds, securities or other personal
property sustained by the Society.

“a. By or through the failure of any such
officer to well and faithfully perform their re-
spective duties, as required by the constitu-
tion and by-laws of the Society; or

“b. By reason of their failure to pay over
and deliver to the persons authorized to re-

21 SOUTH WESTERN

REPORTER, 2d SERIES

ceive the same, all moneys, funds, securities
and other personal property entrusted to their
respective care; or

“e. By reason of their failure to deliver to
their successor in office all such moneys,
funds, securities or other personal property;
Provided, however, that the liability of the
Surety on account of any officer shall not ex-
ceed the amount for which it shall have be-
come surety hereunder, which amount is set
opposite the designation of his position in the
schedule, or stated in the acceptance herein-
after provided for; the suretyship hereunder
to be considered continuously in force but not
cumulative.”

{1] The suit was instituted in the name of
Torrent Lodge No. 711, F. & A. M., by H. C.
3rewer, treasurer. It is alleged that Brewer
had authority to institute the action. Under
the authority of the case of Payne v. McClure
Lodge No. 539 (Ky.) 115 S. W. 764, he had au-
thority to maintain the action.

[2] It is insisted that, as the bond was writ-
ten in the name of the Grand Lodge, it alone
was authorized to maintain an action on the
bond. The bond was for the use and benefit
of the subordinate lodges, as is clearly shown
on its face. Under the authority of Hendrix
Mill & Lumber Co. v. Meador, 228 Ky. 844, 16
S.W.(2d) 482, appellant has authority to main-
tain the action.

[3] The gist of the action is that a treasur-
er of the lodge defrauded and refused to pay
over to his successor in office funds belonging
to the lodge. The lower court sustained a
special demurrer, apparently on the ground
that the action was instituted in the wrong
county. Section 72, Civil Code of Practice,
requires an action against a corporation to be
instituted, in such cases, in the county in
which the chief office, or place of business, of
the corporation is situated, or in which the
chief officer or agent resides; or if it be upon
a contract in that county, or in the county in
which the contract is made or to be per-
formed. The contract was made in Jefferson
county, but unquestionably it was to be per-
formed in Wolfe county, where the suit was
brought. The performance of the contract
was the payment of the money due the lodge
by reason of the acts of the defaulting treas-
urer.

Judgment reversed; cause remanded for
proceedings consistent with this opinion.

otigte

z

*
5

RATCLIFFE v. COMMONWEALTH Ky. 441
21 S.W. (2d)

«331 Ky. 337)
RATCLIFFE v. COMMONWEALTH.
Court of Appeals of Kentucky. Oct. 29, 1929.

1, Witnesses €206—Client’s communication
to attorney may be proven by third person
who heard it (Civ. Code Prac. § 606, sub-
sec. 4).

Civ. Code Prac. § 606, subsee. 4, forbidding
attorney from testifying concerning communica-
tion to him in his professional character by cli-
ent without latter’s consent, does not prevent
proof of such communication, if relevant and
competent, by any witness otherwise competent
who heard it.

2. Witnesses €=219(3)—Admission of defend-
ant’s testimony, after withdrawal of objec-
tion, that his attorney did not ask him certain
question at examining trial, held not error.

Admission of defendant’s testimony, on
cross-examination, that his attorney did not
ask him at examining trial whether he saw man
who testified to having seen him run from scene
of killing aceording to police officer, held not er-
ror, Where objection was withdrawn after be-
ing sustained and defendant answered question,
though admonished by court that he did not
have to; matter being proper subject of inquiry
and answer beneficial to defendant.

3. Criminal law €=363—Declarations accom-
panying transaction or made under circum-
stances raising reasonable presumption of
spontaneous utterances of thoughts springing
therefrom are admissible as res geste.

Declarations accompanying transaction or
made under such circumstances as raise a rea-
fonable presumption that they are spontaneous
utterances of thoughts created by or springing
from transaction itself, and so soon thereafter
#s to exclude presumption that they were re-
sult of premeditation or design, are admissible
as part of the res geste.

4. Criminal law €=366(6)—Testimony as to de-
cedent’s descriptions of assailant hour or
more after injury held not admissible as res
Oesta,

Testimony, in murder trial, as to decedent’s
de scription of his assailant an hour or more aft-
fr ‘injury and after his removal to hospital, am-
be time having elapsed after regaining con-
*clousness to reflect, held not admissible as part
ot res geste.

5. Homicide €>170—Evidence of decedent’s de-
scription of assailant’s clothing held not ad-
missible to contradict his identification of de-
fendant,

P Testimony, in murder trial, as to decedent’s

‘escription of his assailant’s clothing an hour or

Pie after injury, held not admissible as con-
radicting his identification of defendant as

Fulty party when brought into his presence.

§. Criminal law €>720(9)—Argument of com-
monwealth’s attorney as to victim's removal
‘rom bar of court, necessity of killing to pre-
vent identification, efforts to collect rent from
defendant, etc., held proper,

. Argument of commonwealth’s attorney in

Werder trial that when man is put on trial for

his life sympathy will be engendered in jury’s
minds while his victim has gone to bar removed
from court, that victim knew his assailant and
had to be put out of way to prevent identifica-
tion, that blood and gray hairs were found on
hammer introduced in evidence, that efforts had
been made to collect back rent due from de-
fendant, that arrangements had been made for
defendant to accompany deceased to scene of
killing, and that defendant had purchased ham-
mer on evening before, held not improper, being
based only on facts proven and reasonable de-
ductions therefrom.

7. Criminal law €=720(6) —Commonwealth’s
attorney is within rights in argument to jury,
so long as he adheres to record for facts and
to reason for deductions.

Attorney for commonwealth in argument to
jury is within his rights, so long as he adheres
to the record for his facts and to reason for
his deductions therefrom.

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

Ballard E. Ratcliffe was convicted of mur-
der, and he appeals. Affirmed.

Thurman B. Dixon, of Louisville, for ap
pellant.

J. W. Cammack, Atty. Gen., and James M.
Gilbert, Asst. Atty. Gen., for the Common-
wealth.

WILLIS, J. Ballard E. Ratcliffe was con-
victed of the crime of willful murder and
condemned to die in the electric chair. He
has prosecuted an appeal from the judgment
of conviction, complaining that the trial court
committed error prejudicial to his substan-
tial rights in certain rulings respecting the
admission and exclusion of evidence, and in
refusing to restrict the argument of the com-
monwealth’s attorney as requested by him.
In order to appreciate the questions presented
and to understand the decision of the court
disposing of them, it is essential to bave an
understanding of the facts that confronted
the trial court.

One Sunday morning in May, 1928, Wil-
liam A. Muse was found in a cemetery in
Louisville staggering and bleeding from sev-
eral serious wounds in the head. His rifled
pocket was hanging inside out, affording mute
testimony to the motive that actuated the as-
sailant. Muse was taken toa hospital, where
it was learned that his skull had been frac-
tured in three places, once just above the ear
at the thinnest part of the skull, once on top
of the head, and once between the other two
fractures. He lingered and languished in the
hospital a few days and died from the
wounds. It was ascertained that the wife
cf Muse, who had died a few years previous-
ly, was buried in the cemetery where Muse
was hurt. It had been his custom every Sun-
day morning from the time of her death to
visit and decorate her grave. He was sufli-
ciently conscious when on the way to the

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

——

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442 Ky. 21 SOUTH WESTERN
hospital to request the men who found him to
go back to the cemetery and complete his un-
finished work of placing the flowers appro-
priately on the grave. The request was com-
plied with, and by the side of the wife’s grave
the men found some flowers and the grass
pressed down corresponding to the form of a
man, A pool of blood marked the spot where
the man’s head had rested. Glancing about,
a new hammer was discovered behind a tomb-
stone a few feet away. It was an instrumen-
tality capable of producing the wounds found
upon the head of Muse, and blood stains were
found on the handle and on the hammer. A
son of the sexton at the cemetery, a few min-
utes before, had seen a man running from the
cemetery. Later in the day he identified ap-
pellant as the man he saw. - Henry Walters
was driving an automobile to the cemetery
and, as he approached, observed a man run-
ning toward the gate. As no street car was
near, no reason for haste was apparent, and
the circumstance impressed itself on the mind
of Walters, inducing him to pay particular
attention to the form and features of the
man. As Walters entered the gate to the
cemetery, the man slowed down to a walk
and passed within four feet, affording the
witness a good view of his face. Walters
identified the appellant as the man. Appel-
lant was also identified by another man who
saw him running down the street after he had
passed from the cemetery gate. The motor-
man and a passenger on a street car each
identified the appellant as the man seen on
the street car with Muse on the way to the
cemetery, only a short time before the in-
jured man was found. After Muse had been
operated upon by the physician and had re-
gained consciousness, the appellant was tak-
en to his room at the hospital. The injured
man arose in the bed, pointed his finger at
appellant, and exclaimed: “There is the bas-
tard that done it!” One witness stated that
he used the word “buzzard,” but the other
witnesses, including the appellant himself,
gave the language as quoted. Muse was
known to carry about upon his person a large
roll of paper money. He had an eccentric
habit of displaying the money rather promis-
cuously, and frequently made change for the
landlady where he boarded. The money was
in both small and large denominations. The
exact amount of it is not shown, but the tes-
timony indicates that it constituted a consid-
erable sum. Muse and Ratcliffe took meals
at the same boarding house. On the Satur-
day evening before Muse was burt he dis-
played his roll of money in the presence of
appellant and several others. The party dis-
persed leaving appellant and Muse engaged
in conversation, which was continued for a
little while, but which was not overheard.
There was testimony tending to show that
Ratcliffe had little or no money before that
time. He had borrowed 50 cents from a fel-
low roomer on Friday and tried to borrow a

REPORTER, 2d SERIES

trifling sum from another friend. His em-
ployer lent him $5 on Saturday. He owed
back rent for his room at the Y. M. C. A.
amounting to $35, and on Saturday paid only
$3.25, which was slightly less than room rent
for a week. When urged to pay more on his
account, he said he could not spare any more
than he paid. He played penny-ante poker
with some friends at the Y. M. C. A. until
after midnight on Saturday night. It is not
shown that he displayed any money at that
time. At 6:15 Sunday morning he was seen
in the bathroom at the Y. M. C. A. engaged in
shaving. So far as shown by the record, no
one saw him leave the Y. M. C. A. that morn-
ing. He says he went back to bed and did
not leave until after 9:30 a. m. Dut no one
there saw him until some time Sunday after-
noon, when he came in and was arrested.
When he was arrested he had in his pock-
et paper money aggregating $626. The de
nominations ranged from dollar bills to $50
bills. When called upon to explain the
possession of so much money, he said he
had won it on the races the preceding Wed-
nesday and Thursday. He could not then
name the horses or the races upon which
he had been so lucky. In explanation of his
refusal to pay his room rent, when he had so
much money, he said he was afraid the rent
would be raised. And in answer to questions
as to his reason for borrowing small sums
when he was so affluent, he said he did it
to establish his credit for use in case of real
need. He explained his whereabouts during
the fatal Sunday, but strange to say he saw
no one he knew during all that time. He
also said that no one he knew saw him at
the races. There were two trials of the case.
On the first trial the jury failed to agree, and
on the second trial Ratcliffe was convicted
and sentenced to death. His right to a re
versal is rested upon three grounds which
will be disposed of as the opinion proceeds.

[1] It is first insisted that the court erred
in admitting incompetent testimony on be
half of the commonwealth. The objection is
addressed to the cross-examination of the de-
fendant upon the trial in regard to alleged
confidential communications which he had
made to his attorney. One of the police officers
had testified to an incident which occurred
at Ratcliffe’s examining trial in the police
court. Henry Walters was testifying in the
police court to the effect that he had seen
the appellant run out of the cemetery. When
the testimony was introduced, one of the at-
torneys then representing the appellant asked
him if he had seen Walters as he ran out
of the cemetery, and he said he had not. The
testimony was clearly competent and was ad-
mitted without objection. The incident oc-
curred in the presence of many pcople and
was not intended as a secret communicaticn.
It was not proven by the attorney to whom it
was addressed, but by one who heard it under
circumstances bearing no resemblance to #

:

RATCLIFFE v. COMMONWEALTII

Ky. 443

21 S.W. (2d)

privileged occasion. When defendant was up-
on the witness stand, his own counsel did not
ask him about the statement; but upon cross-
examination by the commonwealth’s attorney
his attention was drawn to the incident, and
he was asked whether he made answer to the
question of his attorney in substance as testi-
fied to by the commonwealth’s witness. An
objection was interposed upon the express
ground that a confidential communication
was involved, and the court sustained the
objection. A colloquy ensued, during which
the question was raised whether the appel-
lant was willing to waive the objection and be
examined upon the subject. The court ad-
vised the appellant that he was not obliged
to answer it if he did not want to, as it was
privileged and neither the attorney nor the
client could be forced to testify respecting it.
Ilis counsel then withdrew the objection and
waived any right to exclude it as a confiden-
tial communication and consented for the de-
fendant to answer the questions. One of the
attorneys for the commonwealth nevertheless
insisted that the defendant should personally
make the waiver, and the court again admon-
ished the defendant that he did not have to
answer the question. But appellant answered
anyway and denied that his attorney had ask-
ed him any such question or that he had an-
swered it. In the first place, it is clear that
the testimony was competent. The Civil Code
of Practice § 606, provides by subsection 4
that “no attorney shall testify concerning a
communication made to him, in his profes-
sional character, by his client, or his advice
thereon, without the client’s consent.” It for-
hids the proof of such communications by the
attorney without the client’s consent. It does
not prevent the proof of such communication
by a witness otherwise competent. In Carter
v. West, 93 Ky. 211, 19 S. W. 592, 14 Ky. Law
Rep. 191, cited by the appellant, it was held
that an attorney is not permitted to testify
as to communications made to him in his pro-
fessional character by his client unless the
client consents, and neither the cessation of
the employment nor the death of the client
will render such testimony competent. In
Standard Fire Ins. Co. v. Smithhart, 183 Ky.
679, 211 S. W. 441, 5 A. L. R. 972, also cited
it was held that, although the relationship of
attorney and client has ceased, the attorney
is not permitted, without the consent of his
client, to testify as to communications made
to him in his professional capacity. The ex-
clusion is limited to the attorney alone, who
may not be called as a witness to prove law-
ful communications confidentially made by
the client. Obviously a declaration publicly
made by a party, although addressed to his
counsel, may be proven, if relevant and com-
hetent, by any one who heard it.

{2] In addition to what has been said, the
edjection to the cross-examination was ex-
Pressly waived both by the attorney and
client, and he chose to answer the question,

although the court had distinctly ruled in his
favor. Moreover, it gave the appellant the
benefit of a denial of the testimony of the ofti-
cer and cured the omission of appellant to
make the denial in his direct testimony. The
result is, in any view that might be taken of
the incident, that no error was committed.
The objection to it, after being sustained, was
withdrawn; the matter was a proper subject
of inquiry; and it was beneficial to the de-
fendant in furnishing an opportunity for the
contradiction of testimony which, up to that
time, stood unchallenged.

(3, 4] The evidence excluded by the court,
and of which complaint is made, consisted of
the testimony of the two ladies who kept a
boarding house where both Ratcliffe and
Muse took their meals. When they learned
that Muse was hurt and at the hospital, they
went to see him, and while there each asked
him to describe his assailant. To one of the
ladies he said it was a tall slender man with
black hair, wearing a light gray suit and a
light hat. The other lady testified that to
the best of her knowledge he said the man
wore a light gray suit and a light hat, and at
first mentioned glasses, but the second time
he omitted to mention the glasses. These la-
dies visited the hospital on the morning Muse
was injured and fixed the time as after 9
o’clock, One of them said it was between
10:30 and 11 o’clock. Muse had been injured
aLout 8 o’clock. It is earnestly insisted that
the exclusion of this testimony was erroneous
and prejudicial. It is first said that it wasa
part of the res geste and admissible as such.
Postell v. Com., 174 Ky. 272, 192 S. W. 39;
Deacon v. Com., 162 Ky. 189, 172 S. W. 121.
The court had refused to permit the common-
wealth to prove statements made by Muse
at the cemetery, after he had been taken to
the office, and before he was taken to the
hospital. It is the rule to admit as part
of the res gestz such declarations as accom-
pany the transaction, and also declarations
made under such circumstances as will raise
a reasonable presumption that they are the
spontaneous utterance of thoughts created by
or springing out of the transaction itself and
made so soon thereafter as to exclude the
presumption that they were the result of pre-
meditation or design. Deacon v. Common-
wealth, 162 Ky. 191, 172 S. W. 121; Rogers
v. Commonwealth, 161 Ky. 754, 171 S. W. 464.
As the statements in question were made an
hour or more after the injury had been in-
flicted and after the injured man had been
removed to the hospital and afforded ample
time, after regaining consciousness, to reflect,
it was not within the rule admitting decla-
rations as part of the res gest.

[5] It is further contended that the evi-
dence was admissible upon the ground that it
contradicted the identification of appellant
by Muse. The identification was a fact that
transpired in the presence of the appellant,
and it did not depend upon a description of

ALnoAMHA

Vi

SCHOOL OF?

4iIVLRGIT I

pean

sey

iRtiak s tea det 5.2
Sie SR Ri!


Providence, Rhode Island, stopped a
car that had been weaving through
heavy traffic.

The ditver, a small, stoop-shouldered
man wearing horn-rimmed glasses,
grinned pleasantly at the officers, “I’ve
had a little too much to drink,” he. ad-
mitted readily. “I’m glad you stopped
me. I might have hurt somebody and I
sure wouldn’t want to do that.”

At Headquarters, the amiable
prisoner identified himself as Charles
F. Keller, Junior, 32, and he had a
Rhode Island driver’s license to prove
it. He was, he declared, an employe of
a plating company, having worked there
since early in November.

Keller was finger-printed and
charged with drunken driving. On the
following day he was found guilty and
sentenced to serve ten days in the city
workhouse. Immediately, he announced
that he would appeal the verdict and
he was released under $1,000 bond. The
Police who arrested him shrugged and
quickly forgot the incident.

The driver’s finger-prints were sent
to the FBI in Washington several days
later, along with numerous other such

prints in a routine move by the efficient
Providence Police Department.

What Federal technicians found
when they compared Keller's prints
against those in their overflowing
wanted files set their investigating
machinery into immediate motion.

For the prints of Charles F. Keller,
Junior, were identical with those of
James Irwin Robinson!

News of this startling discovery was
flashed to the FBI office in Providence
early on December 29.

Had Robinson, alias Keller, fled? Was
that why he had posted bail?

It wasn’t. Agents found him seated
quietly at a table inside the polishing
and plating firm where he worked. He
was busy polishing costume jewelry
bog the agents stepped up behind

im.

“James Irwin Robinson?” one asked.

The little man stiffened and turned
slowly to face the two men.

“Federal Bureau of Investigation,”
pn agent added, showing his creden-

The suspect’s shoulders seemed to sag
even more than was natural. “I don’t

| Was Forced to Cash Bogus Bills

small box of sand and some implements
he kept for the purpose. After about
ten minutes’ manipulation, he handed
the ten-dollar bill to me.

It was impossible for me to notice the
difference between it and a genuine bill.

But Judy was too smart to tell me
much more. For two weeks we kept at
it and not once did he mention another
name. We had “spent” the counterfeit
money in about 200 places. Each time
I was under guard and watched closely.

Then one night we left the hotel and
drove to a fine residential section. It
was dark and I was unable to see the
name of the street. We entered a large
house and were greeted by attractive
Phyllis Grayson. ‘ This, apparently,
was her home.

Her husband joined us in a few
minutes. We sat around listening to
the radio and sipping drinks. Just like
any respectable, decent group of people.

But here I was a prisoner in this fine :

1ome, chatting with my guards, living
ike a criminal and getting nothing but
. few cheap trinkets and clothes out of
t—and a probable jail term.

NEXT morning, Lew announced that

he had to stop and meet one of the
‘Big Boss’” men. He pulled up in front
of a confectionery store and got gut.

“You girls wait in the car,” Judy or-
lered, “Johnny ddéesn’t like women
‘round when he talks business.” With
hat, he left us and entered the small
tore. It had no name on the window
nd I didn’t have any idea what part
f the city we were in.

I fidgeted nervously, glancing at Elsie
vho sat there smoking a cigaret. Elsie
ook everything in stride. She was a
ountry girl who had never lost her
asy-going Kentucky background.

“T’ll be darned if I’m going to sit out
ere for a couple of hours waiting for
hat guy,” I said. Really, I wanted to
2e who Johnny was. If he was the real
ower behind the counterfeiting ring,
wanted to learn his identity.

“I'm going inside,” I announced.
You can wait here if you want to.”

However, Elsie said she would go
long with me. We entered the store
nd took seats in a booth along one of
ie walls. On the other side of the
»om, Judy sat talking quietly to a
liddle-aged man., He was swarthy-
oking and had a scowl on his face.
Just once, Judy raised his voice so
could hear him. He said something
yout coming back later to Chicago for
ore.

Finally he saw us. He walked over.
“What's the big idea?” he yelled.
You know Johnny doesn’t like women.
"hy did you come in here?”

“Bosh,” I replied. “Introduce us to
our friend.” ;

We got out of the booth and walked

4

over to where Johnny was sitting.
“I don’t like women,” he said. :
“Then why do you have them work-
ing for you?” I replied.
' “The big boss likes the way you're
working,” he explained. “Likes the way
you walk and talk. It helps the
business,” coe,
So Johnny wasn’t the big boss.
Then who was? Somebody who'd
watched me while I passed the bogus
bills, Johnny had said. But who? The
Stranger in the Cadillac? Grayson?
I'd find out, I decided. I’d learn more
about the ring and then go to the
authorities—if I could gét away.

PRE finished his business with

Johnny and we returned to the hotel.
And this time, when he went to his

own room, he forgot to lock me in.

Elsie went right into the washrodm.

was my chance!

I slipped out into the hall and to the
stairs. I walked all the way down, my
heart pounding violently against my
ribs. It took me only five minutes or
so to reach the lobby, but it seemed
like five hours.

Looking both ways, I almost ran to
the front door. My hand was on the
metal bar when somebody seized my
right arm and whirled me around. It
was Judy.

“Going someplace?” he asked. My
heart, bursting with excitement sec-,

onds before, now seemed to sink to

my ankles.

“T thought you went out,” I said.

“T always take time to see that my
little birds don’t flee the coop,” he told
me, leading me to the elevator.

Back in my room, Judy patted his
coat pocket.

a hope I don’t have to use this,” he
Said.

That was how I learned that he car-
ried a gun with him all the time.

“My family is probably worrying
about me,” I pleaded. “They'll go to
the police.”

“Don’t worry,” Judy replied. “Drop
‘em a post-card. Tell ’em you're on a
trip and you'll see ’em soon.”

So I gave him a card to mail. In it I
wrote that I had a new job and they
shouldn’t worry about me.

From Chicago, we went south through
Illinois, Judy, the Graysons, Elsie and
I, stopping at all the good-sized cities
‘and towns. It was the same story in
all those places: Fair hotels, obscure
restaurants, plenty of whisky, cheap
purchases with counterfeit money.
He and Grayson would watch outside
while we made the purchases. No one
suspected that the money was fake. No
one had suspected at any time.

We had gone through a, total of $3,000
by then. After Lew’s supply was gone,
we returned to Chicago for a few days

suppose there's any need of lying,” he
said through trembling lips, “T’'m Rob-
Indon, all right, And I'm glad it's all
over, I suppose you want me about that
trouble in Louisville?”

DETECTIVES AMMON and Bibb
left Louisville for Providence.

Charged with first-degree murder,
Robinson was returned to Louisville on
New Year’s Day. More than 500 per-
sons swarmed into Union Station for a
glimpse of the small, .duck-gaited
suspect. Taken to Headquarters, where
he was quizzed for several hours, Rob-
inson was finally removed, under heavy
guard, to Jefferson County Jail and
ordered held without bond.

Detective Ammon stepped from the
jail soon thereafter and announced:

“Robinson has signed a detailed con-
fession stating that he choked Joyce
Joan Shouse to death.”

Ammon quoted Robinson as saying
he lured the child from the hotel cafe
on an “unexplained urge” and killed
her in a vacant lot next to the express-
company building where her body was
found later.

(Continued from Page 36)

where he picked up another $2,000.
Next we swung through Indiana and
Kentucky and then on into Tennessee.
There we hit the major cities like Mem-
phis and Nashville, where we Passed
some 80 of the counterfeit ten-dollar
bills. Turning north, again, we stopped
in Louisville. .

THERE I made my strongest dash for
freedom. It served again to con-
vince me that I was dealing with a tough
gang of criminals who would stop at
nothing to keep from getting caught.

The day. before we were to leave
Louisville, Elsie decided that she
wanted to return. to Portsmouth. Judy
promised to buy her ticket and drive
her to the bus station.

This, I thought, would be my big
chance. Al and Phyllis Grayson stood
outside while Lew purchased Elsie’s
ticket. I chatted with Elsie while he
was at the ticket window, asked her to
see my family and tell them I was all
right. When Elsie mounted the step
into the bus, Judy held me by the arm,
about eight feet away.

I broke loosé and ran to the bus.

But a late passenger got in the way
and Judy caught up with me. He
Pressed something into my back and
pulled me to him. It was the gun—I
was sure of it. I waved a kiss to Elsie
and turned to the bus station waiting-
room. Al sensed that there had been
trouble and took me by the arm.

Outside, Judy yelled at me for
“causing a scene at the bus,” as he put
it. They led me to the car and back to
the hotel.

I couldn’t stand it any longer. I broke
down in the hotel room.

“You dirty crooks, let me out of
here! I want to go home!” I cried.

I made a wild dash for the door, but
Judy was after me and seized me by the
arms. He whirled me around and
slapped me in the face. I struck back.
The next thing I knew, I was looking
into the barrel of his gun.

“Sit down or I'll let you have it!” he
yelled.

I sank into a chair and sobbed like a
child,

“Here, have a drink,” Judy offered.

“I don’t want any of your cheap
liquor!” I yelled.

“We'll get back to Portsmouth after
one more trip out of Chicago.”

We drove back to Chicago next morn-
ing and Lew picked up another $5,000 in
counterfeit money. We passed through
western Illinois and then up to Iowa,
finally hitting Des Moines,

There we were almost caught. It was
in a department store. I had bought a
pair of pajamas to mail to my son and
handed the clerk a ten-dollar bill,
Grayson stood several yards away
watching.

“All I want now is a quick trial,”
Ammon aaid Robinson told him, “Lot's
wet It over with.”

Robinson got his wish—a quick trial.
He was brought into court early in Jan-
uary. Defense attorneys objected to ad-
mission of his confession as evidence
but the objection was overruled.

Assistant Commonwealth’s Attorney
Carl Ousley told a jury, “... the world is
tired of that form of insanity that oo-
curs just before the blow is struck or the
bullet is fired...”

On January 31, 1951, Robinson was
found guilty of murder and sentenced to
death. His attorneys said they would
move for.a new trial.

Identity of the big man with the
florid face who was sought as a suspect
in the case never was learned. He was,
however, cleared of suspicion of the
killing of Joyce Joan Shouse with the
arrest and reported confession of James
Irwin Robinson.

The names Joe Slater, Karl Henry
and Harold Johnson are fictitious in
order to spare innocent persons un-
necessary embarrassment. .

Read It First In
OFFICIAL DETECTIVE STORIES

“This money doesn’t look good to
me,” the woman remarked.

“I beg your pardon!” I replied in-
dignantly. “Here; take the pajamas
and give me the money back.”

Instead of calling a store official,
however, the woman apologized and
brought me the change from the
counterfeit note.

\WHEN he was told what had hap-
pened, Judy slapped me on the
back. The Graysons likewise were
pleased. They said that the clerk had
been afraid to complain because I looked
So respectable. That was why they
wanted me to continue as a member of
the ring.

We passed a lot of the counterfeit
money in Iowa and headed back for
Chicago. I estimated roughly almost
$10,000 counterfeit spent since we had
left Portsmouth a month before. It
was now October 12, and time I thought
we should be going home.

And then an unexpected thing oc-
curred.. It convinced me what a fool I
had been not to think of faking the in-
cident before. This time, however, I
was not faking. Several years before, I
had suffered from internal trouble. I
had been treated by a specialist and the
disorder passed away. Now it came
back. I awoke in Chicago with terrible
pain. Judy and the Graysons offered
to call a physician, but I protested.

“Take me home,” I insisted...

Apparently they were worried, and so
Judy agreed. He probably feared that
if serious complications resulted, he
might be caught. He therefore agreed
to return to Portsmouth immediately.

As we parted from the Graysons, I
caught a peculiar remark:

“Reach me at the bottling plant if
you can’t find me at home,” Grayson
declared.

We left Chicago at eleven p. m. and
almost twelve hours later we were in
downtown Portsmouth. Judy drove
through the city and on to Highland
Bend. He parked in front of my
Mother’s house.

“You're going back to Chicago with
us, Eileen,” he declared. “Once you're
in this thing, you can’t get out. If you
try anything funny, you’ll get hurt and
go to jail.”

I didn’t answer him.

I expected Mother and Father to scold
me for what had happened. Instead,
they were overjoyed because I was home
again. Mother wept and the children
jumped all over me. It was good to
hold them in my arms again. Harold,
my husband, said little about my being
away.

Apparently, no one knew about the
counterfeiting activity.
we not looking too well,” Mother


672 Ky.

as a member of the county board of educa-
tion, evidence sustained finding that de-
fendant had satisfied the educational re-
quirements and was qualified to hold office.

A. E. Funk, Atty. Gen., Robert J. Wat-
son, Middlesboro, for appellant.

Logan Patterson, James S. Wilson, Pine-
ville, for appellee. :

CLAY, Commissioner.

This is a suit by the Commonwealth to
have appellee adjudged a usurper and dis-
qualified to act as a member of the Leslie

-County Board of Education. The trial

Court dismissed the petition.

The issue is whether or not appellee com-
pleted the eighth grade in a common school
as required by KRS 160.180. In support of
his qualifications, he filed an affidavit of one
Clay Huff, who stated he was a teacher
in the Lower Trace Branch School during

the school year 1932-33, and that appellee

completed the eighth grade.

The Commonwealth introduced the
Teacher’s Daily Register, signed by Huff,
which shows that appellee entered the
seventh grade that year and that he had
been in school six years prior thereto. The
Record Book for the preceding year had a
notation that he was then in the sixth
grade. The General Record Book, which
lists the names of elementary school grad-
uates for the year 1932-33, does not list
appellee’s name.

[1] The first question is whether or not
the school-teacher’s affidavit is conclusive
of appellee’s qualifications. Cases are cited
by appellee in which this Court has recog-
nized that eligibility may be established by

a teacher’s affidavit, without more. In the °

absence of contradictory proof, clearly this
would be sufficient. It is, however, little
short of absurd to say the affidavit is con-
clusive and the true facts may not be
shown. We are concerned with appel-
lee’s qualifications, not the manner in
which he may undertake to prove them.
Certainly the Commonwealth may introduce
evidence contradicting the affidavit.

243 SOUTH WESTERN REPORTER, 2d SERIES

[2] The next question is whether or not
the affidavit must have been attacked by
some pleading of the Commonwealth. KRS
454.010 provides: “The execution or as-
signment of a writing on which a suit or
defense is founded may be denied only by
a pleading verified by oath.”

The Commonwealth is not undertaking
to deny the execution or assignment of
the affidavit, and was not required to plead
against it’ The proof offered was on the
eligibility of appellee, which is: the sole”
issue in the case properly presented by the
petition. ,

[3] The last question concerns the con-
clusion to be drawn from the proof. Huff,
who made the affidavit, testified and con-
firmed it. On the other hand, there are
the records of the school which throw
considerable question on the accuracy of
his remembrance. Perhaps the strongest
proof is that the Register Book for 1932-33,
signed by Huff, shows the appellee was in
the seventh grade. However, the correct-
ness of this particular record, as well as
others filed in evidence, is very much in
doubt. The registers kept by the teachers
exhibit a great number of inconsistencies,
discrepancies and changes. A number of
erasures appear with respect to grades
entered and previous years in school.

The testimony of the superintendent,
who was in office during the year when
appellee allegedly completed the eighth
grade, shows the records were not carefully
kept and were not complete. For instance,
she admits that one Elmer Howard had
successfully completed the eighth grade in
1932-33, but his name, like appellee’s, does
not appear on the list of elementary school
graduates for that year in the General
Record Book. There is other evidence
tending to prove appellee subsequently
attended and earned credits in high school.

In view of the positive testimony of ap-
pellee and his former teacher, and in view
of the apparent unreliability of the school
records, we think the trial Court was jus-
tified in finding appellee had successfully
completed the eighth grade and was, there-
fore, qualified to hold his office.

The judgment is affirmed.

ROBINSON v. COMMONWEALTH Ky. 673
Cite as 243 S.W.2d 673

ROBINSON v. COMMONWEALTH.

Court of Appeals of Kentucky.
Nov. 2, 1951.

Rehearing Denied Dee. 14, 1951.

James I. Robinson was convicted in the Jef-
ferson Circuit Court, Criminal Division, Jef-
ferson County, Loraine Mix, J., of the crime
of wilful murder and he appealed. The Court
of Appeals, Stewart, J., held that denial of
defendant’s motion to stay trial proceedings
until his sanity could be determined in a
separate proceeding was not an abuse of dis-
cretion and that record showed that defend-
ant was given a fair, full and impartial
trial.

Judgment affirmed.

1. Criminal Law 625

Under statute providing that if court
is of opinion that there are reasonable
grounds to believe defendant is insane, all
proceedings in trial shall be postponed until
jury be impaneled to inquire whether de-
fendant is of unsound mind, whether an in-
quest shall be held rests solely within sound
discretion of trial court. Cr.Code Prac. §
156.

2 Criminal Law €>1148

Discretion confided to trial court by
statute authorizing impaneling of jury to
determine whether defendant is of unsound
mind when court is of opinion there are rea-
sonable grounds to believe defendant is in-
sane, will only be reviewed and controlled
on appeal when there has been a palpable
abuse of it. Cr.Code Prac. § 156.

3. Criminal Law ©=625

Record established that denial of de-
fendant’s motion to stay proceedings in trial
for murder until defendant’s sanity could be
determined by jury in separate proceeding
was not an abuse of discretion. Cr.Code
Prac. § 156.
4. Criminal Law €=33(1)

Record established that defendant, tried

for and convicted of crime of wilful murder
was given a fair, full and impartial trial.

—__>—_—-.

George R. Ambro, Herbert H. Monsky,
Louisville, for appellant.
213 S.W.2d—43

A. E. Funk, Atty. Gen., H. D. Reed, Jr.,
Asst. Atty. Gen., for appellee.

STEWART, Justice.

On January 31, 1951, James I. Robinson
was convicted in the Jefferson Circuit
Court, Criminal Division, of the crime of
wilful murder and his punishment was
fixed at death. Robinson appeals on the
grounds (a) that the lower court erred
when it overruled his motion to stay pro-
ceedings in his trial until his sanity could
be determined and (b) that, since there was

a trial, the verdict of the jury was not a

fair and impartial one.

Robinson in a written statement before
his trial and by his testimony at the trial
confessed to strangling three-year old Joyce
Joan Shouse to death at around 11 :30 p. m.
on July 7, 1950. He lured his victim from
a place known as the Capitol Bar on Market
Strect in Louisville to the rear of the Eck
Miller Transfer Company at 312 East Main
Street and there he slew her. Afterwards
he committed perverted sexual acts upon
her body. He hid the body under a porch
or truck dock in the rear of the Transfer
Company building. It was found six days
later, the odor of the corpse leading to its
discovery. Robinson fied from: Louisville
the next day after the murder and, after
traveling about over the eastern section of
the United States, he finally settled in Prov-
idence, Rhode Island, under the assumed
name of Charles Frank Keller, Jr. Agents
of the Federal Bureau of Investigation ap-
prehended him in Providence on December
29, 1950, and he was returned to Louisville
shortly thereafter for trial.

Counsel for the defense contended at the
trial that at the time Robinson committed
the offense of which he was convicted he
was without sufficient reason to know what
he was doing’; he had not sufficient mentality
to know right from wrong; and he had not
sufficient will power as a result of mental
unsoundness ‘to govern his actions at the
time he took the life of the child, because
of some insane impulse he could not resist
or control.

Doctor William Keller, a practicing psy-
chiatrist of Louisville, was the only person
introduced at the trial who testified as an

*ZS6T-gT-T (UoSdezzer) ds “Ay *oeTe *TE feqrum **T sewer ‘NOSNIAOU

=
rs
i
:
&

674 Ky.

expert witness on Robinson’s mental condi-
tion. He was called by the defense. The
psychiatric evidence did not show in any
respect that Robinson was Of unsound mind
or that he was subject to seizures of insane
impulse. Doctor Keller stated positively
that he believed Robinson knew right from
wrong. In his confession and in his testi-
mony, Robinson made many self-serving
statements. For example, he said he had a
brother who had been insane for 18 years
and that his grandfather and an uncle on
his mother’s side of the family had been
lunatics." The last sentence of his written
confession stated: “TI believe that I am a
sex maniac.” The testimony of his mother
adds up to an effort on her part to induce
belief in the minds-of the jury at the trial
that her son was abnormal.

-The trial court by an appropriate in-
struction submitted to the jury the question
as to whether Robinson was sane at the
time he committed the crime with which
he is charged and the jury, after: hearing all
the evidence in the case, did not believe
and find that his acts in the murder of the
child were those of a lunatic. Counsel for
defense does not raise as an issue before
us that Robinson slew the child as a re-
sult of an insane impulse; he insists that
the lower court should have determined by
an inquest whether Robinson was sane be-
fore proceeding with the trial; and he
argues that the refusal of the trial court
to sustain his motion constitutes reversible
error.

Section 156 of the Criminal Code of
Practice provides: “If the court shall be
of opinion that there are reasonable grounds
to believe that the defendant is insane, all
proceedings in the trial shall be postponed
until a jury be impaneled to inquire whether
the defendant is of unsound mind, * * *.”

Gregory in his treatise on Kentucky

Criminal Law, section 960, p. 724, has this

tu say on the point in issue: “The purpose
of an investigation before trial is not to
determine his (the accused’s) mental condi-
tion at the time the crime was perpetrated,
but to enable the court to ascertain, whether
or not, he is in a condition to secure a fair
trial by being able to make a rational de-
fense, employ, advise with and discharge

243 SOUTH WESTERN REPORTER, 2d SERIES

counsel and conduct his defense generally
in an intelligent way. .The question as to
whether or not an inquest shall be had be-
fore the trial, rests within the sound dis-
cretion of the court.”

[1,2] We have held unwaveringly to
the rule that whether an inquest, pursuant
to section 156 of the Criminal Code of
Practice, shall be held rests solely witlrin
the sound discretion of the trial court
Kilgore v. Commonwealth, 310 Ky. 826,
222 S.W.2d 600; Murrell v.. Common
wealth, 291 Ky. 65, 163 S.W.2d 1; Denny
v. Commonwealth, 274 Ky. 419, 118 S.W.2
778. We said in White v. Commonwealth,
197 Ky. 79, 245 S.W. 892, 894: “the discre-
tion so confided to the trial court will onh
be reviewed and controlled by this court
upon appeal when there has been a palpabk
abuse of it.”

[3] Clearly there is no showing in the
record that the trial court abused its dis-
cretion in refusing to conduct a hearing as
to the sanity of the accused.

Although counsel for Robinson did not
set it up as a ground in his motion for a
new trial, he advances in his brief what
amounts to a contention that the accused
did not receive a fair and impartial trial.
His argument along this line is elusive. He
makes extravagant charges but he offers no
proof to sustain his position. The following
extract from his brief seems to sum up his
complaint: “This entire proceeding is taint-
ed in that from beginning to end it reveals
an assumption of responsible guilt coupled
with a failure on the part of the Court to
seck affirmatively to do justice and an un-
seemly haste to try, condemn and execute
Robinson.”

[4] We do not feel called upon as a re-
viewing Court to pass judgment upon what
we consider are nothing but mere assertions
of Robinson’s counsel, especially when n°
evidence exists in the record to suppor
them. That Robinson is guilty of having
committed the crime of which he was con
victed is beyond question. In the absence
of a legal excuse for his act, and he has
proved none, he must be held accountable
for his murderous deed. It is our consid
ered judgment, after a careful examinatio?

CRUSE v. COMMONWEALTH Ky. 675
Cite as 243 S.W.2d 675

of the record in his case, that Robinson was
given a fair, full and impartial trial by the
lower court. It follows that the judgment
of conviction must stand.

Wherefore, the judgment is affirmed.

MOREMEN, J., not sitting.

CRUSE v. COMMONWEALTH.

Court of Appeals of Kentucky.
Nov. 9, 1951.

Noel Cruse was convicted in the Circuit
Court, Jackson County, Ray C. Lewis, J., of
having moonshine liquor in his possession for
the purpose of sale in local option territory
and he moved for an appeal. The Court of
Appeals, Stewart, J., held that the evidence
obtained through a search warrant, which
was void because based on an affidavit in-
sufficient to create probable cause, should
have been excluded and was insufficient to
sustain conviction for having possession of
moonshine liquor for sale in local option ter-
ritory.

Motion sustained and judgment reversed.

!. Searches and Seizures =3(4)

A failure to set forth the time when the
alleged facts occurred renders affidavit in-
Sufficient to create probable cause and
Search warrant issued pursuant to such in-
sufficient affidavit is void.

2. Criminal Law @=394

Evidence obtained through search war-
rant, which was void because based on affi-
davit insufficient to create probable cause,
should have been excluded and was insuf-
ficient to sustain conviction for having
Possession of moonshine liquor for sale in
local option territory.

——_~—__—

Shumate & Shumate, Irvine, for ap-
pellant,

A. E, Funk, Atty. Gen., Wm. F. Simpson,
Asst. Atty. Gen., for appellee.

STEWART, Justice.

Noel Cruse was convicted in the Jackson
Circuit Court at the October 1950 term of
having moonshine liquor in his possession
for the purpose of sale in local option ter-
ritory and his punishment was fixed at a
fine of $100 and 30 days confinement in the
Jackson County jail. He moves for an ap-
peal, assigning as errors that the circuit
court permitted incompetent evidence to
go to the jury over his objection and ex-
ception and that the court erred in over-
ruling his motion for a peremptory instruc-
tion.

Appellant contends that the affidavit sup-
porting the issuance of the search warrant
is fatally defective and for this reason the
evidence obtained by the search was inad-
missible. The search warrant was based
upon an affidavit filed by the sheriff, stat-
ing the following reason for his belief:
“Reputable citizens are sure that intoxicat-
ing beverages are handled and sold by the
above Nolan Cruse and he told the sheriff
he dealt in liquors.” :

[1] There is no date on the face of the
affidavit stating when the complaint was
made or when appellant told the sheriff that
he dealt in liquors. The law is well set-
tled that a failure to set forth the time
when the alleged facts occurred renders the
affidavit insufficient to create probable cause
and the search warrant issued pursuant
thereto is void. Duncan v. Commonwealth,
297 Ky. 217, 179 S.W.2d 899; Van Hook
v. Commonwealth, 247 Ky. 81, 56 S.W.2d
702.

[2] It. follows that the evidence ob-
tained by the search warrant should have
been excluded and, there being no other
evidence of appellant’s guilt, his motion
for a peremptory instruction should have
been sustained. Van Hook v. Common-
wealth, supra.

Wherefore, the motion for the appeal is
sustained and the judgment is reversed for
proceedings consistent herewith,

pan

706 SOUTHWESTERN REPORTER. .{Ky.

this is that the exemption is given by one section of the statute, while the

exception to the right, on account of the existence of the debt prior to the

purchase of the land, is contained in a distinct one; and, where an exception

- to the general provisions of a statute is found in a distinct clause, the com-

_ plainant need not aver that he is not within the exception. The petition, there-
fore, was not defective in this respect.

It was decided in the case of Kuevan v. Specker, 11 Bush, 1, that the right
to a homestead exemption is not lost bya fraudulent conveyance by the hus-
band and wife toa third party, who reconveys to the wife, because, the fraudu-
lent transfer being void, the status of the creditor and debtor as to the prop-
erty remains unchanged by it. The rights of the one or the other are not
altered by it. In that case, however, the debtor remained in possession of
_ the property; while here he surrendered it to the son upon the making of the

conveyance, and, when the claim of the latter was declared invalid, the pur-
chaser at the execution sale obtained possession, and has held it ever since.
It is unnecessary to decide, however, whether this surrender of possession
should betreated as an abandoment of this portion of the land as a part of
the homestead, and as an estoppel to any claim to it as such, inasmuch as the
judgment below dismissing the action must be sustained upon other grounds
that are beyond question. Generally, however, the debtor, in order to be en-
titled to land as a homestead, must either be in the occupancy of it as such,
or have parted with such use of it only temporarily.

The exhibit filed with the petition shows that Sylvester Snapp became the
owner of one of the tracts of land in contest after the creation of the Orr
debt, which was one of the debts for which the land was sold. It does not
appear when he became the owner of the other. The price at which the two
sold under execution did not equal the amount of the Orr debt. Again, the
appellant, Sylvester Snapp, was a defendant to the suit brought by John W.
Snapp, Jr., to quiet the title. He is named as such in the caption of the
petition. He gave his deposition in that case, and in it testifies that he is a
defendant to it. The assertion of his homestead right to the land, in that
suit, would have defeated the claim of the defendants therein that the con-
veyance by him to the son was fraudulent. If the land was exempt to him
as a part of his homestead, he had a right to convey it without claim or ob-
jection upon the part of his creditors. He remained silent, however. It has
been held that the sale of land under the judgment of a court does not divest
the owner of his right to a homestead exemption, unless it has been waived
in the manner directed by the statute. He may assert it by an independent
suit; but certainly a time should come when he can no longer do 80. He
cannot sue for it, and suffer defeat, and then bring a second action for it by
joining his wife with him. He is the owner of the homestead. If he once
asserts his right to it by an action, and his claim be rejected, this adjudica-
tion is a bar toa second suit. It is equally true that the judgment of a court
of competent jurisdiction is not only conclusive of all matters determined by
it, but of allincidental matters which might and ought properly to have been
then asserted and decided. Here, certain creditors claimed the right to sub-
ject certain land conveyed by their debtor to a third party, upon the ground
that it was fraudulent. The debtor was a party to the suit. If it was ex-
empt as a homestead, they of course could not subject it. He fails to so as-
sert; and, under the rule above alluded to, he cannot now be heard to set up
a claim which could properly and ought then to have been asserted. The
end of the litigation could then have been reached but for his own omission,
either purposely or through neglect, The judgment of the lower court suse
taining the demurrer to the petition as amended, and dismissing it, is affirmed.

act binserrt ott

Ky.] : ROSS v. COMMONWEALTH, 707.

Oss 0. COMMONWEALTH.

(Court of Appeals of Kentucky. November 15, 1888.)
L ie one Ng ide ag dlont OF OFFENSE.
nder Crim Code Ky. § 122, providing that an indictment must contain a sta
ment of the acts constituting the offense, so that a person of common pans at ag 3
ing can know what is intended, and with such certainty as will enable the court te
pronounce judgment, an indictment which avers that defendant and his co-defend-
ant struck and killed deceased with an axe is sufficient, though the proof shows
that defendant held a ligat while his co-defendant struck the blow.
3 Cake Mvaaes Ines ork MICE.
n a trial for murder, where it appears that defendant held a light while hi
. defendant struck the blow, an instruction thatif defendant was present at the xs,
pence Far vecbepceran. fe ron a ie ay _ jury should find him guilty as charged.
y favorable to defendant, though it does no ; jury that
they must find that he was actuated by malice. a ca di a2 es eg

Appeal from circuit court, Meade county; T. R. McBeath, Judge.

James Ross was indicted jointly with one Parker for the willful murder of
Benedict Rhodes. He was convicted, and sentence of death pronounced upon
him. He appeals. Instruction No. 2 of the trial court, referred to in the
opinion below, was as follows: “Tf the jury believe from the evidence that
Walter Parker willfully, feloniously, and with malice aforethought struck
and killed Benedict Rhodes with an axe, and that the defendant, James Ross,
iin nar at hes ne, aiding and abetting the said Parker in said killing,

en the defendant, Ross, is guilty as charged, and the jury should find as i
the tirst instruction.” : eal eves

H. 7. Kendall, for appellant. P. W. Hardin, for appellee.

Hott, J. The appellant, James Ross, is under sentence of deat
killing of Benedict Rhodes. The deed was of a character which pape ih
s-ldom stains the reputation of the commonwealth, It was done in the night-
time. The object was robbery. The evidence shows that the appellant aid
one Parker were tha perpetrators. The only testimony showing the part
each took in it is the confession made by the appellant npon a preliminary
trial. He then stated that Parker killed the deceased in his bed, with an axe
and that he held the light for this purpose. Other evidence shows that the
deceased was murdered in his bed; that the appellant was seen about sunset
going towards the house where the murder was committed. ‘The bloody axe
was found near by, and the two divided the ill-gotten plunder thus obtaine|
between them; the pocket-book and watch of the deceased being found in the
possession of the appellant. It is clear he was an actor in the murderous
deed. A reversal is asked upon two grounds. It is claimed—VFirst, that
the indictment is defective, and that the demurrer to it should have been sus-
tained ; and, second, that the jury were misinstructed as to the law of the case,
The indictment is a joint one as to appellant and Parker. The accusatory
part of it charges them with “willful murder;” and then, by way of settin +
out the acts constituting the offense, avers that they “did willfully, unlaw-
fully, maliciously,and feloniously, and with malice aforethought, strike, bruis®
and wound Benedict Rhodes with an axe, of which strike, bruise, and wound
said Rhodes died.” It is urged that it was a physical impossibility for both
to have used the axe, and that it should have been charged what each one did
in order to enable the appellant to know with certainty the character of the
accusation as to him, and to prepare his defense. Section 122 of the Crim:-
nal Code provides that an indictment must contain “a statement of the acts
constituting the offense in ordinary and concise language, and in such a man-
ner as to enable a person of common understanding to know what is intended
and with such degree of certainty as to enable the court to pronounce judg-
Ment on conviction according to the right of the case,” It was unnecessary
to use the word “willful” in the accusatory part of the indictment, since the

6Q9QgT “Or WOMBNM ‘°AY SSanquepuedg pesuey ‘yoBTq ‘sewer *ssoHu
*Q9uj

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SPR ESE PPK SRR Sts FUP AT Pees?

Ho oxen Rio NA Rens 0 Ah

518 Ky.

Everett Alphonsa FORD, Appellant,
Vv.
COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.
Jan. 27, 1956.

Defendant was convicted of rape. The
Jefferson Circuit Court, Criminal Branch,
lst Division, Frank A. Ropke, J., rendered
judgment, and defendant appealed. The
Court of Appeals, Cullen, J., held that ques-
tioning victim, on direct examination, as
to whether she was a virgin was not ob-
jectionable, although defendant had not
attacked victim’s character or morals and
had not relied upon consent as a defense,
although, under these circumstances, prose-
cution may not emphasize fact of chastity
by elaborating point in victim’s testimony

or by introducing other witnesses to show

good character.

Judgment affirmed.

i. Rape ¢=40(1)

In rape prosecution, questioning vic-
tim, on direct examination, as to whether
she was a virgin was not objectionable, al-
though defendant had not attacked victim’s
character or morals and had not relied
upon consent as a defense, although, under
these circumstances, prosecution may not
emphasize fact of chastity by elaborating
point in victim’s testimony or by intro-
ducing other witnesses to show good char-
acter.

2. Rape 36

In a rape prosecution, there is an initial
presumption of victim’s chastity.

3. Criminal Law @=1158(4)

Trial court’s finding, in rape prose-
cution, that defendant’s confession had not

been procured by coercion was not clearly
erroneous. KRS 422.110, 435.090.

286 SOUTH WESTERN REPORTER, 2d SERIES

Ralph H. Richards, Louisville, for appel-
lant.

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

CULLEN, Commissioner.

Everett Alphonsa Ford was_ convicted
of rape, and sentenced to life imprison
ment without privilege of parole. KRS
435.090. On this appeal, he contends the

court erred (1) in permitting the prose —

cuting witness to testify that she was a
virgin, and (2) in admitting an alleged con-
fession of Ford under a finding that the
confession had not been obtained by “sweat-
ing” in violation of KRS 422.110.

The prosecuting witness, a white woman,
testified that she was raped by Ford and
two other Negroes, who seized her near
her automobile, which was parked on a
city street near her place of employment,
forced her into the automobile and drove
it to a secluded spot. In the alleged con-
fession, Ford admitted he had intercourse
with the woman, but claimed it was with
her consent. In his testimony on the trial,
he stated that he saw one of his companions
with the woman in the automobile, parked
outside of a tavern, and talked with them,
but never entered the automobile and did
not have intercourse with the woman.

The prosecuting witness was the sccond
witness for the Commonwealth, following a
policeman who identified several photo
graphs of the street where the automobile
originally was parked. After asking her
name and address, and whether she was
married, the Commonwealth’s attorney ask-
ed the witness whether she was a virgin
before the incident in question. Over ob
jection of the defendant she was permitted
to answer the question, in the affirmative

It is contended that it was. prejudicial
error to admit this testimony, under the
rule that evidence that the victim of the
rape was chaste or of good moral character
is not admissible unless the defendant is
his evidence has attacked the character of
morals of the victim or has relied upon com

ne

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Kent:
Seée.59

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CLEAR FORK COAL COMPANY v. GAYLOR- Ky. 519

Cite as, Ky., 286 S.W.2d 519

sent as a defense. See Robertson’s New
Kentucky Criminal Law and Procedure,
sec. 574, p. 784; Wharton’s Criminal Law,
Vol. 1, sec. 732, p. 992.

[1,2] While recognizing that evidence
designed to bolster or fortify the presump-
tion of the chastity of an unmarried prose-
cutrix should not be admitted in the initial
presentation of the Commonwealth’s case,
we believe that merely asking the prose-
cutrix whether she was a virgin, as was
done here, is not objectionable. As we un-
derstand it, there is no rule requiring that
the chastity of the prosecutrix be kept a
secret from the jury; in fact there is an
initial presumption of her chastity. Whar-
ton’s Criminal Law, Vol. 1, sec. 732, p.
92. What we think is intended to be for-
hidden is the emphasizing of the fact of
chastity by elaborating the point in the
prosecutrix’ testimony or by introducing
other witnesses to show her good character.

Here, we think there is no basis for at-
aching much more significance to the ques-
ton as to whether the prosecutrix was a
tirgin, than to the preceding question as
to whether she was married. The sequence
and form of the questions were such as
merely to elicit a simple identification of
the status of the prosecutrix.

There is no reason to believe that the
question and answer had any inflammatory
effect upon the jury, because the jury did
sot impose the maximum punishment of
death. ,

As concerns the admissibility of the pur-
ported confession of the defendant, the
evidence heard by the judge in chambers:
indicated that the rape occurred around
7p. m., the defendant and his companion
were apprehended around 10:30 p. m., and
after some preliminary questioning were
gat in the “line-up” from 12 midnight to
lam, at which time they were identified
by the prosecutrix; thereafter there was
wme further questioning and the confes-
tion was made, written up and signed some
ume between 2 a. m. and 3 a.m. The de-
fendant testified that one of the policemen
struck him with a belt, that one of his

companions was kicked and he was threat-
ened with the same treatment. The police-
men testified that no physical violence or
other coercion was employed, and that the
confession was freely given.

While the kind of late-hour questioning
that was done here has some objectionable
features, and ordinarily will be looked upon
with disfavor, we think the fact that the
defendant was not apprehended until late
at night may be given some consideration,
and under this circumstance there was some
justification for promptly questioning the
defendant in order to obtain his statement
before he had an opportunity to fabricate
a plausible false story.

[3] The trial judge heard the evidence
of the defendant and the policemen, and
concluded that there had been no coercion
or “sweating”. It has been our established
policy to uphold such findings unless clearly
erroneous. See Bass v. Commonwealth,
296 Ky. 426, 177 S.W.2d 386; Tarrence
v. Commonwealth, Ky., 265 S.W.2d 52.

The judgment is affirmed,

O «© KEY NUMBER SYSTEM

AMmMs

CLEAR FORK COAL COMPANY,
Appellant,

Vv.

Joe Hubert GAYLOR and Kentucky Work-
men’s Compensation Board, Composed of
Allen P. Cubbage, Paul E. Hayes and J. Jd.
Tye, Appellees.

Court of Appeals of Kentucky.
‘Jan. 27, 1956.

Workmen’s compensation case. The
Circuit Court, Bell County, Robert L. Mad-
dox, J., affirmed an order of the Board
awarding compensation to the claimant, and
the employer appealed. The Court of Ap-
peals, Stewart, J., held that since it had

CT ALAZALG

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Pedtes :
e ° SE thy ii as Ate Ree PBN PO NEP

516 ~=SOWwWKYy.. 2989 SOUTH WESTERN REPORTER, 2d SERIES

~

ble in evidence will not be disturbed on ap- The Ford sentence has been afirmed; Ford
peal, unless evidence was ‘nsufficient to sup- v. Commonwealth, Ky., 1956, 286 S.W.2d

port judge’s finding that confession was not 518. White did not appeal.

“ons “ wed edd 4 .
obtained by “sweating . KRS 422.110. The appellant urges that the trial court
9, Criminal Law 6=531(3) erred: (1) in admitting his alleged con-

fession under a finding that the confes-

In prosecution for rape, evidence sion had not been obtained in violation of
heard by trial court in chambers was suf- KRS 422.110; (2) in permitting the intro-
ficient to sustain court’s. conclusion that de- duction of certain pictures into the evi-
fendant’s confession was not obtained by dence; and (3) in sustaining an objection
“sweating” and hence was admissible in to a part of defense counsel’s argument.

evidence. KRS 422.110. ee
A determination of the questions raised
3. Criminal Law €=1169(1) does not require that the evidence be re-
In prosecution for rape attinission “hh counted in detail. The prosecuting witness
evidence of official police photographer's bah white: Woman. Her testimony was
picturcs of sections of streets and general sufhicient to establish that appellant was
locality where alleged offense was commits ee the first in the series of three of
ted was not error, though another than fenses committed by the three men. Ap-
photographer testified about photographs, pellant stated that he had been with the
which were taken in his presence, where prosecuting witness on two previolis a al
they visually presented what was other: sions, which she denied. He denied having
wise testified about and fairly represented sexual relations with the Eness on the
what they purported to show and there casion charged in the indictment. On this
was no dispute as to place ot tiie ot lo appeal, the appellant does not question the
cale involved; pictures not being prejudi- sufficiency of the proof to sustain the con-
cial to defendants. or
4. Criminal Law €=719(1) [1,2] Evidence was heard by the trial
Where trial court properly eee eo court in chambers to determine whether a
dence in chambers out of jury’s hearing on Ate rei ac ea i oiaae is
question of admissibility of defendant's a Ee a vie a re as
confession of crime charged, defense coun- ms i a eae ee a ”
sel’s argument to jury that confesdion. was chambers indicated that the rape took place
“heat out of” defendant was improper as shortly after 7 - m.; that appellant and
not based on any evidence heard by jury. his two companions were arrested between
KRS 422.110 10 p. m. and 11 p. m.; and that appellant
peat ean and one companion were at the hospital and
in the “holdover” from around 11 p. m.
until they appeared in the police “line-up”
Ben F. Shobe, Foster S. Stone, Louis- at 1:05 a.m. A statement was taken from
Ford about 3 a. m. This statement was

J. D. Buckman Jr., Atty. Gen. William then shown to appellant by two police of-
eRe fe Serer fcers who had taken him from the “hold-

IF. Simpson, Asst. Atty. Gen., for appellee.
. : " over”. Appellant admitted Ford’s_ state-
ment was true. The officers then showed

MONTGOMERY, Judge. the statement to White, who likewise admit-
Robert Leo Sheckles, Everett Alphonsa ted it. Appellants alleged confession was
taken about 4:30 a, m., after he had ad-

Ford, and Clarence Anthony White were ‘ ; hh of Ford’
indicted for rape. Each was convicted on mitted the truth o eras Seemre

separate trials. Sheckles received a death
sentence, from which he appeals. Ford
and White each received life sentences.

—— el

ville, for appellant.

At the hearing in chambers, appellant
stated that one Lieutenant Schem struck
him in the stomach with his fist; that he

i aE


AINSWORTH v. AINSWORTH Ky. 517

Cite as, Ky.,

was struck by one other officer; and that
the striking took place in the presence of
other officers. When asked the approxi-
mate time the beating took place, appellant
answered, “I have no idea.” Appellant also
claimed to have been slapped while return-
ing from the hospital in a police ‘car.
Schem denied striking appellant or being
on the first floor of the city hall where ap-
pellant claimed the striking took place.
Officer Nall was pointed out by appellant
as being present when Schem allegedly
struck him, but Nall denied that appellant
was struck by Schem or any one. One oth-
er police officer testified to the events at
the city hall leading up to appellant’s con-
fession, and denied that appellant was
struck by any one. No other witness tes-
tified, or was produced to testify, in behalf
of appellant to corroborate his statement
about the beating. The evidence also
showed that appellant was advised of his
constitutional rights. prior to his confes-
sion and that he gave his statement freely
and voluntarily.

After hearing this evidence out of the
jury’s presence, the trial court permitted
the statement to be admitted. The deci-
sion of the trial judge on the admissibility
of a confession under KRS 422.110 will not
be disturbed unless the evidence is insuf-
ficient to support his finding. The evidence
heard by the court amply sustains his con-
clusion, Logan v. Commonwealth, 308 Ky.
259, 214 S.W.2d 279; Tarrence v. Com-
monwealth, Ky., 265 S.W.2d 52; Ford v.

Commonwealth, Ky., 1956, 286 S.W.2d 518

_ [3] Objection was made to the intro-
duction of a series of pictures showing sec-
tions of streets and the general locality
where the alleged offense was committed.
The witness testifying had been present
when the pictures were taken by the offi-
cial police photographer. The basis of the
objection was that the witness testifying
was not the photographer who took the
pictures. The pictures were a_ visual
presentation of what was otherwise testi-
fied about and fairly represented what they
purported to show. There was no dispute
as to the place of the alleged crime or the
locale involved. The pictures were not

289 8.W.2d 517

prejudicial, and we find no‘ merit in the
objection to their introduction.

[4] During the argument to the jury,
the defense counsel stated that the confes-
sion had been “beat out” of the appellant.
The court sustained an objection made by
the counsel for the Commonwealth to this
argument and refused to permit the defense
counsel to argue further on this point. The
trial court had properly heard evidence out
of the hearing of the jury on the admissi-
bility of the statement of appellant. None
of the evidence introduced at the hearing
in chambers was heard by the jury. The
attempted argument of defense counsel was
not based on any evidence heard by the
jury and was therefore improper. The
case cited by appellant is not in point. The
objection was properly sustained.

We have made a careful examination of
the record and are convinced that appel-
lant received a fair and impartial trial, free
from any prejudicial error.

Judgment affirmed,

w
° . KEY NUMBER SYSTEM
: ;

S. J. AINSWORTH et al., Appellants,
v.
Carrie AINSWORTH et al., Appellees.

Court of Appeals of Kentucky.
March 9, 1956.

Rehearing Denied May 11, 1956.

Children by second marriage brought
action against children by first marriage to
set aside deeds executed by the father to
the children of the first marriage shortly be-
fore his death, on ground that the deeds
violated property settlement agreement be-
tween the father and the mother of the
children by the second marriage, providing
that she relinquished all of her interest in
the father’s estate, and that the agreement

sms

——

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OietLt,
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O/ lf, Mure aga eee Nikufaed I bi
at bidaids. Mabel cia. KeArjes. hah

WO Ao inpoatsaaihe, lasing h fad tit tanacsoIeY Cas td

mar that jpa |
disdies 25/0

APPEALS

EXECUTION

FRANK NEWTON OFFIGf SUPPLYFOOTHAN

cy has

top him before.”
:d that Old Man
of the cemetery
rning for several
ht a bouquet of

his wife—Annie. .

occasionally he
nterrupted by an
down his spine:
juick! Open the

im brought the

feet. The voice
-hm, another fre-
etery. As Brand

r it opened, and
the office half
the unconscious

ld Man Muse.

! What’s this?”
as Muse’s body

Get a doctor!
” Klehm panted

sight of the old
and muttering on
-ndent rushed to
immoned police.
n listened in awe
bberish of Muse
» have been bat-
ne blunt instru-

1 detective head-
feet propped on
the fate of office
utine when I
ight be pulling
h out of the Ohio
iver.
The desk sergeant

HORROR SCENE!

This is the grave of Mrs. Annie Muse, where her husband, William A. (Old Man) Muse was mortally slugged. Artist’s drawing
depicts position of victim when found. The time: Sunday morning, May 20th, 1928. The place: Saint Louis Cemetery, Louisville,
Kentucky

interrupted my dream with a loud and excited bellow:

“Hey, Ira! Come here!”

| groaned at the interruption and went to the switchboard.

“There’s been some sort of trouble out at Saint Louis
Cemetery,” the sergeant told me. “The superintendent—
think he said his name was Brand—was hollering his head
off about somebody being smacked on the bean. Talked
like somebody was hurt bad.”

| called Mike Carricato and Carl Pittelko, two other
members of the homicide squad, of which I was in charge,
and went to the police garage.

| had no idea I was about to be plunged into what was,
undoubtedly, one of the most atrocious murder cases I had
ever been called upon to solve.

WENTY minutes later our car pulled up to the ceme-

tery gates. We went inside the office. Lying across a
desk was an old man, his gray hair matted with blood. Two
others stood in the office, apparently helpless in the grip of
horror. One glance at the injured man sufficed for me to
realize that he needed medical attention quickly. The High-
land sub-station wagon arrived about that time. We placed
the old man on a stretcher and sent him to Saint Anthony’s
Hospital, only a few
blocks away.
- The two men in the
office were Mr. Brand
and August Klehm.
Brand told me the in-
jured man was Wil-
liam A. Muse, about
sixty-four years old, a

By Detective Sergeant

IRA W. LIPSCOMB
Louisville (Ky.) Police Department

As told to FREDERICK HERNDON

carpenter, whose wife was buried in the Saint Louis Cemetery.

It seemed that Klehm, like Muse, had been there to pay
respects to some of his dead. He said he had never seen
Muse before that morning, and it was apparent from his
remarks and general attitude of fright and excitement that
he was telling the truth. I eliminated him from my mind
as one who might have attacked Muse.

SENT Carricato and Pittelko to the hospital to obtain

a statement from the victim if possible, and asked Brand
to show me Mrs. Muse’s grave.

It was plain to see the crime had been committed there.
When I stood beside the simple little mound I became con-
scious of the brutality of the attack. It was an unpreten-
tious plot, decorated at the head by a modest stone marking
the last resting place. of the carpenter’s wife.

As I stood there in the rain with Brand and Klehm and
looked at the blood-stained grave, I tried to picture a person
brutal and fiendish enough to attempt to murder a man
paying tribute to the memory of a loved one. I could not
stretch my imagination to conceive of anything a man, so
loyal to a memory, could have done to merit such vengeance.

Examining the grave closely, I found a deep footprint in
the mud on the oppo-
side side from which
the old man had been
kneeling. Not far
away I found another
footprint.

Other tracks led
toward the wall on
the south side of the

37


ren SF

YA MCT Tyo
4%

e) ana Rea ann
A tvdot 2S a y Ballare ite 3

Such was the
of the most

The murderer!

ICTURE the beautiful Saint Louis Cemetery in

Louisville, Kentucky, on Sunday morning, May 20th,

1928, with its rows of marble and granite memorials

wrapped in thick mist. A soft rain had been falling

for hours, and the trees were swaying in unison to
slight gusts of the breeze.

An aged man, a bunch of flowers under his coat, walked
slowly between the stone markers and made his way to a
small, modest plot near the center of the cemetery. He
brushed a dried 'bunch of flowers from the head of the

mound and laid the fresh ones gently in i_nanimmannaeecnneeenneNnRe

wh, elec. KY@ (Jefferson) June 13, 1930.

. RED CLAY

A kneeling man at his wife’s grave... a
ghoulish figure slinking through the mist...
a hand descending. . . .

beginning of the Muse case—one
atrocious crimes Kentucky has
ever known!

sick or something. He never let rain stop him before.”

He went to the window and remembered that Old Man
Muse had walked through the stone gates of the cemetery
almost exactly at 8:15 every Sunday morning for several
years. Every Sunday morning he brought a bouquet of
flowers which he placed on the grave of his wife—Annie.
He always said, “Good morning,” and occasionally he
stopped to chat for awhile.

At that moment Brand’s musings were interrupted by an
hysterical cry, which sent a shiver racing down his spine:
“Oh, Mr. Brand! Quick! Open the

its place. He arranged a glass jar which

are * door!”

protected a little plant blooming at the
foot of the mound. Then he knelt in the
wet grass and clasped his hands in silent
prayer.

Then came a stealthy step. From out
of the gloom a second figure emerged like
some horrible ghoul and crept toward
the kneeling man. The hand of death
reached toward him even as he mourned
the death of one he loved... .

A sickening thud .... Another. ..A
moan... .

The kneeling figure fell forward across
the mound, his body crushing the flowers
into the red clay. The second figure
shrank back for a moment and peered
into the gloom, listening. It hovered
close to the prostrate man. Then it
stepped over the grave and glided swift-
ly and silently as a ghost toward the
cemetery wall, leaving the rain to mingle
with the blood of the man sprawled
across the grave.

GEORGE BRAND, superintendent of

the cemetery, had been unusually
busy that. morning. He had forgotten
the time of day.

Wi be Lee oo hheg

He took his watch from his pocket.

“Eight thirty,” he noted aloud. 1!
wonder where Old Man Muse is this
morning? Guess the old fellow must be

36

This agonized scream brought the interrupte
superintendent to his feet. The voice “Hey, Ir
was that of August Klehm, another fre- I groane
quent visitor to the cemetery. As Brand -_ There's
started toward the door it opened, and Cemetery
Klehm stumbled inside the office half think he s
carrying, half dragging the unconscious of about
and bleeding form of Old Man Muse. me someb

called
“GREAT HEAVENS! What’s this?” members
Brand exclaimed, as Muse’s body and went |
slumped to the floor. I had nv
“Call the police! Get a doctor! undoubted
This feller’s dying!” Klehm panted ever been
> excitedly. . a
_ Horrified at the sight of the old WENT
man who lay moaning and muttering on tery ga
the floor, the superintendent rushed to desk was a
the telephone and summoned police. others stor
This done he and Klehm listened in awe horror. (
to the ravings and gibberish of Muse realize tha
whose head appeared to have been bat- land sub-s!
tered terribly with some blunt instru- the old m:
ment. Hospital

I had just arrived in detective head- blocks aw:
quarters, and with my feet propped on : The tw
the desk was bemoaning the fate of office office were

routine when | and Aug
Lipscomb—the might be pulling Brand tol
sleuth who solved fish out of the Ohio jured mat
the riddle—is seen Ri liam A.
with the death Iver. eee,
(Aa NTEeticnnen sah SRN weapon The desk sergeant sixty-four
ters oo

7 SIFO -


BY) LOCKE v. COMMONWEALTH. j

794 63 SOUTHWESTERN REPO RTER, (Ky. _

sac gapsiialacstiacih ele och diset and yah. Crem ter That — jist ae —— In that case | to the workhouse were competent. If true
nflicted on the ac- | they showed a fixed purpose to resist arrest,

limits of the city of Danville, in the presence purpose,—then you will acquit defendant on d
pops nga , Bed Pee a petee atemts the ground of self-defense. No. 8. If you be te. in oe boc. gheg (Ky.) 42 S. W. | even to the extent of death; which the proof
sold by retail, or was engaged in the act of | lieve from the evidence that Crum, 1m arrest- ecctek dt tha as - continuance on | shows he did do. We think the proof shows
selling beer by retail, to any person OF per- | ing or endeavoring to arrest defendant, used grejetics sgalnet fas public opinion and | that appellant sold beer in the presence of
sons,—then it was right and the duty of said | greater force than he reasonably believed at “We know re ttn od “om This court said: | deceased, Crum, and that, therefore, Cr -
Crum immediately and without warrant to | the time to be necessary for that purpose, and ioe a bon e of law that would author- | had the right, and it was his dut to a |
that the defendant, in the heat of sudden court to continue a case on account | appellant without = geass y
of prejudice and excitement against the ac- a warrant; % being 90-

arrest defendant by taking him into actual ny a Dupes
an
custody. And if you further believe from the passion, caus y same, sho wal. cae dc We ee ae ee salted that i wae a vistettes of lewte am

evidence beyond a reasonable doubt that Crum with a pistol, then you will find the Soden ned tele. detet beer in Danville. The facts
\ could not and proven and the
within the corporate limits of said city, and | defendant guilty of voluntary manslaughter, “it taleetaie dihena Chats Win 6 Caeeae testimony of appellant himself on the trial

finem
before the finding of the indictment, Crum | and fix his punishment at confine ent in the chain at Qimociials.: whl tte lien ot teas. show a clear case of deliberate and inexcu-

i less than two nor more tha’ .
either arrested or undertook to arrest the de- | penitentiary not les n das died “canner ten eles abides Ucn acc murder, wherefore the judgment Is af-

fendant for that offense, and that while de- | twenty-one years, in your discretion, No. 4. .

fendant was under arrest, or while Crum If you believe from the evidence beyond a dace ean i fpr judge, wes
. | reasonable doubt that defendant is proven —* e@ presumed to know er

was endeavoring to arrest him, the defend the surroundings and the state of public

ant, for the purpose of breaking the arrest, guilty, but have a reasonable doubt whether
ees . illful murder or of voluntary feeling to some extent at least.” In Brooks’ | HOTOPP et al. v. MORRISON LODGE

or for the purpose of preventing its accom- he is guilty of w 3 . |

plishment, willfully and knowingly shot and ——— aah: = ~ guilty of pp bend tay oe Aig ~~ we _— xoA46.1
the | the latter offense. on the whole case, you , ranted, an

kitted Creme wick &: Ot a and , : reversed the judgment for that error. An (Court of Appsefs of Kentucky. June 19,

time that Crum was a police officer, and the | have a reasonable doubt that the defendant donde
reason Crum was arresting or attempting to | is proven guilty, you will return a verdict of , nee om eee the opinion discloses that the :
arrest him, then you will find the defendant | not guilty.” The refused instructions, two a net id en and his counsel stat- ‘To
guilty of willful murder, and fix his punish- | in number, read: “Gentlemen of the jury: pope . an had not had time to prepare

ment at death, or imprisonment in the peni- | You are instructed that the deceased, Jno. bet po or trial, and bad not been able to
tentlary for the period of his natural life, in T. Crum, had no right to search the ice chest e names of those present and wit-

your discretion. To constitute an act of sell- of the defendant, or prevent defendant from aceing ppd apc Matranga
curred; and that, if given until the next

1901.)

tion for rehearing. Denied.
or former report, see 63 S. W.

case is that the partie

ing beer within the meaning of this instruc- | locking the same; and that the defendant

tion, it is not necessary that there should | had the right to resist the efforts of the de or _— he could and would discover — = in theDuilding in question,

have been an express agreement between the | ceased to search said chest, and use such ec ae of those persons, and could then the use pe gig by which they regulated

parties that money should be paid for the | force as seemed to him necessary, in the er- possi ee to secure their attend- right to each party. They had. the

beer, nor that the money should have been | ercise of reasonable judgment, to prevent the he e affidavit of counsel disclused that | 4, e such agreement, without alter- '
the accused had not been physically able to | sm r responsibilities as joint owners.

actually delivered in payment. It is suffi- | searching of the same. Second. You are
cient, to constitute a sale, if the defendant | further instructed that if you believe from rape liamir cei with counsel, and detail | to ; dhsoainti of the petition for rehearing as |
and the person or persons who called for it | the evidence that the defendant shot and cumstances of the killing, which had | ,,, enants who have not altered their j

occurred at that term of court. The reversal relations by contract is therefore inapplica- |

a understood and intended that it] killed said Crum in a sudden affray, caused c
arian he paid for. The words ‘in his pres- | by the deceased’s illegal effort to search sald np Ne because of the error in refusing ble. The petition is overruled.
ence,’ as used in this instruction, do not mean defendant’s chest, in sudden heat and par = nuance on account of inability to pre- ———
exclusively that Crum should have actually | sion, and not in his necessary self-defense, wg or trial and to have his witnesses, and i
heard the call for beer, or that he should ac- | you ‘will find defendant guilty of manslaugb- <n account of prejudice against accused. LOCKE v. COMM EALTH.1 |
tually have witnessed the delivery of it.| ter.” Exceptions were reserved to the glv- tied ra g of this kind appears in the affidavit (Court of Appeal Kentucky. June 22,
It would in law be deemed to be in his pres- ing of the four and to the refusal to give = nee pss eed by ie There was no wit- 1901.) *,
nothin
ence if he was 80 close to the parties at the | two instructions, and this action of the co cuit Shall ke satiated @ cc cae Pais INTOXI NG LIQUORS—INDICTMENT—UN-

time as to witness such part of the transac- | as well as the action of the court in the ad- CERTAINTY.

tion as would furnish to him a reasonable as- | mission of evidence, is assigned as error.

surance of the nature of the act done and of We are of opinion that there was no error

the identity of the seller. No. 2. Although | in refusing a continuance. The affidarit thee in point here. The affidavit in the
case is similar to nks Case discloses that accused was Appeal from circuit court, Barren county.

could be produced or was desired on his trial n indictment charging that defendant un-

that was not then present. The Brooks Case ig ng — yey mere nl malt lig-

you may believe from the evidence beyond a | filed by appellant in this 8

reasonable doubt that the defendant sold | the one filed in the Blank Case (Ky.) 48 & A ed by a company of militia on account “Not to be officially reported.” i

beer within the corporate limits of the city | W.161, marked “To be reported,” without the . a state of public opinion and feeling W. N. Locke was convicted of the offense | i
of Danville in the presence of John T, Crum, | supporting statement of counsel, as was the galnst him. The facts as disclosed in the | Of Selling liquor by retail, and b Seale. |

case in Blank’s Case. In that case the court Blanks Case are much stronger than here. Reversed.

and that defendant shot and killed Crum The in

while Crum had him under arrest, or was en- said: “It is true that the affidavit for a cod: on structions fairly state the law, and Vv. H. Baird, for 11

deavoring to arrest him, for that offense, yet, | tinuance tended to show that defendant bad not prejudicial to appellant. The re- | Whittemore and B Shackioriten, oe
. ge, for

fused instruct!
from the evidence that, | been in jail ina distant part of the state for ction should not have been given, | th
a considerable time prior to the trial; andl ra according to appellant's own testimony, > Semen
is affidarit here was nothing on which the jury could | p

if you further believe
while Crum had him under arrest, or was

endeavoring to arrest him, the defendant nei- | he had been able to show from hi
ther forelbly resisted the attempt to arrest | that further time would have, with reaso i nein a finding of a difficulty over the ro a C. J. It Is averred In the tn-
nor forcibly endeavored to break the arrest, | able certainty, enabled him to procure oe sara Appellant ts the only person who |“«gpirit at the appellant unlawfully sold i
and that Crum began an attack on defendant | terial evidence to support his defense, § ons ne to tell the immediate circumstan- Pie a4 uous, vinous, or malt liquors by re- | |
with a knife, from which defendant believed postponement of the trial should have bee® wat . the killing, and he says that it was ’ aor It is defective for the reaso {
and had reasonable grounds to believe that adjudged; but, inasmuch as his affidavit fail hat ne scuftie or difficulty over the ice box, . in n the opinion delivered June 1, |
he was in immediate danger of suffering loss | ed to show even a strong probability that 8 ides oe brought on by deceased trying to 4 3 e case of Raubold v. Com., W. 781.

of life or great bodily harm at the hands o: | postponement would enable him to procurt out aut m to go, and he refusing till he had 7 ponte should have sustained to

Crum, and that he could not, by the use of material evidence to support his defeitse, ¥¢ The the light. ; e indictment. The ean ie eeverecd

any available means, avert the danger, ex- | are not inclined to the opinion that the re - * was no error in admitting testimo- or proceedings co ent with this opinion.

cept by shooting and killing Crum, and that | fusal of the court to grant @ continuan *_ the threats that appellant made that | +Reportea by Edward W. Hines, Esq., of the |

7 ’ i» 0

he woul
d kill or be killed before he would go | Frankfort bar, and formerly state reporter,

eg

ae eis rumene reenact ene


Reiss
A oChs ene

4

ET Rare SP RER

sae

ae

ri
?
.

f

f

|

NU DLNIUN, Jame

‘with aliases: Edw. Carney,
Edw. Malone, Charlie Martin,
Jack West, and others,

DESCRIPTION

Age, 49, born at Decatur, Illi-
nois; Height, 6’ 1”; Weight,
175 pounds; Build, medium;
Hair, brown, turning grey;
Eyes, brown; Complexion, me-
dium; Race, white; Nationality, American; Education,
eighth grade; Occupations, fireman, yard clerk, mill-
wright, condenser operator, pipefitter; Scars and
marks, appendectomy scar, scar right thigh, scar
over right eye, star-shaped scar right hip; Charac-
teristics, prominent chin, poor teeth.

UNLAWFUL FLIGHT TO AVOID PROSECUTION
(ROBBERY)

CAUTION:
CRISE IS ARMED AND DANGEROUS

CRIMINAL RECORD
A complaint was filed before a U. S$. Commissioner
at Springfield, Illinois, on August 26, 1949, charging
Crise with a violation of Title 18, U. S. Code, Sec-
tion 1073, in that he fled from the State of Illinois
to avoid prosecution for the crime of robbery while

JOSEPH DAVID ADLUM

with aliases: Downs Adium,
Jack Adium, and others

DESCRIPTION

> Age, 64; Height, 5’ 6/2”;
» Weight, 165 Ibs.; Build, me-
dium; Hair, brown-gray; Eyes,
blue; Complexion, medium;
: D Race, white; Education,-high
school and business college; Occupations, hotel
operator, apartment house manager, cook; Scars and
marks, dim blotch scar on right cheek bone; Remarks,
has two right upper jaw teeth of gold and one front
upper gold tooth.

UNLAWFUL FLIGHT TO AVOID PROSECUTION
(RAPE)

CAUTION:
[HE SHOULD BE CONSIDERED DANGEROUS

CRIMINAL RECORD
Adlum has previously been convicted for sex offenses.
On October 31, 1949, a complaint was filed before
a United States C issi at San Francisco, Cali-
fornia, charging Adlum with a violation of Title 18,
U. S. Code, Section 1073, in that he fled from the
State of California to avoid prosecution for the crime

FRANK SHERMAN

with aliases: Wallace J
Powell, ''Ginger Drops"

DESCRIPTION

Age, approximately !
Height 5’ 81/.”; Weight, |
Ibs.; Build, slender; He
black, receding; Eyes, n
roon, cataract on right e
and blind in this eye; Complexion, dark brown; Ra
Negro; Occupations, junk dealer, contractor, pl.
terer, laborer; Scars and marks, scar under left e:
cut scar on back of head, end of middle finger
right hand deformed; Remarks, wears small mustac!
reported to be a constant drinker of patent me.
cines containing drugs.
UNLAWFUL FLIGHT TO AVOID PROSECUTIC
(MURDER)
CAUTION:
SHERMAN IS BELIEVED TO BE ARMED AND |
CONSIDERED DANGEROUS

CRIMINAL RECORD

A complaint was filed before a U. S$. Commission
at Baltimore, Maryland, on August 16, 1948, chargi:
Sherman with violating Section 408e, Title 18, U.

armed ‘0b « déngareus weapon. of rape. Code, in that he fled from the State of Maryland
avoid prosecution for the crime of murder.
20 L 17 Wr 7 . 16M9U1IM 10 S 27 W IMO 20
Fingerprint Classification: ———_____ Fingerprint Classification: Fingerprint Classification:
MitdIU $5 U 100 16 S$ 12 W 001
Pictures furnished by FEDERAL BUREAU OF INVESTIGATION, JOHN EDGAR HOOVER, DIRECTOR

Fai [%

 hsuegafen ng DETECTIVE CASES OFFERS A RE-

WARD OF $100-TO THE READER POSSESSING
AND DISCLOSING AUTHENTIC INFORMATION
LEADING TO THE ARREST OF ANY OF THE
WANTED MEN PICTURED IN ITS “FBI ROGUES’
GALLERY,” SUBJECT TO THE FOLLOWING RULES
AND CONDITIONS:

1. Communicate immediately in person or by telephone
or telegraph to JOHN EDGAR HOOVER, DIRECTOR,

NOTICE: We will not disclose identity of readers who

turnish information resulting in capture of wanted men.

ANTHONY THOMAS GROSSI

with alias: Tony Grossi

DESCRIPTION

Age, 30, born February 19,
1920, at Chicago, Illinois (not
verified); ‘Height, 5’ 8”;
Weight, 165 pounds; Build,
medium; Hair, black; Eyes,
brown; Complexion, dark; Race, white; Nationality,
American; Occupation, laborer.

UNLAWFUL FLIGHT TO AVOID PROSECUTION
(ROBBERY)

CAUTION:
GROSSI IS BELIEVED TO BE ARMED AND IS
CONSIDERED DANGEROUS

CRIMINAL RECORD
Grossi has been convicted for larceny. An indict-
ment was returned by a Federal Grand Jury, at Fort
Wayne, Indiana, on April 28, 1949, charging Grossi
with violating Title 18, U. S. Code, Section 1073, in
that he fled from the State of Indiana to avoid
prosecution for the crime of robbery.

12 0 30 W 00M

Fingerprint Classification:
124W 11

FEDERAL BUREAU OF INVESTIGATION, Washing-
ton, D.C., or the nearest office of the FBI, U.S. DEPART-
MENT OF JUSTICE.

2. ADVISE US IM.
of the wanted man t

LETE DETEC-

time the wanted man has bee'
the COMPLETE DETECT,
GALLERY. Send a copy
and address of the offic)

itively identified through
CASES FBI ROGUES’
ter or wire or the name

cation to the
CASES, 350

with

aliases: Jimmy Brown,
"*Shorty,'' and others

DESCRIPTION

Age, 32; Height, 5’; Weight,
105 pounds; Build, small;
Hair, brown; Eyes, blue;
Complexion, light; Race,

_ white; Occupations, service
station attendant, mechanic, drill press operator,
electrician, painter; Scars and marks, 7” by 1” scar
in center of back, tattoo left forearm bird with
streamer bearing name “Angeline”; Characteristics,
walks with slow shuffle, shoulders hunched up, with
right shoulder slightly lower than left.

UNLAWFUL FLIGHT TO AVOID PROSECUTION
(MURDER)

CAUTION:

SUBJECT IS WANTED FOR RAPE—MURDER OF A
MINOR CHILD—HE MAY BE DANGEROUS
CRIMINAL RECORD
A complaint was filed before a U. S. Commissioner
at Owensboro, Kentucky, on July 17, 1950, charging
Robinson with violating Title 18, U. S$. Code, Section
1073, in that he fled from the State of Kentucky to

avoid prosecution for the crime of murder.

031 W 11M 16
128 W oll

Fingerprint Classification:

ogues’ Gallery

PLETE DETECTIVE CASES rewards remain in effec
to six months after the publication of pictures,
reward is payable only to the person who first identi
the wanted man, prior to his arrest from the photog
of the fugitive appearing in COMPLETE DETECT
CASES FBI ROGUES’ GALLERY, and gives the infor
tion leading to his arrest. COMPLETE DETECT
CASES reserves the right of final decision in determi:
whether or not the proof submitted by the claimani
the reward is conclusive to meet the requirements.

Police officers who effect capture of fugitives wanted .
their own department are not eligible for COMPLE
DETECTIVE CASES rewards.

with aliases: ‘'Don''
Arthur Johnson

DESCRIPTION

Age, 50; Height, 5’ 9”
Weight 158 Ibs.; Build, me-
dium; Hair, black, wooly
Eyes, brown; Complexion
dark brown; Race, Negro
Occupations, bellhop, jani-
tor; Scars and marks, 1” knife
scar on right arm, partially blind in left eye, scar
"under left side of jaw, cut scar on back of right hand,
cut scar on right shoulder, brown crescent shaped
birthmark on right groin; Remarks, has been known
to wear thin line mustache.

UNLAWFUL FLIGHT TO AVOID CONFINEMENT

(ASSAULT WITH INTENT TO RAPE)
. : “CAUTION:
JOHNSON IS CONSIDERED DANGEROUS
CRIMINAL RECORD

A complaint was filed before a U. S. Commissioner
at Athens, Georgia, on November 24, 1948, charging
Johnson with violating Title 18, U. S. Code, Section
1073, in that he fled from the State of Georgia to
avoid confinement for the crime of assault with in-
tent to rape.

Darby,

132 W 10M 17

Fingerprint Classification: —————____
132 W III
28 32 28

28 28 32

Ref:


MURDER-
3.5800 YEARS
AGO

Wunte working on an excavation
in Nippur, Iraq, about 100 miles
south of Bagdad, archaeologists
from the University of Chicago
and the University of Pennsylvania
recently discovered a clay tablet
covered with cuneiform script
(wedge-shaped characters of an-
cient inscriptions, oldest form of
writing) the like of which, ap-
proximately only twelve learned

men, living today, are able to-

translate.

The tablet, dating back to the
year 1850 B.C., 3,800 years ago, was
the record of a murder trial in
which an important temple official
had been slain.

The defendants were three men
and the slain official’s wife, Nin-
dada. The records showed that the
three men had done the actual
slaying, then had told Nin-dada
what they had done. For some
unknown reason
their secret. The fact that she and
her husband were separated at the
time may have had some bearing
on her actions. :

The three men were found guilty
and sentenced to be executed in
front of the chair of their victim.
Nin-dada was set free.

These are the bare facts, but
more details were told in the trans-
lation of the clay tablet by Dr.
Thorkild Jacobsen, dean of the
U. of C. division of humanities,
and Dr. Samuel Kramer of the
University of Pennsylvania.

A colleague of the professor,
Max Rheinstein, University of
Chicago law historian, says: “The
very fact that murder was prose-
cuted before a public agency and
punished as.a public crime by
public authority as early as 1850
B.C. indicates a long development
of fairly high civilization in an-
cient Nippur. It took many cen-
turies in such complex and highly
organized societies as those of the
European middle ages to stamp out
‘blood feuds’ and to substitute pub-
lic prosecution.” —KeEN STOUT

she had kept —

(Continued from previous page) weight,
105 pounds; eyes, blue; hair, brown; com-
plexion, light; build, small. Marks of
identification: a 7-inch by 1-inch scar in
the center of his back; a tattoo on his
left forearm of a bird with a streamer
bearing the name “Angeline.” Walks
with a slow, shuffling gait, with his left
shoulder hunched up slightly higher
than his right. If located, notify Direc-
tor J. Edgar Hoover, Federal Bureau of
Investigation, Washington, D. C.

AMES IRVIN ROBINSON was stand-
ing on a street corner in Louisville,
Kentucky on Friday evening, July 7th,
1950. when Joyce Joan Shouse emerged
from a brightly lighted restaurant and
stood watching the passers-by. The
youngster had wandered away from the
table where her mother was chatting
with friends. When the mother noticed
that her daughter had left the premises
and went to look for her, it was too late.
The child was nowhere to be found and,
as the search continued hour after hour,
fears for the safety of the little girl
were expressed by law enforcement au-
thorities. Several witnesses volunteered
the information that they had seen her
walking along the street with James
Irvin Robinson. “

A quick check of the rgoming house
where Robinson lived was even more
disturbing. He had left that day and
had told no one where he was going.
The following week, Joyce Joan’s body
was found. It was concealed in dark-
ness under a truck-loading platform just
across an alley from the restaurant to
which her mother had taken her. The
girl had been strangled to death.

+
i
3
q

MAXINE GUERZON. Assault, First
Degree and Escape. Reward: TRUE DE-
TECTIVE, $100, authorities, $25. Age, 32;

height, 5 feet 634 inches; weight, 134
pounds; eyes, gray; hair, dark brown,

complexion, fair. Occupation, hair-
dresser. If located, notify Warden John
R. Carnor, Washington State Peniten-
tiary, Walla Walla, Washington.

AXINE GUERZON was pleased wiih
her plans for rejoining her husband
in Seattle, Washington as she drove her
Buick sedan from San Francisco to meet
him. Maxine was a hairdresser and her
husband, a cannery worker, was due to
dock in Seattle on August 20th, 1944,
after spending several months employed
in “Alaska.

During her husband’s absence, Mrs.
Guerzon had become infatuated with a
soldier named Alfred Moore. He was
stationed in Seattle, and no doubt she
looked forward to seeing Moore also. ~

But her guile had not escaped detec-
tion. When Maxine met her husband
at a hotel in Seattle, he told her that
his friend, Jesus Raby Crisutomo, had
disclosed -the relationship between
Maxine and Moore.

Maxine was enraged to find that her
duplicity had been discovered. Leaving
the hotel, she immediately telephoned
Moore at Camp Jordan and told him she
would meet him that evening. They
visited several night clubs, and the sight
of Crisutomo enjoying himself in one
of them brought Maxine’s anger to a
high pitch. She talked to the man, and
pretended to want his aid in affecting
a reconciliation with her husband.

However, she decided to kill Cris-
utomo and asked Moore to help her. She
went to her car and took a .36-caliber
revolver out of the glove compartment
and gave it to her lover. Then she in-
vited Crisutomo into the car on the pre-
text of taking him to the hotel where
her husband was staying.

Instead, she drove the car up the
street, stopped and picked up Moore,
who got into the back seat and held
the gun against the nape of Crisutomo’s
neck. Then she told the victim he
was on his “last ride—a one-way ride”
and that she was going to kill him. She
drove out Hunter Boulevard and, final-
ly, said to Moore, “Let him have it!”

Crisutomo jumped from the moving
automobile at that very moment, and
the bullet intended to blow his brains
out hit him in the right hip and coursed
downward. He was severely wounded.

Moore and Maxine Guerzon were ar-
rested and Moore confessed his part in
the crime. The two perpetrators of this
vicious attack were sentenced to the

Washington State Penitentiary. But Mrs. P
Guerzon escaped. ; ae


Joyce Shouse’

sag

s mother hoped des

<3

perately that someone had

could come for her.

aoe Rote es

When she saw the small, stained dress

taken her daughter to care for the child until Mrs. Shouse ~ she knelt and screamed. "Oh, Lord! Where is my baby?”

My by — My

Blue-eyed Joyce thought that every man she s
friend. She begged the stranger to buy her

Bb -

i

Mehta ats

€
&

Xbb TES

aw was her
some gum.

‘ly

INSIDE DETECTIVE
April, 1951.

The child who feared dogs didn't

know—there are mad dogs among men

By CALVIN C. DEWEY

™@ pocs jump aT you. They bark and snarl. If you get too close, %™
they bite. But strangers are nice. They play with you. And some-
times they give you candy. Z

That’s the way Joyce Shouse felt. She wasn’t quite that articulate
—she was only three—but she expressed her preferences in no un- fiz,
certain terms. She'd beg to be taken across the street if a dog were =}
coming her way. If Mother refused she’d bury her little blonde head ©
in Mother’s skirts and, whimpering, beg for protection.

It was different’ with strangers. She’d pull away from Mother
and run after the people who smiled at her in the street. And it
seemed as if everybody in Louisville, Kentucky, had a smile for
Joyce. Perhaps it was because she was such a beautiful child, be-
cause she had a pair of beguiling blue eyes.

And maybe people were just amused that such a tiny girl had
already learned the subtle devices of flirtation.

Joyce liked the men best of all. As far as she was concerned,
every man was her father. She had her own father, but nobody
knew where he was. She even had a second father, the one the
welfare workers had lent her, but she had been very young then,
and she couldn’t quite remember what he looked like.

Little Joyce was sophisticated in still another respect. She didn’t
know what a seesaw was, but she could recognize dozens of bars,
especially the dives in the Haymarket, the city’s skid row. She had
been introduced to these shadowed, adult playgrounds by her
mother, Mrs. Florine Shouse, a pitiful 29-year-old who seemed
always to be hunting for companionship. No matter how she tried,
Mrs. Shouse couldn’t find a steady man.

Joyce didn’t ming the visits to the bars. She could find lots of =
friends there, and she was allowed to stay up long past bedtime.

The child knew almost all the steady patrons of the Capitol
Hotel Bar, but she made a new conquest on the night of July

*T sower *NOSNTGOU

“fy peqnooryoete *

7, 1950.
He was James Irvin Robinson, a nervous little man in his early @
thirties. 3

Robinson had come to the Capitol Bar that night for the usual O
reason, to drink himself into forgetting that he was only four feet 9°
tall. Three days before, he had lost his job at the filling station.

But he had just cashed his pay check, and he had enough money in —
his wallet to convince himself that he was a giant.

He was seated on one of the stools in the rear, finishing his sixth ©
bourbon and ginger, when he noticed Joyce. She was chasing an
invisible playmate through a maze of booths and tables. Dressed
in a flashing, daisy-print dress, Joyce seemed like a darting ray of Cy
sunlight in Robinson's blurred vision.

He whirled around in his seat and ordered another bourbon.
While waiting to be served he stared at himself in the large wall &
mirror. There was no one nearby who seemed interested in talking
to a drab little man—even the bartender avoided his glances—so he
amused himself by studying his reflection. There were comet
when he could see himself as a handsome, broad-shouldered mar,
with thick, wavy hair, ruddy complexion and a firm jaw. The illu-
sion was swiftly replaced by his real countenance, a shrunken, OO
wrinkled face with cheeks that looked as if they were fashioned out \»
of putty. By concentrating intensely he could turn the illusion on

and off at will. ol

It was funny, he thought, how a guy can practically hypnotize \O

himself by staring into a mirror, how a guy can... Ui

“Hello mister!” nN
@

33


Kentucky (Jefferson County) on 1/18/1952,

As we go to press, the persons listed below are wanted by the police.

HARRY ARAX. Murder
and Escape. Reward:
TRUE DETECTIVE, $100.
Age, 45; height, 5 feet 5
inches; weight, 170
pounds; hair, black,
wavy; eyes, brown; com-
plexion, very dark. He
has deep lines in his face,
and very muscular arms
and shoulders. Mark of
identification: tattoo, “D
F T” on his lower right
forearm. Speaks English,
Armenian and some
Greek, German and Ital-
ian. If located, notify
Chief of Police William ~
H. Dovey, Long Beach,
California.

ARRY ARAX began
| shooting at police-
men back in 1934 in San Francisco, California. At that time
he fired at two officers who were taking him into custody after
a robbery.

He escaped and his trail was next picked up in Long Beach,
to which place he had been traced through a string of forged
checks. There, on December 12th, 1934, Patrolman William J.
MacLean spotted Arax in a hotel. Seeing the officer close in
on him, the desperado suddenly drew a .32-caliber automatic
pistol and began firing. Patrolman MacLean was killed in-
Stantly and Arax again escaped.

When every lead toward capturing the callous gunman

~ aid

Official charges appear with each photo.

seemed to fail, Detective Sergeant W. L. Woodruff, who had
been a close -friend of the murdered officer, appealed to the
editor of True DETECTIVE Magazine, requesting that a picture
of Harry Arax be published in the Line-Up, in the hope that
some reader might identify and bring about the capture of
the fugitive.

The picture was printed and a TRUE DETECTIVE reader in
Cheyenne, Wyoming saw
the photograph and noti-
fied police that the wanted
man was working in a
local restaurant. He was
captured, brought to trial
and sentenced to San
Quentin prison for life.

That True DEeEvTEcTIvVE
reader received this mag-
azine’s $100 reward for
giving information lead-
ing to the capture. Fif-
teen years later, on Au-
gust 13th, 1950, Arax
escaped from a_ prison
work camp and is again
at large: Police of Long
Beach, California have ee
for a second time ap- |
pealed to our Line-Up to
in apprehension of
this brutal murderer.

JAMES IRVIN ROBINSON. Alias: Jimmy Brown. Unlawful
Flight to Avoid Prosecution (Murder). Reward: True DETEc-
TIVE, $100. Age, 31; height 5 feet; (Continued on next page)

205 East 42nd St., New York 17, N. Y.

or wire, send copy of same to Line-Up

the tip which leads to his capture.
reward is sufficiently clear and conclusive.

over the Mutual network. Tune in and get details.

$425 REWARDS IN THIS ISSUE—DECEMBER, 1950—203 CAPTURES TO DATE
$20,200 Rewards Paid By True Detective — $20,070 Paid By Authorities
Total Rewards Paid To True Detective Readers —$40,270

THE LINE-UP IS A FREE PUBLIC SERVICE. All law-enforcement agencies are invited to
photograph used. None will be ind Foy except those authenticated
, for instructions before submitting.

IMPORTANT NOTICE—Readers of TRUE DETECTIVE possessing authentic information concerning any fugitive pictured in our Line-Up
are urgently requested to FIRST—Communicate with their local police or the police in the city where the fugitive may be located,
SECOND—Advise us IMMEDIATELY upon identification of fugitive through the Line-Up. iti i

TruE Detective reward offers are effective up to six months after the publication of photo and the reward is payable to the
who first identifies the fugitive, prior to his arrest, from the photograph of the wanted subject appearing in the Line-Up an

TRUE DETECTIVE reserves the right of final decision in determining whether or not the evidence submitted by the claimant to the

Currently, True Detective Mysteries-Oh Henry! Broadcast Line-Up is offering a $1,000 fugitive-reward every Sunday afternoon

Identity of Readers Who Furnish Information Leading to Captures Will Be Held Confidential Upon Request @ More Than 1,500,009 Persons Will Read This Issue

make use of it. We

0 ay five dollars for each
from official sources. Write Line-

p Editor, True Derecrive,

erson
gives

TRUE DETECTIVE, December, 1950


+ ngage oF Zh BN tect ies

SATTERFIELD, James, black, elec. KY-SP (defferson) 2-20-19)2('

. C PO Bly

wy a ie pad \t, WU idduar 6) Z) ee Gh.
GS] Ge eS

CRIME

oui? chet : DATE 6 pw | OTHER ser
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Lithlal Lis eae

; BHL GC hw

SYNOPSIS

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ctutelle pile oe Poe a

re Le rae lee Aner hes aztialatrrg
Bb delizpu thi gil fracas: Di Aone gather, a ee ae
th belle tb gb Lense SA trot Caress. eect halt gh a0 he leneste)

Lebbiglsld hone @ Boyle Bets a FR
tehpehalenes

TRIAL

APPEALS

.EXECUTION


‘496 Ky.

resenting the Commonwealth had the right

to show what the record disclosed about and

concesning that action. Moreover, as we
have seen, the court withdrew that testi-

‘mony -from the jury. If, however, the

criticism leveled at the verdict because of
this ground could be considered as in any
wise meritorious, it would then require more
penetrating logic than what we possess to
detect its materiality, or prejudicial effect,
so as to authorize a reversal of the judg-
ment, the uncontradicted facts portraying
an unmitigated murder without legal ex-

‘cuse. We therefore conclude that this

ground is unavailable.

([6] (3) During the trial a woman oc-
cupying a place in the audience fainted.
It created. some commotion for a short
while, but she was removed from the
courtroom and after the excitement had
subsided the trial proceeded. Nothing ap-
pears as growing out of the trial to cause
the fainting; nor does anything appcar
why the occurrence would justify the dis-
continuance of the trial by discharging the
ijury and continuing the case. The in-
dividual who became so suddenly stricken
‘is not shown to have had any connection
‘with the prosecution, and the circum-
stance appears upon the whole to be a mere
straw, which is sought to be utilized in at
least temporarily relieving defendant from
the punishment inflicted upon him. Clear-
dy this ground is also without merit.

[7,8] (4) The alleged remarks of
counsel fos the Commonwealth complained
of under ground (4) is nowhere contained
in the record, except in the motion for a
new trial. Not even that motion is made a
part of the bill of exceptions; but if it
were it would not serve to bring the ques-
tion before this court for determination,
since we have held in what might be
termed an unlimited number of cases—
with none to the contrary—that in order to
present such errors to this court for re-
view the matter complained of must be
contained in the bill of exceptions ap-
proved by the court, and which is the only
way they may be Iegally certified to this
court for review. Morcover, the remarks
of counsel—as only appearing in the mo-
tion for a new trial—were dirccted to the
character of punishment that should be in-
flicted by the jury under the practically
undisputed facts in the case; and if the
error so rclicd on was properly presented
to us for determination it is made apparent
that we would hold it to be nonprejudicial.

163 SOUTH WESTERN REPORTER, 2d SERIES

[9] | Defendant made his own bed which
was indisputably done with premeditation.
The peace and safety of civilized society
would soon be destroyed if those who vio-
late the criminal laws were not visited
with proper retribution therefor. . The
Jaw says that the jury upon the conviction
of one charged with murder may affix
death as the proper punishment to be in-
flicted. The members of that body who
tried defendant so concluded, and we have
been unable to find anything in the record
to justify or authorize the conclusion that
there was any mistake on their part in
the punishment inflicted.

Wherefore. for the reasons stated the
judgment is. affirmed. ;

The whole court sitting, except’ Judge
RATLIFF, who, was absent.

ha ag

291 Ky, 248
ROLAND v. GRIFFITH.

Court of Appeals of Kentucky.
June 16, 1942,

1. Landlord and tenant €=>164(6, 7)

A landlord, leasing premises with en-
tire control to the tenant, is not liable to
tenant for injuries from latent or hidden
defects of which landlord had no knowledge,
but is liable for injuries from defects of
which he has knowledge and which he con-
ceals from tenant.

2. Landlord and tenant @>164(5)

A landlord’s violation of ordinance re-
lating to location and equipment of electric
light meters, open switch, and fuse block
was not actionable per se by tenant’s room-
er who was shocked and burned when wet
towel in roomer’s hands came in contact
with meter.

3. Electricity €>14(1)

Electricity is a dangerous instrumental-
ity, and a very high degree of care is re
quired of those who handle it and make Its
use available to consumers.

4. Evidence 27
It is common knowledge that dangers
are attached to the use of electricity.

TIES" ROLAND v. GRIFFITH | Ky. 497
"163 8.W.2d 496

the accident in September, 1937, which is

5. Landlord and tenant €=169(6)

Evidence warranted denial of recovery
of damages from landlord by tenant’s room-
er for injuries sustained when roomer got
shock as result of flipping wet towel on
electric light meter and fuse block and open
switch located in bathroom, on ground that
landlord did not have knowledge of or con-
ceal from tenant any latent or hidden de-
fects in such electrical equipment.

6. Landlord and tenant €169(5)

In action by tenant’s roomer against
landlord for injuries from electric shock and
burns sustained when roomer flipped wet
towel on electric light meter and fuse block
and open switch located in bathroom, evi-
dence that city meter man told former ten-
ant, who told landlord, that location of such
electrical equipment in bathroom was. highly
dangerous, was not a communication to
landlord of existence of latent or hidden de-
fects, and therefore exclusion of such evi-
dence was not error.

a

Appeal from Circuit Court, Daviess
County; George S. Wilson, Judge.

Action by Lyde Roland against Dan M:
Griffith, Sr., for injuries from an electric
shock which the plaintiff received in a build-
ing owned by the defendant. From the
judgment, the plaintiff appeals.

Affirmed.

Claude E. Smith of Owensboro, for ap-
pellant.

Cary, Miller & Kirk, of Owensboro, for
appellee.

CAMMACK, Justice.

The appellee, Dr. Dan M. Griffith, owns
a two-story brick building in Owensboro.
The lower floor is used for office purposes
and the upper story is used for residential
Purposes. The first floor of the building
was erected in 1889 and the second floor a
few years thereafter. When the second
floor was erected the electric light meter
was placed in the bathroom some five feet
above the floor and to the rear of the bath-
tub. An open switch and the fuse block
were attached to the wall near the meter and
the ends of some or all of the electric wires
connecting the switch and the meter were
uwmnsulated. The meter, switch and con-
Nections remained in that condition from
the time of installation until shortly after

163 S.W.2d—32

the subject of this litigation.

Mrs, W. A. Clark rented the second floor
of the building from Dr. Griffith in 1935.
Mrs. Clark testified that she went through
and looked over the apartment with Dr.
Griffith; that she did not have any contract
with him as to keeping the premises in re-
pair; and that she had made such repairs
as were necessary since she had lived there.

The appellant, Mrs. Lyde Roland, moved
into one of the rooms of Mrs. Clark’s apart-
ment on Labor Day, 1937. She had oc-
cupied a room in the apartment during the
two preceding winters. On Tuesday fol-
lowing Labor Day, Mrs. Roland was severe-
ly shocked and burned while taking a bath.
The peculiar circumstances under which
she was injured require some explanation.
There is only Mrs. Roland’s testimony as
to how the accident occurred. She testified
that: She filled the tub with water and
turned off the faucets; very hot water al-
ways came from the hot water faucet; she
was standing in the tub after she had opened
the drain; she procured a face towel from
a high stool standing near the tub and dried
her face; as she flipped the towel toward
a metal towel rack below the electric meter,
the towel came in contact with some part
of the electrical appliances and she received
an electric shock; she placed her hand on
the rack to free herself but she could not
do so; in an effort to free her hand from
the rack she placed her other hand against
the wall and received a more severe shock;
she called for help and then lost conscious-
ness; when she regained consciousness per-
sons living in the apartment had broken
down the bathroom door and found her
with her back toward the water faucets with
the hot water faucet on; and as a result of
the scalding water her back and one arm
were severely burned. The testimony of
other witnesses corroborates the part of
Mrs. Roland’s testimony as to the burns
from the hot water. Apparently, when she
freed herself from the towel rack and wall,
she fell against the hot water faucet, there-
by causing it to open.

Mrs. Roland instituted this proceeding
against Dr. Griffith and the City of Owens-
boro, the owner of the electric light plant.
After all the evidence was in, the trial court
instructed the jury to find for Dr. Griffith
There was a hung jury on the question of
the liability of the City. This appeal is
being prosecuted from only the part of the
judgment in favor of Dr. Griffith.

oO « one ae


163 SOUTH WESTERN REPORTER, 2d SERIES

492 Ky.

own name entirely across the Certificate obligation to Spo mer or to pay the op
as a caption heading with no context. It tion fees is null an s i)
obviously would not have done so if the in- «yy think the Company s own prin d
strument was intended to be binding solely words establish that the ‘Certificate’ is _
on the purchaser and of advantage to It. 4 unilateral option contract but an agree
The Company saw fit to head the instrument ent and obligation. Its contention rein
‘Re-purchase certificate’ and did not ir is neutralized by its own wor 2 in pa ;
see fit to caption it a mere ‘Option’, whic graphs three and five ahiriiei Jn * ;
it now contends it was in effect. recognized an obligation to re-purchase an

i i had no
i i option charges it would have :
ee Oe =. pie ‘a expressly provide that in certain
i i wt a . . . «
ie bien ax as sere ‘$36.00’. events its obligation should cease and ter
line benea e ; pie:
is had a very definite meaning to any :
binge conten of a lot. The Com- “In paragraph three it recited wire
pot did not see fit to print a question mark objigation shall forthwith cease a bes
eed the word ‘yield’ and I think # cannot inate upon interment in - — had
its i i t upon any unit and in
heard to say that its intention was monumen j
chk oa could be no yield at all, unless ‘said agreement shall be deemed to hav
the company saw fit voluntarily to pay It. been fully discharged. .
The Company saw fit to expressly print rie ene Gee ie aes provid-
on the certificate that the purchaser of = ed that if the owner transfers the lot with-
lot etioud ber eatatted to all the war Pica out its consent, ‘then this agreement 1s to

as ‘Owner’. be null and void’ gs to the cage .

“The Body of the Certificate’. It was the Company (1) to ddhconge og ee.
expressly provided that the Company, in transferred and (2) to pay p
consideration of the purchase of the lots, thereon.

agreed that the Company would pay the “T am assuming that this particular con-

i : nt ; en
~— age ve iics) aa a ae ot tract is transferable. It seems to have be
is printed in italt

: ; F 2
: i this respect different fro

retaining an option on each lot or unit for “a pacts oo Pe CT a

a period of eight years under various — ate Se tachi? oc peed eae he

iti i t. These a } pac

cae aut ea ian ae arher in five word i deeryaterse Sercinpecdantie oe os

and conc Q ; aborsal

Sarees paragraphs, each beginning ‘It is heey i Come peng cre the
: r ill re-pur- , bated

oe ce estan ey on pikes bottom of a. ae in such a p

pee a i t of context.

Coriese price at the end of eight years, as to be ou

upon the interesting condition that the: 42) “It is my conclusion that the deed 0
i : written notice Tl... sen 4
within vi i day period seme veirs and omar : cal gover and that
i a thir a - |
x aie thereniter but written notice acon arid watit there: be. aa inbermctt on
, i i men
seven years and ten months sppeieceges abel the said lot or the erection of a mont ea
too late and seven years _ = haved thereon, the Company is 7 gate to pay
thereafter too early. 2. The Company jin’ plaintiff the sum of $12.0 per year pet ent
- - rio d
the option to re purchase S y bij aystle eanathly for ape dof eight yar
within the eight year perio y my sg Saad’ te re-purchase ‘sai lots for $180.0
of » premiink of neo Pe Migatida, to re each at i earn e ys os oe
any’s ‘right and/or © : - ent the notice se Q
a ed and ‘o pay other option charges — given and that the Company has an
(the ory question in this case well stated) option to re-purchase at any time within
shall cease’ as to any lot if the owner — eight years from the date of the contract
“erect are : £ $190.00 per lot.
or erects a monument thereon an upon the payment o
i to . . . .
si toes a discha ae vi He tomes “There is no precipitation clause . the
fon seit inane Gh the: at agreement and hence the plaintiff is no
could not transfer exccpt with the conset aioe eS a than
of the Company. 5. The Company is only fe gad Ce a geal due 7
obligated to re-purchase from the owner or the

is plainti i ver the sum of
his heirs and if the owner transfers the lot is plaintiff entitled to recove

$ shi ay never be due.”
without the consent of the Company the $540 prayed for, which may ne

eo oe

2

SANDERS v. COMMONWEALTH Ky.
163 8.W.2d 493

The judgment appealed from, having
been, as directed, drawn in harmony with
the chancellor’s opinion, which we have
approved and adopted, it is therefore af-

firmed upon both the appeal and cross-:

appeal. «

291 Ky. 216

SANDERS v. COMMONWEALTH.

Court of Appeals of Kentucky,
June 19, 1942, ° f

1. Criminal law €=594(1)

Where doctor whose testimony was de-
sired by defendant accused of murder re-
sided in the city in which the trial was held
and his personal attendance ‘at trial could
have been enforced through ordinary proc-
ess, trial court did not err in denying mo-
“on for continuance based: on ground that

493

tive for the killing grew out of the divorce.
action and defendant first introduced tes-
timony concerning the divorce action, com-
monwealth had the right to show what the
record disclosed concerning that action, and
the reading of wife’s petition for divorce

was not objectionable as incompetent _evi-
dence,

6. Criminal law €=867

Where, during the progress of a murder
trial, a woman occupying a place in the au-
dience fainted and it did not appear that
she was in any way connected with the
prosecution or that her fainting was caused
by anything growing out of the trial, refus-
al to discharge the jury and continue. the
case was not-error.

7. Criminal law =1119(4)

_ Where remarks of counsel for common-
wealth complained of by defendant nowhere
appeared in the record except in the mo-
tion for new trial, the propriety of such re:

marks was not reviewable. :

doctor could not afford to appear and testi: 8. Criminal law C1119(4)

fy unless his attendance fee was guaranteed.

2. Criminal law €=595(1)
On motion for continuance in murder
Prosecution, on ground of absence of doctor

whose testimony was desired by defendant, 9. Homicide 6354

where it appeared from affidavit for contin-

“ance that testimony of doctor would be death pen
{mmaterial, continuance Was properly de- vorced wife,

nied,

3. Criminal law €=590(2)
Where it was not contended that de-

In order to present alleged improper re-:

marks of counsel for review,. the: matter
complained of must be contained in the bill
of exceptions approved by the court.

Evidence justified verdict imposing
alty for murder of defendant’s di-

——¢—__.

Appeal from Circuit Court, Jefferson

fendant was deprived of any witness that a County, Criminal Division; Loraine Mix,
Postponement would have enabled him to Judge. °

Procure, and it did not appear from affida-

tit filed 26 days before trial by defendant's an

attorney for continuance on ground that at-
torney had litigation in the interim, the ex-

Jess Sanders was convicted of murder,
d he appeals.

Affirmed.

=:
1 AS: ares,
A ome el nl ae

SCuS

wu fte ec ersee gs

tent or time necessary for such litigation, S. Rush Nicholson and John A. Huf-
and defendant did not file supporting affida- faker, both of Louisville, for appellant.
tit for continuance, continuance was proper- Hubert Meredith, Atty. Gen., and Wm.
ly denied. F. Neill, Asst. Atty. Gen., for appellee.
4 Criminal law > 1169(8) :

In murder . prosecution, where trial THOMAS, Justice.
urt denied defendant’s motion for continu- On the night of Sunday, April 13, 1941,
abce, permitting the reading at trial of affi. between 8 and 9 o’clock, the appellant and
favit of defendant's attorney for continu. defendant below, Jess Sanders—who was
‘nce was not an error of which defendant about 47 years of age—shot and killed his
could complain, divorced wife, Katie Sanders, at a restau-

rant and beer joint operated under the

$%. Criminal taw 396(1) . name of “Post Inn” and located at 1941

In prosecution for murder of defend- West Jefferson Street in the city of Louis-

*At's divorced wife, where defendant's mo- ville. On the 25th day of the same month
Ky.Dec,162-165 S.W.2d—21

*2N6T=92-9 (uoszesger) dS *Ay *aaeTe £95 *yoeTq ‘seep ‘qINyS

494 Ky.

appellant was indicted by the Jefferson
County Grand Jury in which he was
‘charged with the commission of murder;
and on the 28th day of the same month he
was arraigned and pleaded not guilty. His
trial was then set for May 22, 1941. In
the meantime he had employed as his coun-
sel John A. Huffaker, an attorney of the
Jefferson County Bar. When the court
announced the setting of the case for trial,
employed counsel filed his own affidavit in
support of his contention for a longer pe-
riod for preparation, but no supporting
affidavit of defendant was filed. The at-
torney stated, in substance, that his fee had
not been paid or secured, and that he
would be engaged in some othex litigation
in the interim; but the extent of it, as
well as the time necessary therefor, was
not stated. Counsel further stated in his
affidavit that one Dr. Butler, who resided
in the city, “has waited on the defendant
for extreme nervousness but cannot afford
to appear in court unless guaranteed an
attendance fee. Affiant states that said
doctor, from what he is informed by the
defendant, said that defendant is suffer-
ing from extreme nervousness produced by
a double rupture. Affiant states that if he
were granted a continuance the defendant
would be able to pay him a fee sufficient
to have the above doctor to appear in court
and testify.” He asked that the trial of the
indictment be continued until the next
term of court, but the court overruled the
motion with the permission of the defend-
ant to read all pertinent parts of counsel’s
affidavit upon his client’s trial, which was
done.

The Commonwealth introduced 15 wit-
nesses, the greater number of whom were
present and saw the homicide committed.
They tell the story with but little variance
and what there is does not affect the sub-
stance of the narrative. As given by
them it was to this effect: Defendant
was present in the restaurant sitting at a
table with a female companion, the two
consuming some beer they had ordered.
While so engaged defendant’s deceased
wife with a female companion entered the
building and took a seat at another table
some distance away. Her entry was ob-
served by defendant, who shortly there-
after retired from the room and went to
his lodging quarters across the street.
He was gone some 10 minutes, when he
re-entered the restaurant and went to the
table where his wife was sitting with her
companion and shot her 6 times in her

163 SOUTH WESTERN REPORTER, 2d SERIES

body, from the effects of which she was
immediately killed, with her body lying
on the floor. Defendant again retired,
which he says was only to a back part of
the room, but which the witnesses said
was to its outside. But whichever place
it was, he reloaded his pistol and returned
to the body of his wife lifting up her head
with his left hand and fired two or three
bullets in the head of the corpse—he say-
ing just before the shooting and immedi-
ately upon his return with his pistol, “You
bitch, I have got you.”

It was furthermore proven and uncon-
tradicted that shortly before the homicide
the attorney representing the deceased in
her divorce suit sent appellant a bill for an
allowed attorney’s fee, which very much
enraged him, and he then declared that be-
fore he paid it he would kill his wife in
whose behalf the allowance was made. He
consulted a colored attorney about it to
whom he also made that threat, and the
attorney advised him to refrain from ex-
ecuting that purpose. Defendant made the
same threats to other witnesses with whom
he conversed before the homicide and
after receiving a request to pay the allowed
attorney’s fee. Two women, who were in
the building in which defendant’s lodging
quarters were located, testified that on the
night just preceding the homicide he came
from the restaurant to that building and
obtained his pistol and told them that his
wife was across the street in the restaurant
and he intended to kill her. They en-
deavored to persuade him to desist from
any such purpose, but he threatened to
kill them and then returned to the restau-
rant, when the homicide was immediately
committed. The testimony of those two
witnesses is the only material evidence in
the case that defendant contradicted, he
testifying that he carried his pistol with
him to the restaurant and did not obtain
it from his lodging quarters as testified to
by the two women, although he had diffi-
culty in explaining why he left the restau-
rant and made the visit to his lodging
quarters. However, it is obvious that the
fact is immaterial as to when he obtained
his pistol.

Defendant was intoxicated to some eX-
tent, but not by any means to the extent
of producing a maudlin condition, and
there is no evidence given by the defend-
ant, or any other witness in the case, show-
ing that he was so bereft of reason be-
cause of intoxicants as to deprive him of
ability to know right from wrong. On the

wer

4
y,
x

SANDERS v. COMMONWEALTH Ky. 495
163 S.W.2d 493 ?

contrary, the witnesses for the prosecu-
tion contradict any such theory, and which
practically left defendant without any
legal defense whatever for the commission
of his inexcusable deed.

He testified that on the same day of the
homicide, or the day before, he met and
conversed with his divorced wife and she
was telling him about a boy friend who had
either brought, or had promised to bring,
her some flowers and which he said wor-
ried him very much, In giving his testi-
mony as to what occurred at the time of
the homicide and immediately preceding
it, he was asked and answered:

“Q. She came in after you had been in
there a while? A. Yes, she came in there
after I had been in there.

“Q. What did you leave there for? A.
I just got nervous and upset and didn’t
want to see her and I walked out.

“Q. Tell the jury what happened? A.
I walked out and went over home and sat
down awhile, and I started to put my pis-
tol up, but I didn’t put it up, I. still con-
tinued to keep it in my pocket, and I went
back and thought she would be gone, and
I went in and I went to say something to
her, but I don’t know whether I said any-
thing or not, I just lost my mind and con-
trol of myself and didn’t realize what I
did until too late.

“Q. Do you remember shooting her?
A. I don’t remember shooting her. I
just remember shooting, but how many and
how much I don’t know.”

The excuse so given by defendant is the
only one offered in extenuation of his
crime, and, of course, it is obvious even to
the layman that the one tendered is en-
tircly without merit, although the court out
of abundant caution submitted an instruc-
tion on the defense of insanity and of
which no complaint is made.

Such are substantially the facts, and de-
fendant’s counsel in seeking a_ reversal
of the judgment of conviction of their
client argue four alleged errors committed
by the court at his trial and which are:
(1) The refusal of the court to grant the
continuance of the trial to a later date
pursuant to the motion made therefor by
defendant’s attorney but in which the latter
did not join; (2) the admission of incom-
petent evidence over defendant’s objection;
(3) error of the court in not discharging
the jury and continuing the case when a
female bystander (but who the evidence
does not show was or was not a witness for

either the Commonwealth or defendant)
fainted and was carried from the court-
room; and (4) because of improper re-
marks made by Commonwealth’s Attorney
to the jury in his closing argument. Each
of them will be disposed of in the order
named,

[1-4] (1) That counsel’s affidavit did
not furnish grounds for a postponement
of the trial is so obviously apparent that it
requires but a brief consideration in dis-
posing of ground (1). The absent physi-
cian witness resided in the city of Louis-
vilie and his personal attendance at the
trial could be enforced through the ordina-
ry processes of the court, and that too
without the guarantee of any compensa-
tion over and above that allowed by law.
Neither may the machinery of the courts
be‘ halted and the work of the court sus-
pended in order to enable counsel to ar-
range for the collection of his fee. Fur-
thermore, the testimony of the physician
referred to in the affidavit of counsel was
immaterial, since it furnished no defense
for the commission of the crime of which
defendant was accused. In addition there-
to there intervened between the first time
of making the motion and the date of the
trial 26 days, furnishing what would ap-
pear to be ample time for preparation for
the trial, and it is not contended that de-
fendant was deprived of any witness that
a postponement would have enabled him to
procure. Therefore the court in permit-
ting the affidavit of counsel to be read
to the jury committed an error against
the Commonwealth and in doing so fa-
vored defendant to that extent to which
he was not entitled in law.

[5] (2) The only incompetent  evi-
dence complained of under ground (2) to
which our attention has been called is that
the ‘court first permitted prosecuting coun-
sel to read the petition of the deceased
wife filed by her in her divorce action
against defendant, but it was later with-
drawn and the jury instructed to not con-
sider it. However, we are not by any
means positively convinced that it was er-
ror to admit that evidence, since defend-
ant’s motive for the killing grew out of the
divorce action and the petition was an im-
portant part of it. But whatever may be
the merits of that objection, the defendant
first introduced testimony concerning the
divorce action and first brought that litiga-
tion into the prosecution; and when done,
it is our conclusion that the attorney rep-

Pe me veneer


wt High 0 Pep heaute ee a '
, i # : . Vent tet \ pom tytys bn {
ec (| father nine the oulps raven from Gott Pop the hires igs fones OF Ue HRRAESE 4 tbe
f } # ‘ + ' ;
, Haag Pham cou tes! Ato the gattows, ah eth! | But remind me of lofeL oncs Now go they «ide;
ome UP 8 fle from tows atthe for’, of the Taregetbyi ly, : . fen nanoht the ei ¢
aa et ne apa 1 ry Thus alone on this wide world # rover, {tre caught the fall dip of thet
ae vit “Lh onntewh roms La trol aR OU Ee ‘ : ‘ i .
A \ iid Morgantown Toe hha age Lie the wild dedr Lwander sills fled our,
| get, andod by 2 large gual ] rider communne | But when lifo’s dreary journe ,14 over As he hore them away to th
q ‘ {| Lient, Kinnard, and secomt anied by a lar i _ Let mite rest pn my. own matt hill, shore!
Ay - | F jae - r ' 3 ‘
“a i oe fi. the wegen es {| Lot me gleep ‘mild my dourey colations, Andwmy heart cricth out in its d
bona P| qhiritua alviser, Rev. Father Lacoste, Sherif] with the friends of my ¢ Thood around, But they ne’er will retura to hte
be » , Yd Th i
a\ { Pottey. the jatlo: reporter, ond gr iw | Till all of earth's slumber’! yations t
j Ped LA : 2 ae i eS ae i °
| og H Shepa. Ate the: Wey lis confessor ta ked Shall sake af the samp sound: _ Passing away; passing aw;
| j 7 L % ;
A Peay og eye. Seater he aon} atek dat tah SEDGE BE Yet I wy of a fan ere
es i i hint freely, aa to the atito uf his goul, apela | wo OLD SCHOOL Rook vet Tknow of Bp ud whers
bn : ‘ Pa , , = ad ue ba L» z
ae | soomnerl to be confident that be was at peace 3 igh | peed
7 | with lite God, We repented the Lords pt ayer Regen eat ae “\where the balmy vir fs filled +
i ial + nite) Taw On the oldschool book, in itsdusky noly est perfume
}gneeral times, ai aleo prayed ters 18 TRpore c ) chy ' ee - As
| 6 i ne" 1 4 ihe baal j \ W ith,a te: riul e6yve T WrZzE, {i From avecet, frseraot flowers,
Hoof is souk nreachiti¢ tha spor, the guake ‘ ) : ‘ oh ae ee weet, Pugrar
; pees Comé dowp, yld friend, foran hour ai. their bloom:
surrounded the gallows nd the prisover aL- ae ¥ §
! Where the, soul never grievt

spend

acnded.the scaffold, with Fathes Lacostévanl : '
| In talking of by-gone days. 4 here ht lov p

Fe ge ari tt i urned to athe cr Ay, wrt

heehee ee , bade. ; I gaze phes ntore, as in days at yore, O'er folr, vaniehed dreams, ¢
On the task that vexed the brain;

; The lesson done, and victory won,

. And I feel ara a child again.

ful glow,
| Where linkéd ond forever ia!
4 ee chain,

And parting words chill us, O,
'

asked permission lo apeak, which was granted
a him. He: ep: ike for about five minutes, Mm oh}
clenr, steady voice, the following being the
| cifatawed of bia remarks:
| Ladies and Gentlemen You have all come
} habe toosée DB man hung, lt suppose, and who | ; :
knows whathe s huug for? taak any mean to And Lseem to stad eth the you
Hains i Gelade. Anows, witht leash hang dead, for i. batd ; ‘ v

mem

te -

The oVLEnshtoned Ro!

‘

: That man House worked this thing on mete a”

leave liimself or sora of his friends. Ike told In the old houte 04 A gseen :. fet siige 5 0 eee eer
‘ three wien in jail whea I was tried, I wou { hear the fin ere tha’schoot began, Thani God! some of us 1
py that whtdl from House on thd night Dweat to. ee Site id somed mother, Not
Nashville, anek it, WAL ut wp for. five dollars. , nd [join in the gladsome scene. | Ole fashion? mother, OL
| Aftet LE went yp ageloe come dow I take my place with a sober face _,| the period, enameled and p
of Sunday and wanted to have the watch 3 Ode de outtake we i : 1
ed hack. Ltold he could get it for #5, but L had | O’er the Well carved desi I bend, ,| her great chignon, her cure
Pole Ph traded it off to Bob (oif, Me-said, “Well, if) And hourly pore.o er the antique lot’) whose white, jeweled hance
ee oft a got il never mind. We then gave mo | , Of thy woadérful page, old {riend, the lai of. baby fingers:

d
i A
old-fashioned, aweet-voiced

eyes In whozo clear depth:

| soniye Kaye to keep. tilt be cnlled for them.) 1! ae af tite He ‘

i took them and locked them up in my valise. | 7 res ae a
< Then our. cares W ¢ ;

House never called for them. So cume back | hen our. cares wore few, and qur fri

LD ae at

hae i on, Thursday and axkordiue if L wonld go and were true, 7, es | 4
{ take a drink with hinl. We went ont to Re a! And our griefs were rare and light; abone, aud drown hair
drink of gin wliert two volicemen arrested nic. | - / "| with ailver lyivg gmooth %

‘The world was naught (so we fot,

.'Phey did not tell me w ia for, but took me up :
‘lin «© jurs-room,, where they said, “Don’t let ; thoughty [oo inc aso of Cheek. Thota’ dear hav:
this nih get away; hes arrested for hiurd@r.? +) aie tott:
'Bhint wns "the Bret Kknew of tha murder. 0 \ Buta region of pare delight. toil, gently f ted tott ‘

ei did not get aneasy till then, for I knew lt had \rpof time has sped, and our path ha childhood, aud emoothe
}idone nothing: Ule here grye-somie. partiel ‘Through the élark and tearful scen|| sickness, Blewed is the
)) } larg a8 to the manner. ins hich he wen the , ra eae! ; é

F won the watelt, and challenged avy netial p And passed away ere tha good and} old-fashiohed mother !

b proof of his guilt.) [ ain ss innocent of this | Like the old house on the green. || now like the beautiful

bmnurdér ag ahy man yp this crowd, before God. ¢ wt Pe SS: aman ; ) * ; ;

tlaome wooded blossoms.

t ( P ane ha ¥ \ } « , gt . - 3
[ havd dont many bad things but nothing as | fut we'll sing fo" more of the day
Poms bart as niurder. In. answer to his confessor, te ; aR ‘)
fo. bine shid, “If God will forgive Tfuuse sud the, CL YOTEE Le VSR, Ue ie
Tease men iy dow tknow who they aro--Dwilk ft For the tear drop dims the eye; :
if-ant not divunk por under the influence of) a ag : ;
| jHiquor im any. weary f ant all right. Fdon't f Sleep,on old book, in thy dusty deat
“ti see how # man can he hung without you », Asin years that have glided by.
Fagor he 4 guilty. There wasn ,: no. prooff, No guilt we trace In thy honest face
{aghinst ine bat what that man flouse said. pees \y oe as yl
j But a mine of gold witbin,

other voices may be lost,
ttancivg memory of he:
‘| our souls forever, Othe:
away and be forgotten,
shing on.

| ep ere'e nd: use being ins hurry mbout this ? When, in the fitful

vs t . . " 5 ie f i :
oF Vhing. I know Jam going to be hung, but Enriched the youth, as they sought life;.our fect .w ander A:
am eb hontestead, and, crossing

'thege dno une being in a hurry, Chat marr

‘tloune had something to dopwith it. CE dowt yt *. : , oe

‘Heliege ita right to. jerk the life owt of a rma Tn the old house on the green. threshold, stand once =

Atte jerking, the stopper out of & bottle, Ch) Sgt Lane Creer ene hallowed by her pres

Ee know Um going to be hung, but Dainta fin yl. SS a ‘s oh :

. $! The Hheriff then placed the cord over the ‘¢ ‘ The 3 enchers DLigsion. \ comes over ie, and we

hdary a it “pa fh eed aaa ee ere ? soo a sama — “ bene tha molten sunshine #!
custe then ,vdininistered te) ins religions. ga 2 a :

; ’ 4 A friend furnizhes us the following \ ye dpen window, just

titod, and bid, the coudemued man goodbye. ‘ Se : .

After the @ap had been drawn over his fuce beautiful little extract from letier; «qe knelb. by our
, DY.

hy

Kad company had bronght him to this. We} oe3 ; ;
heed B HJoba Underwood, of Sin Francisco, to} ines, when th
A y 4 ' 4 t f th

Meee awhyel elightly ty tin! "ro aNet oF this city, of heati ,

rea n of this city, on hearing thaton account{ oat mothers wo
Rig ‘nerved. He sp ico glently anil

Io aaleet! t aft:
eut off: deep aby:: of. ‘nla.

| hoped no vue prevent © outlet avedineet Reh a
‘<b apeaking, but ivf a ftdereor Histyrbed his a,b
i with singularly musteal voice.
the Sheriff, dese ded, SE am pitting Ln night aiethoa. tira) Hatt J great drifts hetween

ie again gaid he wits ‘anocant. Bed luck and |} from our old friend.and former aitizan, dog Onn
aE? AEN
hey Shit arcane ie ‘temy
injafortipie. | {Jo wits qvillings tO fo. mut hot | bis mother, Mra. Lucy CG, Underwepd, as the memory
j emory, |
distinctly, andl of her delteate health, ehe had ber hair{ ora,’ saved us from Pp
‘ ’ 9 B®
ip he was to be knocked off and was told nor |

=

teria vas a2 ater" “a :

| The cap was replaced, righs
and at eight ininutes to ten d clock the drop) Three thousnad miley Awaz, ad ban ari ae
goll, aud the peat fellow was launched. into, Writing to het f love ‘so well . thiey, have not hidden
i eternity. Lhe ody swung arora fey mes,y| And what ta it) have fo say ? etary. Her lp, ae
a moment of two of eony ulalous, aad wll wast] Gegerog a lack of ers phther’s bats, 4 Dee BS 4
atill: the hody hg motionless. ‘ HH Dearer to nig than jewels rare on Laer Ch
After hadging cighfeen minutes, the body! Dearer far than the golden cel ar fA Kad Story. ae a
Seba S umined by Drs. Weight and Hitehin-} Cul from the heat cf a laughin eit | :
aiity nur life pionuinencs d extinct. The vecky Whot, if tieré ts in the fre titifud | ree ty Fe wens
Ghitieken. the crowd theb aleper® hut] A Wstle thread of gray— | A.touching atorys)
fietle gy pathy Wewrz ee pba ate ue oh ly when the sun goes down cont of the Chingy
woveLihan ong, nyth of the maser Wage Were rat arn to love sha day,” if B}
i PL nig a giv hey sc prerk bo feel Iyunt Wile ind i ee bs | from Fort, Fetterte:
Pea i ttsig the first exceution AED piace eee aad: eisai lente hie. ¢ ‘€
Be ee ebay yet Had the eraned prevent | ae, the 2th of May, b
+. ee ek 1 af habe Peete aise AMG i through the Rig B
) } tes 11 1 fie \' i felay - ne Afgteanen
} ] “2
+4


SHERIDAN, Geofge, black, hanged at Bowling Green, Kye, on July 13, 1866.

"From the Bowling Green, Ky., Gazette, July 1h, 1866.
tat 8:30 o'clock yesterday morning, a large crowd assembled about the jail and square, in
anticipation of the hanging of George Sheriday, the negro, for the murder of Patrick Donoe
van, The execution had been set for that day, and an immense concourse of people had
assembled to see it, At 9:10 the culprit was taken from the jail and conveyed to the
gallows, about half a mile from town, at the fork of the Russellville and Morgantown
roads, The wagon was surrounded by a large guard, under command of Lieut, Kinnard, and
accompanied by a large crowd. In the wagon were the culprit, his spiritual adviser, Rev.
Father Laconte, Sheriff Potter, the jailor, porter, and one or two otherse On the way his
confessor asked him to talk freely as to the state of his soul, and he seemed to be con-
fident that he was at peace with his God,
"He repeated the Lord's Prayer several times, and also prayed for the repose of his soul,
On reaching the spot the guard surrounded the gallows, and the prisoner ascended the
scaffold, with Father Laconte and the sheriff, He turned to the crowd and asked per-
mission to speak, which was granted him, He spoke for about 5 minutes in a clear, stea-
dy voice, the following being the substance of his remarks ¢
"tLadies and Gentlemen: You have all come here to see a man hang, I suppose, and who
knows what he's hung for? I ask any man to say if he knows what I am hung for, That
man, House, worked this thing on me to save himself or some of his friends, He
told three men in jail when I was tried, I won that watch from House the night I was
in Nashville, and it was put up at five dollars, After I went to Nashville, House came
down on Saturday and wanted to have his watch back, I told him he could get it for
five dollars, but I had traded it off to Ren Guff,
"tHe said: "Well, if Guff's got it, never mind,' He then gave me some keys to keep, till h
called for them, I took them and locked them up in my valise, House never called for
them, he came back on Thursday and asked me if I would go take a drink with him, We
went out to get a drink of gin, whéh two policemen arrested me, ‘They did not tell me
what for, but took me up fin a jury room where they said: "Don't let this man get away;
he's arrested for murder."'" That was the first I knew of the murder. I did not get un-
easy until then, for I knew I had done nothings (Here he gave some particulars as to
the manner in which he won the watch, and challenged any actual proof of his guilt.)
I am as innocent of this murder as any one in this crowd, before God, JI have done many
bad things, but nothing as bad as murder,'
"In answer to his confessor, he said? 'If God will forgive House and the other men = I
don't know who they are = I will, I am not durnk nor under the influence of liquor in
any way; I am all right, I don't see how a man can be hung without you know that he
is guilty. There was no proof againt me but what that man House said. There is no use
being in a hurry about this thing. I know I am going to be hung, but there's no use be=
ing in a hurry. That man House had something to do with it. I don't believe it is right
to jerk the life out of a man like jerking the stopper out of a bottle, I know I'm
going to be hung, but I atin't afraid.’
"The sheriff then placed the cord over the beam, and it was secured below, Father La-
conte then administered the relighous rites, and told the condemned man goodbye, After
the cap had been drawn over his face, he again said he was innocent, Bad luck and bad
company had brought him to this. He hoped no one present would ever meet such a misfor-
tune, He was willing to go, but not ready, He swayed slightly to and fro after speak=
ing, but not a tremor disturbed his nerves. He spoke clearly and distinctly, and with a
singular musical voice. He asked if he was to be knocked off and was told not, The cap
was replaced, the sheriff descended, and at 9:52 o'clock thed rop fell, and the poor
fellow was launched into eternity, The body swung around a few times, a moment or two
of convulsions, and all was still; the body hung motionless, :
"after hanging for eighteen minutes the body was examined by Drs. Wright and Hutchinson,
and hige pronoun ed extinct. The neck was broken, The crowd then dispersed, but littly
sympathy having been manifested, Not more than one-tenth of the assemblage were negroes,
and they seemed to feel but little interest. This is the first execution at this place
in eighteen years, and the wrowd present was estimated at upward of 3,000. All day the
town was corwded by people from the country, and the streets presented a lively appear-

ances" TIMES, New York City, Ne Yes 7=20~1866 ( 3+2&3, )


heave himse
\3 three men in jail when J was tint 1 wou L hear the fun ere the schoo} began, |
ok ‘ wit | ‘ . be ? \

That watéeh from Howse on ihe nigh ent 10} ‘5 .
| Rash ville, and it Wak put up for five dollers. | And L join in the: gladsome scene. old-fashioned mother.
aure come down 4 J take my pine with a sober face - ‘| the period, epamelod and pointed, wit

\ \ i <i } i : 4 ¢ eC a,
4 H on o \
t T ent thy inthor & Ves) yr ra ee he
HE Neg om : a dee e tOneEt I h Hon. George NeKulght, while 2 nrember of the Passing b ‘h
4 es Ov) ife'p steep dechne A Texas Legi Inture, several years 60, received a, | Th ewoelkuronies. acts away We
, 4 ycre yey ° ryye ar ti P ‘ e wi date Simasstor’ ate ati cippg away 4
1. 6 jer aro wit thy guppol l, wa fetter from 8 fricnd at his ol} home in Cannen | T} ty boty fa wanker i t, is ane tine
aon OS Now she leans on thine. eouuty, Tomnersce, announcing the death of ihe Ted : ae ace. * ”
i See upon her loving face lost member of his family, & deyord and muck "ee ain rat Boke as bus
| Thoss deep lines of care ® loved brother ; £150, of the eale of the old home- | 7 — He a vering they lie im their lnmp, lowly | 028!
tt a Pl rs ; } ‘ inad whe } ~ s hy a oe : : we :
{11} phink, it was-her toil fer thes ara aeenntige pty and.restcd, amd Ot Tt ' thi
" | 7 rf tbat roecra Bheré ey anctruction O1 875 vorite old oak tree, beneath The fair, dewy brvorns in their sple nador will
F ny SOC OP whose irlendly shede he had spent many bappy jg rise, wa
it ae -™? ; : ‘ + Pe ity vibe + h nurs. ery it) #he “pict ice alle fe y f “ wre
é Neer forget her tireless sate) _ ge ben Ing tg ‘gta ree HANS. BOM after }| The pale stars glow soft in eve ning’s clear ey
; . pat a, : ig the reception of the letter, Mr. Mekinight re- “ys & ria hs
ref Kept by day and night a i SKIES § 7,
hig vapee ae? ait if tired to bis rovm and penned the following | yy es , fet he
‘Bt ‘abe: from her step the grace, ronchingly beautiful nes: ve Coating dem falland the musical raid, “
' i) From her eye the light. ‘ : Sli : But thesé*froees wi <atahite - tek
A ch alk well a faithful heart Ales for the home of ny childhood! i te toses will brighten, ah, never
A ee ae ga RSnSE NA o wes i ks L sigh for its transports In vain: ngoin| ; Jn
a. hich through weary Yer; toe The garden, the meadow, the wildirood, ee ; be
“«f Pohoed with its sympatby fs, Are oll now the stranger's domain. . Passing away, prssing away, ry
4 Alt thy smiles and teprs. 7 a as Bright hopes of my routh—how they're dete
ri “oa Soft scencs of My Lappiesthours!” passing away A a : C!
Vita) Thnk God for thiy mother’s love, Your beauties 111 ne'er aicoin pee ! Vwith tl ts te ae f W
ey Gtiatd the sriceless hoon a eye ete am the fiald, where I planted the flowers, { 1e beautiful visions that giadden my
WN ror th a iat ints ie Lia : ee oi ke ‘here blooms not a blossom for me. eyes weet ft
ee air © bitter parting. 4» ur ™ By dey time and night time, 8s sunlight the n
pe Cometh sll fo soon ef bette, Ef rhe onk ’neath whose branches I rested sities !
¥ WW prs sas Vhile zepbyrs breathed Lt 4 K Ww
1h) When thy grateial tenderness " Vhile zephy" breathed music Around Oh, hope may come back to my sorrowful me
. Loses power toSSN¥Os iy, 6 pti Its glory ie withered and wasted, ees henti i state i , ¥
ae ae SC RR Bo gage) Sachin ‘ ty , ider-blast érushed ’ ‘ ‘
oq Yarth will hold no dearer spot wane By the thuuder plast brushed to the groin’ LA fe i ner us
tf! ‘Phan thy mothers rave, (ten y F . ‘ ght dreams from their Jong Filent chanr t+
a ; 8 hd pal GRAV Ss oe The friends who once round me did rally bers may start, lt
lech tern crea a a a ‘With kind words still cheering wc OD, ‘ ; ‘
: { : 5 we But, these * ‘
¥ Bn oi tion of. (Georke Shoridan, Now repose ‘death the sod of the yalley—" | aia ge of my youth I may woo oll in -
ge Krs Wb : at et meistves Alas, they here left me alone! vain, ;
G AM tnif-past eight o'clock, yeateruny MOB es ey v { For they ne’er will return in their beauty |!
1. ‘ueee ceowa assembled about Hie jail O, where Is my {nther—my mother? i again f .
ing, 2 large CrOW Ns at the hanging of To the chufch-yard they've long since been! it Ola, 6 : i
: y Paty, ar 1 ici sat CG ye HAD , Jt i re 5 . se t i6 4 c
fag aud square in anticipation OF at = “atl porne. . Paseing away, passing avey} n
1. Sheridan, (the negro,) for the ander uh | Ro kind-hearted sister nor brother Friends I have loved—ho™, they’r@ passing |!
i Bick Donovatl. The execution had been 2efl Is lelt now to hail my return. away ! : “ v
aa eC abEe apy t mense coneouTre O1] 4 wv Fo d Neg eX : a
: for that day, and, an. im aA Abia sth ‘Amid sorrow and sadness and danger, I have watched them £¢ down to that cold,
j 4 people had assembled to seo it. Abten MIN Pertove go* in sllence wlond’ coleuun tae, §
i | utes, atber nine the culprit was taken from tht} Por the kinctiest tones of the stranger While the pale, silent boatmen kept stose-te
AL, Hi and conveyed to the gallows, about buf] But temine me of lofed ones now gone. ~ i their side: :
joc d at > vk ¢ T age vi | . . ’ 5 , : y *
| mile from town, at the fork of the Jiu selly ill Thus alone on this wide worla'a rovel; « {’ve caught the dull dip of their deep, nul. {
a \ } Mu i wwe rs . : ’ € . ‘
rt \ and Morgantown ronds. (17 he wegon wit sur Lith the wild doer I wander 8! wills). fled oar, i
AG) rounded by a large guard, uniler command © | But when life’s dreary journe,, @ over, As he bore them mway to that ccholess
a Lieut. Kinnard, and acce mpanied by a largiys Let me rest pp my own matiy? bill. Be. shore! i
i hh crowd, 1p the West agent the cu prs hi Let me slecp 'niid my dearey relations, Andmy heart cricth cut in its desolnte pain!
gpiritual adviser, Rev. Father Lacoste, Sherif| with the friends of my ce) :dhood around, But they ne'er will return to blese me again]
i Potier, the jnilor, reporters and one pr ty Till all of earth's slumber’, rations be
H athors. “Ain the way his confessor talked } Shall wake at thd -mput sound: . aeot Passing sway, passing away,
Olt © Sane : oN t : . ‘ oy dake oh , x, i ig’ f _
| ite REN Pot se agul, and he ee Oe oe ak ee | Yet Lknow of & land where there 16 ho
| hint freely ae to the Fin af hia god, and he |} FFL OLD SCHOOL BOOK.)  decs |
| aopined to he confident: that he wae at poace | ' ® , Me Wh ais i J Riled th ti } |
: ; “3 «| . Deay an “eee a9 -\ where the balmy air is Sl'ec with the rich: 4
with his God. He repented the Lord's prayer 4 " oa se the 5
in| ; Rear read On the tI school book; In jtsdusky nol) est perfume.
apveral times and alse pi aved for the repose |, e411? ire trary, wea.
| ot : ‘A wily she apbl thie guard With,a terful eye I gaze, Hi ram sweet, fragrant flowere, and fadeless
this seuwk On reach ne Bpot, | : ae Seer j oe betes
14 ii nnd ne pric ver ae Come dowp, old friend, for an hour aj .. their bloom:
PPTL Led e allews { ViBONEe od s | 4 : 4 ‘
| ee wet 2a } it spend - ae |) Where the soul never grieves ne it doth
cended the ceaffold, with: Father Lacoste sandy ta Rave rs ice + tor
jt the Sheriff. He turned to sthe crowd wid Bee ny gone nae ee ‘bo’ Re alas ’ :
oe ; “= ~t  Ygpve phe rier asin days of zore| O’er fair, vanished dreams, o’er hope’s fit
neked ertaiseion to speak, which was granted 4 BABS PPS wer J ja Oe ful glow ,
him. de epoke tur about five minutes, in a2 On the task that vexed the brain; | vd we: '
Be ; | Dy e “ ¢ i / ink reve i we! ¢
olen evenly iheg aa {ollowing beng the f The lesson done, and victory Won, “cu and forever is Jove 8 golde:
EUPStUMe?e U MB reint 4 eee PX. i sat 24 ' ‘ \be. © 101K, f *
| Lndies und Clentlemen sa Lou have all come j And | feel Ltr 8 ebild again. } + ake: oo wri 4] + nev in!
Ej here to seen MAN hung, [ suppose, and who {> ; - poke y ' And pene eine chill me °, ees ae
Hi knows what he's hung for? Lask any wan (| And L seem to Bt« nd go cth the youti7 ‘ .. nats aaa ie
b) gurifabon-- dwous whit, Kam bug dead for! | Hand. | > -¢ 3 | | pre Old-Fashioned Mother.
f| That pan House worked {his thing on me to tee yal
lf or sone of his friends, Ile told Jn: the old honse ou toe geen oat i) fee ;
nf ;
Thank God! rome of us have bad ft:

Not a woman |6

Aftue J] went to Naghville, | a
on Seg NS gout et have, the watch; ler th eet eer desk 1 bend, || her great chignon, ber curls snd bust:
ltraded jt off to Bob Gott. Ite nid, “Well, if And hourly pore o'er the antique lor} whose white, jeweled hands never fe
} Goff a got it newor mitd,”. He then.gave me Of thy wonderful page old friend. ha og Stink nf
leone Keys to Beep HM he called, for them, 1 { ay 7: Cee: Kins ug eae a the clasp of baby fingere} but 6 der
took them and i ae ss up aA my sapere Then our cares were fow, and Qur fri old-fashioned, aweet-voiced mother, Wi!
flouse never called for them. e came back | “7 erie, S ws a gg Tes
on Thnreday not asked ie if T would go and u were trve, ae ae eyes in whose clear depths the lovelig
tnke a drink with hint, We went out to get o And our priefs svere rare and light: shone, and brown hair just thread
drink of gin when twe solicemen arrested mec. 4 he +7. : bs
hey did tot tell me what for, but took me up The world was naught (so we fo with silver Ny ng emooth upon her fat
in a durg-xoom, Where they anid, “Don't et thoright}y Sesehet teenie cheek. Thore dear hands, worn ¥
fie juan get awey ; he's arrested for murder? toil, gently guided tottering steps
. . > . 7 -—

That was, the fret J knew of the murder. 4 Dnt. @ region eats delight. 2 :
did wot pet unersy till then, for T knew Vhad ‘nef time has sped, and our path hag childhood, and emoothed our pillow
fui acon} | sickness. Pleased ia the memory of

dowe nothing. Glehere gaye fone particts Through the dark and toar
lars ag to the maonner in which he wor the eee OR : ,
hens so eevah. nud bhallenged any th tant e And passed away &re the geod and 4 old-fashiohed mother! Tt floats to
; ; M pan ie : +s } é ea. i , ‘ ;
Tika the old house on the green. ,| DOW, like the beautiful perfume fr
{ cis ous

Yhieoome The musi


TO AAAA

444 Ky.

his person or his apparel. Such an identifica-
tion would not be contradicted by a descrip-
tion of his clothing, even if it differed from
that he was wearing. No dying declarations
were admitted, and the evidence was not ad-
missible in contradiction of anything of that
kind. Where dying declarations are compe-
tent and admitted in evidence, any contradic-
tory statements of the declarent may be ad-
mitted to impeach the verity of the dying
declaration (Blackerby vy. Com., 200 Ky. 832,
255 S. W. 824; Colson v. Com., 200 Ky. 402,
255 S. W. 60); but the rule has no application
when no dying declaration is proven. We
are unable to find any principle of law upon
which the testimony could be regarded as
competent, and it follows that the trial court
ruled rightly in excluding it.

[6] Finally, it is insisted that the common-
wealth’s attorney misbehaved in his conclud-
ing argument to the jury. His speech to the
jury is set forth in full in the transcript.
Some twenty-five or more objections were in-
terposed, as the argument proceeded, all but
two of which were overruled. The first ob-
jection was to a statement as follows: “It
seems that when a man is put on trial for
life, when he is surrounded by his friends,
with eloquent and accomplished counsel to
plead his cause, sympathy will be engendered
in the minds and hearts of the jury while his
victim has gone to a bar removed from this
court, and in this case is under the sod six
feet below the ground beside the beloved wife
to whose memory he paid a tribute that Sun-
day morning.”

The next objection was to a statement re-
garding the character of the duty imposed
upon jurors in such a case, and was in an-
swer to an argument of counsel for defendant
in which he had said: “Go write a death
verdict and then see if you will go home and
enjoy it.” The commonwealth’s attorney lat-
er remarked that when robbers go out to get
a victim, most of them of the unintelligent
classes will hit a man and stun him and rob
him of his money, but here the victim knew
his assailant had to be put out of the way to
prevent identification. He also stated that
three times the victim had been hit in the
head with gigantic strength. Further along
there was a reference to the blood and gray
hairs found on the hammer, which had been
introduced in evidence. The commonwealth’s
attorney referred to the effort of the Y. M. C.
A. to collect its back rent and remarked that
appellant borrowed $5 to keep from being
thrown out on the street. The commonwealth’s
attorney admitted that there was no evidence
about appellant being thrown out on the
street, but he thought it reasonable to infer
that when a man owed $35 and paid less than
one week's rent he might reasonably expect
to be evicted. Another reference was to the
conversation between Ratcliffe and Muse on
Saturday evening at the boarding house aft-
er the other men had left. The argument

21 SOUTH WESTERN REPORTER, 2d SERIES

was to the effect that an arrangement had
been made on that occasion for Ratcliffe to
accompany Mr. Muse to the cemetery. The
commonwealth’s attorney did not say that
any one so testified, but, in the light of subse-
quent events, he drew that inference from the
fact of a conversation between the two men.
He also made a point with reference to the
new hammer which was found to the effect
that it had been purchased by Ratcliffe Sat-
turday evening during his brief absence from
the poker game. He referred to the fact that
the stores were open at that time, which
was developed by one of the witnesses. With-
out reciting further the objections to the ar-
gument, all of which were of the character
indicated by the instances given, it is suwffi-
cient to say that they were wholly, without
merit. The argument of the commonwealth’s
attorney was based only upon the facts prov-
en and deductions reasonably to be drawn
from those facts. It was a strong and earnest
argument, but a fair one.

{7] It has been held that the attorney for
the commonwealth may argue the facts ad-
duced and all inferences reasonably deducible
therefrom. So long as the attorney adheres
to the record for his facts and to reason for
his deductions, he is within his rights, and
not without the pale of the law. Moore y.
Commonwealth, 223 Ky, 133. 3 S.W.(2d) 190;
Johnson v. Commonwealth, 225 Ky. 416, 9 S.
W.(2d) 53; Lawler v. Commonwealth, 182
Ky. 185, 206 S. W. 306; Slaughter v. Com-
monwealth, 149 Ky. 5, 147 S. W. 751. The
circumstances attending the commission of
the crime involved in this trial made it pe-
culiarly atrocious. The victim, pursuant to
his custom, was placing flowers upon his
wife's final resting place. While bending over
the grave of his loved one, and paying
tribute to her memory, he was cruelly strick-
en down. The moment was a solemn one
sufficient to touch and give pause to the most
hardened. Yet at such a time and place some
one was fiendish enough, through motives of
gain, to lay murderous hands upon the help-
less man and crush out his life. The crime
was one of premeditation, and previous prep-
aration to commit it was manifest. It was
not to be expected that an argument on such
evidence would omit reference to the dramat-
ic quality inherent in the proven facts. It
has never been held that it was improper in
an argument to deal with the facts and cir-
cumstances developed by the evidence, On
the contrary, that is the very limit by which
an argument is to be tested. If the facts
afforded a foundation for a telling and effec-
tive presentation of the argument, the de
fendant has no just ground for complaint.

It is apparent from the record that appel-
lant had a fair trial. The crime was a hor-
rible one without an extenuating circum-
stance. Appellant denies that he committed
it, but the proof points to his guilt. It does
not point even the finger of suspicion at aay

CARROLL GAS & OIL CO. v. SKAGGS Ky. 445
21 S.W. (2d)

other person as the author of the crime.
O'Brien vy. Commonwealth, S9 Ky. 354, 12
S. W. 471, 11 Ky. Law Rep. 534. The appel-
lant was defended by an able, eloquent, and
experienced attorney, who carefully preserved
every right of the accused vouchsafed to
him by the law of the land. The trial court,
in the conduct of his trial, accorded appellant
every proper consideration. The tribunal up-
en which rested the responsibility of deter-
mining his guilt or innocence has found be-
yond a reasonable doubt that he was guilty
and fixed, within the limits of the law, his
punishment to fit the crime. It becomes our
solemn duty to confirm the judgment pro-
nounced by the circuit court pursuant to the
verdict of the jury.

The judgment is affirmed,

Whole court sitting.

O31 Ky. 284)

CARROLL GAS & OIL CO. et al. v. SKAGGS
et al.

Court of Appeals of Kentucky. Oct. 29, 1929.

!. Mines and minerals €=78(7)—Petition held
to state cause of action for damages by les-
sees’ failure to market gas.

Lessors’ petition, alleging that there was
kas in paying quantities under land leased, held
to state cause of action against lessees for
damages by failure to market it, though not
alleging that well was in such proximity to
Pipe line that gas could have been transported
to market with profit to lessees.

2. Appeal and error €=>{009(3)—Chancellor’s
judgment on conflicting evidence, leaving mind
In doubt, will not be disturbed on appeal.

The chancellor’s judgment on conflicting evi-
dence, leaving the mind in doubt as to whether
£es well could have been connected with pipe
line by lessees at reasonable expense, will not
be disturbed on appeal from judgment awarding

lessors damages for lessees’ failure to market
gas.

3. Mines and minerals €>73'/—Lessors held
rot required to take possession after 18
Months under lease for such term and as
much longer as oil or gas were produced in
Paying quantities,

Lease for term of 18 months and as much

longer ag oil and gas should be produced in pay-:

ing quantities did not expire at end of 18
months, so as to require lessors to take posses-
fon at such time and preclude them from sub-
Sequently suing for damages by lessees’ failure
to market gas, where well drilled by lessees pro-
duced gas in such quantities,

4. Mines and minerals €78(1)—Lease requir-
Ing payment of portion of market value of gas
Produced in lieu of rentals held to require ex-
ecution of release provided for to acquit les-
Sees of further responsibility.

Oil and gas lease, providing for discharge of
Ssees from all obligations thereunder on ex-
paiaiiaay

ecution and recording of release or deed of sur-
render at any time before expiration of any
rental paying period and for payment of one-
eighth of market value of gas, if found in pay-
ing quantities, in lieu of rentals, held to require
execution of release to acquit lessees of further
responsibility, though no rentals were payable
until after first well was completed.

5. Mines and minerals €=78(1)—Provision of
lease for payment to lessors of part of gas
produced each quarter in which gas was sold
therefrom impliedly required marketing there-
of within reasonable time.

Provision in oil and gas lease for payment
to lessors of one-eighth of all gas produced each
quarter in which gas was sold therefrom, if
well producing gas only were found, impliedly
required that gas be marketed within a reasona-
ble time, though not specifically providing that it
should be marketed at any particular time.

6. Mines and minerals €=78(1)—Lessors held
not bound to take possession and market gas
on lessees’ abandonment of producing well,
but entitled to sue for damages.

Lessors held not obligated to take possession
of oil and gas lease and market gas themselves
on abandonment of producing well by lessees,
but entitled to sue for damages by latter’s fail-
ure to market gas.

7. Mines and minerals @=78(1)—Lessor may
recover damages for lessee’s failure to market
gas from paying well.

Lessor ordinarily may recover damages for
lessee’s breach of express or implied duty to
market gas from a paying well.

8. Mines and minerals €>78(1)—Difficulty of
determining amount of lessors’ damages by
lessees’ failure to market gas does not bar
suit therefor.

Difficulty of determining amount of dam-
ages sustained by lessors because of lessees’
breach of duty to market gas from a paying
well does not prevent lessors from suing for
such damages.

9. Mines and minerals €>78(7)—Judgment
awarding lessors $1,100 damages for lessees’
failure to market gas produced held not
against weight of evidence.

Judgment awarding lessors $1,100 damages
for lessees’ failure to market gas from pro-
ducing well and consequent drainage of gus
therefrom by wells on adjacent lands held not
against the weight of the evidence.

10. Mines and minerals €=78(7)—Burden is on
lessor to show damages by lessees’ failure te
market gas from producing weil.

The burden is always on lessor to show his
damages by lessees’ failure to market gas from
producing well on land leased.

(1. Mines and minerals €>78(7)—Measure of
damages for lessees’ failure to market gas
produced is royalty lessor would have re-
ceived had production been marketed.

The proper measure of damages recovera-
ble by lessors for lessees’ failure to market gas
from producing well on land leased is value of
royalty lessor would have received had produc-

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

Stee VLA

as

PLADAWA

SCHOOL OF 8 ar487

vi

wibd

a)
ct

‘EOPLE,” reads the inscription

move, like those of- Confederate
sked with the Stars and Bars.
$ 9 ~

De Wap aeet tebe t iN ‘ zi je

‘Wemorial Day. Te
jey Johnston-chapter of the UDC.
Ae Monument, Third and Shipp, and

(Courier-Journal Prete
Hill Cemetery'’s Confederate _

_

and a bronze plaque and a small

ying Jury
Can't Agree —
On Penalty

Moody To Be Retried
In Cranshaw Death —

With nine members fongring

‘thé death penalty and thre@for a
life sentence, # murder trial jury

reported yesterday It was un-
able to agree. Criminal Court
‘Judge Frank A. Ropke dis-
charged the panel.

It had deliberated 2 hours in
the case of William James Moody,

. Assistant ‘Commonwealth's At-

31, accused of the fatal shooting
on January 23, ef Roy Cranshaw,
47. The case was redocketed for
June 16. *

‘The shooting occurred near
Moody’s home at 6286 Meri-
wether. Cranshaw lived at 612

conti

‘Dies In Chair
At Eddyville

Ends Long Wait

n 4 Jeath Roy
William ZS § utsville
_ Slayer whoa spent more time in

Eddyville Penitentiary’s Death
Row than anyone else, was elec
trocuted there early today,

He was pronounced dead at
1200 am, CST, after being
Kiven two charges of electricity.”

F -He made no final statement re.

Rarding the crime for which he
died. 4
‘When asked if he had a-final
“SMatement,— Reed - sant. —“*teans

Wife Killer Reed.

AJ | |
lee

_k
| od

: Christ died for the sins of every. |
one.”

_——

December 8, 1948, of murder-
ing Louise Young, one of his
common-law wives. He had heen |
in Death Row since January |
26, 1949
The woman was missing from
late 1943 fintil late July 1948
Then a plumber's helper, digging |
up a water prpe ima shed betnnd '
Reed's—home at 124. S. rth, :
found human bones 2 feet. be,
neath the surface and notified |
his boss, who called potice.

-- Indicted In 2 Deathe =

Reed later was indicted for the
murder of the Young woman and
Lena Lewis, another common-
law wife. It was established that
bones dug up at his hone were

“ome
Then he walked to the chair. |"
Reed aS ores: ereretet art ae t

those of both women. Reed and |
the two women were Negrves. |
~C>- Ewbank Tucker, Reed's |
Louisville attorney, failed in
numerous attempts for a new
trial and the Court of Appeals
ruled against him several times.
Governor Wetherby set the ex-
ecution date about a month age
after the United States Supreme
Court refused to grant a hearing
to réview Reed's case.

Said Bones Prejudiced Jury |

In his appeals, Tucker stressed
the presence of the bones of both
women in Criminal Court during
Reed's trial, He held that the |
presence of the bones of Lena
Lewis prejudiced the jury.

The original execution date was
March 30, 1950, but Federal
Judge Roy Shelbourne granted a
stay to permit a hearing on a
petition for a writ of habeas
corpus. Judge Shelbourne’'s sub-
vent ruling against Reed was
upheld by the United States Cir-
cult Court of ‘Appeals in) Cin:
cinnati, ee

al

4

«

}At-A-Plant- Profeet +

b
C

w


ED, WAX black, elec. KY SP (Jet ferson)on’ Galea oben fF ae

No

SPORTS AND FINANCIAL NEWS,:

| t onricr-Zonrnal BADE AND TV AS tides |

me elit ACCC REA et

Vv, ith Soldier Dead Mouisvillian Standiford Plans’

.
7

Dies In Chair yiqy Foree Kroger
At Eddyville a : bg
| Wife Killer tea LO Move P roject if

Ends Long Wait) Part of Tract for Warehouse

2

noy

,
In D ‘ath Row S xe I!’ E ®
: : -| Sought for Field's Expansion | &
Wilham T - Reeck | Louisville een : ; fps
and 4 TAR DENY eee as ‘The Kroger Company may have to relocate its proposed
Os eee : Pests Penton ec Death $1 000.000) new warehouse on Crittenden Drive because of
. \3 189 ‘Row nyon . : ; ; i ‘
Pury ore with age Seca pet mie se oe ree | ctandiford Field's expansion plans. i
“eee my Prepie Aine biota as pronounced dead st William M Harvin, attorney for Kroger. said construction
: of the giant new facility had been scheduled to begin soon.

woo am, CST. after heing
1 . led :
| given two charges of electricity Clearing of land sia under *aY¥ 42.) twa weeks, as originally

He made no final statement re | 08 8 Ogacre site on the west hoped remains to he seen, Harvia

carding the erime fer which be) side of Crittenden Drive south: said
iwest of the International War- Clearing the Site

had a final Sester Company tractoe plant “We hope however, that before
Part of this tract te affected -construction starts. we can estalb-
Christ died: for the tins af every iby 4 suit filed Jast week by the lish-a@ location that's safe, and
| PCuty:County Ate Board” IC seeks we expect the Air Roard will tone

pensate us for clearing operations

one * ;
Then thed ta the to condemn a large-area west of
on be wolked Natta Oe Crittenden Drive for an “over: on jemd they say they
Harvin added.

hed
bo When asked af he
statement. Reed sant, “ests |

Real, 45. ‘was convigted) on | :
; eben" “run” area beyond its main run- ‘
: : December 8, 1948, of /murder- | yy Pas Crews of Breslin Constructioa
Courterseurnet Prete | ing Louse Young, one of bis). jtarvin said Kroger bought the OM PSY. afd “Shilton. paginas
ing & Construction Corporation

‘ « ; COMMON law wives Ile had been : 000 th
Y ME WITH MY PEOPLE.” reads the inscription =| in’ Death » Row. since January | pax irtow’ eae PH Eh ne Seuey. yenterday « clearing
‘e Hill Cemetery'’s Confederate | 26. 1949 ou ; ob S$
i. SiG reg cake " after beng shown a# plot: plan most of the 24 acres Job Superin-
e. hike those “ofs Confederate, se The woman Was MIssink frOM dated March 10, 1954 = tendent George Mime said they
was decked with the Stars and Bars Mate 1943 until late July IMR ' > hoped to finish Tuesday...
: The plot plan, pr pared by i
5 . > Then a plumber's helper, digging Martin & Mel, Air Rokéd Con. A unique s$3'00 machine, used)
no Net far aay are a flagpole and a bronze plaque and a small OP a voter pipe in shed bebind | oiants. was shown fo Kroger for the first time on a large land-
; Reed's home at 124 S_ 11th, Neiciate hy Lo &N. representa- clearing operatton here, is speed-
ayn ing up the work

nSé6T=T-9 IvNUNoOreusrUNnoD *Ay *eTT

Pa lderp beside it,

¥, fake with white swans
: found human. bones 2 feet. be
Yesterday was Confederate Memorial Day : : “tives, Harvin said
; cee t ' S —aehns hat hetpDe neath the ‘surface. and notified |. pie The wood-chipper. driven by a
: Members ofthe. Albert ede eat. Thitd: ud his boss, who called police, Was Outside Area Sought 140 horsepower engine, is chop

| Indicted In 2 Deaths According to. the plot plan. atk ya all ae cuir ae ;
, the tract subsequently bought by into dust “4s eed”

ox Bedar ry ake Jal Se we | Kroger lay. outside and adjacent loads of brush are esata Inorg
Lena Lewis, another common: | 1? the area wanted by the Aur (Pt sruckloed/ S:chipe. A
is ' Board, Harvin added trucking considerably, said Mirus

ee * 3
| sd xr J Lad ; : : F . ‘ + y-
Slay Lip ury taw wife. If was established that Lie said theeplot plan showed

The graves of the Confederate soldiers and Elizabeth Temms:
‘ ie x e ‘
3 More Suits sa
bones dug up at his home were | pate ‘ 3
ithe. proposed) overrun: area ex | »
those of both women Reed and seal me 750 feet northwest. ftom 4 | ito I risoners

- . bd *. / “
On Annexation Cant Agree incre vomenwere Nestor (ee extemted renter Tine of the |
: Ew bank 2 Srabeiy’ ara main runway. But the Air. Efforts To Burn

vy .
i » 16 | UL ig ‘Louisville attorney, ; a ‘
Be Are He Kc P On I ena ly pumerogs itemise jor i abe j Biers eee attending ash net Jail Unsuccessful
trial and the Court of] Ap pees [northwest from the same line. i Speciot te The Covrier-sournet

Moody To Be Retried | ruled against. bom several timés.
nee Governor Wetherby set the ex: he said. © * wre hte, Hodgenville, Ky, June 3.—T*
| fhis: means that if the Air}! prisoners in LaRue County Jat

Abated by Judge Smith In. Cranshaw Death ecution date about a month ago }
after the United. States Supreme | Board wins its suit, use of as here made three unsuccessful st

het. placed a wreath at the Confederate Monument, Third and Shipp, and
Gt Confederate flage on Cave Hill graves —

i St. Matthews Cases

*,

ht .

Cireuit (Court yesterday held | With nine members favoring | Court refused to grant a hearing strip 140 feet wide and 2.000 il jae
ne UP action on hfe nore vults ope stnneean penalty and three for a) to review Reed's case. * | tle tees any wich any i ogtiee iwi apa eiite
e : j acres wou

life sentence, a murder trial jury Said Bones Prejudieed Jury denied.to Kroger, a cracela | Bike

posing annexation of residential
: ‘ , ; reported oyesterday. it) was un ; ’

the City of St Matthews t . : In his appeals, Tucker stressed | ‘Says It's Inaccurate | Carter said Stanley Keith, t

i andi Lewts Hall, 22, - bom

able to. axrees >t riminal~ Court), the presence of the bones ‘of both
Judge Prank) AD Ropke dis \ women in Criminal Court during | Alt Board: spokesmen said fast’; : the fh
1D einal ruling in another case Ce charged the panel = /Heed'a trial, te held that the i that the March 10 plot Mardin County, started arte

te hether the St Mat It had ‘deliberated 2. hours in. presence of the bones. of Lena plan was not an accurate descrip: in their cell. Each time,
pa Bf at Te aad ALE Re ee the: case of William James Moody, Lewis prejudiced the jury. tion of the Air Board's intentions. | expisined he put out the

ixie. thews. business © dysteict will be 410 accused of the fatal shooting | The original execution date was Se ene W, Stites called | before they eaused ony
March 30, 1950, but Federal; ("¢ plan “just a working draw-| Keith End Hall were cbt

he j Mf Ithewsa.: 7 . ‘

part of the City of St. Ma ton January 23, of Roy Cranshaw, ) A be

ie In March, the Court of Appeals | 47. The case was redocketed for | “tyety Roy pike, ela ey a Hoot a B ote “spyinha ited satet with willful -and =eorti of °

; retest . stay to permit a hearing o0 a» burn. prope
held Judge Smith in similarly June 16 Poe: 3) writ ot habeas negotiation purposes” when the Oe nat vu P were arraid®

Wy near, Petitiog ourt
ung two other sults protesting The shooting occurred near, Pe : 2
< xation of residentis! areas | Miody's home at 626° Mert pales Judge Shelbourne’s sub pa tyre LN icp Se in cog No AY a “a
{
f

the areas by
gat Judge Macauley. 1 Smith: or
aed dered the tases abated until a

\

7 poy the City of St. Matthews,
sat of | 3 Areas Affected
of} ‘The three remonsirance sults

sequent ruling sKainst Heed waa) 4” ,
upheld by the United States Cir- Uf Kroger had come to us for | sciien om bond of $1,000 &
teutt Court bf Appeala-in Cin; the cgrrect information, they | They also face chart” ie
Pictures Shown Lotnsath | wouldn't be in. this: fix,” Jones erating a motor venicle *™
wi sn eae aes

A
+ aceiapeagalplinaataitns viet ie a ELAS IM,

wether. Cranshaw. lived at 612
Meriwether

: as pigeonholed hy Judge Smith ;es } Assistant Commonwealth's At; : es sees ‘ :
Aig. trrday were brought by Jo Pryor | torney Carl Ousley told the jurors | Wildent Strike Ends” Raliread Rejects Offer be ee Hea
«| Wise, 12@ Brown, Daniel F Chit) the shooting followed an argu} : HoT. Li & N ' Friedmann
“wood ; ; BY At A-Plant Project: av Tao  Reneral | ee \4
wood, 613. Breckinridge Lane, ; ment hetween the twa men over | he ik solicitor, raid: the plot plamiwnie RC. Spe SSE Be:
to show ee ames % ‘
Frie By

end the third jointly by Thomas | Cranshaw's fefusal to tow meeleer Oak Ridge, Tenn, June 3 UP) | used by the Air Boa

“¥. Miller, Jr, 4223 Winchester, | disabled putomobile for less) a wildcat strike by A¥ 1, | the overrun drea the board want
ene sn ; ‘ M tw buy from the [.& N. The| Bank. 0

Vaso SIA US

512 Tex.

action defendant is bound by the recitations

in its charter that “its home office is in
Azle, Tarrant County, Texas,” and it is
contended further that the charter provi-
sion referred to has not been changed or
amended as provided by Article 1314, R.
C.S. The respective contentions present
the sole question in this appeal.

The issue before us has been adjudicat-
ed by the courts of this state against de-
fendant’s contentions and in support of
plaintiff’s theory. To write at length on
the subject would be largely a repetition of
what has been said in such cases as Mc-
Carroll v. Edwards, Tex.Civ.App., 22 S.
W.2d 684, and cases there cited; Byrd
Cattle Co. v. Texas Vegetable Union, Tex.
Civ.App., 22 S.W.2d 990; Hawk & Buck
Co., Inc., v. Cassidy, Tex.Civ.App., 164 S.
W.2d 245; Weaver v. Simmons, Tex.Civ.
App., 197 S.W.2d 219.

gobo Oe eee fen rs

226 SOUTH WESTERN REPORTER, 2d SERIES

There is nothing in this record to indi-
cate that at the time defendant made ap-
plication for its charter and declared on
the oath of applicants that its “home office
is in Azle, Tarrant County, Texas” that
such office or place of business was then
or would be in the future in Parker County,
Texas, or in any other county of the state
than Tarrant. Article 1304, R.CS., te
quires that a corpordation’s ‘charter must
set. forth ¢) #3 Phe pines oe
places where its business is to be trans-
acted.” Defendant, having complied with
this requisite, is bound by it for venue pur-
poses until changed as provided in Artice
1314, R.C.S., as held by the above cited
cases.

The point of error is overruled and
judgment of the trial court will be affirmed.

Affirmed.

= aN Nex cab

aren V Ye

_ { 1 ‘ \ \ La  <!
iw rolwer PTT WSs,

Hie WAS Ee!

REED v. COMMONWEALTH : - * Ky. 513
Cite as 226 8.W.2d 513

312 Ky. 214
REED v. COMMONWEALTH.

Court of Appeals of Kentucky.
Nov. 29, 1949.

Rehearing Denied Feb. 24, 1950.

William Reed was convicted of murder in
the Jefferson Circuit Court, Loraine Mix, J.,
and he appealed. :

The Court of Appeals, Morris, C., affirmed
the judgment holding that defendant’s con-
fession was admissible -and that the evi-
dence sustained his conviction.

1. Criminal law €=531(3)

Confession obtained without threats,

promise, arrest, or the plying of questions
was admissible where court first heard evi-
dence in respect of the confession in cham-
bers and defendant did not, contradict it.
K.R.S. 422.110.

2. Criminal law €=519(8)

When defendant was held in sentdicy
for less than ten days before hearing be-
fore magistrate, his valid confession was
not made inadmissible where defendant’s

arrest or his being held in custody did not

interfere with his right to counsel.

3 Criminal law €=538(2)
Jury is not required to believe all state-
Ments made in a confession.

4 Homicide €=250

Evidence sustained conviction of mur-
der,

———

C. Ewbank Tucker, Louisville, for ap-.

Pellant,

A. E, Funk, Atty. ag Charles Ander-
son, Jr., Ass’t Commonwealth’s Atty., Lou-
isville, for appellee.

MORRIS, Commissioner.

Appellant was convicted of murder, the
jury fixing the penalty at death. On his
appeal it is contended that the verdict is
contrary to the law and evidence, and
* * * that the court erroneously and to
his prejudice admitted appellant’s confes-
sion made out of court. KRS 422.110

Makes inadmissible any confession of ac-

226 S.W.2d—33

cused ‘obtained by the plying of questions,

or extortion of information to be used

against him.

The evidence’ shows that appellant and
Louise Young, prior to the latter part of

December 1943, had been living together

as man and wife. An uncle testified that it
was the custom of Louise to visit his home
in the country during the holdidays, and
that she had failed to come to his home
during the 1943 Christmas Season. An in-
quiry at the home, 124 South Eleventh
Street, Louisville, showed’ she was not
there. He inquired of appellant as to her
whereabouts and was told that she had

gone to Detroit without taking any of her

belongings. The uncle said that appellant
and Louise claimed they were married. He
had sold them some insurance; he also said
that Louise had a sizeable sum of money.
There was no further development of these
latter circumstances.

About July 21, 1948, a plumber at the
direction of the owner, went to the prem-
ises to make some repairs in a water pipe,
and found it necessary to take up some pipe
which led through a coal shed. In reach-
ing this pipe he discovered bones and a
skull. Without going into details, persons
experienced in such matters testified that
the bones and skull were those of a human
being, and by particular markings.of the
teeth the skull was identified as that of
Louise Young.

Following the discovery the police de-
partment and the coroner were notified,
and on the same day appellant was taken
into custody and questioned; he told them

that Louise had left him and gone to

Detroit and he was released. On investiga-

tion by officers it developed that she was.

not in Detroit, and the officers later took
appellant into custody, where he made a
statement which was signed by appellant on
July 24, 1948. This statement was sub-
stantially as follows:

“Back in 1935 I met Louise Young who
was around 19 years old. After a couple
of years she started living with me as my
common law wife. We lived together for
about six years. During the last couple
of years * * she was also running
around with a fellow named George Smith.

*

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hy:
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et:
it

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fy
iy

*NG6I-lI-9 (Uosaeszer) *fY *oeTe SyoeTq **


Riot Ment: fates
ateloro, Meat, Coffer x CAdah

—

45m 270 SOUTHWESTERN REPORTER (Ky.

scarcely be cognizable in law. But, however
that may be, we are not prepared under the
developed facts to interfere with the verdict
of the jury upon that paragraph.

[4] Concerning paragraph 3 of the petition,
we have already stated that the passway
along the creek had been used by the public
for as much as, or more than, 60 years. It
is true that, some few years before plaintiff

scope of his employment rendering defendant
liable for his acts.

2. False imprisonment @=>15(2)—Defendaat
held not guilty of aiding others in procuring
plaintiff’s arrest.

Where plaintiff was arrested for alleged
issuing of bad checks, but not under warrant
taken out by defendant, and defendant did not
participate in arrest, mere fact that defendant

Ky) ROSS v. COMMONWEALTH) 455
(270 S.W.)

were cashed, and was promptly exonerated
from being the one who had cashed the
checks. Of course she was immediately re-
leased. At this meeting Cochran, Rudy, and
Graham, who were present for the purpose
of identifying appellant, made up a purse to
reimburse Mrs. Cope for her expenses from
and to her home in Illinois. Later Mrs. Cope

her expenses. The attempted identification
of appellant by Rudy is entirely consistent
with the absence of activity on his part in
the procurement of her arrest prior to that
event. He had a bad check too, and he had
a right to have the author of the check ar-
rested, and he had a right to go to the jail
to ascertain if the person arrested was the

sued Rudy, the elder Cochran, Graham, and | one for

his employer, Askins, for false imprisonment. | but un uo pirate "Weds nce
At the conclusion of the case the court in-| think that his aid in the makin $ t a
structed the jury to peremptorily find a ver-| purse to reimburse appellant seithont ra
dict in favor of Rudy and Askins, but sub- thing else to connect him with he ‘ashen. to
mitted the case as to Cochran and Graham, | sufficient to warrant a judgment a slide ee .
against whom the jury found a verdict of|for the procurement of that ey came ped
#00, from which Cochran appealed to this | think, therefore, that the perem ve nome.
court. His appeal has been disposed of this Rudy likewise was justified. ihe osha

day. Cochran vy. Cope (Ky.) 270 8. W. 998. The jud
Appellant prosecutes this appeal from the arises. Se ee ae ee te ate

attempted to obstruct it by building the fence | Went to jail to identify plaintiff, and aided in
across it, a bridge was built over the creek | Soe OP tae he aided end conan

ie
ey Seve ee vilineiaa a Gee a others in procuring plaintiff’s arrest.

at that time a pole was erected across the Appeal from Circuit Court, McCrackes
passway leading from the pike, but it re-| Gounty.

mained there but a short while and after it
Action by Alice Cope against Charles As
was removed the public continued to use it as idan abt idia.  Wrouk 4 Suliient deen.

theretofore. Even if it had been permanent-
ly closed at that time, before the public could ing verdict for certain defendants, plaintit

be legally deprived of the right to travel it,
and which right was acquired by much more
than 15 years adverse user, such obstruction,
under repeated decisions of this court, must
be continued uninterruptedly for as much as
15 years. No pretense was made at the trial
to show any continuous obstruction of the
passway for that length of time, and, at the
time plaintiff attempted to obstruct it with
his fence across it, he was a trespasser up-
on the rights of the public, and any of its

appeals. Affirmed.

L. B. Alexander and C. C. Grassham, both
of Paducah, and J. B. Allensworth, of Louis-
ville, for appellant.

Wheeler & Hughes and Mocquot, Berry &
Reed, all of Paducah, for appellees.

DIETZMAN, J. In the month of February.
1922, some one representing herself as Mrs
A. E. Cope bought some goods from three
different stores in Paducah, to each of which

judgment exonerating Askins and Rudy.

[1] So far as Askins is concerned, the evi-
dence shows that he at all times was a non-
resident of the state; that his store in Pa-
ducah was in the entire charge and manage-
ment of Graham, and that Asking himself
took no personal part in the arrest of appel-
lant, and did not know anything about it. It
is only sought to hold him under the doctrine
of principal and agent, the appellant insist-
ing that Graham, in having her arrested, was

a ; (208 Ky. 52)
( ROSS v“COMMONWEALTH.

(Court of Appeals of Kentuck
y. Ma
1925.) ca

{. Criminal law €=614(1)—Refusal of second

continuance for abse
— nce of witness held not

In prosecution for rape, where one con-

acting within the scope of his employment | tinuance because of absenc ’s wi

and for his employer. The evidence, how- | 2¢88 was granted, refusal re pas Second hn
ever, discloses that Graham had no authority tinuance, in view of instruction that jury should
to receive checks in the payment of m erchan- give same consideration to statement as to tes-
dise; that despite his orders to the contrary mony of absent witness in affidavit as if he

members, including defendant, had the right she gave a eheck in payment, signed “A EB
to peaceably remove such obstruction, and| (Cope, by Mrs. A. E. Cope.” These checks
the court did not err in so holding and di- were drawn on a bank at Calvert City, Ky,
recting the jury to find for defendant upon | and in due time were returned as “no good.”
that paragraph. Thereupon James W. Graham, who was the

were present, was not error.

Our conclusions, as above expressed, are
so fundamentally clear that we have not
deemed it necessary to incumber the opinion
with reference to adjudged cases and other
authorities, and it will furthermore be ob-
served that we have reached our conclusions
upon the assumption that plaintiff, in each
paragraph of his petition, properly pleaded
the damages claimed as proximately result-
ing from the acts complained of.

Perceiving no error prejudicial to plain-
tiff’s substantial rights, the judgment is af-
firmed,

|

(208 Ky. 86)
COPE v. ASKINS et al.

resident manager of a department store te
which one of these checks was given, together
with the son of Mr. W. E. Cochran, to whom
another one of these checks was given, and
for whom this son was working, started an
investigation. They went to Calvert City and
ascertained that a man by the name of
Archie Cope had lived there and married a
girl of that town, but that he was then re
siding in Illinois. The two then visited the
mother of Mrs. Cope, and, without impart
ing to her the reason of their mission, se
cured from her the address of her daughter.
They then returned to Paducah, where Gra-
ham, the elder Mr. Cochran, and one Rudy.
to whom the third check was given, swore
out warrants against Mrs. A. E. Cope, alias
Mrs. John Doe, charging her with the offense

he did receive this check, and, when it came
back protested, he at once out of his own
funds made the amount good to his house,
and all this before the Swearing out of the

2. Rape @=51(1)—Evidence held sufficient to

support conviction of rape.
Evidence held sufficient to support conviction

warrant and the arrest and prosecution of | for rape.

appellant. Thereafter the house and Askins
had no more interest whatever in this check
*f prosecution. It seems clear to us that

Appeal from Circuit Court, Fayette County.
Ray Ross was convicted of rf.pe, and he

‘raham was not acting for his employer in| @Ppeals. Affirmed.

the arrest and prosecution of a

ppellant, but
undoubtedly either to have her reimburse
him after her arrest as is permitted and al-

A. A. Bablitz, of Lexington, for appellant.
Frank E, Daugherty, Atty. Gen., and Gard-

ner K. Byers, Asst. Atty. Gen., for the Com-

lowed by the statute governing “cold checks,” | monwealth.

*rto punish her. We therefore conclude that
the peremptory as to Asking was proper.

DRURY, ©. Ray Ross, a colored man

[2] As to Rudy, appel
, appellant was not arrest-| about 25 years old, has appe
aled f
peer bow warrant taken out by him, and / judgment Sentencing him  danth SPaghibe
y way Rudy can be held is on the idea ing, for raping Willie May Young, a colored

he pe arte assisted, and helped Gra-| girl about 914 years old. She testified that
Sitlnai's vicar fag the Le a of ap-| this occurred on July 8, 1924. On the eve-
. e evidence fails to dis-| ning of that day, she and a numbe f
eee The arresting officers are not able|ed children were playing on the West lee.
waste m3 Rudy gave them any directions | ond street playgrounds in Lexington, K
whateva | 7 al hesepd eA: asta. While they were playing there Ross came i
ring o e arrest, or| He had a bicycle with hi
securing of the information b ar Bnd © Beamer af
y which the} the children gathered
“rest was consummated. About all around him and were
4 that con- | talking with him about hi
vects Rudy with the activiti about his bicycle, and about
es of Cochran | selling bicycles f.
A g bicycles for him. The
Pes ia cone i on ped he came | supposed to begin at about 7 ieloehe pee
lant, and station to Identify appel-|close at 9 o’clock. Shortly before th ;
— 2nd that he put up $5 or $6 as a part of | ceased, Willie May Young, at the Gristion we

¢ oF or other Cases see same topic and KEY-NUMBER in all Ke -Numb. ed

of issuing these bad checks.
(Court of Appeals of Kentucky. March 20,| ‘The check given to the store for which Gre
1925.) ham was manager being over $20, and there-
fore a felony, the police officials of Paducab.
{. False imprisonment @=>15(3)—Employé held acting under its authority, communicated
nat acting within seepe. of Se = with the officers in Illinois, and had them s®
pt plaintiff arrested for issuance of ba rest Mra. Alice Cope, the appellant neeit
. ’ . ; |A police officer from Paducah then went 4
Where defendant’s employé, who aided in to Tlinots and returned with appellant, a

kaving plaintiff arrested for alleged issuance i
of bad checks was unauthorized to accept checks,|had waived extradition ronan oe
and had paid loss from his own pocket before | their return, appellant was confronted by

the arrest, held that he was not acting within | clerks of the three stores at which the checks

@=>For other cases see same topics and KEY-NUMBER in all Key-Numbered Digests and Indexes

“S26T *Q92@ Fsneny ‘AyONQUOy fuOogZUTXEe] pesuey *yoBTQ ‘key *

456 270 SOUTHWESTERN REPORTER (Ky.
ap

bout 8:40;
and says he stayed there until a p
that he walked to Third and Ann streets, led
his wheel, and that, when he got there, Willie
May Young asked him to let her ride around

Ross, as she says, left the playgrounds and
went to Third and Ann streets, where she
waited for him. When he —— +“ ~~
i i er to a ho ;
ethane pment ag Se Twelfth street, | to her — and age: ics hoe eo
i was going to show her |him to ars avenue z
ae ase barista ada almost com- denies having ravished her, and, pee
sed and was one upon which Ross had | denies taking her to the house on
i reet.
ps ame a eked Soe psy, pag cd *t After his conviction he filed a motion for
mas — a oe retense of showing her | a new trial, and alleged seven grounds there-
boeg race a ager she had entered the|for. In view of the severity of the punish-
Posi he ir her through it, and finally | ment imposed, we have ay agen
induced her to enter a small room which he| with scrupulous oa ar biel : Pak eae
entered after her, locking the door behind | seven of the grounds reli p
him. He showed her a pistol and told her | without merit. aS Ee
that he would blow her brains out if she [1] When this cane ee
holloed. She detailed the circumstances of | July 14, Ross was gran 9 potent hens
the crime, after which she said he gave her | cause of the absence rode slicnagridpr ~
something with which, at his direction, she | and other witnesses w ces testa
wi ed herself. He then put her on his bicycle | was unable then to give, Lad sorgrloggein
nf d took her to a point near her home, | he could prove that he remainet a Bat
inact ing t m her on the way a promise not | ground until 20 minutes of 9 o’clock. en
ot h ie other. She came home crying | the case was called for trial again, on Octo-
ae online and immediately told her | ber 16, ot ag fp cgi aed EL earrnagepae
her. | on account o e .
Her ona prgrs tugtnad bor, and | The court refused to continue re ni oo
found her bleeding and trembling as if she | compelled him to go into trial. en

had a chill. They summoned Dr. W. B.
Stevens, who also examined her. In his tes-
timony he described her condition, saying
thut her private parts were torn, and appear-
ed to have been penetrated about one inch.

Ross was arrested that night, and the next
day Denny McCarty, @ police officer of Lex-
ington, went with the father of this girl to
the house’on Twelfth street, and, in looking
through it, they found a handkerchief with
a heavy blue border. This handkerchief was
turned over to Prof. E. J. Gott at the experi-
mental station of Kentucky University. It
was examined by the professor, and he tes-
tified that the reddish stains upon it were
blood stains, and that he also found on it
spermatozoa. When shown this handkerchief
during the trial, Ross admitted it was his.
He offered no explanation of its condition nor
how it happened to be where it was found.

Other children at the playground testified
to having seen Ross there, and one of the
children, Margaret Brown, testified to having
seen Willie May Young get on Ross’ bicycle
at Third and Ann streets and ride away with

read, as the evidence of Hunter Lewis, the
statements contained in this affidavit, we are
pleased to note that there is nothing in the
record to show that the commonwealth’s at-
torney made any comment upon the absence
of that witness, or the reading of the affida-
vit as his evidence, and to note further that
when counsel for Ross offered to read this
affidavit, the court said:

“Gentlemen, Mr. Bablitz is going to read to
you now from an affidavit, the testimony of a
witness who is not here, and you will give
the same consideration that you would give
the witness were on the stand and testifying

himself.”

[2] The punishment the jury imposed on
the appellant is an awful punishment, but
he is charged with an awful crime, of which
the jury found him guilty. ‘The ipageete
abundantly supports the verdict. The rec
ord shows that the court studiously endeavor-
ed to give him a fair trial, and he has had &
fair trial.

The judgment must be affirmed.

him. Ross admits being at the playground,

The whole court sitting.

Ky.) McCOUN
(270
(208 Ky. 20)

McCOUN v. NICKELL et al.

(Court of Appeals of Kentucky. March 17,
1925.)

1. Fraud €=31—Purchaser, retaining proper-
ty, may sue for deceit.
Purchaser of personalty, while retaining
it, may maintain common-law action for dam-
ages for deceit practiced on him.

2. Fraud @=>13(2)—Purchaser must show rep-
resentations were known to be untrue.
Purchaser of personalty, to recover for de-
ceit, must show untrue representations were
known to be untrue.

3. Fraud @=>11(2)—Opinions as to value not
grounds for recovery.
False statements of fact, which are grounds
for recovery by purchaser of Personalty in ac-
tion for deceit, do not usually include opinions
as to value.

4. Sales €=>38(7)—Purchaser of interest in
garage held not entitled to avoid payment of
price on ground of false representations of
value.

Purchaser of interest in garage, who had
possession for some time before giving pur-
chase-money note, held not entitled to avoid lia-
bility on such note on ground of alleged false

representations by seller as to value of interest
sold.

Appeal from Circuit Court, Wolfe County.

Action by C. W. Nickell and others against
Glenn McCoun. Judgment for plaintiffs, and
defendant appeals. Aflirmed.

E. C. Hyden, of Jackson, and Leebern Al-
len, of Campton, for appellant,

S. M. Nickell, of Lexington, and J. C. Lin-
don and G. B. Stamper, both of Campton,
for appellees.

HOBSON, C. C. W. Nickell owned a half
interest in a garage at Campton and a con-
tract for the Ford agency there. On Septem-
ber 18, 1922, he sold this half interest to
Glenn McCoun for $2,500. McCoun then paid
him $50 on the purchase and agreed to pay
the balance when the Ford people at Cin-
cinnati contirmed the transfer of the agency.
George Holt owned the other half. ‘The
business was then done in the name of Nick-
ell and Holt. The new business was to be
done by McCoun and Holt under the name
of the Campton Motor Company. Nickell
then turned over the property to McCoun
and he took charge of the business. They
then went to Cincinnati to have the trans-
fer of the agency made; there they got
blanks ang brought them back to Campton
to have them filled in. On September 25th
at Campton, the contract was drawn up and
Signed and sent back to Cincinnati to the
Ford people. McCoun then gave Nickell a

v. NICKELL 457
S.W.)

in six months, with interest, but these were
left in a bank, to be turned over to Nickell
when the papers came back from Cincinnati
properly signed. The check and the note
were then delivered by the bank to Nickell.
The note was due on March 25th. On April
19th McCoun paid Nickell on it $200 without
complaint. He did not then pay the remain-
der of the note, and Nickell hypothecated the
note with the bank there to secure a note
of his for $1,500. About a month later Nick-
ell and McCoun met to close the matter up.
McCoun started to write Nickell a check for
the amount of the note, and after he had
written’ Nickell’s name in the blank a dis-
pute arose between them as to whether he
should pay interest in the note from the time
it was due; he saying that he had the money
in bank to pay the note and that it was not
his fault that the payment had been delayed

by reason of some unsettled matters due by
Nickell and Holt in the garage. Nickell said
that he would let the interest go if McCoun
would make an affidavit that he had had the
money in bank. Thereupon McCoun tore up
the check and said that he would not settle
at all. Nickell then brought suit against
McCoun on the note. McCoun defended up-
on the ground that Nickell represented to
him that his half of the Ford agency was
worth $1,000, and that his half of what was
in the garage was worth $1,500; that he was
induced by these representations to make the

purchase; that they were false and fraudu-
lent; and that Nickell’s half of what was

in the garage was worth less than $500. The

allegations of the answer were denied by

the reply. Proof was taken, and on final

hearing the curcuit court entered judgment

in favor of Nickell for the amount of the

note, with interest. McCoun appeals.

{1-3] It is well settled that the purchaser

of personal property may retain the property

and maintain a common-law action for dam-

ages for any deceit practiced upon him in the

purchase, but to recover in such an action

the plaintiff must show, not only that the

representations were made and were untrue,

but that they were known to be untrue. The

rule also is confined, usually, to statements of

fact, and does not usually include mere mat-

ters of opinion as to value:

“Puffing by sellers is universal, and every one
buys, knowing that he must exercise his own
judgment on matters of opinion expressed by
the seller.” Vokes v. Eaton, 119 Ky. 928, 85
S. W. 174, 27 Ky. Law Rep. 358.

“It is a well-settled rule that mere com-
mendation, or even false representation, by the
seller of property as to its value, when the
purchaser has an opportunity to ascertain for
himself such value by ordinary vigilance or in-
quiry, has no legal effect on legal rights of the

contracting parties, even when made with the
intention to deceive.’ German National Bank’s

check for $1,200 and a note for $1,250, due | Receiver v, Nagel, 82 S. W. 433, 26 Ky. Law
ee

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

hy lag ifn Wier
| Wht! Parute, _"\ Legitglon |

fe i ee eS oe,
PRON TSAI EPS LA. yeg
Yew . Whe hac ben lrotiigHeors
Had hey. Lnlreted. deo t toot har (ule roowa Whiah Ke
aptiaeie le hteked Lh.oued frill t threakzasd te hot ¥
Lhe dere ma. Mhew. Aafled: Lt Lixcindle fook ber Ba
Few hobeuset bythe ofl 2ratting a prtria bal Me
bituld 107 pelt hin noth, Le big ing A taser

TPR en ROD oo aT PT


MEESTER? ETM TTT

HANGIN

records show. A new subdivision fs
located near the Oddville Pike on t

| te

Se Arta Re

G OAK — From this oak tree,
limb pointed out by Susan V. Miller, David Sheel
than a century ago for the murder of his wife,

tere eee ttt Pte eer eee

ee eee &
gn a rop strung over the

Nancy Ann, old-time
-being developed around the tree,

he outskirts of Cynthiana, (Photo

y Herald correspondent),

y was hanged more:


November 19 9 18);7 *
ed Cynthiana, Kentucky, on |
SHEELY, David, white, hang y 6

RV Rigs j Tor SHORE ORE RED Yr
“4h 34 ma
$i Ries eyage igh i da J es iow ro ee f
e ‘ vi. , - it S mmaton ey i dys CORT US Be i",
t Witorg ‘ if M t's "9 Set NeW oom gest, Ny 7 : , ; fee e 5 ‘
) an A Wee @ bse ay goes Bie ith ac re vt P i : 4 1f
4 ia bets Ray Sea eee Ns a4
Clone, om a pal } e ‘ ) d ; j j mts MiEAeS
{ t Vesta to at STW ? { in ir derek oh aid uy Fe
“4 ee mA a y > . e's sf ian % le Ae, Mets 3
nae De | ISOn O . a ‘ r { = EIZESi aS Pas OM £3, 8a
a Prete? ob tet ' i j Ren BEN De hee
b atid Hc eth ees le ee me od eee eae ;
i P ee UC) ie aa + ethene tte este ah A y 4
: i em! ann nem capi eters erie :
r } or a A NO :

hea

Sunday, January 1 1986 «The lexin

tac,
eT
aie |

’

‘
‘qe

*
5

9,

oy hae ee 4 ‘4 re
“: Unpublished Story“
‘By Former Editor. ish dn
’ Recalls Execution

Pra fy

Sheely ‘Reappears’

floor,

and the \ was dead.
he

‘Tim d with {t.cama.,”
if B ° Time -passed an ; eae
hall, a neighbor, “went to ats | many stories of the unrest of D

Ze] Geely home. He testified ‘later, Se

the door was Open but that

Sheely,
§1— he heard no One stirring; he

His ghost,

a en-// appeared in‘ varioug
Tandview Sub. ° tered the. house and saw Mrs, | county, always preced
@ around a big, fe ely lying on the bed. He called/| sound of 8 trailing rope,
with a unique ..to her, but there was no answer, | Forty years

County history, | and he approached the bed and '! of

tree that David

\jeund her dead. He then spread |

ih Eheely was hanged,-and no other }th

“peplt of historic lore’ has so steng hyroheely was found hiding in the

y @ fancy of generations of Har. Tush near the Cabin, Wag arrested,
rison Countians 4s has Sheely’s The Bag teatieiea uatrate’s court
’ k toh te » he te a at ie had
:- Various other trees haye been. [killed hig wife, he did not kno
‘pointed out as the natural Zallows fit.

{ mM which

2 Sheely was hanged. d in Harrison Circuit Court, |; e woman, af
rbut this big old oak some hundred /&Nd on Sept, 14, 1847, the be |, Many murder cases have been
yo yards trom the Oddville Pike was Jury.‘returned an {nd

ictme |
fone Bamed by most of.the old jagainst him for murder, ntlia
ay who should haye known. °

located on land purchased According to ;
he oper-Oxley Fe that

d in Harrison County since that}, :

September term Sheely | | of . But so deeply imbued in:
. heirs by the Grandview Co,, Inc., | Was tried before Judge R “¥¢ 4

Richard A. @ minds of the citizens ig the
prnposed of Herbert Moore, J’ uckner Jr, He entered a plea of; thought that e man may have died
Taylor and EN. Me. jot. guilty ‘but the verdict read, | ‘pn the gallows for a crime’ which, \/
of Cynthiana’ and James |.“We the jury, find the Prisoner at! he -did not commit—convicted on
Lexington, . . the bar to be guilty of willful mur. | ;¢ireumstantial evidence — that on
- if ~~ Pp peeantiy re Ey a, as charged in the written in. | be rT aoe Pe on has the death
cor recently —brough: Q | ment,” and was gi ntence been mposed and there
al hy Miss Jennie Moore, who n reac.

® Silas H, Sparks, foreman,
ergy oe | was an employee of. the athe Nancy's murder was the subject

» show that ase |

ot

of discussion far a

! the trial. No witnesses were known |
‘{ who had seen the killing; all the
to } evidence was circumstantial,
Eliza Johnson, a 12-year-old girl,
lived at the|-

sits} son, according
“'< SS the data h

, tended

oe J4 that when eg was

eee

and choke her
of the late Gug)|'®.the floor and heard him

i hea i| would see her heart’
|x), This is the way Mr, Allen wrote || Morning. The girl bec
the Sheely story: ty

Sheely Story °° >

and left after Sheel
ks of Beaver Creek

ened to kill her ig

on
night. and his host was

he

nt Methodist
43 celebrated
stands a tall
f native stone, Blackened
bears this inscription; :
y Memory of Nancy Ann, } in,
‘Daughter: of , & Nancy Maynor,

: } Born June 1, 1819; Murdered June
easton #1, 6, 1847," ye

F<

a

testified to markg oO ’
about the victim's neck a
and a bruise on the elbow and hip, |).

wounds, ‘the physician |
sald,
selves

indentations on: the left ’side of
the throat gave

ics)" Woven into that inscription ts a
‘ : » but one stil]

of the people
! of Harrison-County even after the:
)dapse of over a century, and the
“' name of David Sheely, who was
’*.4 the husband of Nancy Maynor, is

old but Perhaps

f
asm and finger which was sufficient of |) P4
"4 Mot to this generation. ' ltself to produce death of the indi- |: (3

vidual by stopping respiration,”

Sika Stay Is Granted ‘

ely e

Ly ee ee bin hanged on- Oct, 30, 1847, but two

Pe .on Beaver “Creek,  ( e| ¢

~ “so VB") chimney of. the ald house stood |:
t 11 25 years ago.) . }

and inj}.

modest |
she worked for neighbors |

Pleasant |
was a. ja.)
marriage they)

ta

J
i
°
=
B
2

3
a

ae

On’a hill near
from what is
ge pe te } Oa'the a f the hanging a halt
y . |. On the day o @ hanging a half-
mn at Harrison ee en holiday wag declared and curious
ytdt/’ June 6, 1947 pa Sheely and a Persons thronged the country side
£48 number ‘of friends went to fish in
Beaver Creek, He did not come
home for supper and Nancy went
(to bed,» About 3 o'clock in the!
‘| morning . the fishing party ‘re.

''} turned ta the Sheely home ‘and|
,.* (the men had been drinking. They |
‘\!. erashed in the door and threat-

: ig eg apne
‘+, » .. @Fos@ and cooked the 8 ey
© sgh This she retused ta

See es

-.

gazed at Se sea

—~+.

} Mh ;
’ vie Fi WE vis
V3 : Pi Y ee: Ae

~
nt ae PV Meet aban aie tady

Sa aver,
salen #
- , a ae RCTS AP Pal 54 abt Rgearen)
i * SUF EF OTe OTE Teh ey 2 ei calniaabts

Reminder Of1847 Hangi


David, white, hanged at

Cynthiana, Kentucky, on November 19, XMM 1617...

OTHER CHRONICLES

BY"

MRS: L.. BOYD

CINCINNATI
ROBERT CLARKE & CO
1894

Pot

wi


CHAPTER VII.

DAVID SHEELY AND '.5 GHOST.

Should Cynthiana be respectubie without a ghost?
A very grewsome one has walked here since 1847.

Any one who wishes can see <« papers, yellow and
time stained, that sent David So ely into eternity.

First tied with a neat black
tape is this paper:

Commonwealth aey

v8.
David Sheely. J. of Record.
Next:
Commonwealth
v8. | ntarder. es
David Sheely.
A true bill.

J. D. Toomas, Foreman.
Filed 14th Sept., 1847.

"1847, Sept. Venire swn. Ver-

dict and sentence of death
passed to be executed 30th Oct.
Oct. 28th respited till Nov. 19th,
1847, on which day he was exe-
cuted.

David Sheely was innocent of the crime of which he

was charged, and died a victim of circumstantial evi-

dence Tt usypened in thia wise : Davi was « kon

hearted:-man sand would have-béen 4 good*éf*izen

ad iittnmot« been for his love of , bin, would

whiskey,

often get very die Uo ittleo sc ated, a hiveh so that

when he was sober he could never re

pember what he

did while he was it; his cupe. .
One night he aud some—of_lis boon companions

(122)

DAVID SHEELY AND H{8 GHOST..

ter among them whom all would have shunned in a
sober state, but, being drunk, they and he were jolly
fellows together. It was a moonlight night in the

pleasant month of June, thirteenth day of the month »
in the year of our Lord eighteen hundred and forty- :
seven. David Sheely never forgot that date. They —

fished until two o’clock in the morning. David
Sheely then said, “Go with me to my house and my
wife, Nancy, shall get up and prepare and cook these
fishes and will have early breakfast.” They all took a

128 |

i
a

got. on a “big spree,” as Kentuckians call it, and See =
went fishing. There was one very desperate charac-

big dram apiece and repaired to Sheely’s house. . $

They were in a very uproarious state and banged on
the door and clamored to be admitted to Nancy
Sheely’s room. Nancy was the mildest of women,
but she was a little refractory that morning and re-

fused to get up and draw the fishes, and positively de- .

clared that she would not have breakfast until day-
light. The door was finally forced open and the
maudlin crowd entered Mrs. Sheely’s bed chamber.

“They threatened to kill her +f she did not rise, but

she seemed perfectly calm and collected, and re-
mained on her couch and looked at the reeling figures
about her and. said never another word. David
Sheely lay down on the bed beside his wife, and soon
he and his companions were fast asleep,.some on the
floor of Mrs. Sheely’s bed-room and some on the
grass out in the yard.

The next morning David Sheely awoke and saw
his wife lying dead beside him, and he fled the house.
Suspicion was fastened upon him. He was found,
arrested, and brought before justices of the peace.

vy % Mi
retard :

a ‘ : a .
$e: _ k
pate eae wiki nan @ MIE. BY

dase ea

* F f
Ging aie Wi ey ht eR
per ae et cag LF Des
A i? ball rari canal he nasi libel eon

ey

pas PT AES eae Cana oe OU EE Ve NEN? Sk SO eae


oi a acinian aeenendiotc anmnnumtnnmnitnm

Cincinnati Enquirer Dec 21, 1901

Special-Danville KY Atonement for the murder of Policeman

John T Crum came today wxkk when Reuben Quinn met his death on the scaffold.
The execution was quick and orderly and very successful. The victim's

neck was broken by the fall, and without a struggle or a quiver he passed to
his final Judgement.

Sheriff George Coulter accompanied by a number of deputies and policeman ???
the cell this morning at 7:45 AM and read the death warrant. Quinn listened

in silence. and at the conclusion of the reading was akked if he had anything
to say.

"Nothing" he responded, except that I am rady to die

He then:said his last farewell to the prisoners in jail by whom he had been
surrounded during his incarceration, and accompanied by the little bank of
executioners made his exit and entered the inclosure(sic) where the scaffold
was erected.

remaining two paragraphs too faint to read. No date of the incident was given.


§ i ji! > 4B : iy ! , il | | ’
HTH fe tatelt foatte i i
shia} + iy tre
AL ! Tie hi a
sfosid tie ETE | lee : fi HE

Lae

i

| cad a Ae Ei Metre : %
See: 2d alt aes Af

in, Magee
GO AER pee arte

‘

pean ~ a

; rele gts ab
fein and 6c wut rejque=nt (be gen.

“yeaads

mis

@ .
[ ee ‘ pel é Ra Nh
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4 :
.
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is \
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hi

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black, hanged Danvill
ANG
trenton

4 Ne Ea
ec SR BoE e uN.

aba be
a

ae |

cone | Beuibos Getan Paid

a TE i LIM 14 Ti
He

Cincinns
to gte

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if Hi nH ‘ ait
1 nat ij bik : Hash

|
|
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“<g tT TYTT TT 5 tena e 0 Pg
- : 4 4 f ‘ a f iF aks eat f. +8 wn i ae

UINN, Reuben,

Peal

‘as
wy

Bae Sieh dpi, sash, “0 oor AER cee

ft
VY
Te)


P oPQ)we LOO], ve RABDL DAVES Wd eige re rew ur
ville, and wwe;

FTN aneklivasor Vib Gobepe AP TES Gedte Vie he viaves 1

advised that he js to be th
@ pot
Y, [ates incase neg ee | meme" | Severn arb «gore tee | Ek
> |t . | peeae 808: lene wi tema ei rg s rawn taut by a powerful engine j into th Nenana
ia him instead . pony until] it wee 120 feet abo 8 Xess, @
th oe be wh of the railroad company aa | Omen. | 7% | of the water, Th above the surface | 0 aeipley aid +
a whole. Every represent Council mi . e raising of the cable Mr. Ripley did no
Anas. the smallest up. to tire snare wit a agg Rag yg rage While it was gu: | MR et his
NGS.-| cee n| tt be » e.jn the river at that | Asked
ee pac fond nt of his Gepartment | ing of th wee | Bock a20 fect After being drawa | Poze the negro
Bees we monthly Teports to James | dey nigh ge] on the William nebung side, the cable was or weverel week
meee | eran ae ) ae é “a : e, the cable was Tr several
mi ew change in Burlington me seme shy put in clamps and firmly fastened to the thé month of ba
1 | Will be made in order the (gl | Deetive anchorage of masonry find his hb ~~
H | will correspond wai the eee eee ee ae ——__——_-> gal Tit hea beet
aclymen | n the Great Northern road. Council ; . . night. Attorney f
: thet the AN 9 the adminsior
QUINN HANG | toall, Cc . es punaaharae:
Ly ay Sache RD. | in which a ome Jones A,
VL Cm) eee fI-Sh and the MURDERED ATDAN VILLE WHILE | ‘
aie . “ahkO : ‘ SERV On cross - e-
EXEC UTED FOR THE MURDER OF | crease ABRANT. Neal asked Jc
POLICEMAN the . omen: 6 pes being if he
‘ prem Attempte nitemttary. Hie
mmefomeme $300 valr ger ns no . ig a Ne- | but that Ht was:
EE OT perjury or fatwe
retest map amem aes (ESS G90) [siezs
2 rh Thirty Years. Lh | a CS ed Jones and cory
eae. deductin gaid abo ,
cent. edi Danvilte Ky April 1 and poout em
: ' " pri} 11. —{Spe- tor
eat: Ky,, Deo, - 0.—[@pecia!.J— taxes. } clal.]—Last night about 9:30 peti goer in
ing , to Quinn paid the pena'ty by hang. | The le John Crum, a member of the olusion of he
4 ‘to-day for the murder on the 10th | The ley) police force of  Danvill ; O'Neal, for the
of fast A me ile, was | ed that |
pril of John 7. Crum, who | Which shot and killed . at, ne Re
ik ain a eieanta , who Ms In a negro dive while | of armne
te r of the Danville police The a: attempting to serve a warrant on Rube cn gig aa i
the'tus “Gent. D execution was without tnol- | Oepartm Quinn, proprietor of the place. Quinn | of his Sient.:
mat sinateggat bear in seven minutes, | those of has left town and nothing has been
ine as yon naib } engaged for seme the tabé pcg of him since the shooting oc- Judg
9 lake us to the day on which Crum levy for P : vied .
any had empted to arrest him m the sale of ny arties in charge of Sheriff Coulter |. ge 'W. it,
a it had | auors 1 Police. . and Chief of Pol had ‘been siiti
s in violation of the ‘local option | E'"*. ; th olice Hehm are scouring
- | law. Crum, who b a, | Fe eee Babee arent (ote i oF Wie ke oe eae
cocaak ie . ad been very active | Reoonst: sa No definite news has yet been re- was then cal’
er e suppression of this species of epee 5 nalble | ceived in regard to bi Commonwealt
nts, and | @Wieasnesa, o of,| Bewer o a a whereabouts, :
io day came ta n the afternoon of that | Public c 1e di | SNhough many remorse Sate ‘been, cles 1 wx With the #
m9 Berge to the office of City Judge Mc- General elega- culated. Gov. Beckham has offered a Frankfort the
for th and procured # capias warrant Bin ing ate (te SE Be he his arrest. to the shootin
pie aah arrest of Quinn. That night | House ¢ rankly Crum swore out a wartant yesterday nvained duriny
po ae fe and 10 o'clock he entered Parks. in une er ae Rpiniepodement fate, ie mie gr
ouse. Quinn was er’s place about 9 o'clock. ' n the guberr -
peor drinks to four ees ee and pina ie cally | heard soon after soe ian servos an epee
’ "l 13]
geting Be a Xriendly way that iia ee thes os annelignt ran ous Ae moureminetrs
cs s treat,” Crum probably at- val frealy | eacaped. Two or three persons were In mtory told by
wee to serve the warrant, the while lowing @ thet the place when Crum entered, but left day aa tu t)
ee previously lett the two Alone ree lotting immediately to avold being witnesas re bing =
er e room, as they wished to avold Street’ 4. Em- in @ liquor case, as they supposed the pradiey ing
3 being summoned as wi eet t place was being raided pt neta
Y epetch, | Court. A tneases in Police | , INS | it segrp g raided for that purpose, | The ori
bon, | : few moments after they left Bowe ; and it 18 pretty well established that the day, wht
vet afford | @ lights were extinguished in Quinn's teeals yee to) Quinn and Crum were the only men waa in the m
, General | eons and persons in the neighborhood | Rubin tate ay" left in the room. oe
the opm- nih 7 reports of a pistot and the Beatie: Pid 3 People who heard the shots fired went Datlding. M
‘ke thule 0 Fanolared of g struggie. At the trial a Bchools | Jojat at once and Crum was found | men were &
, _ ored man testified that at thie func- | Zinkine 1 ten I tisha om thé fuer dead. An examina ito the omg
i, at t re some one, presumably Quinn, ran Parks 6 ome ppreplam. eat iwo gett ANE poco ¥
of other rom the house and disappeared in the : student ect. A knife was in the dead man’s dom _ e.
wrdinance, | CSTkBees. About 10 o’cloek tw Totals spread | hand, but it seems to have been unuse ged
b two paseers- ett nd 4 | ep it
5 passage , by were arrested by the odor eo burnt ‘ Bron a the man was otherwise unarmed | never recat”
i powder and entered : - | exoept for a heavy cane. ernor aside.
.0 4, thome | the floor, the building. On Crum h eaid to b
Ts, Boas oor, face downward, lay Officer 7 as aroused much prejudice oa
Boand, {| Crum. Furth A against himself by ht .
| rther examination satisfied te ae y hia activity In raid- |g damnable
«|. | the men that te was Goad. At the Cos that t Ine Ha eEropable that the ahox ee eet &
at, Zz ae inquest it wee revealed that two two cei MGHT. the result of an effort nie tua paot at he. wou c
ae oe hed taken effect, one having ment, } Say eee to square Np t differences. a bie to
eek 0 through ¢he beart and the other | teamir ‘ai Rail. | Ch™UD we v Pengabiry this morning that | formed the
: ean rough the right side, =, har . val Baile | into ¢he di while following students | short dists
é ii: “eee. retonsi agg | 1 Gatton Pi gh cae pahad without foun- | Goebel end
; ‘we a
pe oo Virst Yor Thirty Years, mere, indignant that it gained SISO, ae raion
1 ge bigeeabag repair! any etudent found in or near sucb pla d
compen The is places | bring Chat
Praag red hanging of Quian‘ts the Grat legat | "8 mu OMe gang expelled from the college | ton 9 Sit,
. |e | execution to ocour Is Boyte ‘onferent not alowed to return. The citisens i}
the etm. | more than county in | The rs ee] of Danville thie afternoon subscri me =
iets thirty years, The laat victim | duced , Mrcials of | $1,200 for the benefit of og bed | a few min
qon- | of the gallows was Tor Guthrie, whe | rat Jersey at | the murdered man. He the fasnily oF | ofp inve
infaiie tow was hung in 1872 for the murder and] 4, te a the wage | Leet old and left a ile and ten om- hove {pot
ig robbery of an ok} man pene Shelby was Chin them did : , js nothin
eat an!’ City. “ = No om] and will be hermed °
satiation ites alt tie en Quinn's slater, took | eckect, re neem
py ha of the bosy. sane ‘srnenn, ee! | E Beye
aa a Oy nents ss ft . .
wrrr.y. tk TA, greate+, pi pra —— Tre Oo
ag nn En mine ae wee eene mee cso _ | tnquired


792 63 SOUTHWESTERN REPORTER. (Ky.

to re-
ft. In doing so/he procured Thomas
lease Parker the covenants of the title

bond to hip’ by inducing jim to accept the
deed w he tendere#him. There Is no
prinel of law or ty cited by the cou

or in my opi
: ins
the right/n the action aga

Yo ssion of the land to

uld only be doxfe by show-
hasty the fraud,

was done. The mer
ve known the’terms of the con-
vy ave ‘a Sweet does not im-

e contract does not —_ —
wledge that if/was ob-
show he had kno Fg Ben toa

ade Thom-
of Parker to
a deed of gen-
If the title fail-
covenants in Sweet's
The effort of Sweet
this action is
pons As Thomas neither participated in the
fraud, nor hafnotice of it when he accepted
hould be canceled. 1 Bigelow,

arty who exercised the un
fluence, or against yee halo t
he deed with participa
or eke fraud.” Kerr, Frayd & M. 339, says:
“If the person by who fraudulent —
resentation a transagtfon has been induced
not himself a to the transaction, the
as good, and cannot be re
e other party to the transac-
tion has been party or privy to the fraud.
The pgrty defrauded must seek redress in an
actipfé in the case at law for damages against
party of whose fraud he complains. If,
or Instance, a man has been inducgd by the
lalse representations of & third y to deal
with anather, he cannot have Me transaction

tion has not been party ,
representation.” Layéon, Cont. § 236, says:
must have been made
the contract, or by his

ers.”
195, it appeared
the husband the
her property
get aside the deed, saying:
of some fraud practiced b

did in the premises.”s In the case of Lee ¥,

aughn, 1 Bibb, 235, the fa
bw the rule announced Applicable to this
case; the court saying:
ticed a fraud on the

were such to

That Gullian prac-
pellant seems to be

: Vaughn not

ost abundantly ven; but,

nanos been proyén to have participated in
it, he cannot affected by it.” Morrison
y. Clay, Harg@fin, 421, announces & rule * ac
‘ authorities from w, we
“3s ight be
ing the conclusiod that I have
t time forbidg/further elabora-

omas’ property to com-
e loss he sustained by

ee

QUINN v. COMMONWEHALTH.!
Appeals of Kentucky. June 22,
(Court of Appe ashing

UCTION
LAW—CONTINUANCE—INSTR
Ca AUTHORIZED BY EVIDENCE—EVI-
DENCE AS TO rans 7 sad
rial court did not abuse its discre
in iota a continuance asked oF ihe pre
ublic excite a D
peg he E- accused, though ihe —_ ——<
fter the o x
pe PRs Fy penalty was inflicted, - we
affidavit than that of accused being
support of the motion for continuance. ae
5 The court did not err in brig A 7 a
struction presenting an pegothente whic
ce to suppor’
ig acon having By : Le eating ——
while attempting, in the disc & mo
liceman, to arrest defendant,
of thieate br defendant that he would de
be killed before he would go to the wor

—— pay oe a in violation of law, sold beet

of
f deceased, it was the duty
ee cone him, though having no war
rant.

Appeal from circuit court, Boyle county.

“Not to be officially reported.

Reuben Quinn was convicted of the offense
of murder, and he appeals. Affirmed.

le, and G
B. E. McKay, A. OC. Van Wink

CO. Bagby, for appellant. HR. J. Breckinridge
for the Commonwealth.

WHITE, J. Appellant was indicted, ~
and convicted in the Boyle circuit cou! pod
the crime of willful murder Beat, 9h “s
ment was fixed by the jury at Seg

als.
“PThe killing occurred April 10, 1901, —
lant was arrested 13th, the indictmen

called fa
returned 15th, and the case was
trial April 17th. On the calling of the ca#

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

not be held responsible for what the husband

Ky) QUINN y. COMMONWEALTH. 792°

for trial, appellant filed his own affidavit,
and asked a continuance. In this affidavit
for a continuance the only ground set out is
that there existed in Boyle county much ex-
citement and feeling over the killing, and by
reason of this feeling there existed such
prejudice against appellant that he would
be unable to obtain a fair trial. There was
no witness absent, nor was it stated that
any were desired. Subsequent to the filing
of this affidavit, a second affidavit was filed
by appellant, which disclosed that he had
been unable to obtain the affidavit of any
person in support of his first affidavit, be-
cause of the prejudice against him. The
court overruled the motion for continuance,
and a trial was had resulting in a convic-
tion as stated. On the trial appellant was
sworn as a witness in his own behalf, and
his version of the killing is as follows: Ap-
pellant was engaged {in business in a small
house of three rooms, one behind another, of
a@ total length of 25 feet. In the northwest
corner of the rear room was an Ice box,
wherein appellant kept beer and whisky,
which he sold in violation of the prohibition
law. What other articles appellant kept for
sale, if any, is not disclosed. On the night
of April 10, 1901, appellant closed up his
house at about 9 o’clock at night, and started
home. On the way he met four young men,
and at their request he returned with them
to sell them beer. The appellant and these
four went in, a lamp was lighted, and all
five went to the rear room, and appellant
opened the ice box, and gave out four bot-
tles of beer. While the men were drinking
the beer In the room, the deceased, John T.
Crum, who was a policeman of Danville,
came Into the room, and remarked, “It is
my trent,” and put down a silver dollar on
the shelf where the lamp stood. The four
men went out, taking the beer with them.
After they went out, Crum went to the box,
and tried to open it, and appellant took hold
of the hasp by which it was locked, and re-
fused to permit Crum to look into the box.
According to appellant, they had a scuffle
there at the box; Crum trying to look In-
side, and he trying to prevent him. Appel-
lant finally succeeded in locking the box
with a spring padlock. When appellant had
mcceeded in locking the ice-box lid, deceas-
ed took hold of him, and said, “Come, and
so with me.” Appellant admits that he
knew that Crum was a police officer, and un-
derstood by the expression used that he was
being arrested by Crum, Appellant went or
suffered himself to be pulled along some
three or four steps, when appellant said:
“All right; I will go when I get my house
locked up.” Crum said: “Never mind the
ise. Come on with me.” Appellant re
plied, “I won’t go until I fasten up my
house,” and he again said he would not go
until he blew out the light. In reply Crum
mid: “Never mind the light. Come on with

the appellant, got to about the mide of the’
middle room, with the light In the rear room,
According to appellant, when about the center
of the middle room, he discovered that Crum
had a knife in his hand, and, raising his
hand, Crum said: “Come with me. If you
don’t, I’ll burt you.” Appellant replied, “?
can’t come until I fasten up my house.”
Crum then pulled appellant on, and again
sald, “If you don’t come on, I'll hurt you.”
Appellant still refused to go until he closed
his house and resisted the efforts to pull
him along. According to appellant, Crum
then threw him around, and cut him in the
arm with the knife. Appellant then grabbed
the hand with the knife in it, and, holding
it firmly, took out his own pistol, and shot
Crum twice, and Crum fell, and appellant
Tan away, and was captured at Ludlow, Ky.
It was shown that Crum was shot twice.
One ball passed through his body from be-
hind, entering his left side, and coming out
on the right side; the other ball entered the
left breast. When Crum was found, he was
lying on his face, in the doot between the
rooms, dead, and had a half open knife in
his hand, and had in his pocket a capias pro
fine for appellant. It was shown by two of
the men who were in the room when Crum
came in that he said to them that they would
have to be at police court next morning.
It was admitted by appellant that he had be-
fore that been arrested, and convicted of
selling spirituous Hquors, and had been in
the workhouse of the city. It was shown
that a short time before the killing ap-
pellant had said: “I don’t propose to go
there [workhouse] again. I will elther kill
or be killed before I will serve another sen-
tence, for they just mistreat me, and they
don't give me enough to eat, and I am not g0-
ing there any more.” To another person ap-
pellant said: “No, sir, Iam not; and they
had better let me alone, or I will fix them.”
This was in response to a statement that ap-
pellant was not then in the workhouse. It
was also proven that after appellant's ar-
rest he stated: “Yes, I wouldn't have killed
him [Crum] if he hadn’t broke in on me.
He had no right to break in on me.” To an-
other he said: “We got into a scuffle, and,
before he [Crum] knew what I was doing,
I drew my pistol, and shot him in the
breast.” This is substantially the testimony
at the trial. The only witness who under-
takes to tell the immediate circumstances of
the killing is appellant himself, and to cor-
roborate himself he exhibited his overcoat
and arm, showing that they had been cut.

The court gave to the jury four instruc-
tions, and refused to give two asked for by
appellant, viz.: “No. 1. Gentlemen of the
jury, an arrest by a peace officer of a person
is made by taking the person into actual cus-
tody. If you believe from the evidence in
this case beyond a reasonable doubt that
John T, Crum was a police officer of the city

we” In this way the two men, Crum and

of Danville, Boyle county, Ky.; that the de

"yoeTq “uoqieg— RNIN

{

*TO6T ‘oz aequeoeq ‘kyonquey ‘eTryAueq pesuey “Qty


_) his case to
~ « On Optober 8
' from: the

ai: ; y seid today't that Ambassad4

»

~ 22

‘

} ] ; 4 ae
i td
| ai 4

~~

THE COURIER- JOURNAL,

‘ i '
LOUISVILLE, coe

HF

Bi ircham

Al 10-Day

Ccahineod from First Page |
could‘ order another stay pending
the high
-linget had no: idea. how long’ it

~ might take the court to h
ree its sey on, oe
will the second time
Bircham's attdrney’s have taken
1951, on hfs appeal
Kentucky Court of
‘Appeals decision upholding’ His
ce, thé Supreme Court re-
fu to take: any action in the
case; “for want of jurisdiction.”

2 TGd

Roy Shelbourne refused at
Leu

le té take any action in

: -)) the case. He heard no testimony.

Then ZolfAger took his puc-

! Es cessful plea to the Court of A’

» peals. It was the second time

SPS + had got the’ dase before the/ A=

j i  pellate Couft during» the day:
Request Ta Denied

\~ The first: time came yesterday
=" morning «aftér Mrs. Tenneyson,
widow of the patrolman Bircham
was* convictéd of killing,

She, said $he* had
bearing on-the case that she was
willing to give. Wetherby declined
‘to hear the’statement, telling her
the: place’ tor. her to go was to

d his cocounsel Le.
; wling Green, then
asked the eaur of Appeals for a

court.

alingee
Jand Logar,

cotrkt’s decision: Zol-

pte Supreme Court..

Yesterday. afternoon Federal’

ioe con="
‘ferred witht Governor Wetherby.
: information ©

Given
Reprieve

new trial on the ground of new
evidence. That was denied.
Until the phone call. from
Judge Cammack, prison officials
proceeded with plans to electro-
cute Bircham. e
The Rev. !L. J. Knoth, prison

chaplain, talked with Bircham’

yesterday afternoon.
Covered 5 Pages

On January 5, Bircham wrote
what he termed a confession and
handed it to the prison chaplain
on one of the latter's visits to

_ Death Row. The “confession” had
been written with a pencil and
covered. five’ pages. Yesterday
Bircham repeated’ what he had
written in the confession, the
prison chaplain said.

However, Bircham did not re-
veal any facts about the running
gun battle with Tennyson and
another policeman, John A. Ross,
that were not brought out in/his
trial in: Jefferson: Circuit Court,
according to the chaplain. |

Bircham did state, the chaplain
said, thd@t: “If I did kill Tenny-
son, I did it’ by accident.”

The chaplain said he asked
Bircham: about. an anonymous
letter received recently by Ken-
tucky and Tennessee newspapers
inquiring if an innocent man
was serving time in a Tennessee

prison: for a crime Bircham: had°

committed. The» chaplain said
Bircham denied any knowledge
of such a case.

a J ames Robinson Executed _
_ For Killing Shouse Child

“Continged from First Page

spared from the electric} ehair

*. and ‘protepsed his. -faith jn the

™ Lard:

“But iti { have to die”. the
-ministes ‘quoted. Robinson as

_+ saying, ‘Iwill die with my nent
tull of Jefus Christ.”

. Declared Sane

Efforts sto get a reprieve tor
: Robinson ‘ended after two psy-
“> -chiatrists early yesterday declared
him sane gfter'an examination.

-Robinsan's body was tdken to™

Bs “By Kuttawa, Ky, funeral; home)

si After embalming, it will be taken

omg “tq the® prison morgue where it
will remain for three day$ unless
claimed. iif. unclaimed, ate body

will be buried in potter’s field at
the prison.

Robinson® was at liberty 5%
months after killing the Shouse
child. He was arrested by the
Federal Bureau of Investigation
in Providence, R. I.

. Talked Willingly at Trial

He talked willingly at his-trial,
stating that after he killed Joyce
Joan he “had no. feeling: that I
had harmed: anybody.”
~ He told how he talked the lit-
tle girl into leaving the tavern,
where her. mother, Mrs, Florine
“Shouse, “was drinking © with“a
companion. Mrs. Shouse testified

she had visited-several bars with |

the child. -

os ga bie

Bridge es Urges.

A ae Rec all

“4 Washidgton, Jan. 17-(A
ator Bridges of New Ha
the Sengte. Republican

Sohn
pshire,.
leader, d

Robinson, a mechanic, said he
visited his mother at’ Irwin, Pa;
t after the*crime, then went to De-
troit and» New York: before set-
ling down. in Providence under
an »assumed* name. He*;
father of three children. living:
with his estranged wife at Irwin:

in 1911. Since: thene149% persons,
‘all men; Haves been: el

G eae

2 oe

“there

Churchill Says. Brits

Advises U. S. |
Not To Give Up
‘Atomic Weapons

Continued from First Page

said, smiling. “British democ-
racy approves the principle of
movable party heads and un-
waggable national tails. It is
due to the working of these im-
portant forces that I have the
honor to be addressing. you at
this moment.

“You have been resolute, mem-
bers of the Congress, confront-_
ing Chinese: Comm aggres-
ee: . We take our stand at your
side.’

Praises U. 8. Stand in Korea:

This drew applause ahd
Churchill added that’ he was
“very glad” that ‘“‘you do not
allow the Chinese anti-Commu-.
nists.on Formosa to be. invaded
and massacred from the main-
land.”

Should’ the truce both coun-:
tries seek be made but broken,
“our response will be. prompt,
resolute; and effective.”

The stand against aggression
in Korea “has produced conse-.
quences far beyond Korea, con-
sequences which may well affect
the destiny of mankind.”

“The vast process of American —

rearmament in which the British
Commonwealth and Empire and
the growing power of the united
Europe will play their part to the
utmost. of their strength—this
process has already altered the.
balance of the world.

Hopes To Avert War

“And it may well, if we all pre-
serve steadfastly and loyally to-
gether, avert. the danger of a
third» world: war, or the horror
of defeat and subjugation should:
one come upon us.’

Turning ‘to
Churchill said:

“It would not be helpful to the
common:cause ...if an effective
truce in Korea leads only to a
transference of Communist ag-

southeast. Asia,

' gression to these other fields. Our=.

problems will not be solved un-
less they are daily reviewed and
acted upon—as a whole.”

-. Of the: Middle East, he: said
that if: the Jews “are to enjoy.

peace and prosperity, they must ~

Strive to renew» and preserve
their® friendly» relations -with:-the-
Arab world,” * ©

Since Britain has laid’ aside her :

responsibility for India, she. no
longer has-the same power in the
Middle East, he said: ;

“It is no longer for us alone to
bear the: whole ae of main="

proach to Egypt,

at:

A GOOD TIME was hs
a reception given last

Anderson House in Wa
’ At the left is his daught

taining the freedom of the
mous waterway. of the §S
Canal. That has become an
ternational, rather than a natiq
responsibility:

Says Canal Policy Urgent

“T° welcome’ the statesma
conception of a four-power

in which B

ain, the “United States, Fra

‘and Turkey may share in

protection of the world inte
involved, among which Eg
own interests are paramd
Such a policy is urgent.”

In the wide disorders of

‘Middle-East lurk: dangers no

great than those stemmed by
United States in Korea. he
clared.

The Prime Minister then s
‘of Europe where lie ‘the gre
of all our.problems and dang

Cites Progress Toward Un

“Real and rapid progre
being» made towards Euro
unity. As a forerunner of UI
Europe, there is) the Eur
army which could: never act

‘is the]

Kentucky established the elec- |’
tric Chair at the. Eddyville prison }

Mrs. Coonan ‘Loved _


8: bahamas
Thorsday sicbrdase Ree. Mr.
Mf were alome am the yar

usidteed the Cr rds Geri

Te MreAL yah, Hote the suray-ofat

Mich

j higerly oppaset to

3 é i 4 s ? daring €b iotyreal @f eas P. a7 Wes ots ’ Mee s Fo ‘
gach arcloding them from the country;: *84/" heard, ani the : ’ ere rreatcy Bia. sie ae
4m Sut Mos is wer st Lee Sty ey Na jing

3

Soe es ' F fet: ie. pbling a t
bie De the Progressive Bere aitte thee rege a yetlict of murte

Mp fing b posite ground, and in’ fa-: : at decree.
"Yor of cultivating friendly relations pg 2 o
Pouch futeizners. The ee emperor. fell- in Sa mey of September, 1858. /¢ fe ¥ h- Oob, “Gacuen,

fevotion” with the Exclusives, ef) Govertor Of Miyats

sty d months is

he act eat

thopter: BY his ty
give tpi the > taata
pints, ant roce iter ve
{Sill weoter to thet
. ee) : ; .. | atlemients, enaLtey —s
adily onwards with the a-; fold... ‘Saturday, jat 12} o'clock, every} hier We drew his pigtol win DP was mot more | Tee itoacoyiths
peet bebind a froo-box, and retkeated to Afr. tis itselt, rats :
fiynasty. Tien te, the heal of. the rev- -¢1'59n Was launche) into eternity.’ The Biggest Stepasath aa'scoqul shot wer Bred. bs | govchate! dealt ike
Olptionary moveme at, is 23 yearsoft,and . } [tis now ‘thought Mc? Hall will re: ho in i
isthus describes) Mec: & _delibeted to frien ls@ndburiel on ihe day cosor > ¢ Mase oe uae Me A
Ws i Z eae ee Tea ie hay oe pine asure AG ebbeti
hile: fIsiegriveess eeeaeeee sit karim i tuhlpwing. Ls ee u ; a A ieee rit e -
Phe sass tnicasing with tbbse around h menly to. A speech ma-leby the tin forthnate nad | is faflowiy Vtescription Ot a free
wpe KIvS thea orders Elie complexion is that of fromh the dcuftuld Las beet @stcnsively Goh W bs saat ers Wikia) by

Etouaute atherh Cuinese-taceuleon tint: His mie: : et es i ee a SP) a
profbrticas PHN ie Kaze sens to firehe.the depths of tho _publishe| and created’ dauliia in the one of the cyestinésses (qervgl-Pre~ |
" : f : , diag i ey ;

0% than by tivcet sbictation

? Spit Page "
tSsathlur. shed dein
‘

CS paale ubier exes athe

7F

Orasters Atests
Woe are deacs 43
CLLRS (O° Uae pre at

BED Sw) He comm: rather by saygos- ! * hase eee aro ae:
Tia Gord lee da some persons: as kG ithe justice thisingthat thore W415 bucon@ alan strick,*-

¢ apni genetetad his seriteace. | The followins is the ia ANSWET (GOO “Tisetrqgatary as CY MROTS Seren Ale ats
WEN yi { speech: 2, oy (a i he was, the fates replies: : , shal bi BA OO
my thstappriraties: 4 fecknn rg was fidur tow. saloon 6a lticte ‘

bur. Jesasther war yawin 5
: rust irons Sclay Larce hose
piceng montce. y this tharsevpep dcirpfion | rockin die wos Meseen

b

tock Jal scree

China, 1s follows? : :
i Thelins te cints yo steal befare thoi, sales

boy has ¥ the Jailer, Sf) Seithoan, | > teen Spe me :
ing earh Hay i “ radf ths Cu 4, for RIM ane) a Weeile witer bla ooh ; :
SBE Say vipa! hate) eyes pect flooring chap enough, wus ot yt
ore ins vee tué her, 2nd seme en Gs A ie ee aie Ney eee r PS | «i oie
abs als amy Koi towee aasunjaets amit | when hs Ent torieat utr pinee, res hey
Ailbyot wilful marlerchity alhoagh itispa this 3 free Rete hey Lehto Ga \
anjist debt, 1 pes it willingly. Tews cinvictrd « Welk sa; itine-ettay” diutehie 4
by por trod witnestes, (tro tere asked puerat 7 i % : . Z : 4 2
Strekemithe hel bbiter + ihigas bat he ps ae Cray hye a Sen RP a for a,
did harjand ths begs were Pate Magiiner tconng aie Loe He hala tm re” geet
me.) Unfortatiately 1 con ne tier rial ave write Ro ONE & APG pees i: tes %
ite conn: PEA rould, Danight poriaps, adlrew you better | fut Qk. Sap PsGil soe lebonert ti im |
msob ths! {Inthe following wehive an anusing Uhive mule acouf-geion ty ony Shae Pella eee he tray Berg dich tym \ ss
asef ths) © “dye so F * owno has writtca ig bow, ? Hat Conve Vast ul pewatcy fes tin Fe thig'n fret “
aes ~ eksmpleof the military racties of the ovedingeitiias Lwanted it, in every particalar | 4 ty ay, +R eioe id I aN: f “pie i
OF sctioola. Chinese: ; Phave mentione} nhiats in it, aot from i you Bik: t + BBLS Sat 2, BE Sie Se Sb tee ot a
ber i i : eye ewpearn uh of trgely forgive gl imy? ee Pumittehin his toss, atl Put ng dix} 29 ENE GRR OS
Bree IT hitien thou iand © im dorialials {ibe SRW Toe aren it : net uh r
hatkIs the bo 4 \ SES ¥ pet hope te Ul Jorziye ms, a so with lerovec the back Tech oHt He eK 4
8 : against the rebols nearthe town Piped TWeutren Chat sane filmy frients twicre Gy tte . 4 r * Alva
Mud, Write Sthe rebels defended hos dees fesbhy, Govbruor fer <pity, Watoutres tzhvbas int ar then henidys 4, - os .
{acim drs tated fron ane portion to airdthiver. forepee ot Mr brethsy Pere ainsuetes fal < ¥ R : 3
ter power Vad Piste ®. veial board, and tas oe ayy Pn that inte vfrenee forleuk Meo Biber Tris p TSG Tt herbed Scot gS fost
abogr, tu printers sore ah tat be desist, thes sub tonts formes Miare Dany ptrhans dttiet prepared i re t ' $F" ; Ree z $
theotay the (iad Chentedvis ti aa anbaveide. ene tela die bow then Lobo dd be toro tend te he A HLANReas fel des Mh Tat ac y
iter, poles {44 bimbod juazis, aol ittrckad iter dud Ps rely aiatot gaulty of wiht etinipder the NEw Oo ane Pa oe a 53 . :
laciag the z y Ewarmhig toaibyurien is fie : Mt : Pe ow ;
Pe ioone” 4 : ro cna Y bit taken fie MINS TE ia EET Fo then ROY
Odpmotive i ave inn the ere Phe MRA as Ot Re Pwithe boli aay wig
: ule. ‘ Dedaett tireeh ese tet voatsaldey, Ke
Bad wid yi t drag te tae dems? Sia ths wallet tile puintin eta ygrosad, ual» . ro :
Piadesign.- visors, Site b bial the thick wallastaf ct of betwen be ha PAL pis Farce Z 1% - .
structing, smore by hisomeagre mast how that he trenrdéthe Prices itn dings ta steikhe whh tye r ee ci
fegthe ceva. this reat. oth thit ead he borrows ty can inavitdelunes At that rim et @eied atidck | wae
of thy’ ft athe ancicut histoty of the kingdoa of Ti. th ran with his hos, ele vanng tig mi: and Bay et
aaing aut % sifatazem wbich reininds one of thes rojan Gris discthiugedothe coatoat $e titee thy ' ‘ “shies?
> lorse, ga tof samsony toxoss Mle got tpethet gyigh. fT bibiaeated to hed killed pe, ate 1 \ na
mM eugin:, ; . ’ eee) i. : vinitrng t. Mee Wes fen bie esc oo, H
four taoasan t bad them, to widse long horus he fahonld "not hava atined there, Me friends. F pei r ; SEATS. at
twag naked | WEE Marches fstenol: phe trove wis thet witem /tragt s rom iy abh dischacay your pospeuticg tos ON Mie ee'e Of oie tate frogs Nr ey s .
dawte cant bid peda nae ty hte a shat he ties in this lite, and way. Gad ble 46 you all, heane Pei the wy dahon AGP hati ,
pe oY srepare. ‘ west p. pefe- : ; ‘4
is, ‘Whe toy. ot eaten nizht se Pheveteréaaih Lise! Jtis proper th ald to this: sratemeut CP eiie Wuientd ea tine 1

'

ournal, or antierpated that each biffaloy thus transformeds) thd facts as they Were: presented to the. he St Bale RIDE ett ae on lS ad
Can: elfeet! inte a rigay.cuinror, would commit -terriblé pe Eee ee a | { i x ehoucle abet eliet-arceratce SPs : 8
Skilled ar-(Fyvagar, kill all tagmga it could got at, ated sot ‘jury. TVhe Newport Aadstengor ceiver oO vou ete tG pata ds) Dae ty
isciplined ‘fire to tiaeimp, At first he horved bit dions haiin'e followed ; boW Walerin he AV ert wtivel uss bs .
her: mae i-wiet With ne obstacles, the insurgents, dely Ads ts ie Hy : uke : i Fingy and may by ofettutas asa? at hex Be Si
lrawsto dhs :Strticed of this spiondid ratagem, sudereit | ag prerPt Wit Cav th= 7 der n* dau, : ; ie

1. thom quictly.ts adeande. © Kat bsforathe impe- 1 14). the peeumtor dvacarmad witha rite tetas | Post : ee lied '
engith nat: Ps eta . A ay i fee 2 A Battin stale:
wigatiun, Zitlists. reached the: aamp, the enemy, who ob» piel where (ard an Lothers wery at work hocing : ‘ we ees oe
= " i 7 t v } an ¥ bese r 7 ow x + e ? or
served all their morkinents hy favor of the pointo-«;that hgctan acd aa al: eg aati i i s7The ha shistisec atc BPBCtAL

MCE ENS si lendid ilaminstiongifel: wm pow them ugexpes. aypang tan by tite mains ef G-rawfort, a t
a. Thirty 4 ftedly, 4a they Lad mt a done before, aad the } log, ant threst nalts kill bia Fines iim th Mrtotme Sanwicis the new Cspecl

sin Many vgame scenes of carnage were rqanewc,” }teen minutes, that hfirwarda hd: asked themdecs

bandit: Panhins Mow

* occurred | rere * 3 pe a Heowed what he tadtsaid about his wife, and 5
ins some With: this extract we shall Conclute eee awnced a quirbel swith hic, and prepared to {2 " Sian tere abont forts year el fb Dis SE hal
éntiauel pur article, after, Ruoting A significant | attick him, whea Girt reed his hue, and the | pascal: Hehag ee ere
woleruil s oT pibondi tire! lag cpin soot ag him th tha thigh, POsSessiy Mote than ordinary bility: oes eke a

“Passage fraui a short proclamation which {6 \4.iag tis death tive minut

: : i
a ig fr  jengd when he loft Fone ©) attack Crawford, ant | . ;
of a large Tien -te’s agents have Jately circulate: i Sind svi auythiog. (4 hinw bie Bhrough, for; MHD wi whe ieisren

HOW Beal} and,
ee ithe “Asti those atapidl priests of Bor thay andes je tad Laid at uy He -bisn sometine, that he geld) UNfertunata the ory \ his abort the pea
om Hunts ost Jaslene af Tages ah ay 9, Medes SMI oth tite ant dan zhter of deowaved and. athiors | lie treasury! Yoins a public conse, wine = eGanen A?
bet SN represeed, and wt tamnples aad thee: moa {that he had done if. and would d@ itagain? that H . cy =
WOet iy thie tnererion shall be dempfished, ds well as thoy of | peg id inten deLit for tout moatha, ead courage

ca. thit he tieat: amiable and Aaa 10 4 it prpalir yoy,

every One WEP iS nota Roose: yet optus let st
y iY t

popelationsult tke pelo mie phd made brit do Qi Ta whenever he fias an opportiulty, wold) a

per cont, Dr. Yvan anxi uusly speculates:as to, fie) 60 fears old; rhertsad 85, mage a _Hety brelaeae pub Mot Vacant Tous

5 Pee pwho ore desienated by (: wonls other | eine eee barits tha er tit of the peo- Beis | ¢r aps he may, Hn ppite Oh so serait ws ig

hte goat S2PTUpL sects. Was the proclamation: plp of Campbefl county that ‘compar: iafrnity, ees hey. rele downs if the
Hinmilfon County: Nominations, is ese i “i

hat shies “drawa up by-a dittiple of Confucius; or, atively few wo

je f a ” cy ie Sa

Prepetty IY s member of Untalaff’s Chinese U-  tidi, :
i rish € athol

tive niOn! He a tmits that for the preseheit is! ?

srukent ; at ii:
* pier al gs the eXery The Whig Gonvenuqn of Hianubtus souety,
bite 4 Ohfo, met. lieG Saturday, and <w¢ininated 12>

tena peheean 00 tt { following ti t fs al
For Senatets--Vellamy Starery J pes

qs Turning Protostan’ et
pexirnets are from Itish |) Ross aes Jaci Jo Donnie, o>

iw Ding Wha Rah fas


Fisoners in the event of an srmi-

“On whom does the cessation >f
pstilities. depend—on us?” .He
ked. “Not at all. On those who
ut up unreasonable demands.”

He concluded that the “unrea-
nable demands presented by
e American Command can give

'Visinsky quoted Van Fleet as
ying he was “satisfied”

id the critical state of the civil-
n population.
at quotation was a distor-

on of.a remark Van Fleet made
an interview Sunday in com-
nting on the prolonged armis-
e talks. Van Fleet said the
pDmmunists were finding the war
“terrible drain” and needed,
d wanted, an armistice.

“Tam satisfied,” Van Fleet
dei, “that the northern part of
orea is so badly destroyed that
e Reds lack. food, clothing, and
elter, and the population is in
very critical condition.”

Van Fleet was using the word

atisfied” .in the sense of con-
nced and not fulfilment ofa
sire,

The!!Russian word Vishinsky
ed for “satisfied” was “udovlet-
ren,” which means satisfied in
e BE oe of pleased.

lishaps Killed

ewer In 1951

Fatal accidents in*the Louis-
le area during 1951 decreased
compared to 1950, the Louis-
le Safety Council reported yes-
d
T
nt
The Louisville area includes. all |
gisticrsons County. .and = two
diana counties, Floyd and Clark.
raffic fatalities rose from 110
m@ 113, and occupational fatalities
D 13 to’ 18: Other public
alifies anti home fatalities
mopped from 152 tn 1060 to 137
year.

re 268 deaths by acci-
r, as compared to 275

ruance Confirmed by Senate .

m Washington, Jan. 17 (#)—The
nate today confirmed the nomi4
tion of Admiral Raymond A.
ruance as ambassa@pr to the
Lilippines, The .appfoval was
animous, Spruance, now re-

ill ‘succeed Myron Cowen
the’ states post.

| Lé arey, Acquitted
| Of Seeking Bribe

Associated Presse Wirephotc {

SS TO CONGRESS |

> h r a successful-+conclu- |:
pn” truce talks. i
U ord Distorted :

with |
ar destruction in North Korea |.

bias a]
tT

af

¥

y

aS

J ite? &
> abt 4

EARL D. BIRCHAM sane L ROBINSON

S layer of Policeman.

Is Spared for 10 Days’

Condemned Man Drops to His Knees
When Told of Appellate Court’s Action

Earl D. Bircham early last night was granted a 10-day
' reprieve! from death in the electric chair at Eddyville State
Penitentiary. The electrocution had been set for shortly

slo oun

after last midnight.

The Court of Appeals at Frank-
fort gave the stay of execution
to the convicted killer of a Louis-
ville policeman, John Tennyson.

Special Session Called

The Court of Appeals was called
into special session to hear~ the
Bircham. appeal. It heard’ argu-
ments in the case for nearly an.
; hour and then deliberated almost
that long before it reachediits de- ,
cision “at) 6:30 p.m! The" ‘decision ~
follows:

“The - petitioner's application
for ‘an order restraining. Jess
Buchanan, warden of the State’
Penitentiary at: Eddyville; for a

It was a mistake’
Bircham's,. execution,
who captured him
Page 2 interview,

to stay
the man
says in a

period of 10 days from executing
Earl D. Bircham is sustained. This
action’ is taken for the: purpose
of allowing Earl D. Bircham to
apply to the United States Su-
preme Court for a writ of cer-
tiorari.”’

In laymen’s pt the de-

ide-

ring fr phere
the case before ae U. S. Supreme
Court.

Defense attorneys based their
argument for the stay of erecu-
tion on’ their contention. that
Bircham was denied’ the orderly
processes of law on two counts:

“1. Perjured: testimony. was ad-
tn

U.S. Attorney,

Shreveport, La, Jan. 17 (AY —
After deliberating .7 hours, a Fed-
eral Court jury: tonight acquitted
suspended United States Attorney
Harvey L. Carey on charges that
he asked for a $60, 000 pubes Lo
a Texas-‘oilmans ©,

“Assista

mitted durjng the trial at which
he was given;the death sentence.

2. Failure ‘of the indictment
against him to be ryote in
open court. j

Telephones Deputy : ‘Warden

Immediately after the court had,
reached its decision, Chief Justice
James W. Cammack reached Ed-
dyville’g, deputy warden. Walter
_ Stephens by telephoné to tell him

of thé: stay of execution” Ste-
‘Phens said Way ii was ill in

a hospkal. vernor Wetherby
confirmed thane action ‘in a call to

oe Bota

¥, wetssitt director of
the Division of Correttions of the
Department of Welfare, who has
been acting’ as warden. during
Buchanan's illness, went to Death
Row and read the coxrt order to
Birchami in his. prisan: cell.

The condemned: man dropped.

to his ‘knees and thanked EGOd,
Dr: Watson said. Gok

‘Where There's Life. ee

Then Bircham added:

“Oh,, God, where! there's life;
there’s hope.” °

With; Watson shen he went to
Birches ce s.cell. were. Ss Stephens: and .

5 aise pict

Browning:said Bircham had on
a clean white. shirt: and white
pants. The convicted killer. told
Browning he*had .just taken a
bath and “if I was going to meet
my Maker, I wanted to be clean.”

Depressed by: Blue Denim

Prison. officials ‘explained
Bircham had been FN to
have “the white shirt and* pants
because. the © traditionai
denim prison unifor
him.

blue-
depressed ;

Reporters were fortiddento in--

terview Bircham, |

Robert» Zollinger, Loulsville:
one of-Bircham’s attprneys, said
as. soon as the petition is’ filed

with the Su invent, rt'in Wash-.

ington, the Supre ourt’s clerk
ly back page thi nection:

- ronounce U

Dead at 12:12

i
James f:! “Shorty” Robinson |
was executed in theielectric chair

~ at Eddyvillé State Penitentiary

early today’ for the murder of
3-year-old Joyce Joah Shouse.

He was pronounced dead at
12:12 a.m. jafter receiving four
2,300-volt charges of electricity. |
The first was administered at
12:06 and the second 5 seconds
later. -

Then the prison physician, Dr.
M. H. Moseley, examined him
and ordered two more -charges.
They were given quickly.

Robinson; was led from _ his
prison cell at 3 minutes after
midnight. Flanked by prison
guards, he walked to the execu- |
tion chamber—a short distance

. away. His head was down. He

was well-groomed, but there

were no laces in his shoes.
Has Nothing To Say

After he ‘was strapped in the
electric chair, the prison chap-
lain, the Rev... J: Knoth, asked
him if he had anything to say.
Robinson replied, “No, not a
thing.”

“Nothing?” Mr. Knoth = asked.

“No, not: a thing,” Robinson
repeated.

Once when a guard readjusted
one of the ‘chair’s straps, Robin-
s mumbled, “Didn’t: you ‘get
that tight?”

Chaplain:Says Prayer

' .

The chaplain said a prayer as
a hood was placed over Robin-
son’s head! and the first charge
of electricity was ordered. given.

Two witnesses at the execution
were. Sgt. Bert Hawkins: of the
Louisville police and John O.
Morton, deputy. United®= States -
marshal from Louisville.

The 32-year-old Louisville man“

was convicted of killing little
Joyce’ Joan after he lured: her
from a bar on East Market Street
in Louisville where her. mother

was drinking. That was the t
of July 7, 1950:-Her-body--was:
found days later under a. truck
loading platform near the bar,

Desth Mandate Read :

At 7 p.ra. yesterday the Court
of Appeal$ death mandate was
real to Robinson Tess his~ death
ce

But prison. officials said that
Robinson Gung to hope he would
be spared. }

Robinsor| refused the customary
“last meal”? of fried chicken, bis-
tuits, vegetables. and’ dessert.
Prison ant goad Said it was the
first. time;zin the ;

ey General John prisoner™

fused food} water the scheduled
hour-of execution.

They said he ate sparingly: at
bitin role and had no food since
then. j

Reporters Not Allowed In

Reporters were refused permis- —
sion to interview him. Mr. Knoth,
who talked with him. yesterday /
afternoon, | psaid Robinson denied °
he raped | and killed’ the litle
Shouse girl:

None of Robinson's relatives .
appeared 4t the Penitentiary dur-
ing the day. Besides the chaplain,
the only réon who talked with
the man iwas the Rev. O.: H:
Davenport, ‘pastor of Holiness
Church sade Ky..

Mr. Davenport’ said Robinson
still. held) hope’ he would be

Column 1 back, pasey this cnthlen =! ee

SF DLT Rig me? ae


JANUARY 18, 1952

J. Knoth, ‘asked
ad anything: to‘


764 KENTUCKY REPORTS [Vol. 288.
were filed in support of this ground (d), counsel for ap-
pellant impresses only two. Frank and Emma Satter-
field, apparently mother and father of accused, in affi-
davit say that on February 13, 1941, while visiting with
a neighbor and one James Murphy, detective, was pres-

ent, all discussing the charge against accused, the detec-
tive said:

“Tf you had given up your child to me, I guarantee
he would have come back to you. I would not have
gotten a penny out of the case if I had arrested
him.’’

We are totally unable to see wherein this testimony, if
had on a new trial, would throw probative light on the
question of guilt or imnocence. It oceurs to us that it
would only have accentuated the proof of the common-
wealth to the effect that accused was evading arrest
after the homicide.

Halleck’s affidavit is to the effect that on the night
in question he was near 10th and Chestnut and saw a
man he did not know grab Satterfield and pull him
through a gate into the yard. The parties fell to the
ground fighting, and while they were holding each other
he saw a colored woman step back from where they were
fighting. He said he was not present at the trial, and al-
thoueh he had known Satterfield for fifteen years, and
was a school mate, he said nothing about his observa-
tions previous to the trial.

Edward Green filed his affidavit which was in effect
the same at Halleck’s except that he did not know either
party. These affidavits were cumulative, since three
other witnesses had testified to the same facts. Xx either
appellant nor counsel manifest in their affidavits Au
show of diligence in procuring this proof prior to 1e
trial. It is merely stated that they had endeavored to
procure all favorable testimony before the trial les
begun. We fail to see wherein the newly sme -
evidence, if produced on a new trial, would have had a
decisive inffluence on the Jury or in persuading a jury
to reach a verdict other than the one retnmed. W il-
liams v. Com., 276 Ky. 754, 120 S. W. (2d) 221, and
cases cited.

Counsel contends that under all the facts and cir-
cumstances the court should not have instructed on the

nmin ae

+ tea

Kohn v. Reeves, Com’r of Rev 765

law in respect to murder, but should have confined the
instructions as to guilt of accused based on the law re-
lating to voluntary manslaughter, since under the facts
and circumstances shown the taking of Bell’s life oc-
curred in a sudden affray. We fail to see how the trial
judge could have, as a matter of law, thus limited the

gravity of the offense, or have omitted the giving of the
usual murder instruction.

If appellant’s version was true he was acting~ in
self-defense. If the facts and circumstances developed
by the prosecution were true there was not only motive
but a strong inference that accused was lying in wait for
Bell, with a weapon for the accomplishment of his pur-
pose. The proof on many matters, some perhaps more or
less material was conflicting, but it is essentially the
province of the jury and not this court, to measure,
weigh and reconcile, if possible, such conflicts.

We have given the entire record careful scrutiny,
and so we fail to find anything complained of or other-
wise which would justify us in coneluding that the court
did not afford appellant a fair and impartial trial, or
that the verdict was not supported by the evidence

Judgment affirmed.

The whole Court sitting. :

Kohn et al. v. Reeves, Com’r of Revenue, et al.
Novy. 7, 1941.

Appeal from Franklin Cireuit Court.
Wm. B. Ardery, Judge.

4. Intoxicating Liquors.—The Commissioner of Revenue and attor-

ney representing the commonwealth had authority to maintain

and prosecute suit to collect unpaid tax on spirituous liquors held
by wholesale liquor dealers.

2. Appeal and Error.—Where trial court did not rule on motion for

discharge of attachment until final judgment when the attach-
ment was sustained, and the entire judgment was before the re-
viewing court, the appeal should be prosecuted in the same man-
ner as is provided for other appeals.

Appeal and Error.—Where oral evidence heard by the court was
not made a part of the record, the reviewing court, on appeal,
could not consider the evidence.

9s 2
‘sam %:
4

sams
ra? Est reer, eT o
, Sea ae: .
ig

anal and Store. bate N.R.A.

OOR

om.

COU

¥
+

ana He

Balked By Lift
Policeman Fails In|
Dash From Chi-

tt

{
i

a

In Fall-Page Advertisements

|

ks Like Recovery to Us, Is Reply to Publish-

-f

iph
shight mean “No Recovery Allowed”—
and a department store—it says the
}rogramme “looks like Tecovery to
us"—today. discussed the national re-
covery policies in full page newspaper
acivertisements.
Mr. Heart’s recent comment on the
‘Dlighting effect of the N.R.A. policy”
aero this question from Blooming-
e's:
’“Now, honestly, Mr. Hearst, don’t
you think that at a» critical time like
this we should all pull together?
_ And siso this:
'“Prankly, Mr. Hearst, Biooming-
dal's doesn’t like that statement, nor
do we like the tenor of your edi-
torials discrediting the N.R.A.”
The store's support of Se N.R.A.
was voiced in full page advertise-
ments in several papers, including the
American, a Hearst publication. The|
Hearst organization also had two of
the publisher's recent statements on
the N.R.A. reprinted in a full page
advertisement in one newspaper.
“Willam Randolph Hearst,” the
beading of the Hearst advertisement
said, “who was one of the first to
enroll his papers and magazines in
the N.R.A., and operates them atrictly
according to its provisions, neverthe-
lpss has come to the conclusion that)
the N.R.A., in the militant manner in
which {it is conducted, ls a menace
dnd a hinurance to recovery.”
| “Mr, Hearst. we disagree with you.”
said the store's advertisement. Wasn't
it just a week ago that we heard the

stmply a programme
ie nething és;
brief period of freedom
levator in the Crimi-
franticalls at-
decend. | After
inutes he opened the door
with his hands uplifted

}
'

Ani editorial, which follewea the)!
lettet by two gag ge whrh int
was f in @ pdvertisement, |,
aaid.. o Business ls now definitety on!)
the ‘beck track notwithstanding the
undeniably beneficial results of the
sumptuary legislation, the farm relief
programme and the immense possi-|
bilities Jatent in the inoperative unm- .
employment programme." ir
“In fact, the bitghting effect of the|,
NRA, policy has been #0 com plete |
that © justifiable toterpretation of|.
the letters NRA would mate them!
read appropriately, ‘no recovery pee
lowed,"
The editorial after quoting authori. |
{lea am conditions in England. sald. |
“There te no sorialelie revotution in|
Bngland, no Gictateremip . 80)

NRA |
ine

g break which threw the
building: into turmoil occurred after
Beheck had| been ararigned on 8 rob-
. Baliff Edward Wing
him from the courtroom
elevator tbat connects

{
t

e an alarm, and while
guards were gathering at elevator en-
trances on |the various floors gcheck
to set the mechanism in

‘gpheck’s gurrender Chief
Bailiff James Z. Gabriel suspended
Wing on a|charge of negligence. ,

ad attempted to escape
twice befare. The first time he
wounded (policeman at the detective
bureau. few weeks ago he killed
Policeman | John Sevick in Bp dash
from a criminal court room. He was
captured and sentenced to death for

land ta still the Rome of free: |
domi ef thought. freedom of speech |
eedan of gubdlication end freedam.
of gction. . . . Perhaps after ell
the : principles of Weahington and)
Jefformon and Lineoln are superior to|
the fanciful theortes of Mars and |
Stetn ”

BAD BILL WATERS DIES
NM EDDYVILLE CHAIR

dinoe July, has steadily increased over

Nithe murder. Last Saturday aad President of te United get jae
| convicted also of killing a cash-|', . . . in the short space of a lew
T\ fer in the voloer’ for which he was|months. I am convinoed that at baat FOR MENIFEE KILLING:
arrested, | 4,000,000 have been given era ploy ment, (Comtinued trem Vtret Page.)
t|. Scheck’a mother was pecently|¢r saying it another way, 40 per cent) stem
g| acquitted pf a charge of smuggling |qf those seeking work have found it.’ ppirtia, tal asvweored few ques-
f\ to him gun with which hs killed|: “Four million unemployed beck to ome Of newenaper men, saying (hey
s| the policeman. 'work—looks like recovery to us. (riage contained Ubelr last werde om
i a ' “We ourselves ere employing many ‘Deir respective | susse
-}OVERELOW CROWD hore people and ere paying ovt many! SOB men were visited last night Wy
. ! ore thousends of dollars weekly in;Chepiein W & Bailey Deputy we’
-|+ MARKS DEMOCRATS’ ages—looks like recovery to us. iden Ben Wilon wee in rharge a
b ' “Bloomingdal'’s business, each month | *xedutions Wardea Tom Lagan

n

ARMORY RALLY

; a mon Sseti(t J L. Rach Menifee v.

(Continued from Page 7.) rsa agian te me or reer | wae tere to Weters’ oweru-

*|tion becare too strong for these Re- N.R.A. but—looks Like recovery in, | nérirer Watere wes canviwed of
-; Dublicans. ety years ago they made | {0 Us. ‘playing sneritt Rerh said Mean vee
the first ck and it was fepuised.| “We know other gond stores t00;.1.16 onen a yerty af cane
[It was lv a feint. A year jater herge af oimving

hat have shown gains during the
‘ : ‘arremt Watere on ¢
‘| they m ¢ another attack © because fee period-- looks like recovery 19 U8 Craigs Neal ott ite sperit! anid
LIthav thanukeht the nnhite anathy would "It was only a few months age that ya, Watrre

pestner im ihe ngete Lied

ik ag re ray J

MPS vacates, AE MUERTE

4
a

ori
a

with

Waters was led to the chalr fue
He entered the death Chatuer eg
12:03. ~ Noticing Ployd Wills. a Mott
gomery County farmer. among the
Witnesses, he said. “Well, Floyd, w
this the first execution youve ever
Been?" in a bantermg manner Wilis
nodded. The current Wes applied at
12:06 and Waters Was pronounced
dead at 12:09

Scott was serious when he entered
the death chamber at }212 He noa-
ded to the crowd and aid “Good.
bye, boys—everybady " Tro shocus
were required for Scott’ The iret wag
at 12:14, and his Pulse Wag stil) beat.
ing when he was examined The set.
ond wag administered at }2 18 and he
was pronounced dead at 12°22.

City Negre Gete Stay.

Allen ..Gray, Negro, cony
Lou }

igville of slaying his common i
wife, was to have gone to the chair
with the two white men, but wae
granted a reprieve yesterday afternocom
by Gov. Ruby Laffoon who stayed his
execution until November 10. The
Governor said he qtanted the stay to
allow Gray time to file additional
Papers in support of hig plea for
clemency.

Clemency also wag sought for
Waters and Srott but the Governor
failed to intervene In their behalge.

Waters was convicted 19 Montgom-
ery Circuit Court tn December. 19x38,
The conviction was affirmed by the
Court of Appeals Jast April. x

In sentencing Waters. Circuit Court
Judge Henry R. Prewitt of ML
Sterling called on a minister to ame
Plify with a piayer the customary
“and may God have mercy on your
soul.” The case wag tried In Monte
gomery County on a change of venue.
Waters claimed he had been called
“Bad Bill” in his home eg and
that the report was Circulated faleety
that he had killed a Dumber of men,

2 Slain Seeking Waters,

Helton and another deputy sheriff
were slain July 13, 1932, when they
and other Officers,’ seeking to arrest
Waters in the Neal slaying, sure
rounded a house in which wes
living. Waters claimed he did noe
know the men who surrounded , the
house were officers and that he fin,
believing an attempt was rir made
on his jife. Helton wag struc a
charge of buckshot and died aw few
days later in a hospital at Mt. &tere
ling. Besides Stapleton. who wag
killed, Roy Williams, a constable, was
seriously wounded.

Scott w onvicted at the Decem-
ber, 1932, term of Floyd Circuit Court.
His conviction was affirmed by the
Court of Appeals last June. Scott was
alleged to have gone to the home of
Stephens, suspecting that his wife,
with whom he had quarreled, wag
staying with Mr. and Mrs. Stephens
Stephens was shot fatally while
in @ rocking chair with his infans
child in his armas, according to ree
ports of his trial.

Eat Light Meals.

Both Waters and Scott ate the
lightest meals requested by Cone
demned men in recent years. Ag is |
Customary, they were granted thetr
choice of kind and quantity of foed
for their last meals, but Waters |
asked for fried oysters, sweet milk,
biscults and coffee, and Scott sald he

wanted enly fried eggs, milk, biscuits {
and coffee. ;
The condemned men appeared ia ,

(Continued on Page 16.)


nas gis ei ie eLecyn KY s_ (Floyd) -Liems9lO33-- +: ermiep wONK, viVE CENTS.

a

Big SG Ne ae

sm and Overflow Crowd
mocrats ’ Armory Rally

F

ILLER ALSO
EXECUTED

“Menifee Man Forfeits Life
for Slaying Deputy Seek-
ing Him In 2d Killing.

2

| Ishmael Scott, 2d to Die,
Slayer of Martin Stephens;
City Negro Gets Stay.

Eddyville, Ky. Nov. 3. (Friday)
(?)—Willdam Bad Bill’ Waters,
denying to the last that he had killed
ten men during a career of lawless-
ness in the mountains, and Ishmael
Scott, another mountaineer, went to
their deaths in the electric chair at
Western State Penitentiary ai few
minutes after 12 o'clock tliis morning.

Waters was convicted of slaying
Deputy Sheriff Stanley Helton of
Menifee County in a cun battle tn
which Deputy Sheriff Ma:ion Staple-
iton also was Slain. The killings oce
(Curred when a party of officers at-
tempted to arrest Waters on a charge
of slavine Charles Neal, his alleged i
Partner in moonshining activities

Scott was convicted of killing
Martin Stephens in Floyd County.
Before he died early today. Scott de-
.nied that Stephens was holding his
infant child in his arms when he
was shot fatally, as had been ree
ported

Waters denied that he had ten of
more notches on his gun, as was re-
puted, and said he seldom carried a
gun.

ie
co |
m
<=
m
(7)
pa
m
oe)
: fee
=
——ht
(en)
=
m
4
tee Sie nt TIES eal iE Bie

Siisseidhacal

Waters First to Go.

Waters was led to the chair firs,
He entered the death chamber a@
12:08. Noticing Floyd Wills, a Monte
gomery County farmer, among the
witnesses, he said, ‘Well, Floyd,
this the first execution you've ever
i seen?” in a bantering manner. Wills
inodded. The current was applied at
12:06 and Waters was pronounced
dead at 12:09.

Scott was serious when he entered
‘the death chamber at 12:12. He node
ded ta the crowd and said, ““Good-
bye, bovs—-everybody." Twa shocks
were required for Scott. The first was \
at 12°14. and his nulse was still beat-


‘ som teal NER to’ ade

Bot. want. “of. ‘the beverage . he had’ ‘always ‘imbibeds o

and’ confinement i ins morderer’ cy cell, had wasted hie

e: Pease bats ts Islicre that: David Bhésly'e was yan
+ innocent man, and that be was doomed to die for thot
_ crime: another. man ‘had® committed. * Efforts were
“made to procure ‘a longer respite, but in vain. No-
3 . and then the said and afore-»
© said | ‘David Sheely’s time was almost come. A gal-
lows was. erected oh a beaatifal hill north of Cynthi-
‘ana, and the “people began to gather. and ‘to bring

Shani children to see. the awful oe “ hee execu :

-slowly out of prison and climbed in and Bat ‘upon his

ep ie Mek cre
#8 ae OWN coffin: - He was driven at a slow pace through

town in order that he might warn the citizens not

‘to kill their wives.” He seemed less moved by his hard
fate than many ‘around him. When he. stood on

the scaffold, with the fatal necklace: around his neck
‘and his hands tied. he looked about him. From hi
anlage han on the Bah sree he‘could ‘nee, shims
‘ndian, ome we

; “since: bis oe Reiiahesa/
gaze to the hore from wich

long. Then ‘the’ aherift Jeuct
thing to. gay, David} ried. Ae
pagent look. at ths Wh, Shen tusmad hie. eyes to the

*

“stretched his wasted arms.

n i jae David Sheely 3 is in i iy

, It I killed. ancy Sholy¥ don n
SRY hold.
aed ie

ad

) Forty years after David Sheely’ *alife had been take
‘to warn men aot to kill their wives, the ‘desperate ©
: character, before mentioned, but not by: name, lay in
.M——, Kentucky, on his death-bed. ‘He sent for ‘
-notary public and made affidavit that he had killed :
Nancy Sheely, June 13, 1847.0 PS Re
' Bo the said, the aforesaids, thé willfallys, the felo-
niouslya, the malices aforethought, were all wrong, .
‘and David Sheely suffered death an innocent man!
It should be recommended that transcript of. record

fotsoitan case, Piecided Senteahe 14, 1847. ae
~ “A lack-a-day, the temple of justice is somewhat A
like the “ Whited Sepulcher,” fair to look upon with-
Sout, but within, among its moldering records, are to.
be found things worse than.dead men’s bones. es
~ “But David Sheely could not rest in his grave; ; the
“young physicians would not suffer him to do it

_. . They took his body out of ita grave before it had lain |

there twenty- four hours, and dissected the flesh from,
its bones. The physician who owned the, skeleton .%
loaned a thigh boné to one young doctor and the skull. =
to another. | But in time the bones were all collected i
in a box, and placed in a dark cellar, the doctor who. Meg :
wned them having crossed. the same dark river that : j

David Sheely had crossed, over, butsnct, at the same, :

Ys) Eee ‘ 5 cy, bo


| hee knocked? eypcenlien wh
cate ghost was gone. :

éthe arto of a: Spanish cavalier, ©
about its neck ; and began to ps
penutifelerane, mat named i

na way no: ta
mipheared.< ever


Bs

. the 66th;

eer? e : + ea oe : 8 om hi Ee
“ Statement of evidence produced in support of the>
charge again: David Sheely for murder, to wit, Will
jam Smith deposes as follows: sayeth that he was ate ee i le
the house when: murder was. commited and seen the > fe gee fae ete Witness:
; corps, and are of opinion that said Nancy Sheely was Vey et Rs. Ore ee 18th’
_choaked to death, as there was sine: of finguerz on the ; CA ne at person
neck, farthermore this depouent sveth not. . Zedikiah i) 7 #3004 the: “| Mrs. Sheely on the b
Miller made about the same stat «ont. 9 99 bo) 4) sige © if she was asleep this time of day. Mrs. Sheely made
Wee re, oe ee Pe eee ee aia *no answer. Witness went to the bedside ; discovered
PPP te waa 4 ~~. Mrs..Sheely was dead; saw marks of violence on her
Sapa ee is i “neck and face. Witness left immediately and gave
| David Sheely to. - =. § the alarm to the neighbors.” And the neighbors
Hate. fe fo gjhe failed:to.dovm race om ee “were thoroughly slarmed. Every woman in the -
Sh | bs cinta bia Oe aire county knew what she w in| it
i Sheely's place “EC ge ne oe
© Looking over the transcript of record, oe finds

nz °

a RS

" Bt

of eats. about two thousand saide and aforessids; as many!
ara Fey, Eee ar willfullys, feloniouslys, and malices aforethoughts, -
2 i Staats | ~ David Sheelys and Nancy Sheelys, and comes to the
lif to’ ce cia a - gist of the matter and the death sentence. Then the 4
tit : court becomes polite and asks David Sheely why the’
sentence of death should not be pronounced upon-
him. The lawyer talks beautifully for David, but
“~~ David says for himself simply, “If I killed Nancy
~~) Sheely I don’t know it.” {This is said in an audible’
- tone. In‘an ‘undertone’ he adds. had 1 %

i >
ate
¥ 4

te 7H ; nb ‘ | es aa a : * ; io a ss Bek

ve $4 Riss
pst SSL ARS Bing ae ; ; Bf
: ; Piva he F

been executed 80th October, 1847. |
ae Garo tena eet ae sor or Owsley: respited. him until. "
omas B, Woodyard, Clerk of our said © 9 4). 19, 1847.) Juat before the time of his exe-)

have


of 3

iy Lae Ae
* persons in md sround Opa fest that cere hav
; aes °; a ais ty RAG aes

Baargeowehs years rv'and years agu, a. ‘murdered man lay
“dead, and his blood stained the fallen leaves, and
crept into the ground, -and cried to God for vengeance
But the murderer was never found. “This ravine i

_on the Leesburg: pike, Not many miles from Lees- |

burg, i in December, 1847, wae an old farm- house that “f=
~~ had been untenanted. for months. The young ladies ; Ses

“He built the fire, and, iben it was bane brightly, a

4 he: started for home. » On his way, he war Pete:

a iad | cra ie wt bite

fe

"the negro. ‘boy “sad Ther 6 uc a here but:
¢ you and me to-night, The negro took to his heels

Bill, fie ‘fiddler, was: ‘the first. to Gerivetaee the: Pah
serted house after the fire was built. ‘He drew % ‘chair ;

a fier. heah. dia, coll night, ke
frosty. Se 2 dae ngs nie ees

et

“When he. “waa ‘comfortable, he: Tbk: his: ‘peloyedy

Btecatt to Hala a “ dance tune.” “He had not beta th r

engaged long, when he heard, in a room above him,” :
‘a man. walking, dragging something on the floor that )

made a sound like a trailing rope. He’ heard foot--«

* steps descend the stairway. When they came to the
é door, there were three loud raps. Bill said: “Come

in; you not gwine scure me wid youah foolishness.”
In it came, ‘with the trailing rope behind it, ‘and said:
«Nobody here but you and. me: to-night.’ :

i sprang to his feet, put his fiddle hurriedly in its case,
- and plearedy the ant door ata bound, and took hi

The next thing David’s ghost did was derriblel ‘
There was a young man (who shall be. -namelesa


514 = Ky 226 SOUTH WESTERN

One night in December 1943, there was a
party at my house, I don’t remember all

' the people who were there, but I do remem-

ber Wilma and Clint Willis. George Smith
and Anna Thomas and a few others were
there. We all had a few drinks. Shortly
after midnight Louise and George got into
a fight and the rest of the people left be-
cause he started the disturbance. Then
Louise and George both jumped on me, and
George stabbed me in the left arm, and
Louise was hitting me. I was fighting them
with my fist until George got his knife, and
I picked up something and hit Louise with
it on the left side of her chest and she fell.
George and I tried to bring her back but
she-was dead. I was afraid and asked
George what we were going to do with
her, and he said we would do away with
her by burying her. George carried her
down the steps and towards the back. I
left home and didn’t come back for a weck.
I saw a spot in the shed where the ground
was fresh. Day before yesterday the
plumber came to fix a pipe for Mr. Pollock
and they dug up some of the bones in the
shed where she was buried. The police
came and dug up the rest of the bones, and
they questioned me; I didn’t tell them
anything about Louise then. Tonight they
came and arrested me and brought me to
headquarters, where I have made this state-
ment of my own free will and without any
threats or promises, and have read it be-
fore signing and it is true.”

The officers who took appellant in charge
testified that in obtaining the statement
they did not ply appellant with unnecessary
questions; made no threats or used any
violence. They say that after they had
informed appellant that Louise was not in
Detroit, but had been buried in the coal
shed, he volunteered the statement.

There was no effort on the part of the
accused, as far as the transcript shows, to
prove his statements as to the party at the
home in December 1943. On the other
hand the Commonwealth introduced three
of the four witnesses named in the state-
ment, and all testified that they were not
present at the December or any other party.
Smith testified that he was in the Armed
Service in December 1943, and was not in

REPORTER, 2d SERIES

the United States. His testimony makes it
fairly clear. that he was the George Smith
to whom appellant had referred. From
these witnesses, and others who testified
for the Commonwealth, ahd without con-
tradiction, it is to be gathered that appellant
was jealous and had engaged in quarrels
with Louise, and on at least one occasion
had struck or beat her, and more than
once had threatened her life.

[1] We note that the court, in com
pliance with the statute, supra, first heard
the evidence in respect of the confession in
chambers, and we think correctly held that
it was obtained without threats, promise,
duress or the plying of questions, and ap-
pellant did not contradict this testimony.
In fact he did not testify himself and only
offered one witness, who merely gave him a
fair reputation as to peace and quietude.
It is not seriously argued by counsel for ap-
pellant that the confession was drawn from
him by means denounced by the statutes,
nor is it argued that the material state-
ments contained in the confession are un-
true.

[2] The chief argument relates to a de-
lay in taking appellant before an exam:
ining court for a hearing, and that during
the time he was under arrest he was with:
out counsel. It is not shown that either
his arrest or being held in custody inter-
fered with his right to have the benefit
of counsel.

It is said in brief for appellant that in-
stead of taking appellant before a magi
trate, the officers kept him in detective
headquarters from “nine o’clock that morn-
ing until four o’clock that afternoon.” We
assume this has reference to the second
inquiry which led to the confession. We
do not find that the record bears out this
assertion. As we gather it appellant was
first taken into custody on July 23, and on
his statement that Louise was in Detroit
he was released. After learning that she
was not in Detroit he was arrested and
taken into custody the next night; we find
no reference as to the matter of time he
was retained in headquarters during cithef
interview. Nor do we find that he was held
in custody for ten days before being takes
before a magistrate for hearing. Even had

McCOY v. KENTUCKY &' WEST VIRGINIA GAS CO. Ky. 515
Cite as 226 S.W.2d 515

this been shown, the fact would’ not have
vitiated or made inadmissible the statement
made by. appellant. Commonwealth -v.
Mayhew, 297 Ky. 172, 178 S.W.2d 928.

[3] The statement made by appellant
does not disclose what instrument was used
by appellant to strike the blow which took
the life of Louise Young. In the brief it is
stated that appellant struck her with a
chair, and it is contended that the verdict
is contrary to the law and evidence, because
the confession .manifested a homicide of
the degree of voluntary manslaughter or a
taking of life in his defense. Here the plea
was one of not guilty; the contention
would be of some force if it were not for
the fact that appellant’s version of the al-
leged altercation was not borne out, but on
the other hand witnesses, who he says were
present during the beginning, testify that
they were not present,,and Smith says he
was never in the home. The jury was not
required to believe all statements made in
the confession. Simmons v. Com., 207 Ky.
$70, 269 S.W. 732. The jury had the right
in reaching a verdict to consider the. uncon-
tradicted testimony as to threats against the
life of Louise Young, the assaults on her,
andthe * * * evidence of extreme jeal-
ousy, and it may be submitted that the tes-
timony outside and beyond the confession
warranted a verdict of guilty and the
administration. of the severe penalty.

Since the evidence, extrinsic of the con-
fession, was of circumstantial nature, and
the penalty severe, we have looked to the
instructions given the jury, and find that
the court circumspectly gave instructions
covering every possible phase of the homi-
cide, willful murder, voluntary manslaugh-
ter, self-defense, a correct instruction as
to death ensuing from the use of a deadly
weapon, and, of course, the reasonable
doubt instruction. We observe also that
his rulings on testimony to which objections
were interposed were fair and correct. On
these latter points no comments are made
in brief,

(4] After careful consideration of the
whole case we fail to find prejudicial error,
or any which would justify us in decreeing
& reversal of the judgment.

Judgment affirmed.

William GS JORDAN et al., Movants, v. Wil-
liam J. MERTEN, etc., et al., Opposed.

Court of Appeals of Kentucky.
Jan. 20, 1950.

. Rehearing Denied Feb. 24, 1950.

Motion for an appeal from the Jefferson
Circuit Court, Common Pleas Branch, Third
Division. Judgment on verdict for op-
posed in action to recover $525.00.

S. J. Stallings, Louisville, David Martin,

‘Franklin, Charles B. Zirkle, Louisville,

for movants.
Robert J. Speckman, Louisville, H. Bemis
Lawrence, Louisville, opposed.: :

PER CURIAM.
Appeal denied. Judgment affirmed., -

a 312 Ky. 57.
McCOY et al. v. KENTUCKY & WEST
VIRGINIA GAS CO. et al.

’

xt Court of Appeals of Kentucky.
Jan. 24, 1950.

The Kentucky & West Virginia Gas Com-
pany filed an interpleader petition to deter-
mine the right to rents and royalties pay-
able under an oil and gas lease as between
adverse claimants, wherein W. R. McCoy
and others, and Mousie McCoy and others
filed cross-petitions.

The Cireuit Court of Pike County, E. D.
Stephenson, J., adjudged that Mousie’s de-
ceased husband had acquired title to the land
in question by adverse possession and that
title thereto was in their children and the
grantee of one of them who were entitled
therefor to rents and royalties, and W. R.
McCoy and others appealed.

The Court of Appeals, Van Sant, C., held
that oil and gas lease negotiated by adverse
claimant for record owner and recognition by
claimant of lessee’s right to possession under
lease had interrupted the hostility of the
possession of claimant and prevented him
from acquiring title by adverse possessioy


ener ate

a5 apt Rl Si te 9

iin desea

aS psa ado

10 #¥y.

The police were called in and disinterred
more bones, all of which were placed in a
large wooden box and sent to Washington,
D. C., to the F.B.I. Laboratory for identifi-
cation. Anthropologists determined that
they were the bones of two different col-
ored women. The bones were returned in
the same box, but in two separate packages.
Appellant was arrested and charged with
the murder of Louise Young and Lena
Lewis. According to police officers, appel-
jant confessed to “the killing of Louise
Young. There was testimony to the effect
that during the trial of Reed for the mur-
der of Louise Young, only the bones that
had been identified as belonging to Louise
Young reposed in the wooden box in the
courtroom; The other bones had been re-
moved and were placed in another part of
the courthouse. Only the skull of Louise
Young was removed from the box in the
presence of the jury for the purpose of
identifying it as her skull by a'peculiarity
of the teeth. No mention was made to the
‘jury of two skeletons being in the box.
The only testimony to the effect that there
were two skeletons in the box exhibited to
the jury is that of Mr. Tucker, appellant’s
counsel, who stated that at some-time after
the trial, either in late 1949 or early in
1950, he was informed by Detective Ser-
geant Riebel that the bones of both women
had been in the same wooden box in the
courtroom during the trial. Detective Rie-
bel is now dead and Tucker’s recollection
of his conversation is hearsay. Apparently

261 SOUTH WESTERN REPORTER, 2d SERIES

in support of appellant’s contention in its
most favorable light, we find that the evi-
dence failed to establish the fact that the
bones of persons other than those of Louise
Young were exhibited to the jury during
the trial of appellant. Hence, it follows
that the grounds alleged in appellant’s pe-
tition for the issuance of the writ are with-
out merit as they are unsupported by proof
of a convincing character on the hearing of
the writ or by the original trial record,

Assuming, although the evidence is con-
trary, that the two skeletons were in sight
of the jury at the trial, the appellant and
his attorney had the same opportunity as
the jury to observe their presence. If it
be conceded that the presence of the other
victim’s skeleton was vividly enough im-
pressed upon the minds of the jury to ren-
der the trial a denial of justice, then it could
hardly be diligent of Reed’s attorney to fail
to notice the same thing. See Duff v. Com-
monwealth, 296 Ky. 689, 178 S.W.2d 191.
It is to be remembered that the question of
the competency of the evidence introduced
at appellant’s trial was decided adversely to
appellant’s contentions in Reed v. Common-
wealth, 312 Ky. 214, 226 S.W.2d 513.

[4] Although we have not decided this
case on.this point, the circumstances under
which the appellant’s attorney applied for
the writ cause us to doubt that the petition
was made in good faith. As this Court said
in Anderson v. Buchanan, 292 Ky. 810, 168

~... TINSLEY v. COMMON :
Cite as 261 Peat) ecg Ky it

In this case, by attorney Tucker’s own
admission, he had been informed of the al-
leged irregularity approximately three
years before he applied for the writ. Not
until after his informant was dead did he
file the petition. This Court has several
times previously condemned the use of the
writ of coram nobis in this manner. We
think the writ was properly denied.

Judgment affirmed.

TINSLEY vy, COMMONWEALTH.

Court of Appeals of Kentucky.
Nov. 7, 1952.

Rehearing Denied Feb. 6, 1953.
Writ of Certiorari Denied Oct. 12, 1953.
See 74 S.Ct. 22.

ree a salutary result. Cr.Code Prac.
9,

3. Common Law 9

All matters of procedure are sub-
ordinate to the one paramount rule that it

is the duty of the courts to administer
justice.

4. Constitutional Law €=268
Criminal Law €=614(1)

Where trial court, having granted two
continuances which postponed from Oc-
tober 1950 to May 1951, the trial of defend-
ant who alleged that an absent material
witness lived in one of two counties but
spent most of his time in Florida, refused
further continuance and excluded affidavit
concerning what witness would testify to
after receiving affidavits from county court
clerks. and sheriffs to effect that alleged

witness was not listed for taxes and was not
registered as a voter and was not known
such refusal and exclusion was the a.
ercise of a sound judicial discretion and

D. ; .
efendant was convicted in the Circuit did not deprive defendant of due p
rocess.

Court, Shelby County, J. Wirt Turner, J., of
the theft of certain lambs, and he sensed
The Court of Appeals, Combs, J., held that,
under the circumstances, trial court, in dent.
ing defendant third continuance on: ground
of absence of material witness, exercised

Cr.Code Prac. § 189,

5. Larceny €=68(3)

In prosecution for theft of lambs which

S.W.2d 48, 54:

“* * * Due diligence to discover
the grounds before it was too late to be

Mr. Tucker made no effort to ascertain the
truth of Riebel’s assertions by any further
investigation. He never brought up the
question until over three years later and un- available under statutory processes is
tila few days before Recd’s scheduled exe- _. tg be considered. Delay in seeking this
cution. Site extraordinary writ until the execution-".
er is seen approaching is obviously a
suspicious circumstance. It should al- -
ways be made to appear with reasona-
ble certainty that earlier action to se-
cure relief and redress was not reason-
ably possible, or that there is an ex-
treme exigency, before a stay of execu-
tion should be ordered.”

[1-3] It is true that in a petition for a
writ of error coram nobis, the rule exclud-
ing hearsay evidence is not as strict as on
an original trial. But it is also true that
the petitioner must show that although the
record appears proper, the real facts of the
case rendered the original trial tantamount
to no trial. Elliott v. Commonwealth, 292
Ky. 614, 167 S.W.2d 703. Now considering - To the same effect is Bircham v. Com-
the evidence introduced on both hearings monwealth, Ky., 245 S.W.2d 932.

were found in defendant’s possession, it
was for jury to decide whether éidinuk:
ant had satisfactorily explained presump-
tion of guilt raised by such possession, and
defendant's denial of the theft and attempt
to show that the lambs belonged to him
Rule that attorney for Commonwealth did not entitle him to a peremptory instru
shall be compelled, in order to prevent won. Z
continuance, to admit that absent witness
would, if present, testify as alleged in de-
fendant’s affidavit, is not inviolate. Cr
Code Prac. § 189.

sound judicial discretion and did not deprive
defendant of due process of law.

Judgment affirmed.

!. Criminal Law €=600(2)

-—_————

Funk, Chancellor & Marshall, Frankfort
for appellant. :

2 Criminal Law €=594(1) J. D. Buckman, Jt; Atty. Gen., Zeb A
. The object of the Criminal Code pro- Stewart, Asst. Atty. Gen., for sppeiled
vision relating to the granting of-a contin-
peri owed of absence of a witness is to COMBS, Justice.
ae in event of un- The opinion on the first appeal of thi
famine te material witness, and case is reported in 312 Ky. 745, 229 S.W. 2d
n of the rule ordinarily ac- 761, 762. Ona second trial the ea toe

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8 Ark.

to safeguard the young and innocent from
those evil influences which expose them to
the dangers of delinquency. The rule fol-
lowed in the foregoing cases is, in our opin-
ion, entirely consonant with that purpose
and we disagree with one text-writer’s con-
clusion that it represents an extreme posi-

tion?

1. 43 C.S.S.,

261 SOUTH WESTERN REPORTER, 2d SERIES

The defendant argites other assignments
of error, but the issues involved probably
will not arise on a retrial. It should be
noted that the indecent molesting or fondl-
ing of young children is now made a felony
by Act 94 of 1953.

The judgment is reversed and the cause
remanded for a new trial.

Infants, § 13.

os

REED v. COMMONWEALTH a 158 Ky. 9

Cite as 261 S.W.249

REED v. COMMONWEALTH.

Court of Appeals of Kentucky.
Sept. 25, 1953.

Petition for writ. of error coram nobis to
vacate conviction of murder and death sen-
tence. The Circuit Court, Criminal Division,
Jefferson County, L.'R. Curtis, J., rendered
judgment denying the petition, and petitioner
appealed. The Court of Appeals, Waddill,
C., held that the evidence failed to establish
that skeletal remains of any person other
than the woman for whose murder petitioner
was convicted had been exhibited .to. jury
during trial. '

Judgment affirmed.

!. Criminal Law €=997

The rule excluding hearsay evidence is
not applied as strictly on petition for writ
of efror coram nobis as on an original trial.

2. Criminal Law €=997

On petition for writ of error coram no-
bis, petitioner must show’ that, though the
tecord appears proper, the real facts of thé
case rendered original trial tantamount to
no trial.

3. Criminal Law €=997

On petition for writ of error coram
nobis to vacate conviction of murder, evi-
dence failed to establish that skeletal re-
mains of any person other than the woman
for whose murder defendant had been con-
victed had been exhibited to jury during
trial. ;

4. Criminal Law €=997

On petition for writ of error coram no-
bis, diligence to discover grounds of peti-
tion before it was too late for them to be
available under statutory processes is to be
considered and it should be made to appear
with reasonable certainty that earlier ac-
tion to secure relief was not reasonably pos-
Sible or that there is an extreme exigency,

—_—>—_—.

C. Ewbank Tucker, Louisville, for ap-
Pellant.

261 S.W.2d—1%

' J. D. Buckman, Jr., Atty. Gen., A. Scott
Hamilton, Commonwealth Atty., Joseph J.
Hancock, Asst. Commonwealth Atty.,
Louisville, for appellee. :

WADDILL, Commissioner,

William Thomas Reed was convicted of
the murder of Louise Young and the jury
fixed his punishment at death. On appeal,
the judgment of conviction was affirmed.
Reed v. Commonwealth, 312 Ky. 214, 226
S.W.2d 513. A petition for a writ of ha-
beas corpus was filed in the U.°S. District
Court for the Western District of Ken-
tucky by reason of. which the execution,
Originally set .for March 31, 1950, was
Stayed. The writ was denied by the Fed-
eral District Court. The order denying the
writ was affirmed on appeal to the U. S,
Circuit Court of Appeals, 6th Circuit.
Reed v. Buchanan, 6 Cir., 188 F.2d 521,
Thereafter, the Governor of Kentucky set
the execution date for August 21, 1953,

‘On August 11, 1953, Reed filed his peti-
tion for a writ of error coram nobis in the
Jefferson Circuit Court, Criminal Branch,
Second Division. The court: heard: evi-
dence and then dismissed the petition seek-
ing the writ. His appeal is now before us.
A stay of execution was granted by this
Court pending a final disposition of the
case here.

As grounds for a writ of error coram no-
bis, Reed claims that during his trial for
the murder of Louise Young the bones of
two women, those of Louise Young, and
those of Lena Lewis for whose murder
Reed was also under indictment, were all
placed in one large wooden box and that

“the skeletons of both women were exhibit-

ed during the trial on a table in full view of
the jury trying the case.” A review of the
evidence on the original record and the
proof taken in support of the writ fails to
substantiate appellant’s claim.

The incident leading to appellant’s ar-
rest was the accidental discovery of a num-
ber of human bones by some plumbers mak-
ing an excavation at 124 South 11th Street
in Louisville in 1948. Appellant had occu-
pied these premises for a number of years.

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the officers as to their conduct and told
them to remove themselves from the posi-
tion occupied by them and to cease their
laughter; that the defendant thereupon
moved the court to discharge the jury and
declare a mistrial but the court overruled
the motion to which the defendant ex-
cepted. In both the transcript and the
bill of exceptions it is merely stated that
the officers were laughing. There is no
showing that the attention of the jury was
attracted to them or that the conduct com-
plained of was of a nature calculated to in
any wise prejudice or influence the jury
against appellant.

According to the bill of exceptions the
county attorney in closing argument said
in effect that if the jury acquitted appellant
then it would be useless to try a man for
any crime in that county; that appellant’s
good reputation had no bearing on the case
and if he was acquitted it would be use-
less to try a man of good reputation for
any crime; that the jury could not release
appellant without paying more attention to
mob law than to the law and the evidence
under which they were sworn to try the
case. Objection to this argument was over-
ruled and defendant excepted.

[6,7] Generally speaking, the attorney
for the Commonwealth should only argue
the law as given by the court and evidence
admitted on the trial and reasonable de-
ductions to be drawn therefrom. Rowe v.
Commonwealth, 206 Ky. 803, 268 S.W. 571.
However, it has been held that a Common-
wealth’s attorney is given considerable lati-
tude in argument before the jury and may
call attention to and condemn lawlessness
and crime in strong terms and has a right
to insist that the jury try the case accord-
ing to the law and the evidence and that
not to do so has a tendency to encourage
lawlessness. Meredith v. Commonwealth,
148 Ky. 106, 146 S.W. 407; Sturgeon v.
Commonwealth, 102 S.W. 812, 31 Ky.Law
Rep. 536. In Bryant v. Commonwealth,
231 Ky. 152, 21 S.W.2d 231, it was held
that advice of the prosecuting attorney to
a jury to acquit themselves as they swore
they would was not improper. It is quite

128 SOUTH WESTERN REPORTER, 2d SERIBS

manifest that the statements of the county
attorney complained of were not of an
inflammatory nature or calculated to prej-
udice or poison the-minds of the jury.

[8] If any of the matters complained
of were in fact error it is at once apparent
that they were of a trivial consequence
and not prejudicial in their nature and
this court is not authorized to reverse a
judgment for every error but only when
it appears upon a consideration of the rec-
ord as a whole that the substantial rights
of the defendant have been prejudiced
thereby. See Criminal Code of Practice,
§ 340, and cases cited thereunder.

[9] From a careful consideration of the
entire record we are led unerringly to a
conclusion that no error prejudicial to
appellant’s substantial rights is made to
appear therein; however, in closing we
may with propriety say that the only
province of this court is that of review to
determine whether any error prejudicial to
appellant’s substantial rights has been com-
mitted in the court below and not to retry
the case for the purpose of determining
the guilt or innocence of the accused, or
the punishment, if any, that should be in-
flicted. If it were otherwise we might
have determined differently. The fact that
after the controversy arose on the after-
noon before the homicide appellant called
for the assistance of the sheriff and bar-
ricaded himself and his family in his home
from that time until the following after-
noon clearly indicated that he was greatly
in fear of deceased and anticipated that
the latter would do him harm and that
because of this fear he may have beer
precipitate in his attack or relentless in
following it up. The circumstances are
such as to arouse sympathy for appellant
and lead to the conclusion that possibly
the jury was too severe at least in fixing
the punishment, but since there is no re-
versible error found in the record, those
matters cannot be considered by this court
but address themselves to another depart-
ment of the government.

Judgment affirmed.

RICE v. COMMONWEA
128 S.W.24 219 aa a ae

278 Ky. 43
RICE v. COMMONWEALTH.

Court of Appeals of Kentucky,
April 28, 1939.

1. Jury €=63

The placing upon the jury list of 38
names of persons to be summoned instead
of 36 names as specified by statute was not
error, where court personally knew that two
of persons whose names were drawn and
entered on list had died. Ky.St. § 2243.

2. Criminal law €=920

Where plea of guilty in murder prosecu-
tion had been entered pursuant to under-
standing between defendant’s counsel, and
after interrogation of defendant by court
defendant was not entitled to new trial,
after rendition of verdict of death, on
ground that he could do nothing except what
attorneys advised and that advice that he
plead guilty was not intelligently given.

3. Homicide €=307(3)

Where defendant had pleaded guilty to
charge that he had committed murderous
homicide willfully and maliciously, and no
claim was made that homicide was of any
jess degree than deliberate murder, failure
of court to submit instructions on other de-
gtees of homicide was not error.

4. Criminal law €=655(4)

In murder prosecution, where defend-
ant’s attorney on voir dire examination of
jury had asked juror if he could give de-
fendant benefit of doubt and resolve any
éoubt in his favor under proper instruc-
tions, court’S suggestion that juror should be
asked only if he could try case according to
exidence and instructions was neither er-
roneous nor prejudicial.

$. Homicide G=31]

In murder prosecution, instruction that
“fendant’s punishment, if found guilty,
should be fixed at death or imprisonment for
fe was not erroneous because of failure
ef contain expression “in your sound discre-
Gon,” or a similar one, as a guide to jury.

a

Appeal from Circuit Court, Bell County;
James M. Gilbert; Judge.

_Arvil Rice was convicted of murder,
ad he appeals.

Jodgment affirmed.

W. L. Hammond, of Pineville, for ap-
pellant.

Hubert Meredith, Atty. Gen., and W.
tes Keller, Asst. Atty. Gen., for appel-
ee.

THOMAS, Justice.

[1] The grand jury of Bell county in-
dicted appellant and defendant below, Ar-
vil Rice, in which he was accused of mur-
dering one Walter Dorfman by shooting
him with a pistol, from the effects of which
he immediately died. The indictment was
returned on August 4, 1938, and appellant’s
trial was had on November 17 of the same
year. Upon the calling of the case for trial
counsel moved that the regular venire sum-
moned for services at that term of the
court be discharged, on the ground that
in drawing it the court had drawn from
the wheel and put on the jury list 38 names
of persons to be summoned on that jury in-
stead of 36 names as specified in the ap-
plicable statute. Ky.St. § 2243. The mo-
tion was overruled on the ground that in
drawing the names to make up that list
of jurors the names of two persons were
drawn whom the court personally knew
had died since the jury commissioners had
put their names in the wheel, but he never-
theless entered those two names on the jury
list and neglected to erase them. Of
course, neither of them was summoned. It
requires no lengthy elaboration of comment,
or discussion, to conclude that the alleged
error was and is wholly groundless, even
if it should be held that the point pos-
sessed merit if the two names in excess of
that prescribed by the statute were living
persons and qualified for jury service, but
which is extremely doubtful.

Following the disposition of that mo-
tion the case was called for trial and de-
fendant—who was represented by three
attorneys—stood up in open court by the
side of his present briefing counsel and
waived the formalities of an arraignment
and entered a plea of guilty to the indict-
ment, which, of course, charged only in-
excusable and unmitigated murder. But
before the court would permit the entry
of such a plea, he proceeded to interro-
gate defendant and at the same time warn-
ed him of the consequences of such a plea.
The court stenographer took down the
examination of defendant on that occa-
sion, as well as his answers to the ques-
tions of the court, and later transcribed

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494 Ky.

struction on the legal effect of the drunken-
ness should be given. Or, as stated in the
case of Slone v. Commonwealth, 238 Ky.
727, 38 S.W.2d 709, 711, which quoted the
rule as announced in the Blackburn case:
“Voluntary drunkenness is ordinarily no
excuse for crime, but may reduce the of-
fense from a higher to a lower degrce, or
may mitigate the punishment within the
maximum and minimum prescribed by the
Jaw. Therefore, where there are lower de-
grees of the offense contained in the indict-
ment, some of which do not contain the ele-
ment of intent or malicious purpose, then
the fact of defendant’s intoxication should
not be singled out in a separate instruction,
or the jury told in any manner what effect,
if any, it should give to such intoxication,
upon the theory that the jury itself may
consider and weigh such fact and give to it
such effect as it sees proper under the in-
structions submitting to it all degrees of the
charged crime, just as it weighs any other
evidence in the case. But, if there are no
degrees of the offense contained in the in-
dictment, or where there are such degrees,
but in them intent is likewise an clement,
then in such cases the court should instruct
the jury, in substance (if the evidence au-
thorized it), that if defendant was so in-
toxicated that he did not realize what he was
doing, or was incapable of entertaining the
necessary criminal intent, then he should be
acquitted.”

See also Shorter v. Commonwealth, 252
Ky. 472, 67 S.W.2d 695 and Vance v. Com-
monwealth, 254 Ky. 667, 72 S.W.2d 43,
which cite the Blackburn case, and the case
of Morris v. Commonwealth, 255 Ky. 276, 73
S.W.2d 1, which quotes with approval the
excerpts from the opinion rendered in the
Blackburn case set forth in the opinion in
the Slone case.

[5] Here, to paraphrase the summation
in the Blackburn case, the appellant was
indicted for the crime of murder and his
defense was that he was too drunk to enter-
tain an intent to kill, or, in fact, to know
what he was doing. The court instructed
the jury on the original charge and also on
the offense of manslaughter, included there-
in, of which previously existing intent was
not a constituent element. The jury was re-
quired to find the appellant guilty of the
lesser offense, if it believed that he had
killed the deceased in sudden heat and pas-
sion and without previous malice. Tur-
thermore, it was instructed to find appellant
guilty of the lesser offense, if it had rea-

144 SOUTIL WESTERN REPORTER, 2d SERIES

sonable doubt as to the degree of the of-
fense which he had committed. These in-
structions included the whole law of the
case. The evidence of drunkenness was per-
missible to show lack of intent and to defeat
a conviction under the first instruction, but
it constituted no defense to the killing of
deceased in sudden affray and without pre-
vious malice.

[6,7] 2. The second ground for revers-
al urged by appellant, namely, that the court
permitted the jury to separate on the night
of the first day of the trial, in violation of
the provisions of section 244, Criminal Cod
of Practice, is wholly without merit for the
reason that the record shows that the jury
was permitted to separate “by agreement of
the parties.” Appellant’s counsel admit th:
agreement, but claim that they had no rig)!
to waive the provisions of the section of tl
code referred to. They suggest that it was
improper for them to have been put to th
alternative of agreeing or objecting to the
separation, since an objection from them
might have prejudiced the jury. Howeve:
there is nothing in the record to show th.’
the court put them to an election, and it 1
the well-settled rule in this state that th:
failure of a defendant to object to the sep:
ration of a jury in a capital case constitut:s
a waiver of his right to have the jurors ke;
together. Heck v. Commonwealth, 163 hs
518, 174 S.W. 19; Wilson v. Common
wealth, 243 Ky. 333, 48 S.W.2d 3.

[8, 9] 3. The fact that negroes weré
excluded from the grand jury which in
dicted the appellant would have been a
ground for quashing the indictment, and if,
upon a showing of the fact, the trial court
had overruled a motion to set aside the in
dictment and tried the appellant, it would
have been this court’s duty to reverse the

1

judgment of conviction. It was so decide!
in the case of Hale v. Commonwealth, 3!
U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050. But
in that case, as well as in all the other deci:
sions of the Supreme Court referred to
therein, it appears that the defendant in the
prosecution moved a setting aside of the 11
dictment, or raised the objection in some
other appropriate manner prior to a trial
thereon.

Section 157, Ky.Criminal Code of Prac-
tice, provides that upon the arraignment, ('
upon the call of the indictment for trial, 1
there be no arraignment, the defendant must
either move to set aside the indictment of
plead thereto. And that section of the code
but emphasizes the universally acccpicd

RICHARDSON vy. COMMONWEALTH Ky. 495
144 S.W.2d 4192

rule, that a defendant may not plead not
guilty to the facts charged in the indictment
and, after taking his chances with the trial
jury, be heard to object to the qualification
or disqualification of certain persons serv-
ing upon the jury or excluded therefrom.
The rule applies “with additional force
where the objection is not to the disqualifi-
cation of jurors who are actually sworn up-
on the panel, but to the exclusion, or excuse,
ef persons from serving on the panel.”
United States v. Gale, 109 U.S. 65, 3 S.Ct.
1, 4, 27 L.Ed. 857. See also Ex parte Wilson,
HH) U.S. 578. Ste 8702-35: L.Ed. 513%
Haggard v. Commonwealth, 79 Ky. 366, 2
Ky.Law Rep. 356; Salyers v. Common-
wealth, 274 Ky. 284, 118 S.W.2d 208; Am.
Jur., vol. 14, sections 265, 266, page 947.

The same general principles are applicable
to appellant’s objection based upon the ex-
clusion of negroes from the petit jury which
tried him. Section 199, Criminal Code of
Practice, authorizes a challenge to the panel
where there has been a substantial irregu-
larity in the selection, summoning, or draw-
ing of the trial jurors and section 200,
Criminal Code of Practice, prescribes the
course to be pursued by the trial judge, if
the challenge be sustained, in securing an-
other jury. As said in the case of Haggard
v. Commonwealth, supra, where the identi-
cal objection relied on in the case at bar was
attempted to be raised by habeas corpus
after conviction:

“The appellant did not move to set aside
the indictment. And according to the prin-
“ples laid down in the case of Common-
wcalth v. Smith et al. 10 Bush 476, he
Waived any error that may have existed,
and which could have been reached by such
motion,

“Ife might also, by challenging the panel,
‘ave caused the exclusion of all the stand-
''g Jurors from the trial jury under the pro-
‘istons of sections 199 and 200 of the
\rminal Code, for the same cause he now
assigns for a discharge from his conviction.

“But he did not avail himself of any of
Nese provisions of law, which would have
attorded him ample relief, had he but sought
tt and he must, like any other citizen, be
cemed to have waived the error in the for-
Mation of the grand and petit juries.”

In the case at bar, appellant’s objection
to the exclusion of negroes from the grand
atid petit juries was raised for the first time
‘n his motion for a new trial, supported by

his affidavit, reciting that no negroes had
served on the grand jury which indicted him
or upon the petit jury which convicted him;
that negroes were arbitrarily excluded from
service on both juries, in violation of his
constitutional rights, because of their race
and color; that for more than thirty years,
negroes had been arbitrarily and systemati-
cally excluded from jury service in Mc-
Cracken County for the same reason; and
that no negro had served or been summoned
for service on a grand or petit jury in Mc-
Cracken county during the past thirty years.

Assuming, but without deciding, that ap-
pellant’s uncontroverted affidavit was suffi-
cient to establish the facts therein related,
notwithstanding the lack of details or cor-
roborative evidence, we are nevertheless
compelled to hold that his objections, based
thereon, came too late to be available to him
as a ground for a new trial.

[10] 4. The contention that the verdict
is flagrantly against the weight of the evi-
dence is predicated upon the theory that vol-
untary drunkenness, in the absence of prov-
en malice, should operate to reduce murder
to manslaughter, in the same manner that
sudden heat and passion, without malice, in
the accused operates to reduce the greater
crime to the lesser; and that since appellant
killed his friend without provocation and
testified that he was so drunk that he did
not know what he was doing, he was guilty
of voluntary manslaughter, but not murder.
But besides the deleterious results which
would flow from the establishment of such
a precedent, the argument overlooks the fact
that appeilant alone testified to his complete
intoxication and that the record contains
evidence indicating that he was not so drunk
as he claims to have been—for example, the
testimony of Ella Johnson that following the
killing, appellant came to the back window
of her house and told her that he had killed
“Uncle Tom” and that he, upon being re-
fused admission, asked her to keep his pistol
for him and inquired which way he could go.
Furthermore, it is in evidence that prior to
the killing, when appellant first came upon
the scene, he exclaimed, “All you G— d—
fellows get off this corner here; there is
going to be hell directly.” Thus it is appar-
ent that the jury was amply justified in con-
victing appellant of murder and inflicting
the sev¢erest penalty known to law.

Judgment affirmed.

Whole Court sitting, except PERRY, J.

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UNIV:

492 Ixy. 144 SOUTH WESTERN

[4,5] We are not concerned with the
fact that Mrs. Schnur made the claim and
verified her rather indefinite and artfully
drawn answer in this case. There was
very little, if anything, in Parris’ original
pleading that was inconsistent with the
real situation. The abortive arrangement
to secure a judgment against his wife was
apparently entered into in good faith and
was in reliance upon the advice of his at-
torney. The old gentleman’s hands were
never very dirty, and he had washed them
clean before the trial ended. Though the
operation of the maxim is broad, there is a
reasonable limitation, and the principle is
not applicable to all misconduct or to every
act smacking of inequity or deceit in rela-
tion’ to the matter in which relicf is sought.
American Association, Limited, v. Innis,
109 Ky. 595, 60 S.W. 388, 22 Ky.Law Rep.
1196. Though there had been some attempt
to deceive, a full and free disclosure was
made. The doctrine does not repel all
sinners from a court of equity, especially
where there was no injurious consequenc-
es. We agree with the chancellor that
under the circumstances it would not be
equitable or just to penalize the husband
and enrich the wife’s estate by denying
him that to which he would otherwise be
clearly entitled.

The judgment is affirmed.
t

° KEY NUMBER SYSTEM

+ams

284 Ky, 319
RICHARDSON v. COMMONWEALTH.

Court of Appeals of Keutucky,
Oct. 4, 1940.

Rehearing Denied Noy, 29, 1940.

{. Homicide =309(6), 340(3)

In murder trial, where only excuse of-
fered by defendant was that he was so
drunk at time of killing that he did not
know what he was doing, court properly in-
structed jury on manslaughter and erred in
defendant’s favor in giving instruction on
subject of drunkenness.

2. Criminal law ©—355, 774, 795(2)
Where intent or purpose is element of
trime charged, evidence of accused’s drunk-

REPORTER, 2d SERIES

enness is admissible to show absence of such
intent or purpose and, if the effect of such
evidence is to lessen offense, accused is en-
titled to instruction on lesser and included
offense, but if acceptance of evidence would
not reduce offense or tend to establish lesser
and included offense, but would result tn
accused’s acquittal, specifie instruction on
legal effect of drunkenness should be given.

3. Criminal law €=53

Voluntary drunkenness is ordinarily no
excuse for crime, but may reduce offense
from higher to lower degree or mitigate pun
ishment within maximum and minimum pre
scribed by law.

4. Criminal law ©=774

Where there are lower degrees of of-
fense charged, some of which do not contain
element of intent or malicious purpose, fact
of defendant’s intoxication should not be
singled out in separate instruction or jury
told what effect it should give to such intox
ication, but, if there are no degrees of of-
fense charged or where there are such de-
grees, but intent is likewise element thereof,
court should instruct jury, if authorized by
evidence, to acquit defendant if he was so
intoxicated that he did not realize what he
was doing or was incapable of entertaining
necessary criminal intent,

5. Homicide 28, 180

In murder trial, where defense was that
defendant was too drunk to entertain intent
to kill or know what he was doing, evidence
of his drunkenness at time of killing was
permissible to show lack of intent and de
feat conviction of murder, but such drunk-
enness constituted. no defense to charge of
killing in sudden affray and without prevl-
ous imatice.

6. Criminal law C>1174(4)

Court’s permission of jury to separate
by parties’ agreement on night of first day
of murder trial held not ground for reverssl
of conviction, in absence of showing that
court put defendant’s counsel to election to
agree or object to separation. Cr.Code Prac.
§ 244.

7. Criminal law C868
Defendant's failure to object to jury's
separation in capital case constitutes “walv-

er” of his right to have jurors kept together.

Cr.Code Prac. § 244.
See Words and Phrases, Permanent

Edition, for all other definitions of
“Waiver”.

RICHARDSON v. COMMONWEALTH Ky. 493
144 S.W.2d 492

8. Grand Jury €=19

A defendant, pleading not guilty of
-rime charged in indictment and taking his
chances with trial jury, may not subsequent-
ly be heard to object to qualification or dis-
qualification of persons serving on or exclud-
ed from jury. Cr.Code Prac. § 157.

9. Criminal law €=912!'/

A negro defendant, not moving to set
aside indictment, nor challenging jury panel
because of exclusion of negroes from grand
and petit juries, waived such objection,
which came too late to be available in his
motion for new trial, even if his uncontro-
verted supporting affidavit was suflicient to
establish facts therein related. Cr.Code
Prac. §§ 157, 199, 200.

10. Homicide C=238

“vidence held sufficient to justify convic-
tion of murder as against defense that be
cause of intoxication, crime was no more
than voluntary manslaughter.

—_——_>_——-.

Appeal from ‘Circuit Court, McCracken
County; Joe L. Price, Judge.

Columbus Richardson was convicted of
ourder, and he appeals,

Affirmed.

McMurry & Reed, of Paducah, for ap-
pellant.

Hubert Meredith, Atty. Gen., and Owen
Keller, Asst. Atty. Gen., for appellee.

TILFORD, Justice.

Appellant was convicted of the murder
of Tom McNary and sentenced to death.
The homicide, which occurred on Sunday,
February 5, 1939, in the city of Paducah,
as wholly unprovoked, and the only excuse
‘fered by appellant for his act is that he
was so drunk at the time that he did not
know what he was doing. Both the killer
aid his victim were negroes, the latter be-
ing about sixty-three years of age. Appel-
‘int approached him while he was sitting on,
a low stone ledge, bordering upon the side4
walk, by a grocery store on a corner, placed:
a hand on his head, and shot him after a fewl
temarks had passed between them and the
deceased had arisen and informed appellant,

that he did not feel like playing. He was,

sholly unarmed, and according to appellant,
eho disclaimed any recollection of the’

‘ooting and of the events immediately pre-}

€e ling or following it, their relationshi had
oe Pp
aways been friendly.

With commendable zeal his counsel, who
were appointed to defend him, have prose-
cuted this appeal, urging as grounds for re-
versal that the instructions were erroneous
and did not properly submit to the jury ap-
pellant’s defense, that the court committed
prejudicial error in permitting the jury to
separate, that negroes had been arbitrarily
excluded from grand and petit jury service
in McCracken county solely because of their
color, and that the verdict was flagrantly
against the weight of the evidence. We
shall dispose of these grounds in the order
mentioned.

[1-4] 1. The court in unobjectionable
terms instructed the jury upon murder, man-
slaughter, self-defense and reasonable doubt
and by a separate instruction told the jury
that: “Voluntary drunkenness is no excuse
for crime, but the facts of the case intro-
duced in evidence on the ground of defend-
ant’s being drunk at the time of the commis-
sion of the offense, of his mental condition
by reason thereof, though voluntary, should
be considered by the jury on the question of
his motive and in determining whether he
was acting maliciously, or without malice,
and in sudden heat and passion.”

'

It is argued by appellant that an instruc-
tion on mansiaughter in the usual form was
unwarranted in view of the evidence, and
that a separate instruction should have been
given advising the jury in effect that if at
the time of the killing the appellant was so
drunk that he had lost his reason or his abil-
ity to distinguish between right and wrong,
it should find him guilty of voluntary man-
slaughter.

In our opinion the court properly in-
structed the jury on manslaughter and erred
in appellant’s favor in giving any instruciion
whatsoever on the subject of drunkenness.
While there is apparent conflict between
some of our previous opinions on the effect
of drunkenness as a defense to a criminal
prosecution, tlie subject was thoroughly dis-
cussed in the case of Blackburn v. Common-
wealth, 200 Ky. 638, 255 S.W. 99, and the
rule announced that where intent or purpose
is an element of the crime charged, evidence
of drunkenness is admissible to show ab-
sence of intent or purpose, and if the effect
of such evidence is to lessen the offense,
the accused is entitled to an instruction on
the lesser and included offense; but if the
acceptance of the evidence would not reduce
the offense or tend to establish a lesser and
included offense, but would result in the ac-
quittal of the accused, then a specific in-

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tinently applicable. That statement was:
“To reverse the judgment of the court in
this case under these circumstances would
be to make a trial for crime a mere mock-
ery.”

[3] The contention made in support of
ground (2) is unique to say the least of it.
The indictment charged that defendant
committed the murderous homicide “wil-
fully, maliciously and of his malice afore-
thought.” To that charge defendant, in
the circumstances and in the manner indi-
cated, entered a plea of guilty. Guilty of
what? Manifestly, and exclusively of the
malicious murder charge (which was the
only one preferred) contained in the indict-
ment to which that plea was made. In such
circumstances it is farcical to contend that
constitutional courts created for the pun-
ishment of crime, and for the settlement of
human rights according to the law and
justice, could properly be called upon—or
if so, could countenance for a moment
any such contention as is embodied in this
ground (2). The confession, which by
agreement was read to the jury, made no
claim whatever that the homicide was of
any less degree than deliberate murder. It
is true that the confessor therein (defend-
ant) made the statement that deceased hit
his wrist or elbow, which caused the gun
to go off, but he nowhere claimed in ex-
press terms that the shot was produced by
any accident. The action of the deceas-
ed was clearly done in the exercise of his
right of self-defense, since the pistol was
at the time shoved up against his side, and
he had previously been struck with it twice
on the head by defendant. Surely, coun-
sel would scarcely have the temerity to
contend that the murdered deceased, in the
circumstances, did not have the right to
try to disarm defendant. If in making
that effort the weapon—being adjusted
for immediate and deadly action by defend-
ant—was caused to fire, the last person in
the world who might shelter himself un-
der an accidental shooting would be de-
fendant, who maliciously and voluntarily
brought about and created the situation
(the danger to his victim) and all for a
premeditated, heinous and criminal purpose.
It was a feloniously invited accident if one
at all.

In the stenographer’s transcript of tes-
timony, taken and heard at the trial, the
agreement under which the practice pur-
sued was had is set out, and there was not
the slightest variation therefrom. A part

128 SOUTH WESTERN REPORTER, 2d SERIES

of it says: “That this confession is true
and correct and that it was given by the
defendant voluntarily, freely and without
coercion or any promise or hope of immu-
nity or reward,” and in which, we repeat,
there is no express claim of excusable ac-
cidental homicide. The situation might be
likened unto that of one interposing the
right of self-defense which though sustain-
ed by the evidence is not available to him
because he committed the first deadly as-
sault on his victim without in good faith
thereafter retiring from the difficulty. In
such a situation he is denied the aid and
effect of his self-defense plea, and we can
see no reason for drawing a distinction be-
tween the rule applicable to that defense
and the one of accidental shooting. De-
fendant in this case was doing more than
engaging in reckless handling of fire arms
or deadly weapons. He was actually en-
gaged in the perpetration of a felony
which he had premeditatedly designed,
and which was the taking of the automo-
bile of his victim and appropriating it to
his own use either temporarily or perma-
nently. He was likewise engaged in the
commission of a felony by assaulting his
victim with a deadly weapon, and in such
circumstances the contention of counsel in
their effort to sustain this ground are far
afield from the law and proper and cor-
rect practice.

[4] On the voir dire examination of the
jury the member of defendant’s counsel
who filed the additional motion and reasons
for a new trial—uncovering alleged dis-
putations between defendant’s counsel—
and the one who filed the brief in his be-
half in this appeal, asked. one of the ju-
rors, “If you could give him (defendant)
the benefit of the doubt and resolve any
doubt you might have in his favor, under
the proper instructions of the court.” The
court then suggested that he did not think
it was proper in such an examination to
“single out certain things,” but that the
juror should be asked if he could try the
case according to the evidence and the in-
structions, and it is that occurrence and
incidence that form the basis of ground
(3). To begin with, we do not think the
court committed an error in the action tak-
en by him; but were it otherwise, then it 38
impossible to conceive how such _alleg
error could prejudice defendant’s rights,
since the juror, if he was qualified to act
as such at all, is required only to exercist
his discretion as permitted under the evr

is Ag ae mr

SANDERS v. ADAMS Ky. 9293

128 S8.W.2d 223

lence and the instructions of the court.
We can discover no possible merit in this
ground.

{5] It is argued in brief—though not
expressly relied on in the motion for a
new trial—that the only instruction given
by the court was erroneous in that it did
not contain the expression “in your dis-
cretion,” or a similar one, as a guide to
the jury in determining what degree of
punishment it would inflict. The attacked
instruction (which was the only one given
to the jury) said: “Gentlemen of the Ju-
ry: The defendant, Arvil Rice, entered a
plea that he is guilty to this indictment
f wilful murder. It will therefore be
your duty to find the defendant guilty
and to fix his punishment at death, or at
confinement in the State penitentiary for
and during his natural life.’ It is in-
sisted that immediately following the
word “Penitentiary” as contained in that
instruction, the court should have inserted
‘in your sound discretion,’ or some other
emilar expression. But while such lan-
guage is frequently employed in instruc-
sons of the nature and kind under consid-
eration, we know of no rule of law abso-
lutely requiring it, since after all it adds
nothing to the instructions as framed
«ithout containing such an expression, for
without it the jury is plainly told that
they had the right and authority to return
either the severer or lighter punishment for
he crime committed, and which by nec-
essary implication said to them “in the
exercise of your sound discretion.” Such
an objection smacks of triviality and
most assuredly possesses no materiality.

In considering this case the age of the
‘efendant was an appealing and considered
sac in our endeavor to find some error
y which he might be relieved of his pres-
ont perilous situation and be given another
€ nance at which his punishment might pos-
my be mitigated and his life saved. But
‘Se record is absolutely barren of any
fround permitting us to grant any such re-
bef. The distinguished trial judge mani-
‘ested extreme caution and most painstak-
*€ care throughout the trial in his deter-
ination to protect the rights of the de-
fendant in every particular and at every
“age of the trial. Neither he, nor we, nor
’=y member of the jury, or any other one
having connection with the trial, contribut-
lag the least to the defendant’s unfortu-
: dilemma. He was and is the sole au-
Ser of it. If he and all other members of

society who may contemplate such a course
will not obey the law, they must expect to
reap the consequences thereof, since civiliz-
ed society can not otherwise exist without
being reduced to a state of barbarism, to
prevent which punishment for crime is in-
flicted and which is essential in the exer-
cise of self-preservation and of the rights
of each individual citizen in all civilized
communities. In the circumstances of the
case, as shown by the record, our duty,
therefore, is plain and from presently pre-
vailing conditions—of which we take ju-
dicial notice—there emanates a demand
that we sincerely, earnestly and fearlessly
perform it.

For the reasons stated, the judgment is
affirmed; Whole Court sitting.

278 Ky. 24
SANDERS et al. v. ADAMS et al.

Court of Appeals of Kentucky.
April 25, 1939.

{. Adoption €=2!

An adopted child is capable of inheriting
from the person adopting him as if he were
natural child, but adoption does not make
him capable of inheriting from other per-
sons, Ky.St. § 2071.

2. Wills €=545(1), 614(2)

Where testator devised lands to daugh-
ter and on her death to children if any and
provided that if daughter should die with-
out children then lands so devised should be
equally divided between other daughters,
daughter received life interest in property
with remainder over to any children she
might have had and if she should have no
children, property was to be divided at her
death between other daughters within testa-
tor’s own blood relation.

3. Wills €=497(5)

Where testator devised land to daughter
and to her children after her death if any,
and if she should die without children then
lands should be divided between two other
daughters, .daughter’s adoption of children
while effective to make them her own heirs
with right to inherit from her was ineffec-
tive to extend to adopted children right to


ke
A
¥
4

:
4

220 Ky. 128 SOUTH WESTERN REPORTER, 2d SERIES

them, and which is made a part of this
record, all of which we now copy:

“What is your plea in this case? A.
Guilty.

“Q. Do you understand what a plea of
guilty means? A. Yes, sir.

“QO, What is that? A. Life, or death,
I reckon.

“Q. Do you understand it will be my duty
to instruct the jury to find you guilty and
to fix your punishment at death, or at con-
finement in the penitentiary for life? A.
Yes sir.

“Q. With that understanding, do you
want to enter this plea? A. Yes sir.

“Q. Have you seen this paper (con-
fession) here before? A. Yes sir.

“Q, Is it your desire that this be read
to the jury as your evidence in this case?
A. Yes sir.”

Pursuant thereto, and-carrying out the
previous agreement and understanding be-
tween prosecuting and defending counsel
—which appears to have been approved
by the defendant and his relatives who
were then present—the commonwealth’s at-
torney read to the jury a written and sworn
to confession made by appellant out of
court, and so far as this record discloses,
voluntarily and of his own free will. The
confession in its entirety is too lengthy to
be inserted verbatim in this opinion. It
contains a brief history of the acts and
doings of appellant some few days be-
fore the fatal occasion until he arrived
at Loyal, a town in Harlan County, Ken-
tucky, where he observed his victim rid-
ing in an automobile, alone, and appellant
“thumbed” for him to stop, which he did,
and appellant got into his victim’s auto-
mobile for the purpose of going with him
as far as Pineville. In the meantime ap-
pellant was armed with a pistol which was
concealed from his victim. When they
neared Pineville where the road leading
to Middlesboro turned south appellant drew
his weapon and ordered his victim to take
the Middlesboro road, and which com-
mand was promptly obeyed. The weapon
remained unconcealed from then on. After
they had gone through Middlesboro the
driver was ordered by defendant to stop
and get out and to retire into the border-
ing woodland and totally undress him-
self against which he protested, but of
no avail. So the victim, according to the
confession, “pulled off his tie, shirt, and
coat,” and then begged to be excused from

further disrobing. The confession then
continues with this—“He walked across
the highway and down to the edge of a
creek on the left hand side of the highway.
After he got to the creek he asked me if
he could put his clothes back on. I told
him that if he pulled off all of his clothes
and took his time about getting to Mid-
dlesboro, Kentucky, that he would find his
car in Covington, Kentucky, unhurt. * *
I had followed him back down to the creek.
I was right by him when he grabbed me,”
which it is explained was done by the
victim in order to disarm appellant who
at that time had his pistol in his hands.
The confession then says: “When he grab-
bed me I hit him in the head with my gun
which I had in my right hand. When I
hit him it just staggered him a little.
He still held to me and I hit him again.
The second blow did not knock him down.
He was pulling me up to him and I put
the gun close to him and told him to quit.
He hit my wrist or elbow and that caused

the gun to go off.” The shot penetrated
‘a vital part of the body of the victim pro-

ducing his death. The remaining part of
the confession tells about appellant tak-
ing his victim’s car and rambling about
over the country until he was apprehend-
ed and accused of the murder.

No other evidence was introduced, of-
fered or tendered by either side, and the
court instructed the jury to find the de-
fendant guilty as charged in the indict-
ment, with an affixed punishment of ¢i-
ther death or life confinement in the pen-
itentiary. Pursuant to the prior under-
standing above referred to no argument
of the case was made to the jury by ei-
ther side, and it returned the verdict re-
ferred to.

[2] Two days after the return of the
verdict a motion for a new trial was fil-
ed, signed by all three of defendant’s coun-
sel, containing three alleged grounds for
a reversal—the first of which was the al-
leged error of the court with reference
to impaneling the jury hereinbefore re-
ferred to and disposed of. The second one
attacked the verdict because the court fail-
ed to give to the jury the whole law of
the case, in that it should have submitted
an instruction on accidental killing,  vol-
untary manslaughter, involuntary fan-
slaughter, and one instructing the jury as
to its duty if it entertained a reasonable
doubt as to the degree of the offense of
which defendant was found guilty. The

RICE vy. COMMONWEALTH Ky. 291

128 S.W.2d 219

third ground was an alleged error com-
mitted by the court growing out of the voir
dire examination of the jurors as they were
being selected to try the case. Two days
after the filing of that motion two of the
attorneys representing defendant—and who
were first employed by him—filed what they
denominated an “Additional Motion and
ground for a new trial.” It consisted in
developing a controversy occurring before
entering into the trial between the third
and two first employed counsel represent-
ing defendant, the third one being later em-
ployed by his mother and relatives, fol-
lowing the employment of the first two,
who signed the additional motion and
reasons. It is set out in the latter motion
that the first two employed counsel had
framed up a defense (but nowhere stated)
and intended to present it when the third
employed counsel came into the case—he
being the one in whom defendant’s rel-
atives placed the greatest confidence and,
perhaps, also the defendant himself—and
that a conference was had after the em-
ployment of the third attorney and he was
of the opinion that the best chance to ob-
tain a punishment less than death would
be to plead guilty and thereby show a re-
pentant disposition, which, together with
defendant's age (19 years), would most
hkely result in the less punishment of
life imprisonment. That suggestion was
“ pred at the time, so far as the record
. closes, by all parties concerned, and the
Hest two employed counsel went into court
on the day the trial was had in company
with the other one, their client, and the

sic naga with that strategy well
Matured,

When it was announced that a plea of
Ruilty would be entered the court rather
‘esitated and would not permit it to be done
without an examination of defendant in
mi court, and which examination we
‘ave hereinbefore inserted. In the selec-
ten of the jury one of the first employed

Counsel—and the only one who signs brief
‘°F appellant on this appeal—took the lead-

*"€ Part in making that selection and in ex-

aiining tendered jurors. The additional
z tion and reasons for a new trial bitter-
¥ complain of the course pursued after it

piste abortive by the verdict of death
. esse of life imprisonment. In that mo-
. is termed as “fallacious action”
Sue the plea of guilty is bitterly
— sed, a part of which says: “It fur-
“er appears that defendant had nothing to

do except what his attorneys advised him,
and that advice was not intelligent enough
to interest any attorney that had ever been
in a court room before.” That statement
may or may not be true, but, nevertheless,
the course pursued, so far as the record
discloses, was a well matured one after
deliberate consultation between all parties
concerned, and no one is accused of any
deceit, fraud, or collusion in bringing it
about.

The case on this point, therefore re-
duces itself to a frank acknowledgment
that the practice pursued was developed
and taken in the hope that the ameliorated
punishment would be inflicted by the jury
instead of the more severe one, but that
its members concluded otherwise and in-
flicted the severer punishment of death;
and the court is deliberately asked to ex-
tricate defendant from the perilous situa-
tion that the verdict created. The court
overruled both motions for a new trial, and,
after most painstaking thought given to
every question raised, it is our conclusion
that he correctly did so. Not only do we
so conclude from the universally applied
rules in the practice of criminal prosecu-
tions, but if precedent were necessary, then
this court in the case of White v. Com., 140
Ky. 9, 130 S.W. 796, 797, likewise so con-
cluded upon facts very analogous to those
appearing in this case, except the facts
therein were more appealing to order a
reversal of the conviction than is true un-
der the facts of this one. The convicted
defendant in that case was only 17 years
of age and one of his counsel was absent
at the time of the trial. No motion was
made for a continuance of the cause on
account of such absence and the case was
tried altogether on a plea of guilty made
by defendant which we said in our opin-
ion was done after he had “consulted with
several high officials in the county, who
had taken an interest in seeing that the
defendant had justice done him, and they
concurred in the belief that it was best for
the defendant to plead guilty.” Here de-
fendant consulted with his combined coun-
sel, his mother and, perhaps, others inter-
ested in his welfare, and when it came time
to take action in the matter he was fully
advised by the court. Nevertheless he sol-
emnly entered his plea with the avowed
understanding of what it meant, as well as
its possible consequences. In the circum-
stances a statement made by us in the opin-
ion written in the White case is most per-

IE AM eR ps


LKichavdsen]

Op OWENSBORO-DAVIESS COUNTY PUBLIC LIBRARY

450 Griffith Avenue @ Owensboro, Kentucky 42301 e 502/684-0211

Owensboro Messenger
February 17, 1905

C2

LAST LEGAL OUNTY

At the present time it is of the greatest interest when the last legal hanging
took place in Daviess County.

Comparatively few people in Daviess County can remember when, on November 1, 1854,
Curtis Richardson paid the penalty with his life on the gallows for the murder of
William Lanifer.

several of the older attorneys in the city recall the trial. Richardson killed
Lanifer at Knottsville on the spot where Gus Clement's store is now erected. The
killing too place on December 25, 1853. It was nearly a year until the case was
tried out. Judge Kincheloe was the judge of the Daviess Circuit Court at the time
of the trial and Alf Allen was Commonwealth's Attorney. The former resided at
Hardinsburg and the later at Elizabethtown and the District was much more extensive
then than now.

The court appointed Attorney Cecil to defend Richardson, together with another
counsel. He was given able talent in his fight for life.

The indictment was returned against Richardson at the March term of court, 1854.
The witnesses for thecommonweath were Charles Able, Joseph McDonald, James H. Haynes,
Walter Bartlett, William Holmes, Sam Able, William Geary, Abe M. Smith, Thomas M. Clay,
and Francis Milloy.

The witnesses for the defendant were Ainson Higdon, Charles M. Smith, William
Proctor, J.D, Carico, William Higdon and Lislie T. Brown.

There were several continuances in the trial, but the case at last went to
trial on September 12, 1854.

The jury was composed of Joseph G. Taylor, James H. Holmes, Ridgley Griffith,
Samuel G. Harrison, S.R. Ewing, Francis L. Beard, Andrew Jones, Samuel Harrellson,
Meredith McGee, Isaac Riggs, George Mattingly and Isom Culver.

The trial was completed in one day and when the case was given to the jury, it
was out only a short time.

The indictment returned against Richardson was in the old common law form. The
crime for which he paid the death penalty was the result of a Christmas row. He cut
Lanifer with a knife, inflicting a mortal wound.

The verdict of the jury was as follows:

"We, the jury, find the within named defendant, Curtis Richardson,

OWENSBORO-DAVIESS COUNTY PUBLIC LIBRARY

450 Griffith Avenue @ Owensboro, Kentucky 42301 e 502/684-0211

op

guilty of murder." (Signed) Andrew Jones, Foreman
The Sheriff at that time was Tom Landrum of Calhoon. Capt. F.L. Hall and
Josiah Veach were the deputies who assisted in the hanging which took place near
the corner of Breckinridge Street and the "Texas" railroad. It is said that
Richardson rode from the jail to the scaffold on his coffin. Thousands of people
witnessed the hanging from a small hill now on the north side of the railroad track.
The hanging was public and took place on the edge of what was once known as Murry's

woods.

Roy Green was the first Negro legally hanged in Daviess County since 1858. A
eee eel

slave in that year was handed _on the present sity of 5t. Stephen's Catholic Church

for committing a criminal assault.
a


No appeal,

RICHARDSON, Willard, 29-year-old white man, electrocuted Kentucky State Prison (Carlisle
County), on l-19-1912,

"Bardwell, Ky., Feb. 2h, 1912='Jillard Richardson, tried, convicted, and today sentenced here
to be eleutrocuted, tonight confessed to killing two men in Texas, according to the authori-
ties. One of these mrders, iehardson s ays, occurred at St. Augustine, Texe, about 10
years ago. Richardson says he set up an alibi, was acquitted, and that another man is |
serving time for the crime, Authorities say he told them he pleaded insanity at the other
trial, ei ta EF ae was today sentenced to be electrocuted at the Eddyville
prison on Apri or killing John Violet at Mulburn eo" ET ‘iE i

secateas, ben. bon WHE C2.) lburn, Ky ARKANSAS GAZE VE, Little Rock,

"Eddyville, Kye, April 19, 1912-'I reckon this jar will shake out my false teeth,' said
Willard Richardson, 29-years-old, as he was being strapped in the electric char at the
penitentiary here today preparatory to forfeiting his life for the murder of John Vio-~
let, a Carlisle County farmer, two months ago, 'Cut out all of that confounded "beef=
ing'', he said to his gray-haired father as the latter sobbed his farewell, ‘What's it
to you, AMMMAK anyway?! Richardson was dead after the first shock,"' NEWS, Galveston,

Texas, April 20, 1912 (2¥7.)

RIPCHEY, Gilbert N.," white, 22, hanged Carlisle, Ky., on 11-25-1810

"The Lexington Kentucky ORSERBER contains a confession mace and
signed by Gilbert N, Richey who was hung at Carlisle, Nicholas
County, Sentucky, on the 25th of Nevember last. The murderer states
that he was desired by a Mrs, Fuller to take tne life of one of her
neighbors in August last named Mrs. Snapp in consequence of the
jealous suspicion of the former, who promished him a reward of six
follars and all the other promises of various kinds to tempt him to
the deed. “fter resisting sometime he at length yielded to the
woman's importunities and on the 13th of August proceeded to the
house of Mrs, Snapp, where he found her along. But a neighbor
BX entering before he could executed his purpose, he thought proper
to leave the house in company with the intruder to prevent suspicion,
He however presently returned and as before he was asked to take a
s eat; Mrs. Snapp then being alone in the house. He declined and at
once knocked her down with his fist. She recovered and ran out
of the house while Richey, who had seized a shoe-knife, pursued
and caught her about 30 yards from the house, when he again with a
heavy blow of his fist, brought his victim to the KAHX ground and
in an instant at one stroke with the knife, nearly severed the head
from her body. The murderer was but 22 years of age." PICAYUNE,
New Orleans, ba,, January 22, 181 (h:1)

ROBERTSON, Robert Ae, 35, hanged at Alexandria, Campbell Coe, Kentucky,
September 8, 20536

"On Saturday last, at Alexandria, Campbell County, Robert A. Robertson
suffered the extreme penalty of tne law for the: murder of: Moses Gard.

The murder was committed in June, 1852. At the December term, 1852, of

the Campbell Circuit Gourt, the case was hea#d, but the jury dia not agree
upon a verdict. At the June term last, Hon. H. C. Harris special Judge,
the cause was again heard, and the jury, after a brief retirement, returned
a verdict of murder in the first degree. The prisoner was then sentenced

to be hung on the lst Saturday of September 1853.

ROR Friday night the unfortunate man “attempted to take his own life, by
opening some of the arteries of his arms with a razor, but was prevented from
she ie his purpose by the timely discovery of his design by the
guards. however lost-considéra ble blood, and was so weak that he faintec
on the vet Fier Saturday, at 12:30 o'clock, ’ everything being ready, the
trap fell, and Robef#tson was lauched into eternity. The body, after "hanging
about 30 minutes , was delivered to friends and buried on the day fllowinge
"A speech made by the unfortunate man from the scaffold has been extensive-
ly published and created foubts in the minds of some persons as to the
justice of his sentence, The following is the speech: 'My dying friends,
this is my last appearance. I am very feeble, Qut am much better than I
expected to be, in consequence of excessive loss of blood. I have been in
custody now nearly 15 months. Durint this time every attention has been showr
me by the gailer, Mr. Spillman, the Sheriff and all the officers of the
Court, for which’ I am very greatful. My dying friends = I premume I have
some friends here, and some enemies also, - my sentence was unjust, a I

am not guilty of wilful murder; but, although it is an unjust debt, I pay

it willingly. I was conyicted by perjured witnesses (He here asked Sheriff
Stricker if he had better mention names, but he did not.), and the people
were prejudiced against me. Unfortunately I can neither read nor write.

If I could, I might perhaps address you better. I have made a confession to
my friend, "Spill, an, who has written it down. He read it to me last even-
ings i% ig as f wanted it, in every particular. I have mentioned names in
it, and from it you can léarn all. I freely forgive all my enemies, and
hope they wil@ forgive me. I also wish t mention that some of my friends
wrote to the governor for a respite, but through the HAKAX interference of
Mr. Baker, they were unsaccessful, For that interference I thank Mr. Baker
and fortive him. I am pherpas better prepared to die now than I should be
two months hence, I certainly am not guilty of willful murder, and I hope
this may be a warning to AEARKX all juries in the future upon similar
occasions. I had taken the gunx from the hands of another; it was cocked,

I brought the breach to my shoulder, with the muzzle poiting towards the
ground, and was in the act of letting the hammer drop, retreating towards
the fence, intending the strike with the gun in self- defense, At that mo-
ment Gard struck the gun with his hoe, elevating the muzzle and it was XMKX
discharged, the contents entering the thigh. If I had intended to kill him
I should not have aimed there. My friends, I trust you may all discharge
your respective duties in this life, and may God bless you all.'

"It is proper to add to this statement the facts as they were presented to
the jury. The NEWPORT MESSENGER gives them as follows: 'It was propenm that
on the 2nd day of June, the prisoner, armed with a rifle went to the field
where Gard and others were working hoeing potatoes, that he commenced an al-
tercation with a young man named Crawford about a dog ané threatened to kill
him, giving him 15 minutes; that afterwards he asked the deceased what he
had’ said about his wife, ahd commenced a quarrel with him and prepared to
attack him, when Gard raised his hoe and the prisoner fired his gun, shoot-
ing him in the bhigh and causing his death in XWXMXWHKEEXX 5 minutes; that
he threatendd when he left home to attack Crawford, am if Gard said any-
thing, to blow him through, for he had laid it up for him some time; that

he told the wife and daughter of deceased and tthers that he had done it

and would do it again; that he had intended doing it for 4 months, and courage

ROBERTSON Robert A,, white, hanged Alexandria, Kentucky, on 9-3021853,
ae 2 oe Covington
: : ~ Journal 4-10-13 pe

aS : 4p) ) Maysville and Newpo

arr aah one his: Goaee Mas ¥ LilitesAch Cunos, 'g
5,000 for his spposranc®: © | getic Chie inginger 0
fore the Crimical Court of Cifeinnatt oid: jg Sandy Railroa!
tb enawer to tha charge 4f: sfrooting witl#} cient corps of assistants, b
C. Halli | = Ling the survey of the May
i following state- ort Railroad. fires
~ | Fremt street # 16 by:
pased: connect iwith
rond,—thence procped
whence he will atyike
-. Jatthe mouth pf. Blue Run
the Creek towards Ge
cdmplete thé survey of t
first, taking the River rou!

—

<7 ly | condemn j Lady Lee's interesting | Bxeqmtioe -
\Wltowbood js ssplonegud SU: Hudvon ate
& i Lo p's officia'condaca toward Napoleon,
lew) at $¢. Holenm, is vind|cated. .” An article!
Ats-| en{itled “The . Insurrection | in China,
tary; | fudnishes many intefesting facts,’ The
labrs;| prgvent emperor ascdnded the thrdne in| 1°F
pact February, 1850; and! asgumed the name! the
the’ of} Hien-foung. He} waa then 19 years
Eda: old. China: was’ divided into two ,>ut th
tines) p itical patties—one,: the Exclusives, dict.
ent’s bigerly opposed to (preigners and in fa:

“|ment.of Mr.
idence -as hi
Le awer--| Preliminsry ,
in. BH: C: wards:

wt

couse) Was

x «(1 vd of excluding them {romi/the country: , icyalioesa brief |¢ 3 :
a inl th other, th = eC ti oe retire os ‘at - ’ The survey will ba comp
ma upfing opposite: gro id infest ko ner was sort ; | to mont a¢—[Maysvill
itet! Vor of cultivating frigndly. relations with : the Ist vb approsched Me. Hal: aod que! A Great Bia

boa ad explained to bim what dyin declerations were: | | Col.) Gorman, the n

ess mode ueder the ‘
of deathy wren not teetimony: Governor of ;Minnesota

‘believed; himsclf to be ins lately concluded a treaty

his arma tot Me A arses read tbe) nebago Inliaas—one of
; tL was comibg home, end me Tr. Ames; 1} sone and wprthless of t
Gg

: from ac+"} passed him; he hebitated; a¢d three or fuur | t¢ibes which get hang up
- !

i

ch foteigners., The new qnperor, felt /in |
lotion : with the Exclusives, gaq selected his min:
fully: isters from the bitterest ‘enemies of/for- ¥ttempted | to, t ¥
6 of: cigners. Directly aflerithis, news came ; opeming some of the arteries ®
uc-.of the revolt, ia the province of Kouang-! with a razor, but wae prved

thdt such a

man

he

I
‘ thie Sif situated in the southwestern portion | complishing his perpode, ne timely | Paces, and tarde around; ho stopped; he then By dhisitreaty
yt

Sensis deg i sear dirk ‘from 5 f
edit has crowned:the movements of the revo-| : rae pe Lie {held and receive in e

atl | } } , the fainted on the scaf: and but‘for his pi jeot, f would bave donquered | {lements, entirely gurr
ailers/ marthedt steadily onwards with the a: fold} Saturday, p pia

the trap fulljant Rob* | ot behind a tree-box, uit retreated to Mrs. is itself, in fect, at

eae vat ; 1 ayprenahe® me, with his.teno elersted, and border.
Moré: of the cmpire. Success, almost unvaried, | discovery of his (design! je: guarig. goed eee scoundfel or rascal; thea [| give up the ‘lands. the
ha ! i He,however, lost tonsidgrable looi, and | took Ale dirk; frpm_ him; he rgeayered it. } ‘i he boil
E not} olationists, and fur three years they haval wasiso weak that i : sirack hin -seferpl times during the atroggle,| 2111) Neerer rely, putt
fat 124 o'tldck, every }him.© He drew hi tol weg } was mot
Bis . } ‘ ° ¥ soo Flgekj/ Syety, than three or four feet retin Eg shot any already cedo:t by the In.
g excy vowed object of upsetting the present | thing being tea Wx if ; { Ero
“ertson was launched into eternity. ~The Cee tet a second stot wes fired by | purchased from the Sio

x) pax j dynasty. Tien:te, the head of the rev-;°"*$ a: ¢ ‘ '
i white | ol ptionary moveme rt, is 23 years.old, and body, wher hangin about $0 minutes, was! Jr is now jthought Mr. Hall “will: te- > Mobi ;
“ epee isahug Hekewabede fe deli yered to frien jsun iburied patho day cover. See yobs oer naan
; ebster |” “3 uly ani eigils hard propttarely azat him. | follbwing. - Poh elf : ee ate oe Sete ae * a
ny s oe 4 ; - pe Mp rapick Ci ek fs DA Freee Fight? N a
i p his! Wty is. zeire n04 metinctisiy, and very reserved. | speeclymaile by th>nnfortpnate maa The following isa description !of a free South, for the ong
i } | sale under execution

.The pa pepteee gi Pr ees gente to;
em: : eife Chem orders)” Hid complexion that. of { i al r tely -fichti ~estehy Virginia, | ,
ome | Ol poatherd (Catuese ta moet eer Pei Da fro ‘he dcafful , has been gaicns ely fe tin Weatetir \ irginia, fas rftate | by oanretece lv eaea
absibie gaze aces to. probe the depths of tho. P blished and® created> dauliis in the} one. of the dyc- witnesses thereal Pre- oes p
We are aware that

ortless s
hitman souk “He cow rodg@ rather sugees- tt os . . as a ‘
on in ethan bj aistet dictation In aaeea il ras | mined of some persons ag tojthe justice mising ihat thare was butone maa struck; ijections tothe propds¢
‘ thé cilept res-rve of a thin wh hse reflected a4 big seutence.| The following: is: the jin answe H eer : .
iinted)? pring del befur? conn jaic tiag his projects tg pot h bea im, os The oll he psa oh atc rane met ALA ake hy es ta wno) the ground of its effect
" ins! uny ene.” ake ral speech? : ean Caps che was, the fafrator replies: of debtor ant cre:lit
any The writer quotes from. Dé Yvan, ts erasing feiew 14 this ia mys tnst app aramce P*E peekoa tha whe. from low Mown- on | time we do not think
ome foster 3 ; Lan very facble, badam much Orttpr tin bex- betne i ‘ % * - if well
tins.) phiysician to the Fresich embassy “in,| preted tabs in eonsegueney of dsebisive Jase ef Crave somdwhar. Jesasthey war jawin, |Jockon, evenet well:
1 China, as follows: is F 4 blot J have been io custody now nearly Ble yp chap rode iit on @ tlay- bank! hosa—l doubtful) is. sufficient
Met ee | t teen moatiaes Dears wothis thay ewbry atteution 04 Bo j nn = } 2 iderati in its f
The’ insa-genats go ayeaicnt before Cherm, scie- ! oars been shown rie by the Jailer, § AD eahreeny i reckth he w » Me perace stack. 8 5 tr Le Ons Ptatineth its 5
nee ingy each day, auine pew putt, which they next the $ucridnod aP fiz od vcrs af tha Cou 1, for | Bie antemt/ pa Ieeile mite blind o both | believe, with Mre, Sto
LE ie rhe eae = pase: Lad ce ~ evils lt ee: pwhigh [eure ge pat: Sel aripe te! eyes—a pect ooking chap endoush, an’ i Geaskty of Southern in
1 wh ray be e capri. in country. preshine aye some frieada bere, and some cn > a A . Py re st +4 . 4
a eT ee altlas tcaemeetaiene enii- | Fee ey men teuce Was, un) daly, Lam wit when he got ferent the plece, ses he, ‘J3{ Slave should oaly ber
ootaars ies Alanve hints réjgn as! Paille ot Willfal marlers bit, although it ts we this'a free fight’ aa’ they tole him it'wor, {lation as inanimate <
chin is in their power; bat’ upua the Sanittst debt, Ppay it.williagly, Lwits convicted | 6 \y en >, tittine * hitehi we da not believe that
tats the rand YA of the Mings en: by" perjaced erie ve {ha bers asked Shest ; i an tie A eke off th . ni tehing} fe fa mr - : |
rerial citys the propineda che has esrei¢gh ec if ie fiadk Letter mpntion mvdtgs, htt fied ths Oley croy, Ank tO A Swinging tim, } of tac Southern peep

pale sre itets tic i:ape
0 waste finarched thionzh ani let wisov piers! will a2- lid pot.jand the fe: were pe obaguingt feount me thd He hadn’t more’n fotit) that wherever consite
t :

uty of hod¢ledg> his right, and subsit titpiselses t2 me} Unfortanately bern ne ther rad noe write’ | : » > ¢ “ut itv cone ine ee
See endtwuntt?, eo a posta, Maaid porhgpa ad tress $a /bett¢r: outofure somP one: fetched him a lick | samen renee
of thet fy the following w2 hive’an amusing’ | have male a coat-saion to mg frived, Spillinsy, an’ he“drapt. He riz dreckly with sowie | COT ering the tenure

defehulty., an‘ises he, ‘Is this a Hes fight? lotines should prevoil.

wio has weittew it diwa. Abe rewd it: qa nae Last

of the). ay bean ;
Sl opamnple of the auilitary, tactics Shinwcitt ) et : 1 ,
aoa | Aut ‘ pita y ot s of the ar ping, itis as] wanted it, io every particular. | an? they told bin it-war.)* Well,’ aus he, Po ar a ah
scliools Chinese: iD halve mentioned mpaue in tt, 30 om it you | ae ‘e ‘ * a
‘ { zed récly forgive: pllimy. enemies, | unhitchin his those, and putting his Tst- | OFSF bos & Wire?

. ey i Sctmjlearn all
wes—! drhiteen. th mvand? intgeristivts) atypuced ; yee i xe f ' th booker im Brattl
np J EE AP alvpuced “ini tihope tiie will forzive m3s/ Lia sp wish to4 ve hack leather, ‘ec vader erm Brattle a
via the Vagiinst the pobode near thet Pin z-Sandibiens! riven} tv that aucne PE my frientlal write to the | log bp the hqck.tea add SUN ress ireceived a bye ade orde
fim ite the rob ly Hote deal te cashless feohly, nod res? avprnor for 4 teste, bat thrpagh tie ities | an then he mety ellad.” | (Baa Sa ishary, for a wile
ia Ure. iieited foom oud positiva br auotire When“ rehice at Mro Bokfr. they wets podneees fal ae ts % ret adl-meel whe keews abet
power.) tps berg tisted A veral p Saat and av cary Fur ittiat ates forenge L thank Ma. Hiker, ant | Itis poeqsar tty rocacl such iastances cow, and plow--enn piu
loney ins pursiersawere boat bys psist, they sudlenty. forgive bin Vani} perhans be(tet prepa rach tr Pe. ' 7 ATED a gach cad be found in eit
tae the fhe Chermdalves ta an anhaeade, tent yngled Hichow thn Eshop hd be two anos eens: 1200 manlidess hs tac followings foun lia ry cits lack Syst bee
je th A bambys ’ jungle, and attackyt a frat al cortainly ain-not gy iy of will’el duirder, and Tighe Now Ordlejns Pigayune: ; cy i>, See
fiiink by wstrong boty ofr sbslaywith more tab jaopp tne ony. ben warning to all jaties in fa- 88 yo RS Eee Baa 2
L* pads taken the! MistaTre ata Pinkett —The Ryv. J. de paow -Lraroe
. * ae . t - yo" yehowad, & shrewd, +
fier teaaining 4a 000 Cy eee far anets

t

joone eee phates od aitislity. Wheo Gayer al Ode rear , upton siaiilar® peg tsioe4:
cnt dad Lonstat, it iiek to his garnpy it was. with bul his (gine from the hands of anothersit ad cooked: Cf. Twichell

yaad aren tha rein sinter bal ether beew killed, Or! broggtt tite beaacty 19 say: ahonldes, withthe Td sorting tpithialiy: i his caPing du
an bel degree t 19 tre ghemy. Sia, the: valtibe hin tdzle pointing te ands Cue grougd, duel wos it | AO ER ETI RS Hhfaliy ih tis CaP te Ny keh. cad Lea gtan
osign  virers? AL bolint est k rs afateoas. The net of Ptuing Oh bamnge dopucpetre ting Tg every sic ly season for thipeer yeiis cen lem haw bes ie thee
py hben

ucliag. swore hy his mongers mustaches Mist he would towpr Jath: Crude. futending to stake with the ; te ' 5
: - - ‘ . ‘ <myige 0 s rit teLé ota pies st
Ing the: tevohgy tis coat 7 Th tisteol@he: borrows) Peunjin elf dotener ; Atthat neibt than streck foe baat hs ha Ieave of absorp from aE AL -eclenk Obiowent
9 of the! Ffirat the aneicnt histoty af the kingdom Of Tai: the fun with hid hos, clevating the neatzle; dnd jsougregation vebwhich he-fas POH Otal ere Ss veretec and Aire
ngaal oh pos ae ua wat of the Trojan it was oes Lal dae eA AY! the jeares forthe siuinmer, with the VieW Clow. teantemte Mts
ctl yg, Hirer, a ot Sanson y foxts. be gottogether fivigh. IF bad tomate: Citta bite ND a eer *tick 4 Wi ? bee ibd ch
5 gar thousan } bud locate whose Jong tothe be ; hel ibast hove dined thors’ My: friends, 14 ViStUng Huboee. But wg feara phat ‘phate Hd os wt Lf pe stty
ebb on the eve él departure froin NER Ok ceheeleewal se OP cers

tied in this lile,andg amy Gae
hi proper th add to this syatemont
_ hee wt onee stected tor this ity, and aj

- bi

' had torches fisteaed, fhe dro aa ite b
wicker: ; rove wis then wiron tragt sae my abl ed ohacse
h ip charge te four thouniid, soldiers? and the ex otis i

‘aad bleds you all Hearing of x Pe ea goit oue
Ie ant Gedition, prapared in phe most profound sec pho es hearing of th pievaleace OE the tafe We adore'as tbs woe

pidemic Which isfagins-in Ghee SS haa Po oy oath. ead fe
Tyeeutones of Jona Fob

cr sike~-the hall eons
=

eyes


a ree

had made him do it.!
"Gard was 60-years-old; Robertson, 35.

"Let it besaid to the credit of the people of C enwi'ei i County that compara=
tively few were present at the execution," ;

JOURNAL, Covington, Kentucky, Soptouyyr: 10, 18535 page two.

| "an
Cbd aw ws (Cag V fran lerre Coseaitg:)
ats Gee hear [% ere ms

OTHER

- , 3
ele IAT. ws. asnadted at Mass 61 Mppe dias

tie ental tan a fas 1 a | oredle

Tava Fiial LAaslid b Ho FZ
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My Baby—
My Baby!

(Continued from page 35)

curvature of ‘the spine, and they learned that

4- he did not like to be kidded about his size.

They found out that he had a tattoo of a
bird on his left forearm. The bird was en-
circled by a banner that read “Angeline.”

That was the name of his wife, whom he had
married on Easter Sunday in 1943. Two weeks
after their marriage they had quarreled and

Angeline had taken out a warrant against him. -

And a bartender who knew him for several
months described him as a timid man, “almost
too timid to cross the street.”

But Robinson wasn’t afraid to cross state
line after state line for more than five months.

The F.B.I. had entered the case on July 17
when charges were filed against Robinson for
leaving the state.

Only once in the five months "that followed
did the F.BI. come close to him. They learned
he was working as a dishwasher at the Dell
Country Club in New York City. But when
they got there he had left.

The first real break in the manhunt came on
the night of December 22.

Reckless Driver

A man who said his name was Charles F.
Keller, Jr. was picked up by traffic officers in
™ ovidence. He was charged with reckless

iving that led to the injury of a pedestrian.

At police headquarters he was examined by
a physician and pronounced drunk. Sentenced
to ten days in jail, he was freed pending ap-
peal in bail of $1,000.

The man’s fingerprints were sent to Wash-
ington, D. C., for a routine check at the F.B.I.

A week later federal agents seized Keller,
alias Robinson. They found him polishing cos-
tume jewelry at the Elite Polishing and Plating
Company.

Wearing baggy trousers much too large for
his bowlegs, a coat which hung halfway to

his knees, a battered felt hat and thick glasses,
Robinson appeared to be anything but a
runaway killer.

“Okay fellows,” he said. “You iis have
any trouble with me. I’m glad it’s over now. I
want to go back and face the music.”

Hours later he penned his signature to.a full
confession, ending with the words: “I believe
I am a sex maniac.”

The idea to assault Joyce, he said, came
when the child was outside and he had bought
her the gum. She asked where her mother was,
and he told her he would take her back.

Robinson walked her to the alley behind
the Capitol Bar, thrust her to the pavement
underneath a truck-trailer and choked her
“until she was limp.” Ther he dragged her
underneath the loading dock. It was then that
he tried to rape the child.

Later, he took a taxi to his room and went

sleep. The next morning he became panicky.

: packed and took a bus to Irwin, Pennsyl-
valla, ;

Robinson spent the day there with his
mother, then took off for New York City. He
worked in New York for a while, but when
he heard that he- was wanted for murder he
fled to Providence. He felt that he would be
safer there.

Sometimes, he said; he prayed that he would
be captured. Once he even wrote a confession
note, planning to commit suicide, but he
burned the confession.

Louisville Detectives Earl Ammon and James

Bibb, who carried the brunt of the investiga- .

tion from the start, were assigned the job of
taking him back from Rhode Island.

It was New Year’s Day when he returned,
and the crowds jammed Louisville’s Union Sta-
tion. As he stepped off the train he was sur-
rounded by photographers.

He kept his head down to avoid the glare of
the flash bulbs and the silent hatred of the
spectators. He dreaded the idea of being con-

fronted by Mrs. Shouse, but he didn’t have to
worry about that until much later. She was

serving a six-month sentence for neglecting her

child. A patrol wagon was waiting a few
yards away.

One of the detectives grabbed his arm to
assist him up the steps. But Robinson pulled
away and got a firm grasp on the handlebars.

He lifted one foot on the bottom rung. Then

he fell on his back in the gutter.
James Irvin Robinson was too short.

Eprtor’s Note: To, avoid embarrassment to

innocent persons, the names E. J. Morton and

George Norris, used in this story, are fictitious.

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Mo ee em, sa, sm


side a booth in the rear of the dim-

ly lit Capital Hotel Cafe and glared
irritably at the noisy nickelodeon be-
hind them. \

“Somebody turn that thing off!”
yelled Captain William Kiefer, head of
the Louisville, Kentucky, Crime Pre-
the eeasy Bureau. “And be quick about
it.”

Te two burly detectives stood be-

A waitress, her face tight with appre-
hension, slipped behind the machine
and snatched at the plug. Instantly
the multi-colored lights blinked off and
the record ground to a hoarse, off-key
halt. The loud voices in the crowded
establishment dropped to a’ whisper,
then ceased as the patrons centered
their attention on the two policemen.
“That’s better,” Kiefer said dryly.
oe Maybe we can hear ourselves
think.” : ;

20

After six weary days, the search ended

in heartbreak and remorse when a clerk peered under this loading-dock a few yards from the spot where Joyce vanished

Kiefer and Sergeant Henry Riebel
were there in response to an urgent
message from the cafe’s amiable pro-
prietor, Al H. Vonnahme, and they
weren’t too happy about what they had
found.

Vonnahme had telephoned Head-
quarters at about 11:45 this hot, humid
night of July 7, 1950.

“There's a woman in here who claims
her little girl has wandered off,” he’d

‘reported. “I tried to tell her the kid

BEY.

probably went home but she doesn’t
think so. She's having hysterics and
wants me to phone the cops.”

The call had been relayed to Kiefer’s
office since he had charge of all cases

"involving juveniles. He, in turn, had

asked the help of his close personal
friend, Sergeant Riebel, the head of the
Homicide Squad, and they had breezed
out to the rough Haymarket section
where the cafe was located.

The woman was having hysterics, all

Aimes

Special Investigator for
ACTUAL DETECTIVE STORIES -

right, they saw when they arrived. She
was sitting alone in a booth, her face
buried in her hands and her slender
body shaking with sobs.

Kiefer, now that the bothersome
noises inside the establishment had
been stilled, said: “Come on, Lady. Get
hold of yourself and tell us what hap-
pened. How can we find your little
girl if you don’t help us?”

The Captain’s voice seemed to pene-
trate the woman’s confused thoughts
and snap her back to sensibility.

With noticeable effort she straight-
ened up, took a handkerchief from her
purse and passed it across her tear-
swollen eyes. She was an attractive
woman, Kiefer noted, with long auburn
hair, dark, intelligent eyes and full lips.
When she finally spoke, it was with a
voice that indicated more than average

‘education—definitely not the type of

54

voice he was accustomed to hearing in
the Haymarket neighborhood.

“It’s my little girl,” she said miser-
ably. “I brought her in here-with me
tonight and now she’s gone. She's only
three years old and I—I don’t know
where to look.”

“What's her name?”

“Joyce Joan.”

“Joyce Joan what?”

“Shouse. Joyce Joan Shouse. I’m
her mother, Florine Shouse.” She gave
an address on West Chestnut Street.

IEFER said, “What were you doing
here at this hour? Especially with
a three-year-old child?”

“I—that is, W3 were supposed to meet
Joyce’s father.”

The Captain sighed deeply. “Look,
Lady. You don’t need a cop. Your
husband probably came by, picked up
the kid and took her home.: When you

53 Throughout the Long Night, Down the Dark,
Gloomy, Narrow Alleys of Louisville's Haymarket
District, They Searched for This Little Lost Child,

Calling Her Name, Peering Into Every Cranny,

Fearing Always That, Around the Next Corner—

“get there ‘they’ll both be sleeping
peacefully.”

Mrs. Shouse shook her head. “You
don’t understand. My husband and I
aren’t living together. He wouldn’t
have taken her without telling me.” °

Resignedly, Kiefer squeezed his big
frame into the booth beside the woman.
This, he decided, was going to be a long,
hard grind. He might as well be com-
fortable.

“Now, look,” he said, trying to keep
his voice as gentle as possible under the
circumstances, “let’s start at the be-
ginning and take everything in order.
First, what time. was it when you got
here?”

Mrs. Shouse appeared to be getting a
grip on herself. “About eleven o'clock.”

“And the child, Joyce, was with you?”

“Yes, Sir. There was no one to leave
her with at home and I was supposed to
meet her father here around midnight.
This was going to be a celebration.”

“A celebration? Of what?”

“Our reconciliation. At least that
was the way we planned it. We were
going to talk things over and see if we
couldn’t get back together. You know,
for the sake of the kids.”

“You have more than one child?”

Mrs. Shouse nodded. ‘“There’s Betty,
who’s eleven, and Tommy; he's eight.
They're both living with their grand-
parents in Alton Station, Kentucky.”

“Go on.”

“Well, there isn’t much more to tell.
I was sitting here and Joyce was talking
and playing with the customers. You
know how kids are in a crowd. One
minute she was right here beside me;
the next minute she was gone.”

“You looked for her as soon as you
missed her?”

“Oh, yes. A lot of the people in here
helped me. We went around the block
calling her name. But we couldn’t find
her.” Mrs. Shouse began sobbing again.
“Someone must have taken her away.
You've got to find her!”

KIEFER felt a knot in his throat as he

studied the terror-stricken features

_ of the woman next to him. He cleared
his throat and said, “Give me a descrip-
tion of the baby.”

. om little and she’s beauti-
ul—” .

“Sure, Lady. I know that. But I’ve
got toknow more. What’s she wearing?
What color are her eyes? Her hair?”

Mrs. Shouse said, “Oh.” Then she
gave a complete description. Joyce
Joan, she said, had curly blond hair and
blue eyes. She had -been wearing a
flowered yellow dress and tiny brown-
and-white sandals. ~*

Sergeant Riebel, who had been sit-
ting opposite them in the booth, went to
the telephone, where he called Head-
quarters and had the description broad-
cast to all cars. Any person on the
street or in an automobile was to be
stopped if he had a child with him.

_.. Captain Kiefer continued his ques-
tioning of Mrs. Shouse. “Are you sure
your husband didn’t come in here ‘to-
night?”

“I didn’t see him,” Mrs. Shouse re-
plied firmly.

“Tell me about him,” Kiefer urged.
“What's he like? Where does he live?”

It soon developed that the woman’s

husband was named Robert Shouse. He
was a big, robust man in his late
thirties, and he had earned for himself
a fine reputation as a trainer of trotting
horses. His work required that he
spend much of his time away from
home. This, according to Mrs. Shouse,
had been one of the reasons for their
separation.

e

Joyce Joan Shouse:
She was too young
to fear any man

4

dl

And, since they no longer lived to-
gether, she had no way of knowing
whether Shouse maintained a per-
manent Louisville address.

Kiefer demanded to know how Mrs.
Shouse had been informed that she was
to meet her husband in the cafe.

“Robert called me,” she replied.
“Sometimes when he was in the city he

hoe ‘ re i ee ee? ae
The body was found under a loading platform six days

The pitiful bundle was placed on a stretcher in a vacant
lot and pholographed | before removal to the morgue.

after she disappeared with the strange little man. _

Someone pulled at his jacket. He turned around. A little girl
stood before him, her plump arms held akimbo.

“What’s your name? Mister? What’s your name?”

He turned away, pretending not to notice.

But she persisted. When he continued to ignore her she tried
to climb up on the adjoining stool. She balanced herself on the rim
for a moment, and she began to lose her balance. Robinson caught
her just in time.

“Look,” he said, trying hard to sound angry, “my name’s Jim.
Now, go back to your mother!” :

She stood her ground, smiling brazenly.

“No it isn’t,” she went on. “No it isn’t! You're fibbing !”

“What?”

“You're fibbing! I asked already. Your name’s Shorty!”

Robinson took the child by the hand and walked her over to
the booth where her mother sat.

Mrs. Shouse had come to the bar that night to find out whether
anyone knew where her husband might be. It was getting late,
however, and she had given up trying. She was telling her troubles
to a husky farmer, a glum-faced man with hairy, muscular arms.
; aw I found someone to play! A nice man! Mommy,

ook!’

Mrs. Shouse faced Robinson for a moment, then went on with
her hushed conversation. Robinson started to say something to
her, but just then the child darted away.

He shrugged, and he returned to his seat.

He returned to the study of his reflection, but he was interrupted
by an urgent tugging at his jacket. :

She wanted to play. 3
. Joyee had a smudge on her nose. He found a napkin and wiped
it off.

“You should know better than that. Little ladies never put their
fingers in ash trays!”

“You're cute!”

“Yeah. Sure.”

“Buy me some bubble gum?”

Twice he tried to return her to Mrs. Shouse, but Joyce kept
coming back.

“Okay, come on. I’ll buy you some bubble gum. But you've got
to promise me you'll stay with your mother.”

“Okay! Okay! Let’s go!”

It wasn’t until 1 A. M. that Mrs. Shouse realized that her daugh-
ter was gone. She didn’t have to call a policeman, though. There
was one right there, arresting her for disorderly conduct, and
drunkenness.

She had almost lost Joyce once before, after a similar drinking
spree. It had been her third arrest, and the authorities placed Joyce
in a foster home. But Mrs. Shouse got her back after a while by
finding steady employment asa housekeeper and promising to take
better care of her.

They booked her at Jefferson County Jail, and this time she
was on the verge of hysteria. - ‘

“Do you think,” she asked over and over again, “somebody is
just keeping her because they know I’ve been picked up? I hope
they don’t let her get near any dogs. If someone didn’t understand,
she’d be scared to death! Scared to death!”

Joyce’s description was immediately broadcast to all patrol cars.
A few hours later the police listed the case as a possible kidnapping.

They Search Vacant Lots

Later that morning a team of twenty-eight patrolmen and de-
tectives conducted a house-to-house search of the Haymarket area.
With the Capitol Hotel Bar at the center, the police branched out
over a radius of forty blocks.

They pushed aside the weeds of vacant lots, and they searched
under piles of refuse.

Hundreds of vagrants were questioned, but all they got out of
them were mumbled, righteous protests.

A fisherman called in to report that he had found strands of
what looked like blonde hair on bis hook. Coastguardsmen dragged
the Ohio River.

Someone said he had heard a child’s cry echoing from inside a
Sewer. Firemen searched the sewer from one end to the other.

They found nothing.

Florine Shouse was released from jail, but she still faced charges

of neglecting her child. She began a wearisome search of the only
places she knew, the Haymarket bars, to hunt for information.

Six days later an express company clerk told the police that she
had “smelled something peculiar” near a truck-loading dock that
lay about three hundred feet from the Capitol Bar.

They found Joyce early that morning, hidden under the dock
platform.

Her blue eyes were open, but she was dead.

Joyce’s face was tinted a sickly purple, and her little body was
swollen. The long, blonde tresses were matted and filthy. Several
teeth were loose, and her face was set in a macabre grin. Mud and
seaweed covered most of the daisies on her bright yellow dress.

A few feet away they found a tiny pair of panties, and the
wrapper from a stick of bubble gum.

The medical examiner’s report listed the cause of death as stran-
gulation. They also found traces of sexual assault. But they couldn’t
be sure. The body was badly decomposed. :

Mrs. Shouse was brought to Louisville General Hospital, the
scene of the autopsy.

A police lieutenant met her in the reception room. He opened a
package that contained the child’s soiled dress.

“Ts this it, Mrs. Shouse?”

She pulled the dress away from him, then brought it up close
to her breast, and screamed.

“My baby! My darling baby!”

She slipped to the floor, and, on her knees, she prayed.

“Oh, Lord! Take me away right now. . . . Where is Joyce?
How is she?”

“I’m sorry, lady. She’s dead.”

It seemed as if every one of the 320,000 residents of Louisville
were shocked into action.

The Alcoholic Beverage Control Administrator drafted a regula-
tion designed to keep children out of saloons. Anxious editorial
writers recalled the famous slaying of eight-year-old Alma Kellner
back in 1909, and they demanded that there shall be no more
Joyces.

Veterans groups and private welfare agencies offered a reward
for information leading to the capture of Joyce’s slayer.

A short, stoop-shouldered man was beaten up in the downtown
business section after someone remarked about his resemblance
to Robinson. .

The police began an intensive search-for Joyce’s putty-faced
friend. The Homicide Squad, reinforced with eight additional men,
worked on a round-the-clock schedule. Photographs of Robinson
were obtained from his former employers, and circulars were rushed
to hundreds of cities. Investigators were kept busy checking on
reports that Robinson had been sighted in various Kentucky and
Indiana towns. °

Laboratory technicians of the Federal Bureau of Investigation
examined Joyce’s clothes. And they pondered over a man’s handker-
chief and a heel print found near the body.

Robinson was not the only person wanted for questioning. -

There was also Mrs. Shouse’s husband, Robert. He had worked
at the Fairgrounds trotting track in Louisville, but he had report-
edly left about a week before Joyce’s disappearance. Robert Shouse
was an itinerant horse trainer, but he couldn’t be found at any of
the neighboring tracks.

The police were about to send out a nation-wide alarm for him
when Robert Shouse walked into Louisville headquarters. He had
just learned about the murder, since he had been touring fair-
grounds in ‘Illinois. It didn’t take long for him to convince them
that he had had nothing to do with the murder.

He did, however, shed some additional light on the tragic life of
his wife. They had two other children, but they were living with
his parents. He had not lived with Florine for several years, and
a divorce was now pending. 2

The third part of the triangular investigation was a man who
called himself E. J. Morton. He had befriended Mrs. Shouse, and
he had even paid her rent for a while. Morton’s friendship with her
ceased when she refused to accompany him to Oklahoma City. He
was able to give conclusive evidence that he had not been in Louis-
ville on the night of the crime.

Meanwhile, facts about Robinson began to pour into headquar-
ters. He had vanished from his room on the night of the murder.

They learned that Robinson had been hospitalized off and on
since he was a baby, being treated for (Continued on page 47)

“Shorty” Robinson knocked around from city to city as
a jack-of-all-trades. Police caught him in Providence.

Before her baby wos found, Mrs. Shouse rode around
with reporters, tracing clues, hoping her child still lived.

an

: a
| O, “Amold said. “He | fedistricting of legislative di
| was indicted g ago that we | ‘ricts after the. of there;
‘probably wou

- Memphis n

Al the:


€ z € ¥

7 KENTUCKY REPORTS [Vol. 288.

port or denial of contested factual issues, provided the
parties agreed for the proof to be introduced in such
manner, but not otherwise. But in no event would this
court be authorized to adopt or enforce such a wide de-
parture from the firmly settled and deeply rooted prin-

ciple in the law giving each litigant the right to be pres-

ent and to cross examine witnesses in the development
of contested facts, which right is entirely disregarded
and set aside when ex parte “affidavits are permitted to
be introduced as evidence, unless agreed and consented
to by the litigant or litigants to be affected. It follows
that the motion of petitioner to strike from this record
the affidavits filed by respondent as exhibits to his re-
sponse, and to be relied on as evidence, should be and it
is sustained.

This case has been pending in this court for what
might be termed an unreasonable time, with no further
preparation than what we have herein indicated, and
for which reason it is now ordered and directed that pe-
titioner, who has the burden of proof, as we now deter-
mine, may have until January 10, 1942, to take and file
depositions in support of the charges made in his peti-
tion and if not done by that day it will be dismissed.
However, if his proof should be taken as so prescribed,
then respondent will have until January 25, 1942, in
which to take his proof in the same manner, followed by
its filing in this court, after which the case will be sub-
mitted and disposed of.

Wherefore, the motion of petitioner to strike from
the record the affidavits set out therein is sustained.

Satterfield v. Commonwealth.
Noy. 14, 1941.

Appeal from Jefferson Circuit Court
Criminal Division.
Loraine Mix, Judge.
1. Homicide —Evidence supported conviction for murder as against

claim of self-defense.

2. Homicide—In murder prosecution, it was incumbent upon defend-
ant on plea of self-defense to convince jury by his evidence that
defense was true.

LST Sev) GF

4%

#

es

Satterfield v. Commonwealth 759

3: Criminal Law.—In murder prosecution, jury had sole right to
measure and weigh evidence to extent of believing one class of
witnesses and disbelieving the other, notwithstanding sharp con-
flict.

4. Criminal Law.—Refusal of new murder trial fer “newly discov-
ered evidence” that while parents of accused, after trial, were
visiting with neighbor when detective was present the detective
said that if parents had given up accused to him, he would guar-
antee accused would have come back to parents and that detec-
tive would not have gotten a penny out of the case if he had
arrested accused, held not error since such evidence would not
have been favorable to accused on new trial.

5. Criminal Law.—Refusal of new murder trial, defended on ground
of self-defense, on ground of ‘‘newly discovered evidence” of two
witnesses, to effect that on night of murder witnesses saw a man

crab accused and pull him through gate into yard and that par-
ies fell to ground fighting, held not error, such evidence, being
cumulative and no diligence being shown.

6. Homicide—In murder presecution, evidence warranted instruc-
tion on murder and court did not err in not confining instructions
to law relating to voluntary manslaughter.

~1

Criminal Law.—Where evidence in murder prosecution was con-
fiicting, it was essentially province of jury and not reviewing
court to measure, weigh and reconcile, if possible, such conflicts.
J. Rivers Wright for appellant.

Hubert Meredith, Atterney General, and Wm. F. Neill, Assistant
Attorney General, for appellee.

Opinion OF THE CourT By Morris, CoMMISSIONER—
Affirming.

Appellant, convicted for the murder of John Bell
and sentenced to death, appeals from a judgment earry-
ing into effect the ver dict. While in motion for a new
trial other grounds were advanced, on appeal several are
waived, it being insisted that (a) The verdict is contrary
to the law and evidence; (b) the court erroneously ad-
mitted incompetent evidence and rejected competent
evidence, both over objections; (c) appellant’s coun-
sel was caught by surprise, due to the fact that one
of defendant’s witnesses testified to facts in a differ-
ent way than same had been theretofore stated to coun-
sel; (d) that accused had since the trial discovered new
and important evidence, which could not have been rea-
sonably discovered before or during trial. Lastly, the
court. failed to vive the whole law of the case, and erred
in giving an instruction on the law relative to the crime
of murder.


P s ba T

KENTUCKY REPORTS [Vol. 288.

While grounds (b) and (c) are set up in brief, we

are not directed to any particular incompetent proof
which counsel claims was erroneously admitted, or com-
petent evidence rejected. However, since the point is
raised, we have taken the trouble to examine carefully
the tr anscript of evidence to ascertain whether such ob-
jections as are suggested are tenable. We find very
few instances where objections were made to introduc-
tion or rejection, and in the very few instances the court
properly ruled thereupon. Ground (c) is not discussed
at length, and the record fails to show motion for con-
tinuance on the ground of surprise by reason of unfa-
vorable testimony on the part of a witness who had
theretofore made more favorable statements to counsel
or appellant.

The accused and deceased were of the colored race;
the homicide occurred in a portion of Louisville appar-
ently frequented by members of that race, at about 6
p. m., on December 25, 1940. There is no ‘question but
that Bell died as a result of two wounds inflicted by a
knife, one in or near the heart, entering from the front,
clearly the fatal one, and another in the back, the point
of entrance not being shown.

Bell lived in the immediate neighborhood of Pythian
Hall across the street from Haley’s Cafe at 10th and
Chestnut Streets, near which point the homicide oc-
curred. Accused lived in another part of the city, but at
the time was engaged in playing in an orchestra in
Pythian Hall, where dancing was in progress. The de-
ceased lived next to the Hall with his father, mother and
younger brother Paul, who played some part j in an alter-

cation just previous to the homicide. The latter had ap-
parently been attending the dance at the Hall and left
there about 5 p. m. He went across the street to the
cafe and found his brother John there. He spoke to his
brother and started to leave when appellant said, ‘‘ You
are a game s. o. b.’’ Paul then went out the side door
on Tenth Street and accused followed him and jumped
on him. John appeared at this time and grabbed ac-
cused, and the three scuffled back into the cafe. Other
persons in the cafe interposed and, according to witness,
put Satterfield out of the building. Paul and the br other
remained in the cafe a few moments, then went across
the street to the home, where they sat by the fire for
about fifteen minutes, when John said he would walk

cepa ®?-

Satterfield v. Commonweal 761

across the street to see Clarence Maddox about going to
a party. Witness says that just as soon as his brother
stepped out ‘‘and the screen door slammed,’’ John hol-
lered ‘‘help.’’ The father and mother rushed to the
door, followed later by the brother. Witness saw John
on a ’ walkway by the side of the house, a few feet from
the front door, and some one was running away. He
says at no time during the evening did he or John have
any sort of weapon.

It is shown in the proof that at some time shortly
before the initial scuffle, Paul had been in the cafe and
drinking a bottle of beer with Louise Johnson, who was
admittedly the girl friend of Satterfield; it appears also
that she went into Haley’s with Paul. The mother and
father corroborate the testimony of the son as to what
occurred after the two boys came home, except they say
that when they reached the point where deceased was
attempting to get off the ground, Satterfield was there
and stabbed at the father and then wheeled and ran.
The father was certain he had a knife in his hand.

Frank Phelps, a railroad man more than 70 years
of age, saw Paul and Louise Johnson come into Haley’s
and go to the counter, where they remained a few mo-
ments drinking beer. Satterfield came in as the two
were leaving the bar, and said to the girl, ‘‘Get out of
here you bitch, de and as Paul got near “the door Satter-
field broke at him, and he, J ohn and Paul went out the
side door, and shortly all three ‘‘broke into the door,”’
and some one pushed them out. He said that John and
Paul came back into the cafe; witness went to the front
door and saw Satterfield on the corner, and the girl
across the street; they met and both went to the other
side and Satterfield came back to the corner near
Haley’s, and some one told him not to go in, ‘‘don’t have
no trouble there aint nothin to it.’? Satterfield said, ‘‘I
wont go in; John Bell lives across the street; the s. o. b.
better. move tonight; if I see him I am going to kill
him.’’ He also w arned John and Paul not to go out,
saying ‘‘Satterfield says he is going to kill you,” and
John answered, ‘‘I am going to take the kid home.’’ He

says Satter field had a knife “all the time’ holding it be-
hind him; the brothers had no weapons.

Another witness, detailing occurrences in the cafe,
said that after the preliminary scuffle, in which deceased
had gone to the relief of his younger brother, Satter-

hue KENTUCKY REPORTS [Vol. 288.

field, still with a knife in his hand, when warned not to
go into Haley’s, said, ‘‘Well, I will eo but if he stays
over there I am going to eet him tonight. de

George Miller the man who separated the parties in
the first scuffle, said John told Satterfield two or three
times, ‘‘ Don’t hurt my brother.’’ He also told of threats
made to kill John. Cleo Richardson was the waitress in
Haley’s who served beer to Paul and Louise Johnson.
She said that while they were drinking beer Satterfield
walked in and said to-her, ‘‘I told you “about that damn
negro,’’ and Paul started out. She then relates the first
disturbance, and that when bystanders pushed Satter-
field out the door, following the scuffle, he said, ‘‘I will
get you, you w ill have to move from Tenth and Chest-
nut.’’ .After some pressure witness said that Satterfield
had a ‘‘brown handled knife’’; the Bells had no
weapons.

Other witnesses testify as to seeing Satterfield after
the first difficulty, with a knife. It is unnecessary to de-
tail further evidence for the commonwealth, which as
not unusual in such cases, is not precisely in accord as
to details.

Appellant admits that he struck the blow which
caused the death of deceased, but asserts that he did so
in order to protect himself. He admits that he had been
a close friend of Louise Johnson for eight or ten months.
He stated that during the afternoon of the homicide he
had been playing for a dance in progress at the Hall.
Durine’ an intermission Louise and some other girls
asked him to go with them to the cafe. He started, but
went back to the Hall to find out how long he could be
absent, and was informed that the or chestra was about
to resume playing. He went back to tell his friends he
could not join them, but said to Louise, who was stand-
ing at the bar, ‘‘Get me a bottle of beer,’’ then walked
toward the victrola, ‘‘and they throwed me out.’’ He
says he was struck in the mouth and lost one tooth. He
then met Louise on the corner and they went to the
Pythian basement to wash the blood from his mouth.
After this he determined that he would go to the Musie
Club, some distance away, for the purpose of having
some one to take his place i in the orchestra. In so doing
he said he walked by the Bell home, when ‘‘this fellow
jumped out on me, and hits me and I ‘fell, and he stabbed
at me with a knife. I grabbed his arm and we scuffled

Satterfield v. Commonweal 763

for a while. The scuffle began at the gate and ended up
in the yard. He had me down and I grabbed the wrist
his knife was in and stabbed him, and dropped the knife
and haven’t seen it since.’’ He said some one ran out
the door and hollered ‘‘wait a minute until I get the gun
and I’ll kill him, and I got away from the boy and
rushed up the street to the next corner.’’

He insists that he had no knife, but admitted that
he kept away from his ‘usual haunts because the matter
was serious, and he was ‘‘going to wait until it was
straightened out, and then come and give myself up.”’
He denies the use of the threatening laneuage attributed
to him by the several witnesses.

Louise Johnson corroborates the testimony of ac-
cused, except that she says when they were ‘“tussling i mn
the side yard, Satterfield twisted John’s arm and “the
knife fell out and he reached down to pick it up, and
John fell on it.’? She said that Satterfield’s tooth may
have been knocked out at the time the bystanders were
putting him out of Haley’s.

Louis Archer and his wife were on their way home
from 12th and Chestnut, ‘‘walking behind a girl and
boy’’; when they got near Pythian Hall they saw a boy
jump out and strike, and they began a fight. They did
not see either boy have a knife.

There was presented to the jury the question of
whether accused was guilty of murder or of killing in
sudden passion, or in self-defense. The evidence was
conflicting, but there was more than ample proof to jus-
tify the conclusion on the part of the jury that the of-
fense was premeditated murder. The real issue was
whether or not appellant took the hfe of deceased in
self-defense. It was incumbent upon him on this plea to
convinee the jury by his evidence that this was true.
Evidently accused failed in this respect, and under the
proof the verdict was justified. The jury had the sole
right to measure and weigh the evidence to the extent of
believing one class of witness and disbelieving the other,
notwithstanding the sharp conflict. 7

There appears to be little merit in .the contention
that appellant on another trial might be afforded a dif-
ferent or more favorable verdict if the new lv discovered
evidence should be presented. While several affidavits

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APPEALS

ECUTION

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SHELKELS v. COMMONWEALTH.

Court of Appeals of Kentucky.
March 13, 1951.
Rehearing Denied May 8, 1951.

| Albert Shelkels was convicted in the Cir-
cuit Court, Criminal Division, Jefferson
County, Loraine Mix, J., of armed robbery
with deadly weapon resulting in death and
Albert Shelkels appealed. The Court of Ap-
peals, Milliken, J., held that on second trial
the reading of confession of defendant from
record on first trial identified as statement
of defendant, after which original confession
was introduced in evidence was not prejudi-
cial to defendant.

Judgment affirmed.

1. Criminal law €>1119(4), 1178

On appeal from conviction of armed
robbery resulting in death where improper
remarks of prosecuting attorney in his ar-
gument were alleged, but such impropri-
eties were not part of record and were not
pursued in brief on appeal, there was no
right to reversal on such ground.

2. Criminal law C=1169(2)

In prosecution for armed robbery cul-
minating in death, where confession of de-
fendant was read from record of previous
trial by court stenographer, and after ob-
jection to reading from record confession
was identified as statement of defendant
by officer who witnessed confession and
original confession was then introduced in
evidence, there was no error prejudicial to
defendant in reading confession from rec-
ord.

—_>_—.

James A. Hubbs, Louisville, for appel-
lant.

A, E. Funk, Atty. Gen., Zeb A. Stewart,
Asst. Atty. Gen., Carl Ousley, Jr., Com-
monwealth’s Atty., Louisville, for appellee.

MILLIKEN, Justice.

This is an appeal from a judgment of the
Jefferson Circuit Court imposing the death
penalty upon the appellant, Albert Shelkels,
for the crime of armed robbery committed
with the use of a deadly weapon which re-

238 SOUTH WESTERN REPORTER, 2d SERIES

sulted in the death of Milton Zimmerman
in Louisville, Kentucky, on December 23,
1948. Upon a former appeal of this case
from a judgment of the trial court based
upon the verdict of a jury inflicting the
death penalty, we reversed the judgment
because of the introduction in evidence of
a gruesome post-mortem photograph of the
body of Milton Zimmerman. See Shelkels
v. Commonwealth, 312 Ky. 713, 229 S.W.2d
470. At that time we also reversed for the
same reason a judgment inflicting the death
penalty upon this appellant’s accomplice,
See Craft vy. Commonwealth, 312 Ky. 700,
229 S.W.2d 465. The facts of the case are
stated in the two opinions on the first ap-
peal, and the evidence adduced at the sec-
ond trial of the appellant was the same in
all respects except that the aforesaid photo-
graph was not introduced in evidence. On
the second trial of Shelkels the jury again
found him guilty as charged and again
fixed his penalty at death.

The record in the case presents no ques-
tion of conflicting testimony. Shelkels did
not take the witness stand in his own be-
half and introduced no other witnesses.
The facts are undisputed, and the only
grounds urged for reversal are stated in
the previous appeal except as to the use of
the gruesome photograph which we had di-
rected not be presented to the jury.

[1]’ The appellant alleges improper re-
marks of the Commonwealth’s Attorney in
his argument, but the argument is not a
part of the record in the case and the al-
leged improprieties are not pursued in the
brief for appellant.

[2] It is also alleged that the trial court
erred in permitting the official court sten-
ographer to read from the record of the
previous trial the confession made by Shel-
kels. When this objection was made the
officer who had witnessed the confession
was placed on the stand and he testified
that the confession as read from the previ-
ous record was identical with the state-
ment he had taken from Shelkels. The
original confession was then introduced in
evidence. The trial court overruled the
objection upon the ground that the confes-

YATES v. KURTZ Ky. 669
Cite as 238 S.W.2d 669

sion as read was found to be identical with
the original confession and its reading was
not prejudicial,

There being no other grounds urged for
reversal which were not passed upon on
the previous appeal, the judgment of the
trial court is affirmed.

° KEY NUMBER SYSTEM

qumse

YATES et al. v. KURTZ.

Court of Appeals of Kentucky.
Feb. 9, 1951.

Rehearing Denied May 8, 1951.

Action by Robert C. Kurtz for property
damage resulting from a motor vehicle
collision, against Marshall Yates and an-
other, and Yates counterclaimed seeking
damages to his automobile. The Circuit
Court, Boyle County, K. §. Alcorn, J., ren-
dered judgment for plaintiff and defendant
appealed. The Court of Appeals, Latimer,
J., held that driver’s failure to stop at a
highway intersection in disobedience to the
law caused the accident. . ’

Judgment reversed with directions.

Automobiles ©=226/2) in
Where truck driver. approaching main
highway failed to stop at intersection in
Violation of statutory duty, and believing
she had time to turn onto highway after
observing approaching vehicle, and the ap-
Proaching driver allegedly did not see truck,
the truck driver’s failure to comply with
statutory duty before entering through
highway, and mistaken belief that she had
time to enter highway, were the causes of
the accident. KRS 189.330, subds. 4, 5.

a ee Si
James G. Begley, Henry Jackson, Dan-
ville, for appellants.
James F. Clay, Danville, for appellee...‘

LATIMER, Justice.

Suit was instituted by Robert C: Kurtz
against Marshall Yates and Thomas Curt-
Singer secking damages in the sum of $950

to his truck, The action arose out of an
accident involving an automobile belong-
ing to Marshall Yates and being driven by
Thomas Curtsinger. The defendant Mar-
shall Yates, after joining his co-defendant
in denial, counterclaimed against Robert
C. Kurtz and Lillian Kurtz, his wife, for
damages to his automobile in the sum of
$1100. In the absence of Judge Alcorn, by
agreement Honorable Chenault Huguley
presided as special judge. Upon trial the
jury returned a verdict in favor of plain-
tiff, R. C. Kurtz, in the sum of $600. De-
fendant, Marshall Yates, prosecutes this
appeal.

The accident happened on State Highway
35 between Danville and Hustonville at or
near the point where the Grubbs Lane
Road, a road inferior in class, intersects
Highway 35. There was a stop sign on the
Grubbs Lane Road near the intersection.

Appellant’s automobile, a 1940 Lincoln,
was being driven by Thomas Curtsinger.
He was. travelling in a northerly direction
toward Danville.

Kurtz’ truck, a 1941 GMC pickup, was
being operated by his wife, Lillian Kurtz,
who was driving in an easterly direction
approaching Highway 35. It was her in-
tention to turn north on Highway 35 to-
ward Danville. Mrs. Kurtz states that she
was driving about 15 to 20 miles an hour
and that about 30 or 35 feet before the in-
tersection, she slowed up to about 2 or 3
miles per hour but did not stop before en-
tering Highway 35. She stated that she
looked both ways before driving on to the
highway and that she saw the Yates car
about 500 or 600 feet away, and, believing
she had plenty of time to enter Highway
35 and make the left hand turn, changed to
low gear, picked up speed, and was travel-
ling about 10 miles per hour when the
Kurtz’ car crashed into her. She stated
that she did not realize there would be a
crash until after it happened, and that at
the time of the accident she had crossed
to the right side of the road going north,
with the front right tire of her truck over
on the berm about a foot and the back lef¢
tire about a foot to the right of the center
line.

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How that commanded a full view of the front dooce
but she saw nobody. She discovered that the house.

was getting cold, and knew ‘at if the fire in the

furnace died out she would lose her flowers. She de- ~

~~ “scended the cellar stairs, replenished the fire, and was

just opposite Sheely’s bones when she heard in her

room above the loud report of a pistol. She hurried |

to her room, expecting t» find her dresser on fire;

but when she opened the drawer where the pistol

lay, there was not a cartridge eihiise: a was just a8 .

~~ her husband had left it.

“The next day she sent for her minister, and he.

: advised her to bury Sheely’s bones. Ss
She took them in a box and carried sheet to ‘the

hill and near the place where Sheely had suffered
death, and gave them decent burial. A few toe bones
were feet through a hole in the box while crossing: ee
stream, but Sheely’ s ghost nag never come back in’
search of them. -— ~ :

Many people believe that the soul iof man is im- ~

mortal, a few believe that it revisits the earth, and a
very small number aver that they have seen the

ghosts of the departed wandering about familiar

scenes, dressed in the very clothes they wore in life.
“If a man’s clothes turn to dust, shall they live
again?’ In what strange country does: the shuttle
fly that fashions from the ashes of the past these
- ghostly germans ‘ is


4%,

oa wound’ its way These the iawn, mid tal trees grew &)

slong its oan pee

8 on. the. ‘crursbling” ‘front: porch’ ‘and.
began: to look: ‘abont), thems): There ‘must. have been
ten thousand’ frogs. Nolding’ high carnival along the
ss confines of the, creek, to! judge. from the terrific nois
. they made. “A thin’ mist) ujrolled. its filmy. length’
» and followed the line of the ereek. “Millions of fire-"

“The scene i al and Foatinere to nike young beset Py

put the older ladies felt fearful of being alone .in
such a solitary place with no man for a protector, °
When the negro woman, Polly, by name, had fin

ished . her /work, she came and | sat, on the porch.
‘with the ladies. . The. young. zitla begged her to tel

them a ghost story, but she s1id: **Not’ heah ‘in diss
-hanted house, whar Sheely wa.ks continally.. Why,’

> he stans study right undah d>* blarsted locust. tree, |

an’ divers has seed him.* Da = Je raison ob no white.

-pusson stayin’ in’ jdis; house.” “Have you ever seen .”

im?’ asked the ‘old lady. ain’t jist. zactly. seed

_myref, but I done hearn hin ~ieay bees de times,” ‘es

* Polly and the ladies’ adjoureted toa large room,

which were three beds, a large one for the. young cited

nd two ‘small. "ones for their e.ce of
It was a summer night, bu. woud ‘fire. was 5 built
n the hearth to pee the. ome roe mn took pheertal

ay 18 Poon” to. lake a moving. ee sible,’ =
Mrs. as the old lady, and one of the young girl aw
an object. rise, dressed in a long white robe, and’ pass:
slowly from the fire-place to the door, and disappea a
_ None of them saw or heard the door open, but all
three saw the object walk across the floor and ‘disap- “
pear. Mrs. Ly thought that the old lady had® se
and was walking in her sleep; but she answered as
soon 88. called, and said: “I saw that, whatever ‘it
The doors and windows were. looked to, but

oe Peniained as they had been left the night” before.’

Polly was called and told of the strange incident, and.
said: “+ Umph! dat’s ‘no new. fined ivers
seed dat in dis room.” Her a ree
- The ladies left for Opnthians soon ‘after breakfast!
That was the last time Sheely’s ghost was seen;
ut his ‘bones began to clainor.for decent. sepulture..
+~When the physician died who owned them, they fel

et © to his daughter, and she put them in her cellar; nea
, to a large | pte ce. ae peated, her whole house and_

ee * One cold Night in winter, ‘she invited a young gir
“to spend the night with her, her husband having:
“goné away on business. It was a bright: moonligh
‘night. About midnight, she ‘and the young lady. | |

"=, heard the front door bell Ting three times. . The lady 1,

= of the house arose at once and looked out of a win-


7 Sanday, Feb. 3, 1974

Last Execution Dec. 20, 1901

~-.-

Only 4 Death Sentences Meted |

In Boy! 2 County Since 1872

By W.C. ALCOCK

We stand to be corrected, but the
records show that there have been only
four death sentences meted out in Boyle
County since 1872. Of these, only two
resulted in capital punishment being
inflicted.

The first of these was Tom Guthrie, a
Negro, hanged on July 5, 1872, for the
murder of a Mr. McNeil near Junction
City.

The second was Reuben Quinn, a

or. hanged in the yard behind the

oyle Courthouse on Dec. 20, 1901, for
the murder of Policeman John Crum.

With no information on any previous
executions and none on the Guthrie
case, this account will be on the Quinn
story. The other two cases involving the
imposition of the death penalty were
these:

(1) Two Negroes convicted of a
slaying and given life and death
penalties. The one death penalty was
later commuted to life imprisonment
by the governor. Date: 1923 or 1924.

(2) A white man was given the death
penalty and his father a life sentence on
May 2, 1951, by a jury in Boyle Circuit
Court in connection with the knife-

elausnenw Aertl 6 3081 afoia man oan

A few iodies witnessed the execution
from the Courthouse windows.”

The »<dy was interred on Duncan Hill
that afternoon. The scaffold was torn
down. The rope was cut in pieces by
souvenir seekers. |

The newspaper account pointed out
that ths was the first “legal execution
in ths county since Tom Guthrie,
colores, was hanged on July 5th, 1872.”

Even in that day 73 years ago, people
were «cerned about capital punish-
ment, and it was rumored that
Govertior Beckham might pardon
Quinn on the strength of a petition
signed by ‘‘many ladies’ asking the
sentence be commuted to life im-
prisonment.

But the governor decided to let the
law take its course.

Looking again in retrospect, the story |

reports Quinn was a good worker, well-
thought of by his employers, was sober
and industrious.

Two years before the murder, he
‘took a vacation from his work, and
began the sale of liquor. For this first
offense he was fined $280 in police
court.”” j

|

| History ]

. The Manhunt

Then began the manhunt. The whole
county was combed. A reward of $300
was posted. Someone reported Quinn on
foot heading toward Nicholasville.
Then a man was reported boarding a
north-bound freight train at
Georgetown. The conductor locked the
car, telegraphed ahead to police at
Ludlow. Quinn was arrested.

At first, he denied his identity, but he
later confessed he was the man they
wanted.

Public sentiment ran high. Talk of
lynching was heard, but ‘‘cooler heads
and the fact that circuit court convened
within a week quieted the people to such
an extent that they decided to let the
law take its course... .”’

Evidence in the trial was that Crum
went to Quinn’s place to arrest him on
an old charge and was leading him out
when the man resisted and the shooting
began.

The jury returned a verdict of guilty
of murder in the first degree and fixed
punishment at death. The case was
taken to the Court of Appeals, but that

court upheld the lower court and the
governor named Dec. 20 as the day for
the execution, on which day the hanging
was carried out.

The Account

The Danville News listed the names
of the jurors and published a
photograph. Quinn’s likeness was
portrayed in a sketch. The defense
attorney was named for having made
such a hard fight against odds for
Quinn’s life, and his picture was printed
along with the prosecutor and _ his
assistant and also Policeman Crum,
‘the murdered man, who was a terror
to the blind tiger keepers.’

The Danville News’ masthead
carried this information: ‘‘W.V.
Richardson, local editor; issued semi-

_weekly, Tuesdays and Fridays; sub-

scription price, $1.00 a year; ELL.
Lillard, manager and editor.”

Thus ends the story of the last “legal”
execution in Boyle County. Quinn’s
“blind tiger” was located on the north
side of Walnut Street near an alley that
leads to Main Street across from the
present Kroger supermarket.

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[Two Negroes convictea of 2

Slaysug, and given life and deau!
penalties. The one death penalty was
later commuted to life imprisonment
by the governor. Date: 1923 or 1924.
(2) A white man was given the death
penalty and his father a life sentence on
May 2, 1951, by a jury in Boyle Circuit
Court in connection with the knife-
slaying April 15, 1951, of a man on
Hogue’s Hollow Road. The death
sentence was later commuted to life.

Our records of the Reuben Quinn case
come from the old Danville News,
dated Friday, Dec. 20, 1901 — the day of
the hanging.

The article simply stated, in the lead:
“Reuben Quinn was hanged in the
Courthouse yard here this morning one
minute past eight o’clock.”

In those days, punishment for a crime
was administered in the county in
which it occurred.

The Hanging

Minute details of the ghastly hanging
were included in the story: Time of the
trap being sprung,. when pronounced
dead, et cetera. Our account here, it
seems, is a reverse progression, rather
than a sequence of events from
beginning to end.

The death warrant was read at 7:50
a.m., then began the death march from
the jail to the scaffold, with Quinn
described as the ‘‘coolest man in the
crowd.”

The pastor of the Baptist Church
(Colored) had attended Quinn in the
jail. He offered a prayer. The pastor
heard Quinn say he would have been 49
in March.

It was attuned to the times, no doubt,
but newspaper accounts in 1901 appear
strange and unusual to 1974 standards,
and it is with a tinge of remorse that we
quote these lines:

“. . . the authorities deserve much
praise for the way in which the
. execution was carried out. There was
, hot a hitch of any kind, the officers
doing their duty as only brave men can.

| °

‘wo years betore the mur he

“ “took a vacation from his wo.a, und

began the sale of liquor. For this first
offense he was fined $280 in police
court.”’

History

And the same oid story of crime is
enacted, then as now, and Quinn fell
into evil ways — persisting in the sale of
whisky to make, as he explained it,
“twelve dollars a week,’’ an amount he
could not acquire by doing anything
else.

The Murder

The murder was described by Th
News as ‘‘cowardly.’’ Quinn had a
whisky dive, or “‘blind tiger” as it was
called.

Public sentiment was peaked against
unlawful sale of liquor. (Note — How
public sentiment changes over the
years!) Officers were pressured to stop
the traffic, and Quinn’s was probably
the only dive still doing business.

We now go back to April 1901 when

‘Policeman John Crum, armed with a

capias for Quinn’s arrest, followed a
group of men bent on getting a drink.
Crum entered the ‘establishment,’
unobserved by anyone except the
lookout who fled before giving the
alarm.

Then, according to evidence in the
trial, Crum placed a coin on the counter
and said: “Boys, it is my treat. Have
something on me. My money is as good
as anyone’s.”

The customers quietly left.

In a few minutes two shots were fired
(heard by only a few as is generally the
case). The lookout, who had hidden
across the street, said he saw Quinn run
out the door and go down Walnut Street
to Second Street. He told an officer
what he had seen, and with one or two
other citizens the officer found Crum
dead with two pistol wounds.

began. aN

The jury retired a verdict of guilty
of murder in the first degree and fixed
punishment at death. The case was
taken to the Court of Appeals, but that

execution in County. Quinn’s
“blind tiger’’ was located on the north
side of Walnut Street near an alley that
leads to Main Street across from the
present Kroger supermarket.

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2 LOCATIONS, Downtown Danville

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948. ‘Kye

near the bus station with a dollar bill and
sought to engage him. He took Quarles to
another cab immediately in front of his, in
charge of the deceased Grady. Willie San-
ders and wife, in another part of the city,
were awakened by a man hollering for
help, including the shout, “It’s a holdup.”
The car had run into and broken Sanders’
yard gate. There was some scuffling in
the car and then a pistol shot and moaning.
After a brief interval, another shot was
fired. Grady jumped out of the cab and
over the fence into the yard and the car
drove away. Grady was fatally shot in the
abdomen and back and wag beaten on the
head. Gcorge Harris and wife, living
across the strect, testified to hearing the
call for help, the statement that it was a
holdup and the pistol shots. Grady died at
the hospital a short while afterward. The
appellant abandoned the taxicab and was
arrested early the next morning.

The Commonwealth’s witness, Denny P.
Smith, also a young Negro, identified the
pistol with which the shooting was done as
belonging to Walter Brim and himself. He
testified he did not hear about the killing
of the taxicab driver but “I guess it was
last summer, don’t remember what date,”
about seven o'clock in the evening, Quarles,
Brim and he were drinking moonshine
whiskey together. He and Brim fell asleep
after he had put the pistol in a dresser
drawer. When he awoke, the defendant
and the pistol were gone. He found
Quarles in Brown’s restaurant, and he
asked the witness to go with him. They
walked “over the railroad” to a certain
place, and Quarles drew a pistol on him
and “I gave him a dollar” which he had
borrowed from Brim’s mother, apparently
in Quarles’ presence. During their travels
around town Quarles shot the pistol into
the ground. They parted about “a quarter
to twelve,” Quarles saying he was going to
Camp Campbell to see his wife. The wit-
ness could only say this occurred “one
night last summer.”

Appellant's argument is that Smith’s
testimony of being robbed by him was in-
competent because it was evidence of a dif-
ferent offense and, in any event, was too

245 SOUTH WESTERN REPORTER, 2d SERIES

remote or indefinite as to time in relation to
the killing of Grady. j

Brim testified as to the occasion of the
three men drinking together and of the
pistol having been taken. He fixed the
hour at 7:30 or 8:00 of the night Grady was
killed.

The Commonwealth introduced a signed
statement of the defendant in which he ad-
mitted the shooting of Grady, but claimed
it was accidental. He testified, with more
elaboration, to the effect that he had given
the taxi driver a dollar to take him to his
cousin’s home, and had no intent whatever
to rob him; that as ‘he was getting up off
the back seat, his pistol dropped out of his
belt; Grady grabbed it and during the
scuffle for its possession, the pistol went
off again. He insisted that he told Grady,
“This is no stickup” but he kept scuffling
with him trying to get possession of the
pistol. The story of the accidental firing
of the pistol does not harmonize with the
fact that the defendant was on the rear
seat and the deceased in front and that he
was shot in the abdomen and in the back.
Nor does the defendant undertake to ex-
plain the beating on the head. During the
course of his examination, the defendant
related his association with the witnesses,
Smith and Brim, that night, although dif-
fering in details, which he made favorable
to himself. He had corroboration of some
immaterial circumstances. He denied
robbing Smith and firing the pistol in the
ground,

[1] As to the matter of time, Brim and
the defendant himself fixed it, as being the
same night, so the argument of remoteness
fails.

[2] It is the rule in all jurisdictions that
evidence of an independent offense is in-
admissible even though it may have some
tendency to prove the commission of the
crime charged, because the probative value
of:the evidence is greatly outweighed by its
prejudicial effect. This is especially so
where the evidence is of an isolated, wholly
disconnected offense. But the balance of
scales is believed to be the other way where
there is a close relationship to the offense

QUARLES v. COMMONWEALTH n Ky. 949
Cite as 245 S.W.2d 947

charged. Of such is an act which tends
to establish identity, motive, intent or de-
sign or a plan to commit the offense charg-
ed. The appellant relics upon Butler v.
Commonwealth, 284 Ky. 276, 144 S.W.2d
510, in which we held prejudicial a series
of questions tending to show numerous of-
fenses. Neither the case nor those cited
in support of it are in point here for the
offenses were unrelated to the crime for
which the accused was then being tried and
did not tend to show any plan or design to
commit it. The purpose of their introduc-
tion was unfair, being merely to show the
defendant to be an evil, lawless person.

In Douglas v. Commonwealth, 307 Ky.
391, 211 S.W.2d 156, we held competent as
tending to prove identity testimony that the
accused, earlier in the afternoon of the com-
mission of the crime for which he was being
tried, namely, malicious shooting and
wounding by firing a pistol from an auto-
mobile while passing the victim on the road,
had drawn a pistol on another stranger and
threatened him. In that case we also held
that evidence of the possession of a black-
jack concealed in his automobile on another
occasion was not admissible, for it was un-
related. Of like character was certain evi-
dence held inadmissible for any purpose in
Crawford v. Commonwealtth, 241 Ky. 391,
44 S.W.2d 286.

[3] We do not think the evidence vio-
lates the rule of admissibility. The testi-
mony identified the defendant’s possession
of the fatal weapon and showed a plan or
purpose of using it to obtain money by
force. The possession of the pistol and
the robbing of Smith were all done in the

course of the evening, and the whole:

formed a connected story.

[4] It is further argued that if the tes-
timony be deemed competent, then the court
erred in failing to admonish the jury of
the purpose of its admission. After the
introduction of the evidence, the defendant
objected “to all the foregoing” and his ob-
jection was overruled. But there was no
request for an admonition as to its purpose,
nor was the attention of the court called to’

the omission. We have consistently held
that the:defendant, by such inaction, waives
his right to have the jury admonished.
Rogers v. Commonwealth, 264 Ky. 187, 94
S.W.2d 345. It would be inhumane to place
the re.ponsibility for the infliction of the
death penalty upon the technicality that the
attorney failed to request the admonition
in addition to objecting to the evidence if
it was prejudicial. We therefore, look be-
yond that and consider the merits of the
point of reversible error.

[5,6] An admonition as to the purpose
of evidence of an extraneous offense is
deemed to be proper in most instances, but
failure so to admonish the jury is not re-
garded as prejudicial error unless it shall
so appear from the whole record. Rogers
v. Commonwealth, 264 Ky. 187, 94 S.W.2d
345. It was held in Patton v. Common-
wealth, 289 Ky. 627, 159 S.W.2d 1006, to be
prejudicial where the evidence was of a
series of violent acts, and the court denied
a special request for such an admonition.

, But in many other cases the failure of the

court so to advise the jury has been held
not prejudicial. Getting by robbery the
dollar for the taxicab fare just before the
killing, though perhaps not res gestae, was
part of the defendant’s continuous conduct
directly leading to the crime for which he
was being tried. We cannot conceive that
the omission of advice of the technical
purpose of admitting evidence of the de-
fendant frightening his drunken companion
into giving him the money, or the aimless
firing of the pistol into the ground, in any
way affected the jury or its verdict. Even
though we give to the case the extreme con-
sideration that the penalty of death de-
mands, we hold that the omission of the ad-
monition was not prejudicial to the rights of
the accused.

[7] The argument of the Common-
wealth’s Attorney claimed to be prejudi-
cially improper is his statement that the
defendant “is a mean nigger.” It was not
a proper argument but, without doubt,
was harmless.

The judgment is affirmed.

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Dunn, executed and tendered to him a deed
thereto. Appellant, questioning the title,
declined to accept the deed and refused to
perform his part of the contract, although
indicating in his answer herein willingness
to be bound if appellees can convey a
marketable title to the real estate. The
court adjudged that the heirs of Kate Ellis
are the owners in fee simple of the real
estate in question and that the deed ten-
dered conveys a good marketable title and
then decreed specific performance. From
that judgment this appeal is prosecuted.

It becomes obvious that the sole question
is whether or not the plaintiffs below can
convey a marketable title.

‘We shall indicate briefly the sequence of
events which led to this litigation. Prior
to December 3, 1895, Kate Ellis owned in
fee simple the real estate in question. Ap-
parently being a very devout woman with a
manifest religious and charitable spirit, she
erected on this real estate a small chapel,
wherein she conducted Sunday School on
Sunday afternoons for under-privileged
children in that neighborhood. On De-
cember 3, 1895, by two simultaneous deeds
this real estate became vested in her as
Trustee for the Union Mission Church, of
Austinburg, Covington, Kentucky. By the
first of these deeds she and her husband
conveyed this property to W. L. White, a
single man. The consideration recited
thercin was one dollar and the further con-
sideration that White would immediately
reconvey the property to Kate Ellis as
Trustee for the Union Mission Church to
be held by her as such trustee solely for
the use and benefit of that church.

W. L. White reconveyed this property to
Kate Ellis as Trustee pursuant to the di-
rections in the first deed. The habendum
clause reads: “To have and to hold the
same to the same Kate Ellis, Trustee, solely
for the use and benefit of said Church, her
successors and assigns forever * * *”,

Kate Ellis continued to conduct the Sun-
day School until her death in 1904. Her
daughter undertook to carry on the work
after her mother’s death, but sometime in
1912 or 1913 abandoned the project, since
which time this property has not been used
for any purpose. The building fell into

245 SOUTH WESTERN REPORTER, 2d SERIES

disrepair and more than twenty years ago
was torn down by the city, leaving only the
vacant lot.

The proof establishes that there is no
organized group of members constituting
the Union Mission Church; that no person
outside of the Ellis family ever had any
interest in the Mission; and that same has
been defunct since 1912 or 1913 with no
effort on part of anyone to further its pur-
pose. Defendant below in answer alleged
possible existence of beneficiaries of the
trust. However, report of the Warning
Order Attorney indicates that none could
be found and that no beneficiaries exist.

[1,2] The Chancellor has favored us
with a carefully written and exhaustive
opinion. He very properly and succinctly
sets out the facts and the applicable law.
He states as a premise, that the two deeds
creating the trust must be read and con-
strued together “since they are but elements
of a single purpose.” He then concludes
that W. L. White had no interest in the real
estate, but served only as a conduit through
whom the original grantor changed the
manner in which she held title, and that be-
cause of the failure of the purpose for
which the trust was created there has been
a merger of the legal and equitable estates.
He relies upon the rule that where the
manifest intention of a scttlor is to re-
strict the gift to a particular charitable pur-
pose, and it becomes impossible to carry
out that purpose, the trust fails and the
property reverts to the donor even though
there be no express provision for reverter.
10 Am.Jur. 674, Charities, Sec. 122; 54 Am.
Jur.Trustee, Secs. 88 and 89; Restatement
of Trusts, Secs. 341 and 413; Carlisle
County v. Norris, 200 Ky. 338, 254 S.W.
1044, 38 A.L.R. 41; Grundy v. Neal, 147
Ky. 729, 145 S.W. 401.

[3,4] The Chancellor was correct in
concluding that in the absence of a show-
ing of general charitable intent and es-
pecially where a particular specified pur-
pose is present, the doctrine of cy pres is
not applicable. See Hampton yv. O’Rear,
309 Ky. 1, 215 S.W.2d 539. We conclude
the court properly resolved the question.

The judgment is affirmed.

QUARLES v. CMMONWEALTH Ky. 947
Cite as 245 S.W.2d 947

QUARLES v. COMMONWEALTH. *

Court of Appeals of Kentucky.
Oct. 12, 1951.

Rehearing Denied Feb. 29, 1952.

Jessie Lee Quarles was convicted in the
Christian Circuit Court, Christian County,
Ira D. Smith, J., of murder, and he appealed.
The Court of Appeals, Stanley, C., held that
where the defendant had acquired taxicab
fare by robbing a third person just prior to
killing the taxicab driver, the failure of the
court to admonish the jury as to the pur-
pose for which the evidence of the robbery
could be considered in the trial for murder

was not prejudicial to the rights of the de-_

fendant. .
Judgment affirmed. _

1. Criminal Law €=384

Where witness for prosecution, and de-
fendant himself, fixed time of robbery com-
mitted by defendant as same n‘ght as kill-
ing, testimony of robbery was not so remote
or indefinite as to time in relation to killing
as to be inadmissible in trial. of defendant
for murder.

2. Criminal Law G=369(1, 15), 371(1, 12)

Evidence of an independent offense is
inadmissible even-though it may have some
tendency to prove commission of crime
charged because probative value of such
evidence is greatly outweighed by its prej-
udicial effect, especially where evidence is
of an isolated, wholly disconnected offense,
but where there is a close relationship to
offense charged, as an act which tends to
establish identity, motive, intent or design
or plan to commit offense charged, prej-
udicial effect is outweighed by probative
value, and evidence of independent offense
is admissible in trial of crime charged.

3. Criminal Law @=371(4)

In homicide prosecution, evidence of
independent offense of robbery committed
by defendant was admissible, where testi-
mony concerning robbery showed defend-
ant’s possession of fatal weapon and plan
or purpose of using it to obtain money by
force, all in course of same evening as
killing.

4. Criminal Law €=824(8)

Where defendant’s objection to intro-
duction of evidence of different offense in
trial for murder was overruled, but defend-
ant did not request an admonition as to
purpose for which such evidence could be
considered by jury, and did not call at-
tention of court to omission of such ad-
‘Monition, defendant, by such inaction,
waived right to have jury so admonished.

5. Criminal Law €=673(2), 1168(2)

Generally, an admonition as to pur-
pose for which evidence of extraneous of-
fense can be considered by jury in trial
of crime charged is deemed proper, but
failure to so admonish jury is not regarded
as prejudicial error, unless it so appears
from whole record.

6. Criminal Law €>116C(2)

Where defendant got taxicab fare by
robbery just prior to killing taxicab driver,
failure of court to admonish jury in trial
for murder as to purpose for which evi-
dence of extraneous offense of robbery
could be considered was not prejudicial to
rights of defendant.

7. Criminal Law €>723(5), 1171(1)
Statement of prosecuting attorney in
trial for murder that defendant was a
“mean nigger” was not proper, but was
harmless and not prejudicial to defendant.

—_so———

Wm. F. Edmunds, Hopkinsville, for ap-
pellant.

A. E. Funk, Atty. Gen., Zeb A. Stewart,
Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

The judgment imposes the penalty of
death on Jessie Lee Quarles for the murder
of Everett Grady. Appellant submits as
reversible errors the admission of incom-
petent evidence and improper argument of
the Commonwealth’s Attorney. :

The appellant, a young Negro, had re-
turned to Hopkinsville from service in
the army about three days before the mur-
der. About midnight of June 21, 1950, he
approached the driver of a taxicab parked

earienrinal

*z2C6T-t-t] ueTysTAyO) “AY °9eTLe ‘2 SyoeTq See1‘oTsser. “SETEVAQ

» the way. the left shoulder droops.
ut, Mister, let me tell you something.
ou'll never find nothing violent
zainst that man. He’s the most timid
sul I’ve ever known. Why, he was
most afraid to cross the street by
imself. And kids? He was crazy about
1em. Had a couple himself, I think.
e wouldn't have harmed that child
r nothing in the world. Don’t take
y word for it; just ask anybody in
is block. Some of them knew Jimmy
‘etty well.” i

Ammon did just that.

Everybody he talked to told him the
‘ry same thing. Jimmy Robinson,
ley agreed, was a kind man, quiet and
‘acious in his manner. He wouldn’t
irm a fly.

Ammon went back to his car a very
sappointed investigator. Another wild
»ose chase, he told himself. Or was
? Robinson, he reflected, did answer
.e description of the man who left the
fe at about the same time Joyce dis-
»peared. And he’d moved out of his

oming-house on Saturday, the day .

‘ter the strange occurrence. Was this
gnificant? Or merely coincidence?

‘HE detective had learned that Rob-
inson’s ex-wife was remarried and
2 drove out to see the woman.
Shorty’s full name, he discovered, was
umes Irwin Robinson and he was 31.
is pretty, 27-year-old ex-wife laughed
it loud when Ammon explained the
ature of his mission.
“That’s the most absurd thing I’ve
ver heard,” she declared. “I lived with
mmy from nineteen thirty-nine un-
| we were divorced in nineteen forty-
x, and if anyone knows him I should.
e was chicken-hearted. Why, even
linking of violence frightened him.”
The woman insisted that Robinson
ad shown no signs of abnormality. He
‘ad worked variously as a cab driver
n California, a service-station opera-
or and a coal miner in Pennsylvania
nd Harlan, Kentucky, where they had
1et. He had served in the Coast Guard,
nlisting in 1942 and receiving a dis-
harge one year later because of a dis-
bility.
And that was that!
“I think we can mark Robinson off
ir list,” Ammon said when he reported
ick to Kiefer. ©
The Captain disagreed. ‘“He’s an im-
ortant link in this case if he was the
ar. in the cafe. Even if he didn’t take
‘e child he was in a position to see

something of importance. Robinson
could be our key witness.”

Ammon said, “We might get a pic-
ture of him from the FBI. If he was
in the Coast Guard the FBI should
have a record of him. We can show
the photograph to the people who were
in the tavern and learn once and for
all if he’s the man we want.”

“A good idea,” Kiefer said. “Get a
wire off to them at once.”

TR next development came at exact-
ly 10:45 a. m. on July 13, six days
after Joyce’s disappearance. It came
with such dramatic suddenness that an
entire populace was left shocked and
bewildered.

For two days employes at the Ecklar-
Moore Express Company on East Main
Street, almost directly behind the Cap-
ital Hotel, had been disturbed by a pe-
culiar odor which seemed to come from
somewhere beneath the building.

Miss Loraine Baumgartner, a billing
clerk for the firm, unable to endure the
stench any longer, asked Daniel Mat-
tingly, another clerk, to do something
about it.

Pressing a handkerchief Hard against
her nose, she said: “Dan, please try to
find out what that horrible smell is.
It’s making me sick.”

Reluctantly, Mattingly took a flash-
light from his desk drawer and walked
outside.

A few minutes later he was back, his
eyes wide with terror, his face colorless.

“Call the police!” he said. ‘There’s
a body under the loading dock! A
baby’s body, I think, It could be that
little girl they’ve been looking for.”

Within a few minutes the place was
swarming with cops.

The beam from a powerful emergency
light was poked through a small, four-
teen-inch opening beneath the building
and verified’ Mattingly’s prediction.

Fifteen feet from the opening lay the
pitiful body of tiny Joyce Joan Shouse.
Her small, rounded face was bruised and
pulpy. Her arms and legs were out-
stretched and rigid in death.

The small opening was the only en-
trance to the space beneath the dock.
A heavy metal sheet which enclosed the
east end of the loading-platform had
to be cut away to allow ambulance at-
tendants to remove the body.

After a cursory inspection of the
body, Deputy Coroner William T. Kam-
merer said, “This child was brutally
beaten. She’s been choked and one of

her teeth was knocked from its socket
by a terrific blow to the mouth. And
it’s the type of crime we’ve been afraid
of all along.”

The child was dressed only in her
flowered dress and the small sandals.

LICE CHIEF HEUSTIS, who with

Kiefer had been one of the first
officers on the scene, examined the
small opening in the sheet of metal.

“The child was small enough to be
forced through this hole,” he said, half
to himself. “But how could anyone
push her that far back beneath - the
building?”

Kiefer said, “‘There’s only one answer
for that. Whoever put that child’s body
under there crawled through behind her
and pushed her fifteen feet to the spot
where we found her.”

. “That means the killer was an ex-
tremely small man.”

Search of the area around the ex-
press-company grounds turned up a
large number of items which the police
took to examine for finger-prints.
Among them were a piece of bubble gum
and the wrapper from a candy bar.

Kiefer took the gaily colored wrapper
to Al Vonnahme’s cafe and showed it
to the proprietor. .

“Sure,” Vonnahme said _ without
hesitation, “I handle that candy.”

Efforts to locate Shorty Robinson
were intensified. The timid, stoop-
shouldered man had failed to show up
for a job interview on the previous Mon-
day and had not notified his would-be
employer where he might be located.

When Robinson’s photograph arrived
from the FBI it served only to compli-
cate matters further.

Three customers who had seen the
small man in the tavern felt reasonably
certain Robinson was the one. Von-
nahme, his waitress and bartender, and
Mrs. Shouse were equally as positive
that they’d never seen him.

It was a tense situation, certainly one
which did not encourage optimism for
an early solution.

On the second day after the discovery

"of the body a man telephoned Head-

quarters and shouted: “We've got that
fellow who killed the little Shouse girl!
Send the police out here right away!”

“Where are you?” the telephone op-
erator demanded.

“On East Main near the Capital Ho-
tel. Hurry!”

Four squad cars were rushed to the
scene. The officers arrived just in time

Mapping a search for a lost boy
are, front, Lt. Roy Doerfler,
Sheriff Overbey, Investigator
Clark; standing, Chief Murphy,
Deputy Schrage. Story on Pg 14

to rescue a small, stoop-shouldered man
from an angry mob of citizen captors.
Rushed to Headquarters, the man was
hustled into Kiefer’s office and shoved
into a chair.

Kiefer glared at the frightened man.
“Shorty Robinson?” he inquired.

“No, Sir,” the man stammered. “My
name is Harold Johnson.” He handed
the Captain a driver’s license to prove
his identity. :

“What happened?” Kiefer demanded.

OHNSON wet his lips and shook his
head, bewildered. “I was walking
along minding my own business when
some fellow yelled, “That’s the man who
killed the little girl!’ Then he made a
grab for me. I started running. Be-
fore I’d gone a block there must’a been
twenty people chasing me. If the cops
didn’t get there when they did I think
those people would’a killed me.”

Since he lived in the Haymarket area,
Johnson was questioned closely about
the Shouse case but at the end of an
hour he managed to convince Kiefer
that he could not possibly have had
—s to do with the child’s abduc-
tion.

After Johnson had left, Kiefer said,
“This thing is getting serious. It’s aut
of hand. If we don’t get the Shouse
killer mighty soon no one who is short
and stoop-shouldered will be safe on
the streets.” -

Sergeant Riebel, who had aided in
questioning Johnson, agreed. “The
trouble is,” he added, “we're not even
sure the killer really looks like that.”

Detective Ammon, meanwhile, had

, been studying the FBI picture of Rob-

inson.

“Hey!” he exclaimed. “Look here!
This picture of Robinson has a mus-
tache.” .

“Sure it has,” Kiefer said.

“The little guy in the tavern didn’t.”

“So what?”

“So look what happens when you
cover Robinson's mustache.”

Ammon placed the photograph on
Kiefer’s desk and covered the mustache
with his forefinger. ‘He looks like a
different man altogether.”

Kiefer stared at the picture. “You
may be right. We may have been con-
fusing our witnesses with this picture.
They saw a man without a mustache
and we've been trying to have them
identify someone who wears one.”

Ammon snatched,up the photograph
and dashed upstairs to the police lab-
oratories. “Paint out this mustache,”
he ordered an identification expert.

And that helped. Ammon got no un-
certain stares when he showed wit-
nesses the picture with the mustache
obliterated.

Everyone was positive that Robinson
was the man who had won Joyce Joan's
friendship by giving her chewing-gum
and candy. Even Vonnahme and his
employes changed their minds when
they were shown this entirely different
photograph.

ERTAIN now that Robinson held the
key to the perplexing mystery, Kie-
fer and his staff really put the heat on.
Posters bearing Robinson’s photograph
and description were printed and cir-
culated throughout the nation. Within
a week, his likeness decorated the walls
of every post office and police depart-
ment in the United States. .

But the man had vanished. Just as
quietly and as completely as tiny, ill-
fated Joyce Joan Shouse had vanished.

In the days and weeks that followed,
Kiefer and Riebel investigated endless
tips. concerning Robinson’s where-
abouts but each of these took them
into a blind alley. A fugitive warrant
was sworn out in Federal court against
Robinson and the FBI stepped into the

case.
Still no trace was found.
Then, on the night of December 22,
a pair of cruising patrolmen in faraway

53


Pil

me

"Joyce! Where Are You? Joyce—" (Continued trom Page 23)

Realizing the urgent need for imme-
diate action, the men conferred: in
Lieutenant Joseph’s office. When they
had been brought up to date by Cap-
tain Kiefer, Joseph said:

“This thing looks bad and it is go-
ing to be a tough case. As far as we
know, the child might be okay. She
could even be with some member of
her family. But we can’t afford to
bank too much on this. She may be
held by kidnapers or she may be dead.
There’s plenty of leg work to be done;
we might as well get started. We've
got to find that girl.”

The officers working on the case were
split up into teams and assigned to
widely varying duties. One group ex-
amined the files of morals offenders
and a wholesale roundup of these men
was launched. Another team was
handed the full-time job of locating
Robert Shouse. Still another re-ques-
tioned customers and employes at the
cafe in the Capital Hotel. At the same
time, a house-to-house canvass of the

neighborhood was begun in the hope

that someone had seen the child.

In the midst of all this, Kiefer and
Riebel drove out to Mrs. Shouse’s apart-
ment-house. They wanted to find out
all they could about the woman—her
background, her friends and her en-
emies, if she had any.

Nothing was being overlooked in this
effort to locate tiny Joyce Joan Shouse.

Kiefer and Riebel, through their per-
sistent digging, turned up a lead which,
for the moment, brought an entirely
new angle into the mystery.

Questioning residents of West Chest-
nut Street, they found a woman who
lived near Mrs. Shouse’s apartment and
bese knew the missing child’s mother
well.

“I have my own idea who took Joyce,”
she said with a wag of her head. “I
think it was that Karl Henry who’s been
pestering Florine since she and her
husband Separated.”

“What makes you think so?” asked
the Captain.

“Well, Karl was nuts about Florine
and he asked her to marry him. He
wanted her and Joyce Joan to go to
Oklahoma City with him. Florine
laughed at him and he got mad and
said she'd go there, all right.”

“And you think he might have taken
the child with him to Oklahoma City,
just to make Mrs. Shouse follow him, or
maybe to get even?”

“That's exactly what I think. Joyce
liked him. She would have gone with
him, all right.”

Kiefer lapsed into a thoughtful si-
lence. The witness had made a fairly
convincing case in favor of her theory,

he conceded. Or was he still grasping"

too willingly for straws? Was he letting
his hope that Joyce was alive over-
shadow the cold, impersonal reasoning

he had developed during many years of .

police work?

Back at Headquarters, Kiefer and
Riebel questioned Mrs. Shouse and she
verified her friend’s story about Karl
Henry.

“But I just can’t believe he’d do any-
thing like that,” she said. “He knew I
was going back with my husband.”

“All the more reason why he might
try it,” Kiefer pointed out. “Once he
got you and the kid to Oklahoma City,
he might have figured he could talk you
into staying there.”

soon learned that Karl Henry

had left his rooming-house early’ on
the day of Joyce Joan’s disappearance.
He had indicated that he was en route
to Oklahoma City but had not said how
he intended to travel or when he
planned to leave the city. Nor had he
left a forwarding address. Oklahoma
City police were asked by teletype to be
ng lookout for Henry and to question

Meantime, Sheriff Hanks in Anderson
County had learned that Robert Shouse
was working for a racing stable in
Metropolis, Illinois. The  trainer’s
father had heard from his son on
Thursday, the day after he had tele-

52

phoned Mrs. Shouse and asked her to
meet him. Metropolis police were re-
quested to question him.

And while efforts to locate the child
spread through three States, detectives
in Louisville were handed what looked
like a red-hot lead.

A woman who had read about Joyce’s
disappearance telephoned Headquar-
ters and reported that only recently she
had frightened away a man who had
been trying to talk to her four-year-old
daughter.

Since she lived in the Haymarket sec-
tion, within four blocks of the Capital
Hotel, Detective Miller was sent to her
home to learn the details.

The excited mother related that late
Friday afternoon she had peered from
a window in her home and had seen a
man talking to her child on the side-
walk. Hurrying outside, she had asked
the stranger what he wanted.

“He just turned and walked off,” the
woman said. “He didn’t even answer
me.” t

The man had been large, she recalled,
with a florid face. He appeared to have
been drinking. She did not know his
name, but she was sure she'd seen him
around the neighborhood. ;

Miller knew that finding the man
would be no easy task with such a
meager description to go on. He re-
turned to Headquarters, made a written
report on his findings, picked up four
other detectives and then drove back
to the Haymarket neighborhood where
they started another leg-wearying
house-to-house canvass asking each
person if he knew of such a man.

Kiefer and Sergeant Riebel, who had
been on the case without rest since its
very beginning, were in Chief Malone’s
office discussing the puzzle when De-
tective Ammon reported in shortly: be-
fore midnight. Ammon had been one
of the officers questioning the customers
of the tavern.

“I might have something,” he an-
nounced. He sat down and took a note-
book from his coat pocket.

He had talked to most of the cus-
tomers without result, he said, when
Miller's report on the big man with the
florid face had come in.

“Then I decided to go back over the
same ground and see if any of the wit-
nesses remembered seeing such a man,”
he continued. .

Kiefer leaned forward. “So?”

“I came up with a little guy.”

KIEFER rubbed his eyes wearily.
“What do you mean?”

Ammon grinned. ‘Nobody remem-
bered a big man but as soon as I asked
them, they all remembered a little fel-
low who was buying Joyce candy and

chewing-gum. Everybody saw him‘

there early in the evening but nobody
saw him after the kid disappeared.”
Here, however, the lead ended, Am-

mon said, No one could identify this

man. :

“And they aren’t positive the child
left with him?” Malone asked.

Ammon said, “No one saw him take
her outside; if that’s what you mean.
The only thing that makes it look fishy
to me is that he showed more than a
normal amount of interest in the child
and he wasn’t around after she van-
ished.”

Kiefer said, “We'll have to try to lo-
cate him. Even if he had absolutely
nothing to do with the kid’s disappear-
ance, he could be a good witness. If
he left at about the same time she did,
he may have seen where she went.”

An appeal was made in the press for
the short, slender man to come for-
ward and make his identity known.

Throughout Sunday the entire Louis-
ville Police Department kept up the
fast-paced probe and by Monday the
search for Joyce Joan had become
front-page news.

From witnesses, a fairly concise de-
scription of the small man in the cafe
had been assembled. He was about five
feet tall, they said, and slender. He
had brown hair that was wavy. Appar-
ently in his early thirties; he was stoop-

shouldered and one person insisted he

walked peculiarly, “like a duck,” his

pve d —e slightly lower than the
ight.

In their frenzied efforts to round up
every possible suspect or witness,
Kiefer and Chief Malone called in
George Joseph, an artist for the Louis-
ville Courier-Journal, At their request,
Joseph talked with the witnesses and
painstakingly made more than 100
sketches before finally turning up with
what several agreed was a good pen-
and-ink likeness of the short, stoop-
— man with the duck-like
walk. :

Publication of the drawing brought
immediate response. Before the day
was out a score of men had been picked
up for questioning. Of this group,
three, with past records, were detained
so that witnesses could be rounded up
to see them in a police line-up.

Hope for Joyce Joan’s safety dimmed
later that day when police in Illinois
located Robert Shouse, the father of
the child. Almost simultaneously,
sig Henry was found in Oklahoma

y.

SHOUSE was broken up at the news
of his daughter’s disappearance.

He said that he had left Louisville
the day after he telephoned his wife to
ask her to meet him. Shouse said that
shortly after making the call, he had
been offered the job in Illinois and had
taken it. fi

“I tried to call Florine to tell her I
wouldn’t be able to meet her,” Shouse
explained, “but she wasn’t home.”

He had been in Metropolis on the
Friday that Joyce Joan vanished,
grooming his horses for their racing
duties. Although he had notified his
father of this new job, he had not told
his wife.

Shouse returned to Louisville imme-
diately to lend whatever assistance he
— in the search for his tiny daugh-

.

Henry was located when he reported
for work in an Oklahoma City factory.
Police had learned of his whereabouts
through the close cooperation of per-
sonnel directors in the city’s industrial
plants.

Questioned for several hours, he
stubbornly denied any knowledge of
the mystery.

“I flew out here in order to have time
to get settled before I went to work,”
he declared belligerently. “It was about
nine o'clock Friday night when I ar-
rived. You can ask the clerk at the
hotel where I’m staying.”

Police did and they found the man
had signed the register at 9:34 p. m.
This completely exonerated him.

Another lead gone!

Louisville police turned their atten-
tion back to the three men being held.
But not for long.’ One by one the men
were freed after witnesses failed to
Place them anywhere near the Capital
Hotel Cafe on Friday night.

Mrs. Shouse could recall no one an-
swering the description of the stoop-
shouldered, duck-gaited man who had
bought her daughter chewing-gum and
candy.

“Joyce was all over the place,” the
woman said. “I should have watched
her more closely.” She paused and her
lips trembled. “If I ever get her back
T’ll never let her out of my sight again.
Not for even a minute.”

By now, however, Captain Kiefer and
the other officers investigating the
strange disappearance feared that the
child never would be found alive.

“Everything points to that conclu-
sion,” the Captain said during one of
the numerous conferences at Head-
quarters. ‘We'll probably find her body
stuck away somewhere in that desolate
area between the Haymarket section
and the Ohio River.”

A searching party of 28 policemen,
headed by Kiefer, beat through the
heavy growth in the river bottoms for
two days, working from dawn to sun-
down. They poked behind the bushes,
peered into vacant buildings, dug into

soft earth and picked through garbage
receptacles.

The sum total of their labors added
up to exactly zero. Not one trace of the
missing child could be found.

N THE second day, the United
.States Coast Guard was brought
into the grim hunt when a fisherman
informed police of a gruesome experi-
ence he’d had on the previous Saturday.
While casting in the Ohio River, near
a@ downtown Louisville bridge, his hook
had caught onto something soft and
yielding, he reported. When he finally
managed to free his line, he’d found
several strands of hair clinging to the
sharp hook.

Thoughtlessly, the informant said,
he had cleaned the hook and moved to
another spot, The terrifying possibility
that the hair or the “something soft”
might have been human had not
dawned on him until he read of the
search for Joyce Joan and the probabil-
ity that she’d been killed and her body
disposed of.

Professional dragging operations by
Coast Guardsmen and detectives failed
to locate a body and after twelve hours
the wearying effort was called off.

A South Side service station opera-
tor furnished Kiefer with his next lead. -
The man came to Kiefer’s office
holding the newspaper with Artist
Joseph’s sketch. “I think I know that

fellow,” he declared nervously.

“You and a hundred other people,”
Kiefer said. “Who’s your candidate?”

“Shorty Robinson,” the service-
station operator replied. “He worked
for me a couple of weeks and then a
week ago Tuesday he quit because he
said he had a better job.”

Kiefer reached for a pencil and pad.
“What’s his full name?”

The man shrugged. “Shorty is the
only name I ever knew him by. He just
filled in for me during a rush period
and I paid in cash. There never was
any reason for me to inquire too much
into his background.”

“Any idea where he lives?”

“Somewhere on South Third, I think.
In one of those rooming-houses.” The
station owner pointed again to the
sketch. “He sure is a dead ringer for
this picture.”

Kiefer asked, “You haven’t seen Rob-
inson since Tuesday?”

“I saw him last Saturday. He came |
by the station and picked up a pair of
boots he'd left there.”

The Captain questioned the man
closely but failed to obtain any infor-
mation which would suggest that Rob-
inson might be inclined to violence.

“Shorty was a nice guy,” the infor-
mant declared. “I don’t think he had
anything to do with that kid’s disap-
pearance.”

When the man had gone, Kiefer
buzzed for Detective Ammon. “Got an-
other twin for that drawing,” he said.
“See what you can find out about him.”
He gave Ammon the information he had
and the detective left.

Twenty minutes later Ammon was on
South Third Street ringing doorbells, a
procedure he’d become accustomed to
during his colorful career with the po-
lice force:

At the end of an hour, his dogged
pursuit paid off. A man who rented
rooms finally said he’d recently had a
tenant by the name of Robinson. Jim-
my Robinson, he elaborated. And
Jimmy had been known to most of his
friends as “Shorty”. . .

ON THE previous Saturday, Jimmy
had given up his room and his
present whereabouts were unknown.

“He’d been talking about going to
California or Pennsylvania,” the land-
lord explained. “Maybe he finally made
up his mind. I wasn’t here when he
left and I didn’t have a chance to talk
to him about it.”

Ammon showed the landlord a copy
of the newspaper drawing.

“That sure looks like Jimmy, all
right,” the rooming-house operator
said, nodding his bushy head. “Even


would stop by to see Joyce. He was very
fond of her. He telephoned’ me
Wednesday and suggested that I meet
him here tonight.”

Kiefer considered this information
thoughtfully and his face gradually lost
some of its tenseness. A theory was
taking form in his mind, one he hoped
might explain the situation to every-
one’s satisfaction. He put his idea into
words when Riebel returned from the
telephone.

Taking the Sergeant to one side, the
Captain said: “It looks to me like a
family affair which shouldn’t be too
hard to clear up. Shouse asked his wife
to meet him here. He probably knew
she'd bring the kid with her. He could
have slipped in, taken the kid and
scrammed. If we can locate Shouse,
chances are we'll find the child.”

Riebel agreed that this sounded like
a good possibility. But his voice was
grim when he asked: “What if we learn
that Shouse had nothing to do with
this?”

Kiefer surveyed the crowded cafe un-
easily. “I hate to think about that.”

“It could be a kidnap job,” Riebel

suggested. “This is a tough neighbor-
hood. Some of the bums around here
would try anything for an easy buck or
two.” ,
“I thought of that,” Kiefer said. “But
even a punk could see Florine Shouse
couldn’t pay a ransom. And everybody
knows kidnaping is dangerous. if the
child weren’t taken for some Personal
reason, I can think of only one other
Possibility. And it isn’t a very pretty
one, either.’ :

Riebel knew only too well what the
Captain meant. Perhaps even now
Joyce Joan Shouse was dead, the inno-
cent victim of the most sordid crime

known to man. To Riebel, as a Police-:

man, such a possibility meant. even
more. A morals offender seldom ceases
his atrocities until he is trapped and
imprisoned. In a city the size of Louis-
ville he might be free for weeks, even

22

i Tea

years, before making the one false
move which would attract the atten-
tion of police. And if this should be
the case, Riebel knew that others
would die. :

Case-hardened though he was, the
Sergeant found the thought of Joyce
Joan’s possible fate repulsive—so much
so that he could not help feeling a little
sick in the pit of his stomach.

“Let’s hope you're right and this is
— more than a family affair,” he
said. .

“We can’t afford to give up hope,”
Kiefer replied. “There's still plenty of
work to do. We've only scratched the
surface so far.” :

Systematically, they interviewed
every person:in the cafe, but at the

.end of an-hour this task had failed’ to

produce one single lead of importance.
Most of the customers had noticed the
tiny tot at various times but not one
recalled séeing her leave.

Riebel refused to be discouraged.
“T've worked cases before where no one
in a tavern could tell me a thing,” he
said. “The next day, they remember
a lot of stuff. If nothing turns up to-
night, we'll question them all again to-
morrow.”

Al Vonnahme’s waitress and bar-
tender were unable to help because
they’d been busy. “One of the biggest
nights we ever had,” the bartender ex-
plained. “I couldn’t draw beer fast
enough.”

“You can say that again,” the wait-
ress declared. “I remember the little
girl but I didn’t see her leave.”

From Vonnahme, however, Kiefer
and Riebel got an interesting story.

THs was not the first time Mrs.

Shouse had visited the cafe nor was
it her initial appearance with Joyce
Joan. “I reminded her tonight that it
was pretty late for the kid to be out,”
Vonnahme said. “Fact, is, that’s the
first thing I mentioned when she and
the man came in.”

“Man?” Kiefer asked. “What man?”

The proprietor shrugged. “I don’
know his name, but he’s been here be-
an Didn’t Mrs. Shouse tell you about

m?”’

The distraught mother explained
that she’d completely forgotten about
her escort.

“He wasn’t a date,” Mrs. Shouse de-
clared. “Just a friend I met on the way
over here. He said he had nothing to

‘do and he walked with us so Joyce and

I wouldn’t be alone on the streets.”
“What’s his name?”
“Slater. Joe Slater. He’s a neighbor.
I've known him for a long time.”
Kiefer looked around. The cafe was
now deserted except for Riebel, the
employes, Mrs. Shouse and himself.
“Where is Slater now?”
“I don’t know.”

Chief Malone examined at
bit of trash under that doc

“Did he leave before or after you
missed your daughter?”

Mrs. Shouse was thinking hard. “It
was before.”

Then, hastily, “No. I think it was
afterward.” She paused, pressed her
fingertips hard against her temples and
shook her head in a gesture of uncer-
tainty. “I—I don’t know. I'm so con-
fused. It’s very hard to remember
everything.” °

Kiefer and Riebel decided to return
to Headquarters and direct the search
from there. “You'd better come along,
Mrs. Shouse,” the Captain said. “There
might be other points, important ones,
which you’ll remember later.”

Police searched even the
deserted waterfront shacks

“But what about my Httle girl?”

“Just leave that to us,” Kiefer re-
plied, “We'll find her.”

Even as he spoke, the Captain felt a
new pang of apprehension. Could they
really find the child? : .

At Headquarters, Kiefer sent two uni-
formed men out to find Joe Slater.

“There’s a possibility,” the Captain
explained, “that Slater took the kid
and dropped her off at Mrs. Shouse’s
place. Better investigate there, too.”

At the same time, he requested that
all available prowl cars be moved inte
the Haymarket district. He was gam-
bling on the off-changg that Joyce had
wandered out of the cafe under her own
power and was lost along one of the
many dark, forbidding streets in the
area. Perhaps, he thought, she might
have fallen asleep somewhere.


He was, Kiefer admitted to himself,
banking on finding the child alive and
well because that was the way he
wanted to find her. Not tucked away in
some shallow grave or ill-lighted alley-
way, dead. ;

WHICH. he wondered with rising
concern, would it be?

And when?

Missing Persons Bureau had no
report of a child being found, the Cap-
tain learned. None of this city’s hos-
pitals had a child answering Joyce
Joan’s description. None of the patrol-
car officers had seen her on the streets.

The police sent to locate Joe Slater
brought him to Headquarters, where
Kiefer and Riebel talked to him.

A clean-cut, sincere-looking man of
about 40, Slater said that he had met
Mrs. Shouse and Joyce on the street,
just as the mother had said. He was
unable to explain Mrs. Shouse’s uncer-
tainty over his whereabouts when little
Joyce Joan’s disappearance was dis-
covered.

“IT was sitting in a booth with Flo-
rine,” he said, “when she asked me
where the kid was. She’d been telling
me about her husband and we didn’t

Mrs. Florine Shouse: She went out that night only in the hope
of re-establishing a home for Joyce and her other two children

see where the kid went. We looked’

everywhere, in the cafe and in the
hotel, but we couldn’t find her. Florine

was scared and we got some of the peo--

ple to go outside with us and we walked
around looking for her and calling her.
But we didn’t find her.”

“Why didn’t you go back with Mrs.
Shouse?” Kiefer inquired.

“I did. I told her. to call the cops.
Then I went outside and looked around
some more. Then I saw a police car
outside the place and I figured every-
thing was being taken care of, so I went
straight home.”

<< \

ae

@) (*
‘ard

From descriptions alone, an artist
drew this likeness of the missin
witness, at right with detectives

‘

Slater appeared to be telling a
straightforward story. The uniformed
officers drove him home again. ‘

As Slater was leaving the office, the
phone at Kiefer’s elbow rang. With
mixed emotions, the Captain scooped
up the receiver, listened in silence for
a few seconds, then slowly replaced the
instrument on its hook.

“No luck,” he said. “Joyce Joan is
not at home.”

Where was she?

. How could a three-year-old girl van-
ish from a crowded cafe, right before
the eyes of her mother? It seemed in-
credible, too unreal to be true. Still,
the cold, hard fact remained that she
was gone and police were without a
single tangible clue to her whereabouts.
What was the motive behind her dis-
appearance? Kidnaping? Some per-
sonal reason yet to be uncovered?
Kiefer wondered as he directed the
grim search throughout the early hours
of Saturday morning.

EFFORTS to locate Robert Shouse
proved futile. If he maintained a
Louisville address he was not listed in
the city directory or the phone book.
His known acquaintances were aroused
from sleep and questioned but they
hadn’t seen him in several weeks, they
said. Not one had any idea where he
might be located.

Kiefer, refusing to overlook any pos-
sibilities, asked Sheriff James Hanks of
Anderson County to talk to Claude

cunna al ond Ghee ea

— ‘Th r Conri oe

Shouse, the man’s father, at Alton Sta-
tion in the hope that he might know
his son’s whereabouts.

By dawn, more than a score of police
officers had been assembled and as-
signed to various streets in the im-
mediate vicinity of the cafe. For

hours they explored vacant lots, alley-
ways and deserted buildings for any
trace of Joyce Joan. But to no avail.

Mrs, Shouse, who had regained some
of her composure, was re-questioned.
She still was unable to recall any oc-
currence in the cafe which might ex-
plain her daughter’s disappearance. -
Likewise, she was unable to account for
her husband's failure to keep the ap-
a they’d made earlier in the ,
week.

Up to this point, Kiefer and Riebel,
in the parlance of police, had been
“carrying the case.” After a hurried
conference with Chief of Police Carl
Heustis and Detective Chief John Ma-
lone, a special, hand-picked detail of
the department’s top investigators was
assigned.

Lieutenant Ellis Joseph, Assistant
Chief of Detectives, headed the squad,
which included Detectives Elmer Kes-
singer, Paul Finley, A. J. Miller, John
Guttermuth, Allen Brennan, Charles
Baxter, George Johnson, Earl Ammon,
Roy Myers, Guy Lyons and Harris Dew
and Detective Sergeants James Bigg
and Robert Kincheloe of the Safety Di-
rector's office. .

The newspapers carried brief stories

® that day on Joyce Joan’s disappearance.
As a result, more than 30 tips came in
to Kiefer’s office. Children vaguely
answering the description of the miss-
ing girl had been seen throughout the
city in the company of men of various
sizes and ages. They’d been spotted at
the bus and train terminals, in city
parks, in automobiles, in theater lob-
bies and on the streets.

Each of these tips had to be investi-
gated, but by late afternoon not one
lead had been developed.

(Continued on Page 52)

23


295 SOUTH WESTERN REPORTER (Ky,

warrant and they responded that they did} are these: The trial of the appellant occupied

deputy sheriffs, and the barbe ex

Pellant’s counsel, who by aun perce
the shop to get his laundry. He did get his
laundry and at once departed. No one talk-
ed to the jurors about this case, nor did they

v. Commonwealth, 188 Ky. 557, 222 8. W. 956,

{1] First, he contends that the Court erred | where a contention like the present one of

7 overruling his motion for a continuance.
en appellant wags first arrested, he was| jurors attended in the evening a special at-

trial on the day it was subsequently tried.
Gx thattinownad ak heuuae mpi oe. that this juror remained in full view of the

ruled. The next day Mr. Lamb ap sit ie well recognized that
peared in a jury in a crim-
court, and on his motion his name was strick- eg aan in charze of the So may penger-

ly be taken to pl
en from the record as counsel for the appel-| rants and the P sesgee Ri bore i ee ae

lant. Mr. Lamb withdrew from the ca qd

se on | drawal of a juror from the immedi
the ground, as he stated in his motion, that of his fellow jurors or the sheriff will net coe
new counsel, who had been employed by the stitute such separation as will affect the ver-

mt, ineinted om presenting a» thy en dict where, as in the present instance the juror
— of whom complaint i
‘ense in this case the plea of insanity, and | whole pod sage Pra Fp Panag Pg sre on

that, as he (Mr. Lamb) did not contem

plate| iff and the remainin
trying this case on that theory, he could not | Of not exceeding 80° > "0 ong ? 4 aos
consent to taking part in a trial based on|™ere opportunity to converse with juror,
such defense. On the day following this, the | "°thing else appearing, is not sufficient to se-
appellant’s new counsel made a motion for a| “U" # new trial.”

continuance, but gave no reason why he de-|_ In Johnson y. Commonwealth, 179 Ky. 40,

sired such continuance, nor did he au ‘
» pport | 200 8. W.
his motion by any affidavit or other showing. miei eS 3 Haar

motion for a continuance, entered into the custody the
jury was remai
— Bef “phos: It is obvious from this | where they could see into Sean pa
pays fone — that there is no merit | warrant the granting of a new trial, where no
pada ape nts on that the trial court | communication Passed between any of the
him on the day it did. Kelly| jurors and any outsider concerning the case

should have discharged the jury which tried | tence” “ZW What happens in these life sen-

the appellant because of misconduct on its pear ot wef tt oe a ‘itisen®

Ky.) SEYMOUR v. COMMONWEALTH 145
(298 8.W.)

We are surprised that the commonwealth’s
attorney indulged in this argument, since in
a long line of cases we have unhesitatingly
condemned like arguments. Estepp v. Com-
monwealth, 185 Ky. 156, 214 8S. W. 891; Chap-
pell v. Commonwealth, 200 Ky. 429, 255 8S.
W. 90; Bolin v. Commonwealth, 206 Ky. 608,
268 S. W. 306; Hall v. Commonwealth, 207
Ky. 718, 270 S. W. 7, and the cases therein
cited. We are equally as surprised that the
trial court overruled the objection of the ap-
pellant’s counsel to this argument. Nothing
that we could here say could add anything to
what we have said in the opinions cited in
condemning arguments like the one in ques-
tion. The very fact that we are called on 80
many times to discuss this question, as the
number of these opinions show, induce the be-
Hef that many of the commonwealth’s attor-
neys are not heeding as they should our rul-
ing in this matter. We are loath to believe
that such action on their part is encouraged
because these arguments, although con-
demned, have under the particular facts in the
cases involved been held by us not so preju-
dicial as to warrant a reversal. But the trial
courts should not wait for this court to be
finally confronted with a case where such an
argument will be so prejudicial as to require
a reversal, but should themselves discipline
commonwealth’s attorneys who will not abide
by the rulings of this court in this matter.
However, inasmuch as the appellant did not
rely on this error in his motion and grounds
for a new trial, we are precluded from ex-
amining into it.

{6] The last contention of the appellant,
while not framed in exactly these words, yet
essentially is a contention that the verdict is
flagrantly against the evidence. He insists
that the evidence in this case overwhelmingly
establishes his incapacity to commit the
crime of “willful murder.” The evidence for
the appellant shows that, on his father’s side,
his uncle died in an insane asylum, that his
aunt had been an inmate off and on of an in-
sane asylum for a good many years, that his
grandfather was insane; that his grand-
mother, discovering this unfortunate fact aft-
er the birth of her third child, ceased to co-
habit with her husband, and there were no
further children; and that appellant’s own
father has shown symptoms of insanity. On
his mother’s side, appellant’s grandfather
committed suicide while insane, his grand-
mother died insane, a first cousin of his moth-
er committed suicide while insane, some un-
cles and aunts and other cousins were insane,
and his own mother has been treated in the
Psychopathic ward of the city hospital of
Louisville. There is no contradiction of this
depressing history of appellant’s family. A
number of lay witnesses who testified for the
appellant said that he was of unsound mind.
On cross-examination they gave as the basis

walked in a peculiar manner, could not hold

a connected conversation long, and did not

associate with boys of his own age, but play-

ed with children from 6 to 8 years old. His

peculiar gait no doubt was due to an abnor-

mal condition of his spine, concerning which

there seems to be no dispute in this evidence.

Appellant also showed that about six months

prior to the homicide he had some sort of a

fit, the description of which in the evidence

inclines us to belief that it was an epileptic

fit; but this is the only fit so far as this rec-

ord shows that the boy ever had. He left

school at the age of 16, having reached only

the fifth grade, and was then in the retarded
class. The physician who examined him and
who testified for him, and his teachers, all
say that he is of sound mind but that he is of
retarded mentality, having only the mind of
a boy 7 or 8 years of age, as demonstrated

by his examination under the Binet test. On
the other hand, the commonwealth’s proof
showed that the appellant had for a number
of months previous to the homicide worked at
different industrial plants in the city of
Louisville, in some of which he had to per-
form tasks requiring some degree of concen-
tration of mind and adaptability of purpose,
that the last place in which he worked had
determined to promote him to be an enamel-
er of plumbing ware, but was deterred from
doing so because he quit the job he had, as he
did a few days prior to the homicide. The
appellant testified and was on the stand for
probably over an hour. His examination dis-
closes no lack of ability to keep up a connect-
ed conversation. The physicians who exam-
ined him for the commonwealth said that he
was of sound mind and that he had the mind
of the average youth of his age, considering
his surroundings, environment, education,
and character of work,

{6] Of course on this statement of the evi-
dence it was for the jury to say whether or
not, even though appellant had the mind of
a boy 8 or 9 years of age, he yet had mind
enough to know right from wrong and had
sufficient will power to control his actions.
Sloan vy. Commonwealth, 211 Ky. 818, 277 8.
W. 488. Whatever might have been our own
personal views on this issue had we been sit-
ting as jurors, the law vests the determina-
tion of it not in us but in the twelve laymen
chosen from the vicinage as jurors, and, if
there be substantial evidence to sustain their
finding as there was in this case, such finding
is binding and conclusive on the courts
though there be substantial evidence to the
contrary.

These are the only grounds relied on for a
reversal in this case, and, as none of them
are grounds in law for such a result, the
judgment of the lower court must be and it
is hereby affirmed.

for their opinions the facts that the appellant
205 S.W.—10

Whole court sitting.

Se gE


143 295 SOUTH WESTERN REPORTER (Ky.

(220 Ky. 813)
OAKLEY v. COMMONWEALTH.

Court of Appeals of Kentucky. May 31, 1927.

1. Rape €=>3!—Indictment for carnally know-
Ing female under 12 chargcd misdemeanor
only, where defendant’s age was not stated
sg gg § 1155, as amended by Laws 1922,
©. 17).

Indictment, under Ky. St. § 1155, for felo-
niously having carnal knowledge of female un-
der 12, held to charge only misdemeanor, under
section 1155, as amended by Laws 1922, e. 17,
where age of defendant was not stated.

2. Criminal law €=1172(6)—Giving felony In-
struction under indictment charging only mis-
demeanor is reversible error.

Giving of felony instruction constitutes re-
versible error, where indictment charges mis-
demeanor only.

8. Rape @=57(1)—Submitting penetration to
Jury held error (Ky. St. § 1155, as amended
by Laws 1922, o 17).

Conviction, under Ky. St. § 1155, as amend-
ed by Laws 1922, c. 17, for carnal knowl-
edge of female under 12, could not stand
where there was no evidence of penetration;
submission to jury being error.

Appeal from Circuit Court, Trigg County.

K. T. Oakley was convicted of carnal
knowledge of a female under 12 years of age,
and he appeals. Reversed and remanded.

McKenzie & Smith, of Hopkinsville, for ap-
pellant.

Frank E. Daugherty, Atty. Gen., and John
P. Cusick, Asst. Atty. Gen., for the Common-
wealth,

McCANDLESS, J. [1, 2] K. T. Oakley was
indicted under section 1155, Ky. Statutes,
charged with feloniously having carnal knowl-
edge of a female under 12 years of age. Up-
on trial he was convicted and sentenced to 10
years in the penitentiary. Section 1155 was
amended by the Act of 1922, c. 17, and as con-
strued by this court an indictment drawn un-
der the present statute, which does not state
the age of the perpetrator, charges a misde-
meanor only. Hewitt v. Com., 216 Ky. 72, 287
8S. W. 223; Hunley v. Com., 217 Ky. 675, 290
8. W. 511. The present indictment is defec-
tive in this respect, and, under the author-
ities cited, the judgment must be reversed for
error in giving a felony instruction.

(3] 2. Without reciting the facts, it may be
said that there is no evidence of penetration
of the female. The child testifies fully as to
what occurred, but says that she was unhurt
and that she does not know whether her parts
were penetrated. She was not examined by
any one, physician or layman, and it cannot
be said that this is even slight evidence of
penetration. In such a case, it was error to

196 Ky. 47, 244 8S. W. 821; Nider v. Com., 140
Ky. 684, 131 S. W. 1024, Ann. Cas. 1913K,
1246; White v. Com., 96 Ky. 180, 28 S. W. 340,
16 Ky. Law Rep. 421; Bishop’s Criminal Law,
vol. 2, § 1127; Wharton’s Criminal Law, voL 1,
§ 554.

Wherefore the judgment is reversed and
cause remanded for proceedings consistent
with this opinion.

— SS

(220 Ky. 348)
SEYMOUR ¥. COMMONWEALTH.

Court of Appeals of Kentucky. June 3, 1927.

1. Criminal law @=>614(1)—Where first motion
for continuance was overruled and second was
by new counsel without reason or showing,
and trial was begun without objection, trial
on day originally set heid not error.

In prosecution for murder, where court
overruled first motion for continuance, and new
counsel, in making second motion for continu-
ance, gave no reason why a continuance should
be granted, and supported the motion by no af-
fidavit or other showing, and defendant entered
upon the trial without further motion or objec-
tion, it was not error to put defendant on trial
on the day originally set therefor.

2. Criminal law @=1134(5)—Overruling chal-
lenge to juror for cause is not reviewable on
appeal (Cr. Code Prac. § 281).

Court of Appeals has no power to review
trial court’s overruling of a challenge to a
juror for cause, under Cr. Code Prac, § 281,
providing that decision of court on challenges
for cause shall not be subject to exception.

8. Criminal law @=854(9), 855(1)—Where en-
tire jury was taken to barber shop that some
Jurors might be shaved, and no conversation
was had respecting case, reversal was not re-
quired for misconduct and permitting jury te
separate.

Where deputy sheriffs took entire jury to
a barber shop in order that some of the jurors
might be shaved, and there was present only
the jurors, the deputy sheriffs, and the barbers,
except defendant's counsel, who came for hia
laundry and departed at once, and there was no
conversation respecting case, reversal held not
required on the ground of misconduct and per-
mitting jury to separate.

4 Criminal law @=>1064(6) — Improper arge-
ment might not be considered when not relied
on In motion for new trial.

Where improper argument by assistant
commonwealth’s attorney was not relied on by
defendant in his motion for a new trial, such
improper argument might not be considered on
appeal.

5. Homicide @=>237—Conviction for willful
murder held sustained by evidence, as against
contention defendant Jacked mental capacity.

Conviction of willful murder held not against
the evidence, on the ground that the evidence
was insufficient to show that defendant had

submit the principal charge. Carter v. Com.,

mental capacity to commit the crime.

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

Ky.) SEYMOUR v. COMMONWEALTH

(296 8.W.)

6. Hemicide €-=332(2)—Jury’s finding, sup-
ported by substantial evidence, is binding.
Jury’s finding that defendant had mental
capacity to commit willful murder is binding,
where it is sustained by substantial evidence.

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

Orlando Seymour was convicted of willful
murder, and he appeals. Affirmed.

H. W. Phipps, of Louisville, for appellant.

Frank B. Daugherty, Atty. Gen., and Moor-
man Ditto, Asst. Atty. Gen., for the Com-
monwealth.

DIETZMAN, J. From a judgment adjudg-
ing him guilty of the offense of willful mur-
der and imposing the penalty of death, the
appellant appeals.

The facts of the homicide are admitted.
The deceased, Wm. Schanzenbacker, was a
scale tender for the St. Bernard Coal Com-
pany in its coal yards in Louisville, Ky. He
collected each day a large sum of money for
sales of coal, and it was his custom on quit-
ting in the late afternoon to take his daily
receipts home with him in a tin box. There
worked in the coal yards with him a man by
the name of Huddelston, the father of Wm.
Huddelston. The latter knew all about Schan-
zenbacker’s custom of taking this money
home. Wm. Huddelston and the appellant,
a boy 19 years old, were friends. Shortly be-
fore the homicide, while these two young
men were riding around in an automobile,
Huddelston broached the subject of robbing
Schanzenbacker, and the two boys agreed
that they would do so. On the day before
the one set by them for the robbery, the ap-
pellant stole a license tag from an automo-
bile; his purpose being to substitute it for
the license tag on the automobile of Wm.
Huddelston’s father which these boys plan-
ned to use in the contemplated holdup. The
purpose of the substitution of the stolen li-
cense tag was to prevent identification. How-
ever, due to hurry and oversight, the license
tags were not interchanged.

On the day of the homicide the two boys
met in the early afternoon, got into the Hud-
delston machine, and then drove around the
city for a while. As evening approached, they
went to the vicinity of the coal yards of the
St. Bernard Coal Company and there parked
their machine but remained in it. Schanzen-
backer had a Ford car in which he rode to
and from his work. His day’s work being
done, Schanzenbacker got into his Ford car
carrying the tin box with his day's receipts
in it and drove to his home. Arriving at his
destination, Schanzenbacker got out of his
car and started across the sidewalk. Hud-
delston and the appellant had followed him
in their automobile from the coal yard and
had stopped their car some distance back

from the entrance to Schanzenbacker’s home.

The boys agreed that, as Schanzenbacker .

knew Huddelston, the latter should remain in
the car while the appellant did the robbing,
so that Schanzenbacker might not be able to
identify his assailant. The appellant had
in his possession a pistol he had bought some
two or three weeks previous. Huddelston
also had a pistol of much larger caliber, and
it was agreed that they would exchange pis-
tols, and that the appellant should use the
larger pistol in the holdup, because “it would
put more fear” in Schanzenbacker. The ap-
pellant, with the large revolver, alighted from
the Huddelston ear, ran up and met Schan-
zenbacker as he was about to go up the steps
into his yard. Pointing the revolver at
Schanzenbacker, the appellant demanded of
him the box. Schanzenbacker started to run,
and, as appellant claims, threw his hand
to his hip. Appellant says that he then be-
came scared, that without any design on his
part his finger spasmodically contracted on
the trigger of the revolver, that everything
went black before him, and that, when he
came to, he discovered that he had fired the
revolver six times, the gun hanging on the
seventh load. It was shown in the evidence,
however, that this gun would not fire unless
there was muscular action on the part of the
finger on the trigger each time a load was ex-
pleded, One of these six shots hit Schanzen-
backer, and from the consequent wound he
died about a week later.

After firing the shots, the appellant, without
securing any money, ran back to the Huddel-
ston car, and the boys fied from the scene of
the holdup. They later separated, each going
to his own home. A bystander got the license
number of the’ Huddelston car as it left the
place of the homicide, and from this number
the police were able to trace the car to Hud-
delston’s home. They there found the Hud-
delston boy. After some little parley he
broke down and confessed his part in the rob-
bery and shooting of Schanzenbacker, and in-
formed the police of the name of his accom-
plice. Taking Huddelston with them, the
police then went to appellant’s home. The
Huddelston boy called to the appellant, and
the latter came out of the house. The police
at once put him under arrest, though appel-
lant at that time professed ignorance of why
he was being arrested. One of the bystanders
at the place of the homicide had stated that
the man who did the shooting wore a light
overcoat. The appellant when the police ar-
rested him at his home had on no overcoat,
and so the police told him that, as they would
have to take him up to the station house, he
should put on his overcoat and come along.
The appellant put on a very old and dilapi-
dated overcoat, whereupon the police asked
him why he did not put on his light overcoat.

He replied that he had none, and the police

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

“oH

>

fopaeTay:

“te feqtum +

er

*geot-tT-. (uosues ger)


1078 Ky. 61 SOUTH WESTERN
name of that board from “The State Board
of Charities and Corrections” to “Department
of Public Welfare,” but it (the 1932) made
no effort, either in its title or its body, to
amend, repeal, or in any wise modify the
above-inserted section 2 of the 1928 act in-
corporating the board and vesting it with the
power to contract and be contracted with,
and to sue and be sued. We therefore con-
clude that this ground, upon which counsel
insist that respondent is proceeding out of
his jurisdiction, is unfounded.

[4, §] If, however, it were otherwise, then,

if respondent has jurisdiction of the person
of the parties litigant in the causes pending
before him, and of the amount involved, it
could not reasonably be said that he had no
jurisdiction to try and hear af questions
that might be presented in the cases before
him, including the one of whether or not
plaintiffs in the actions could sue the de-
fendant therein. However, if defendant was
in fact not eligible to be sued, for the reason
advanced by counsel for petitioner, then
perhaps there would be ground for this orig-
inal action in this court, if respondent was
about to erroneously determine that the
board, who is a defendant in those actions,
could be sued without the consent of the
state, and for that reason the writ prayed
for herein should be granted, provided the
other requisites therefor existed; i. e., great
and irreparable injury and without adequate
remedy. But we are met at the threshold
with the proposition that there can be no in-
jury (much less great and irreparable) to the
petitioner herein when it is called upon in
an appropriate action filed in a court having
jurisdiction to discharge a mandatory stat-
utory duty. Of course, no execution should
issue on any judgment that respondent might
render in any of the causes pending before
him, but the plaintiffs therein have the right
to call upon a competent court to fix the
amount (by judgment) to which they are each
entitled under the above excerpt, and, after
it is so determined and fixed by the judg-
ment that the court might render, plaintiffs
may then pursue whatever remedy is avail-
able to cause defendant in the judgment (the
board in this case) to satisfy and pay the
amount.

[6] But it is also averred in the petition,
and the point is relied on in briefs, that each
of the plaintiffs in the quarterly court ac-
tions, upon being paroled, signed a writing
releasing the commonwealth from the duty
of paying the amounts sued for in those ac-
tions, and it is insisted that such action on
their part relieved the commonwealth of its
statutory duty to make the payments de-
manded, and that such defense has been in-
terposed in each of the quarterly court cases,
but respondent has indicated that he would

REPORTER, 2d SERIES

disallow them, and which petitioner insists
is an erroneous proceeding on his part, con-
‘ceding that he has jurisdiction of the causes
and the parties thereto. But we are unable
to give our assent to that proposition. As
hereinbefore said, the benefits to the paroled
prisoner which the statute requires to be be-
stowed upon him is not founded in any con-
tract right which one of the parties thereto
might relinquish. But, as stated, being
founded upon a sound public policy, the ac-
complishment of the purposes above enumer-
ated, the commonwealth may not be exon-
erated from discharging such duty by con-
sent of the paroled prisoner who, no doubt

would subscribe his name to any writing that
might be presented to him in order to obtain
his freedom.

Our conclusion, therefore, is that our
parole statute made it the imperative duty
of the board to comply with the provisions
of the above excerpt therefrom, and to make
the payments therein prescribed to every
prisoner whom it paroles, and that the only
escape from the performance of that duty is
for the Legislature to amend the law so as
to repeal the requirement, or to let the pris-

oner remain confined by not granting to him
a parole.

Perceiving no ground for the granting of
the writ prayed for, the petition is dismissed.

The whole court sitting,

SCOTT v. COMMONWEALTH.

Court of Appeals of Kentucky.
June 23, 1933.

1. Jury €=33(3).

Summoning jury from county other than

where murder occurred held not error, where
on first trial of same case, which resulted in
hung jury, regular panel and special venire
were exhausted and on second trial regular
panel was exhausted with only five jurors
tentatively chosen (Cr. Code Prac. § 194).

2. Homicide @ 270.

In murder prosecution, issue of insanity
of accused was for jury.

3. Criminal law €=311.
Until accused raises question of sanity,
commonwealth is not obliged to establish his

sanity, being entitled to rely on presumption
of sanity.

4. Criminal law €=683(3).
Where accused by his evidence claimed
insanity, commonwealth was entitled to in-

>For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

SCOTT v. COMMONWEALTH

Ky. 1079

61 S.W. (2d)

troduce evidence in rebuttal to show accus-
ed’s sanity.

Appeal from Circuit Court, Floyd County.

Ishmael Scott was convicted of murder, and
he appeals.
Aflirmed.

O. CG. Hall, of Prestonsburg, for appellant.

Bailey P. Wootton, Atty. Gen., and Francis
M. Burke, Asst. Atty. Gen., for the Common-
wealth.

DIETZMAN, Justice.

Appellant was indicted for the offense of
murder. His first trial resulted in a hung
jury, but his second in a verdict of guilty
with the punishment of death attached.
From the judgment entered on that verdict,
this appeal is prosecuted.

The facts of the homicide are, so far as
this record is concerned, undisputed. Appel-
lant and his wife seem to have had a quarrel,
and she had left his home. Suspecting that
she was being harbored by Martin Stephens
and his wife, the appellant came to the Ste-
phens home and in a boisterous manner de-
manded to know if his wife were there. Asa
matter of fact, no one was there except Mar-
tin Stephens and his infant child whom he
had upon his arm, On being informed by
Stephens that appellant’s wife was not there,
appellant démanded that he be shown through
the house so that he could see for himself.
Stephens complied with appellant’s demand
and showed him through the house. When
they came back out upon the front porch,
Stephens sat down in a rocking chair with
his infant upon his arm. AS he was thus
seated, appellant drew his pistol and fired
twice at Stephens, inflicting wounds upon him
from which he soon died.

[1] As grounds for reversal, appellant con-
tends, first, that the court erred in sending to
Pike county for the jury which convicted
him. The record discloses that on the first
trial of this case not only was the regular
panel exhausted in the effort to obtain a jury,
but likewise a special venire of eighty-two
members was required before a jury could be
secured from Floyd county to try the case,
and even then the trial which followed re-
sulted in a hung jury. On the second trial
the regular panel of Floyd county jurors was
exhausted in the effort to obtain a jury with
only five jurors having been tentatively ac-
cepted. At this state of the proceedings, the
commonwealth’s attorney moved the court for
a change of venue, Or, failing that, for the
summoning of a jury from an adjoining coun-
ty, basing his application on the ground that
the appellant and the deceased were both
widely related in Floyd county, that the case
had been widely discussed over the county,
and that the former trial had resulted in a

hung jury, from all of which he asserted that
it would be impossible to get a jury from the
county that would render a verdict in the
case. The commonwealth produced no affida-
yits in support of these statements, but the
court sustained the latter alternative of the
motion of the commonwealth’s attorney and
had a jury summoned from Pike county
which tried this case. Relying on section 194
of the Criminal Code of Practice and the case
of Alsept v. Commonwealth, 245 Ky. 741, 54
§.W.(2d) 337, appellant insists that it was er-
ror to summon the jury from Pike county un-
til a fair effort to obtain a jury from Floyd
county, the place of the homicide and the
trial, had been had. In this Alsept Case, the
record disclosed that the trial court on the
motion of the commonwealth’s attorney and
without more had summoned a jury from an-
other county, nothing appearing in the record
as to any effort having been made by the
trial court to secure a jury from the county in
which the trial was being had. It was there-
fore held that section 194 of the Criminal
Code of Practice had been plainly violated.
In the case before us, we find that the trial
court knew that on the first trial of this case
not only was the regular panel exhausted but
a special venire of eighty-two members was
also exhausted. before a jury could be ob-
tained. That jury hung. In the effort to ob-
tain a jury on the second trial, the regular
panel was exhausted with only five jurors
tentatively chosen. The court knew whether
or not the accused and his victim were widely
connected in the county and no doubt knew of
the state of sentiment in the county. With
all this, and having experienced the difficul-
ties in obtaining the jury from Floyd county
on the first trial, and having made the effort
to get a jury from that county out of the reg-
ular panel on the second call of the case, he
was not required to go further and do the
foolish and expensive thing of summoning in
a lot of jurors who would in all probability
not qualify, and, even if they did, would in all
probability compose a jury which would hang
again. There was no abuse of discretion un-
der such circumstances in summoning the ju-
ry from Pike county.

[2] It is next contended that the verdict is
flagrantly against the evidence, and this be-
cause the jury disregarded the defense of in-
sanity advanced by the appellant. His evi-
dence to sustain that defense was very feeble.
On his last trial, appellant testified that he
remembered nothing from about noon of the
day of the homicide until the next morning
and answered all questions eoncerning the
transactions of that day in substance that “he
did not remember.” There was some evi-
dence of lay witnesses introduced by him to
show that at times he acted queerly or abnor-
mally, but on cross-examination most of these
witnesses disclosed that, when he acted in
this fashion, he was drinking. The common:

“CC6T“E-TT (pAOTZ) *AY SoeTe fot Seqtum STeewysyt *LI00S


1080 | Ky..’ 61 SOUTH WESTERN
wealth produced an abundance of testimony.
both lay and medical, to the effect that appel-
lant was sane at the time of the homicide and
of his trial. This issue of insanity was one
for the jury, and not only was their verdict to
the effect that appellant was sane not against
the evidence, but, indeed, in accord with the
great weight of the evidence.

[3,4] Lastly, appellant insists that the
commonwealth was permitted to introduce in
rebuttal evidence which should have been in-
troduced in chief. This was evidence bear-
ing on the question of appellant’s sanity.
Part of this evidence was testimony as to how
the appellant had testified on his first trial.
On that trial, he had not attempted to plead
insanity, but self-defense, and had given his
version of the transactions of the day. This
evidence was brought forward by the com-
monwealth not only to refute appellant’s posi-
tion on the second trial that he did not re-
member the transactions of the day, but also
to show that he was entirely sane then and
made no claim to insanity, but rather to that
of self-defense. It is settled that, until an
accused raises the question of his sanity, the
commonwealth is not obliged to establish that
he is sane, being entitled to rely on the pre-
sumption of sanity. Further, where the ac-
cused raises by his evidence the issue of his
sanity, then the commonwealth in rebuttal is
entitled to produce its evidence bearing on
that question. See Berry v. Commonweaith
227 Ky. 528, 13 S.W.(2d) 521. Hence ilere
was no error in the order of the introduction
of the commonwealth’s evidence in this ease.

Perceiving no errors, the judgment is af-
firmed.

Whole court sitting.

NORFOLK & W. RY. CO. v. McCOY.

Court of Appeals of Kentucky,
June 23, 1933.

!. Adverse possession €=25.

Uninterrupted actual residence on land
was unnecessary to title by adverse posses-
sion, since claimant when absent could hold
possession through tenants.

2. Trespass €=20(3).

In action for damages to land through
diversion of river, trespasser could not at-
tack title of owner in possession.

3. Appeal and error €=1068(4).
Error in submission to jury of damages

REPORTER, 2d SERIES

by court’s abatement of dama
2 es relati
such interest. ge ma

4. Navigable waters €=34,
Federal government’s authorization to
change channel of navigable river did not au-

thorize taking of private owner’s land by
diversion of current.

5. Evidence €=474(20).

Witnesses testifying they had known of
land involved for many years were competent
to testify to damages sustained through di-
version of river; knowledge of land by metes
and bounds being unnecessary, since their

a could be tested by cross-examina-
ion.

6. Navigable waters €=34,

In action for damage to land through di-
version of river’s current, exclusion of ques-
tion concerning what plaintiff had received
for 15 acres off lower end of tract during pen-
dency of action held error. 4

7. Appeal and error €=216(1).

Where no instructions were offered, ap-
pellant ‘could not complain of points not cov-
ered in instructions given. ‘

8. Appeal and error €=216(1).

Party cannot move court to give “whole
law of the case,” offer no instructions, and
then complain that instructions given did not
cover whole case.

9. Evidence €=568(4). .

: Opinions as to values of land may largely
be ignored, where not based on facts or facts
are more or less speculative. and fanciful.

10. Damages €>138.

$1,787.08 held excessive for damages to
tract of about 40 acres of farm land listed
by owner for taxation at $954, where in five
or six years following change of river chan-
nel less than one acre had been taken by
erosion and only $150 had been paid for one-
quarter interest in 23 acres of tract.

Appeal from Circuit Court, Martin County.
Suit by Hi McCoy against the Norfolk &
Western Railway Company. From a judg-
ment for plaintiff, defendant appeals.
Reversed.

W. R. McCoy, of Inez, W. K. Cowden and
Holt & Holt, all of Huntington, W. Va., and

M. Rivinus, of Roanoke, Va., for appel-
ant.

Jasper H. Preece, of Inez, and W. H. D.
Preece, of Williamson, W. Va., for appellee.

STANLEY, Commissioner.
The appeal is from a judgment of $1,787.08

to land, outstanding interest in which was a
; : res asac- for damages to the land of the appellee
quired during pendency of suit, held cured caused by the diversion of Tug fork of Big

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

NORFOLK & W. RY. CO. v. MeCOY Ky. 1081
61 S.W. (2d) .

Sandy river. The farm lies on the inside of a
sharp horseshoe bend. Across the river in
West Virginia the appellant in 1925 made a
2,800-foot fill at the side of a cliff for a new
second track. The section of the fill affecting
the river and appellee’s property is about
400 feet long and 70 feet high. Its base
projected into the river. According to some
of the witnesses, some of it extended half-
way across the channel. In 1930 the plaintiff
brought this suit charging that his land had
been damaged by reason of the change in the
channel and the diversion of the current.

The evidence pertaining to the area and
the topography of plaintiff's land is not very
satisfactory. It appears that in 1910 he ac-
quired 25 acres and later on 23 acres of what
is known in the record as the “heirship land.”
During the pendency of the suit he purchased
an outstanding one-fourth interest in the lat-
ter parcel and sold 15 acres off “the lower
end.” However, there is reference in the
record to his property as containing 40 acres.
The defendant denied plaintiff's title and his
right to maintain the suit. The question
was raised as to any right of recovery be-
cause the work had been done under a permit
issued by the War Department of the United
States government, the river being a navi-
gable stream. The allegations of damage
were traversed. These grounds of defense
are presented on this appeal together with
some claimed errors in practice.

[1-3] It is submitted that it was necessary
for the plaintiff to show title back to the
commonwealth or that he had been in adverse
possession a sufficient length of time to ac-
quire title. Putting aside the first point, we
are satisfied with the evidence showing the
plaintiff had been in adverse possession a
sufficient length of time. It was not neces-
sary that he should have lived upon the place
uninterruptedly this period of time as the
appellant seems to think. It was sufficient
that he was in possession through tenants
when not actually living there himself. The
defendant as a trespasser was not in position
to attack the title to so much of the land as
plaintiff owned, and, while the issue as to
damages to all that he had when the suit was
filed was submitted to the jury, the court
abated so much of the judgment as represent-
ed the interest in the land which the plain-
tiff acquired after the damage was. com-
mitted.

[4] The permit issued by the government
engineers authorizing a change in the chan-
nel of the river specifically provided: “It is
to be understood that this instrument does
not give any property rights either in real
estate or material, or any exclusive privi-
leges; and that it docs not authorize any
injury to private property or invasion of
private rights, or any infringement of Fed-
eral, State or local laws or regulations nor

61 S.W.{2d)—6844

does it obviate the necessity of obtaining
State assent to the work authorized. It
merely expresses the assent of the Federal
government so far as it concerns the public
rights of navigation (See Cummings v. Chi-
cago, 188 U. S. 410, 23 S. Ct. 472, 47 L. Ed.
525).” It is obvious that no right to take
the plaintiff’s land by damaging it in the man-
ner shown was acquired under this permit,
conceding for the purposes of argument that
such power could exist in the governmental
department. The authorities cited by appel-
lant refer to the title of riparian owners of
submerged lands as being subordinate to the
publie right of navigation, and are not ap-
plicable here.

[5] Complaint is registered against the ad-
mission of the opinions of value given by
several witnesses introduced by the plaintiff
upon the ground that they did not show
knowledge of the conditions or of the values.
All of these witnesses stated that they knew
the land and had known it for many years.
It was not required that they should testify to
knowledge of its exact metes and bounds.
They were open to eross-examination for a
test of their knowledge of the-property. We
also think they showed sufficient qualifica-
tions to express an opinion as to the values
by reason of what they had been and known
with respect to the action of the waters,
caused, as it was believed, by the diversion
of the stream.

[6] But the court erred in ruling that the
plaintiff need not answer defendant’s ques-
tions as to what he had received for the 15
acres sold off the tract during the pendency
of the case. While the location of this par-
cel in its relation to the fill and to that part
of the farm claimed to have been damaged
was not shown other than that it was at the
lower end, what the plaintiff had been willing
to accept for it is a pretty good criterion of
its value at a fair voluntary sale. Of course,
its character and relation to the rest of the
land was open for the proof and compara-
tive purposes.

[7,8] The instructions seem to be correct.
The appellant is not in position to raise any
question about what the court should have
given but did not, for it offered no instruc-
tions. Under’ our practice, it is not suffi-
cient for a party merely to move the court to
give the “whole law of the case” as was done
here, If he desires an instruction upon any
point, he must offer one upon it, and, failing
to do so, will not be heard to complain.

The most serious question presented is that
the damages awarded of $2,000, less the abate-
ment of $212.92 as representing the land ac-
quired after the commencement of the action,
are excessive. As suggested above, the de-
scription of the property is unsatisfactory.
As we gather from it there is a narrow flat
with willow trees at the water's edge and



oi io 3
REMEMBER THY MOTHER.

| 018g et

| Lead thy mother tendgriy, rp

Down life’s steep decline.t; |) jn1y »

ae her arm was thy support, » — a

| Now she leans.on t thing. pub = a
; | See upon. her lov ‘ing lace . :

G aes

“mf +>

way
at

"Those deep lines’ Fp cattle ei if
Think, it was her toil! forced) a
Lett ‘hat’ record therel #1? iabtys)
*Es i. A Gi nots tin: ti} i
Never ood her firelent ae
+ Kept by ‘day | and
Taking from her Ap. the’ baat
} From ber eye the MAUD THIET
”’ Oherish well her faithful Heart) ® >a -!
ait B93) {

hich through weary years):
; ie with its sympathy it
Yi. All thy smiles, and.teprs.) }/.

" mother’s love, -

ess- bool, sie reer e
eth

Vet

a seu i
4 te || stam tod oF

5. “Griard' the price
ae For the Pitter parting hdurl.—
I f Cometh allto soon .Wan% ws 7
a thy .grateinl | dena - [eggs
“Vere ora wep bos
farth-will. hold no dearer EP Ut
(has thy mothers ‘grave. oh aidel |

nee me

“at eit past ight o'clock, “iets

ing, a large crowd, assem
Band square in antic ipation
= eridan, (the negro,) fore
Fmenor The_executic

B foe that, 3 y, and, an imme
s rad tt cghted to see} m
the culprit was ta

ie anardty:

so Fah ¢ ourse

ts a y nine
akand conveyed to tl
| mile from town, at the
NZ) and Mor aie road

large sane
| Lieut. “Kinnard, and accompanied by
1 crowd, In tle wagon were the culprit,

ana —_ ileal er igp* ae — Pe. ana na ~_

George * Shorten :

iy morn-
pled about the jail
of the hanging of
Pa

tion 5 hed been set

AL ‘ten mip Ferieve'y

ken from ahi

re(gallows, about & Tal

far of the Ttriasell wilt
The wagon. was sur

under command 0,

a largy

En emma

TIME WANDERER. «4

Hon. George McKnight, while amember of the
/, Texas Legislature, several years ago,
letter from a friend at his old home in Cannon
Tennessee, announcing the death of the
‘ast member of his family, & devoted and much
sale of the old home-

stead where he was born and reared, and of the —

county,
loved brother ; also, of the

destruction of a favorite old
whose friendly shade he *had
{the reception of the letter, Mr. McKnight
‘| tired to his room and
touchingly beautiful lines:

‘| Alas for the home of my ‘childhood !
I sigh for its transports in vain ;

‘| The garden, the meadow, the wildivood,
‘| Are all now the stranger’ s domain.

i
*

‘| Soft scenes of soy happiest hours!”

Your beauties I’il ne’er again see f

In the field, where T-planted the flowers,
‘here blooms. nota blossom for me.

ae

‘| The oak "neath whose branches I rested
While zephyrs breathed music Around—
Its glory lies W ithered and wasted,

y
| The friends who once *yound me did rally”

Now repose ’death the sod of the valley— ‘
Alas, they have left me alone! *

a4

0; where is my father—my aothed? ?
To-the chufch- yard oe ve long | since
. borne. +
No kind-hearted sister nor ‘prother
Is left now to hail my return.

ay: ‘|
Amid BSOITOW andsadness and danger,
ow in ‘silence alone ;
For the kindligst tomes of the stranger
But remind 3 me of lofed ones now bee

Thus alone on this wide world a rover.
Lil the wild deér I wander at wills.
But when life’s dreary journey,i8 over,
“Let mie rest ma my own nativs: B

“yelations,

oO
z

Cael

bi KLet me sleep ita my deare;’

received a,

oak tree, beneath
spent many happy

hours. Leaving the Legislative halls s00n after

penned the following.

et

By the thunder-blast érushed to the ground.

With kind words still cheering me 01, 13 7

With the friends of my © *;ahood around,

a ASSING AW ay,

at he,

- Reis eway, passing Ho vidayy
The sweet summer roses are passing @WAY3
‘Their b beauty is wasted, their aragrance has

| Indi ins, who retreat

e cold, ay

ae

shai found
ting on, they found
huge.rocks that bad

Fae 0 Re ‘
Apa sataering b they lie i in thei damp, lowly | man who had fought
ae eS this band of
The fair, dewy morns in thelr splendor will, Was young and pay
rise,
The pale stars glow soft i in evening’ s clear ioe 2 A ear seit:
Te- “Skies: . Z

The cooling dew fall sea the musical raid,
But these roses will ‘brighten, ah, never

2¢ 80 many hund!
dered, by bh |
cla \was y x

; : sgonk: * . bale i ane oe
seh } beant: fal

- Passin away, rie

g away, passing away; ) reverse side bear

i Bright hopes of my geste <20% they’re%

passing away, - .
ae the beautiful visions that — my |:

Chicago firm. Atta
Was & lock of light «
a ribbon. On bis fil
ithe! engraved “Ty
‘word “Mispah,” ~.
evas written the Jn
For oa in his he

nt
By op tne ina ‘plght time, as “gunfight ‘the {34

ob, hope may come back to my sorrowful
~ heart;
Bright dreams from their se silent cham-
bers may start,
But these of my youth I so woo 5 all in

vain,
For they ne’er will return int thelr Aged i

again 1 —. ee ;

Passing away, passing away;
‘| Friends I have nartat & co passing
away! \.
I have watched them
* golemn tide,” eS,
While the pale, silent boatmen kept. close tok ie oy
e their sides “Ret “pong y
I’ve caught the dail dip of their deep, muf-
«

+

fied oar, ~~ i,
{As he Bore them ayey to . that —— aug &

shore!
Anam my heart crieth dut in its Farad paint: ’

But they ne’er Will return to bless, me again!

4 pe graye of a loved
ver a fac
Will rise gt ant

a ee

from the s

there,” »
No monument 1
jin the mountain
‘| moans abore him
‘{Siaule’a

s

4

}

my.

‘words:
eT

godown " ‘tnat cold, } “

Piy,
may.

ae

ee

‘spiritual ‘adviser, Rev. Father mens — Bide cots miber,
>, . il rter, an one of earth’s slum ing, 1a! 4 bat or ae
Paes ie er ihe f realcedt Shall cae at same sounds , ee “Passing away, passing adare 5a
othbes. i the, Wey Pe ast, ; A eet ee Set Iknow of a land where there is no sy
q bis freely as to = mie ee soul, Pee n ek OLD SCHOOL, BO oR; cae ; end thoagha
segmed, to be confident a nea ae ex. Where the ballmy,air is filed wid. the rich- | ra ia
j wath his, God.. "He,repeated ; the, ed PETES onthé éiq school book: ‘tn ite dusky nol A cat porlnmed fs en free
several times, ‘anid ohne ed! at ne nat ,  Witha teorful eye IT gazes" {| Free sweety fragrant : fiower, “and fadeless } ‘That the Holy |
; a On reac ing the spot, he BY + Come down, ao — for an hour “their bloom: > - Siay wield ne Be
[ snrrounde the “gallows. and the prisoner ae) spend) “rr 3 AW gare H Where the, soul never grieves: as it i th }! How off have Tween
gended the scaffold, with Father Lacostéy and) ini 22iees of by-gone Sages Bik: ~ here below,” <a ~ TFssk of ber Ba \
A the Sheriff. _ ‘He turned to *the “crowd ynds Pan vos avin days d | 4g° se J vanished dreams, o'er hipe’s fit- | To-teach her i
AY eked’ feng to speak, which was granted}. ‘ PRS TPs \ , Do fallon ble ake
i}; iB for about five minutes, ™ “4 On the task that vexed the brain; | | wn nice mae an a. forever is love's ol sen Saak Wve beat
i steady ee a ee ing being the The lesson done, and victory won, {| e ES *: & “7 hg ‘ pinata
tapoe of his remarks: re eee oe ee ie 4 child's faut
aataye and Gent peeled Si have Tow And 11 feel.) Tit a fi child « again. es Fed ae rting wo rds chill us, O, never again! pees ees
re gto,set mAs Pang tort [ack any man to, And I see ta nae; ‘th. the youty $ es gee | oad
eee ene am besser), ta on Be “auc 01a Fashioned sfother peep!
a : a Sg rp he : 7 "ig
ar wis or gone: of ‘Ts friends. Be told) t be age house 8, we uacpers we Ups 2 aie ; caer <i iA a A rie, ke =
ae ail Ww en ne 2 ri wou % ; ear n ere, began, :, ea, ethan 8
ees at whe sa iollarss | “And [join in the “gladgome-scene,\| 0 ‘old-fashioned mother. Nota woman of ee A Gases Be
t to Rafi le, House come down « I take my place with a asober face) the period, enameled and painted, with And her ae
oe md tit tors eat bad O'er the we}l carved desk bend, | her great chignon, her curls and bust When o'er him she
teraded jLoff 46 aon e He seid, “Well, if, And hourly pore, over the antique lor| whose white, jeweled hands never felt | ‘The pleasures of ©
Goff & got Fil ‘never a. He then gave me > ed thy propdertal page, od friend. Me clasp of baby fingers; ‘but a dear, -—s “ehh:
| some ae OTe iY galing. forthamis| ori ss disaooer #81) old-fashioned, | sweet-voiced. mother with potas 2x0 |
/ took them and locked them up in my valise. ween our. cares were for eni aasit ’ | While to His m6
es eaday? eur Led the if I ~- aiaed » were trad, . {eyes in whose clear depths the lovelight Fs Jvoted ana trae
Mhursday 20 ‘ i ro ‘ Ps
Make ‘ afisk ies We went out to get a And our g riefs pid apes a4 light; shone, and ‘brown hair just erent Seat zabagiee i
are gra aot tel Sipe QB eet on Se ise np The worki was naught (so we ae ane us cay ng her fa ea Se ae
jn @ jury-room, where they "said, “Don't | ‘thought ¥ ood +# muse ? i i ose dear an worn Wi yt ae :
fail is ee dk aretha ius But a region of pure delight: “gently. guided tottering, steps 3>/ Tria bogadlens
»| did not get gree till then, for I knew] had | \ Bef time has sped, and our path. hat childhood, and smoothed our pillow in > peti tng
ppene eet (ile here ay Lage betes Through the dark and tearful salle sickness. . Blessed is the memory of anh oe one
as tothe manner. in wal be 3
ae the wate ant challenged any ered | ‘And passed away ere the good and old-fashiohed mother! It floats to us). ee ae
ss proof of his guilt.) 1 am as nnocent of this Tie, the old, hous ¢ on the green: ‘| now, like the beautiful perfume from | :
8 Ea ee. nenwd. defore = FEF? Ba Pe" Ngee See some wooded blossoms. The music ® th
Rae uae he aie aia oR ae ee ee TEE Whe on >


Pin Land conveyed to the’ gatlows, ‘about 4 Wa

and Morgantown roads. ‘The wagon. was $

Pgptritual ‘adviser, Re

| others. “ha the, way his confessor ‘talked

noke for about five minutes, In

of om his remarks:

s what he 8. Te

: at man House a

Nashville, and”
Aftet. I went a
otk. ee a

) ffouse never eallec for the
ah ‘on, Thursday and ‘asked me

drink of gin whee two peat arreste
| AEbey did hot tell mew

ee
this fran get awey)
» Phat was. the. fi

Naaee noth

ceupagreslt

Howse eth to do. with it. dou 4
ife out of a max

dike jerking Othe” stoppe of bottle.

be ie¥e it’ eo

know F ats
‘The Sheriff t

ao

gninistered ¢

eoste then =
‘pitos, and the condemned man*goo

After the fay
| he again said
} bad company: had brought him to this.

spear

The eap was replac

, leat an

a moment Bayt) ve convulsions,
sails inet kung motionless.

é Biter ha ag a cighftcen™
Ww age. rmined. bY

ying Been manit

ter ext,

of thee’ tl
FS by ps

Hl tint tedk at wpe?
sf Prine towtl was ©
met weor. wid the 8

had assenmbled (0. 80@)hy; fhe BAT

i

sor nine the culprit was taken from th

Ferieve gow in site:
For the ki v lest tou

But temind me of :

*, | While the | pale, : silent boatmen kept ma to

vs new Bape.

Thus alone on this wide world a rover, ~. | Pve caught the dull dip es their deep, aah :

Lilt the wild deér I wander ae'will;
But when. life’s dreary journey is
“Let mie rest Dae my own page

Ket me sleep rif my doaréy’ re
With the friends of my ¢ —

Till all of earth’s Seep
shall wes at thot “weep:

ak OLD » SCHOOL or Baas.

| mile fr om tewn, at the fork of the Russell villt

rounded by-a large. guard, ‘under command 0 ¥ As the. Kore. tiem away Fa ie choles
Lieut. Kinnard, and accompanied by a largi}

crowd, Ip the Wagon, were the culprit, A
v. Father Lacoste, Sherif

otter, the jailor, reporter, and | oué gr’ by

2a my heart crieth ‘out in its ikicts pain!
But they: ne’er pes return to bless me again!

te 3 "Passing away; passing ear.
Yet Iknow of a land where there is no}

hin “freely as to the state of his soul, and he |.
seemed to be confident that “he was at peace |
j is. God., “He. repeated. the Lord's prayer |
T times, anid: also prayed’ for the repose |
of Bis souls * “Oa reaching the spot, | ‘the guaiil
surrou the gallows and the prisoner as- |”
aenided the scaffold, with Father Lacost&and |
riff. ‘He turned to *the ‘crowd ynd
‘ésion to speak, which was granted

With,a tex; rful eye I gaze,’
Come dont “old sim aby an hi

of birgbae alge
TPs as im days offyo ou
On the task that vexed | the estas |
The lesson done, and victory, won,
And I feel Vida a ebild again.

Sc pat the following being t

Lea Vea gave alt come!
Smasr hung, T atp post and who |
for? Eask any man to
Sears hung dead, for?
this thing on me- to}
he himself or some of his friends. He told

three enin jail when IT was girs I wou |

? that w. téh fro: House on the night Dwent to |
put u fo five dollars. |

wdhville, House come down |
‘and wanted to have the watch |
d he could get it for 3! but [ had |
“Bob Gotf. He sai “Well, if |
rer mistd.” He then gave me | ’
he called for them.

took them end Toda he up in my valise..

And I seem tapi? ‘th. the ee

te the old house ou ee fads: BT ca |
I hear the fun ere the’schoo! began, |

And [join in the: giedeaere-ncete '
I take m place with a sober fa {
- Oler the Well caryed desk

ye
{
ie

|| the period, enameled and painted, w
bend, | her great chignon, her curls and Pum
And hourly pore, o'er the antique lor white, jeweled hands never fel
_ Of thy woadérful page, old friend

‘ eb itmocts Maw ole
Then our. eres wore few, and que fri
were tru, .. ‘

And our griofs were. rare ‘and light
“The world was naught (so: we for
: ‘thouight)j Laven gd 39% anche aed catee
But, a aes of pure delight. -.
\prt time has sped, and our path

Through the dark and tearful sce
And passed away ere the geod and {| old- fashiohed mother! Tt floats to us

Like the, old. house on n the green.

He cume back
if I would go and |
f take a drink with We went out to get a

€ for) but took me up.
‘in a jary-room,. Where they sai , “Don't |
a s arrested or iiurdér.

‘woof the murder.
did not get meer ‘din en, for I knew l had |
ing.” ‘die! here gave some particu- |
| Tears, a3. a he. _manner- in which he won the
won the wate: ys States inn any actual

toil, “gently. guided tottering steps in

nnocent of this

's crowd, before God. {

d things, but nothing as |

Ta answer to “his confessor,
f God will forgive House and the
don’t know who they are—[wi

k. nor under the influence of 4 q

> E-anr all right. Edon't }

rhe hung without ie
There wasn ai md. peers
ouse. said

* Hut we'll sihg'fo” inore af the 6 any gomé wooded blossoms. The music ‘of |

j iévotiel bee
wee the tear drop dims the eva
Sleep,on.old book, in thy dusty neo, _ P
“é; Asin years that have glided by. away and be’ forgottes, ‘but hers wil
No guilt ' we trace in thy” honest face}
‘But a mine of gold within, ate ‘When,. D in the. -fitfol. pauses of busy
Enriched the oe. as th

Aa 'ttancing memory of hers will echo in

Bey sought Sy.

ip the a mvane mo Lore gieta!
Legh ‘ao hallowed by her presence, dependence

“rhe "Teachers Mission.
4 the mélten sunshine streaming through

n abe ie cord over the: ]
A frlend {urnizhes ‘us the following huhe Open | n Window, just where long years |
i
{

beam and it was secured below, Faiber La~\y
the Jas€ rel igi

:

beautiful little © extract” from a. Jetier | i we knelt. rat our moth
from our old. friend, and former eitizen, & } _ sping, “Ou How many
Jobn Underwood, of San Francisco, to}. mes, when th NG anh
his mother, ars. ‘Lucy G. Underwopd; | as the memory, of those
E ‘of this city, on ‘hearing that.on account “nat mother’s worus,. her faith and pray-
of. her delicate health, she had her hair, ors,” saved: us ‘rors “plunging into the

had been drawn over his face
he was innocent. Bad luck and,

=

H} heaped ao sent would egy meet puch
it ao tue Je was willing” te go; Yat hot |
-yeady. dHe He awhy ed slightly to and *ro after}
tid “but. fot a! féemior disturbed his,

nerves. "ite spoke, eteatly aN bigs an
with 4°s arly He asked
re “was told” BDF

Sif he Set at A slat
cab. aod the Sheriff desbend

iy minutes. to ten o'clock the d ott
poor fellow. was launched. inte

eternity. | e Re vats “swung aronnda few times,
and all wast

“6f Sy ork i
un jewels rare

alata eck
> Dearer to ine th
-Dearer far than the golden curl

“€ul from thé‘head of alaughipz
ky bas dfeler?® is:tn tive felatiful
lit le thread of ire :
y when the sun goes down
rast to loye ate: day.”

minutes, the body .
Dis. Wright. and THutchin-}} Ts
ife sfonounced extinet. The nee Bian

' ota SAA the erowd then> dispersed, but
pa ested.

» their side: “a4:
fled oar,

shore t

i

decay,
Where the Paty air is filled with the rich-
i} -est perfume -. .
From sweet, fragrant flowers, and fadeless 2
_their bloom: in, Ma
Where the, soul never grieves as it doth ' Howe
>, “uere below, : BFask
|| Orer_ fair; vanished dreams, 0’ er hipe’ sfit-f Totes
‘gh 0 W, To fol
z |
i/hans linked and forever is love’s golden = with
_. chain, ~ cee
And perenne words chill us, O,m never again! 1 And}
The “ Fashioned Mother. _ £ Go;

hank God! some of us have had an}
old-fashioned mother. Not.a woman | ie

ee
ae

e clasp of baby fingers; ‘but a dear,
old-fashioned, : sweet-voiced mother, with
eyes in whose cleat depths thé lovelight j
shone, and “brown hair just rt

q

with silver lying smooth upon her faded
i cheek. Those dear hands, worn with

childhood, ad smoothed our pillow in |
‘| sickness. Blessed is the memory of an

now, like the beautiful perfume from |.

‘other voices may be lost, but the en-} -

to $e

our souls forever. Other faces may fade

our feet wander | ack to the old

© eer Oa ~~

‘|hoifestead, and, crossing the well.worn
| threshold, stand once more in the room

comes over us, and we kneel down in

ers kneg,+,

grea drifts “between her and us, but
Hen yt hidden from our <a the |.
wats,

]
j
deep ‘abyss of ‘sid’ Years have filled
;
,

ss BS ut loyee
3 Pol ee p< Mike
yr sav Sto

‘dent of the Chicagh Times,
from Fort, Fetter Wyoming g.

are eA

iL tittle sym pathey " ia
BL jrovetian one Tourth of tie assemblage were
AP weg voce ut they, gcemed to feel. bat

1 “Th the frst ex ecutton ipa lace’

iu eighteen Fe and the ore 2 was
at

esate ffom the

(ert fh Hvely 4

| the 25th of May, his “patty; 7s eling
\ through the Big Horn couniry, heard’
firing some distayce © off, and it continued |
Vee intervals thet next day. Presently |

Ba SS ee


470 ~—s Ky.

_— rd robbed Day. He proved Da
. és made several statements that he did
ot know who got his moncy

T ‘ .
eb evidence varies as to the extent of
ing and degree of intoxication of the
Prosecuting witness and others
T i
: sss rule upon which the appellant relies’
_ ies where the proof consists wholly of
cumstantial evidence. Here there
! wa
een vi evidence of the guilt of the oe
end.
| dant. It was a clear case for the j
to decide. hs

The judgment is affirmed.

229
SOUTH WESTERN REPORTER, 2d SERIES

deadly e
y weapon. The evidence was in

eve

* aban by same as that introduced
we eek oi eins the men being tried
Hebei = . efendant’s confession and
that he sited & raigiiog ce be

t re of a jok
i - and said that it was oats
~ pn I did not know the gun was
ereat iis ot me started to move and I
eae, — then the gun went off and
n fell into the floor.”

I ae :

f . me EN to having the official photo

“ er ile the picture of the dead man ‘t
as again put before the jury by the

manager of the store wher = the I obber y
L ed, ern-
occurr d T he same admonition concern

4 s int d y d
In 1t roduction wa mad the rial
s ic b t

Cc ea :

aaa 1s made in the brief for the

Rises pat the deceased’s clothing was

pana pee the jury though not intro-

ced ence. There is nothing in the

nerd sustain this and the contention of
on this account must be disregarded.

for i
the error of introducing the photo-

Albert Shelkels

éf . kels was convicted i i eee he doa

ferson Cire Your gage j apie tes

reuit Court, Loraine Mix, J., of = judgment is reversed. ie oe

robber Ss y
y with the use of a dead weapon
7 ’

312 Ky. 713
9 SHELKELS v. COMMONWEALTH.

Court of Appeals of Kentucky,
April 28, 1950.

an 1e8
RTE appealed. The Court of Appeals
ey, C., held that the admission in er.

dence of pho
stograph of
dead bod ‘
robbed, was reversible error, Te

Judgment reversed.

Lriminal law G=438, 1169(1)
3 = Prosecution for robbery with the
0
a deadly weapon, the admission in

evidence of photo
graph of dead b
man robbed was reversible error. edie

312 Ky. 718
FORD v. COMMONWEALTH,

FORD v. FUNK et al.

Court of Appeals of Kentucky.
April 28, 1950.

———___.

yames A. Hubbs, Louisvi rou Oona We
| 1 ios one s convicted in the B
doves tele n: oust John T, Circuit Court, Ward Yager, J., of caaae
A. E. Funk, A 1 :
« Bs , Atty. Gen., Zeb. A. S
- . A. Otew
Asst. Atty. Gen., for appellee. le

girl under 12
years of age
aay age, and he appealed.
os he also filed an application op-
. pat 2 Funk and others, for writ
~ uel . set aside his conviction,
p aled from an ord
= £ er sustaini
—_ aining a
een a demurrer to and dismissing his etl
tio! or writ of coram nobis. The two cases
i e a on appeal. The Cor t f
peals, Si th: : ie
oe it ©. J., held that overruling of
or new trial was pr
pens r as proper where de-
‘ orn did not establish by clear and co
a J j . .
incing proof, claim that jury was veer

STANLEY, Commissioner.

This is the i
‘ companion of Craft v~
monwealth, decided today. io
Th
© appellant, Albert Shelkels, likewise
va entenced to death upon conviction of
crime of robbery with the use of
a

eR ett Ry Big LES

Paper een ras

FORD v. COMMONWEALTH Ky. 471
Cite as 229 S.W.2d 470

fully influenced by rumor that he was the 6. Criminai law C997
father of an unborn illegitimate child of 16 Writ of coram nobis would not lie

year old sister of prosecutrix and petition where writ was based upon same alleged
for writ of coram nobis was properly dis- error as motion for a new trial.
missed where writ was based on same ground
as motion for new trial.

Both judgments aflirmed.

so”

Stuard Wegener, Covington, for appel-

{. Criminal law €=925(1), 1156(5) lant.
Where proof is conflicting on question A. E. Funk, Atty. Gen., Walter Herd-

of improper conduct in jury room, whether man, Asst. Atty. Gen., for appellees.

to grant a new trial on suc
largely in discretion of trial ju
ing of trial judge will not be disturbed un-

less discretion is abused.

h grounds rests
dge and rul- SIMS, Chief Justice.
The first styled case is an appeal from a

judgment convicting Robert Ford of raping

2. Criminal law ©=956(13)
Misconduct of jury in jury room must j;

a girl under twelve years of age and fixing
his punishment at confinement in the pen-

tentiary at 30 years. The other is an ap-

he established by clear and conyincing evi- peal from an order sustaining a general de-

dence, to warrant a new trial.

3. Criminal law €=956(13)

murrer to and dismissing Ford’s petition
for a writ of coram nobis to set aside his
conviction. On motion of appellant the two

In prosecution for rape of girl under cases were consolidated on appeal and have
twelve years, defendant did not establish by peen heard together and both will be dis-
clear and convincing proof that jury in posed of in this opinion.

reaching the verdict of guilty was wrong-
fully influenced by rumor that he was the
father of illegitimate unborn child of 16
year old sister of prosecutrix and denial of

new trial was not error.

4. Criminal law 997
At common law writ of error “coram
nobis” or as it is sometimes termed, “coram
vobis”, was direct proceeding for setting
aside judgment, and was available to ob-
tain review of judgment by court which en-
tered judgment, where certain mistakes of
fact had occurred which had not been put
in issue or passed upon by court, and test
of right to it was mistake or lack of knowl-
edge of facts inhering in judgment itself.
See Words and (Phrases, Permanent
Edition, for other judicial constructions
and definitions of “Coram Nobis” and

“Coram Vobis”.

5. Criminal law 997

Writ of coram nobis will lie where de-
fendant desires to bring some new fact be-
fore the court which cannot be presented
by motion for new trial, appeal or other
-existing statutory proceeding.

The sole ground upon which appellant
secks to reverse the judgment of his convic-
tion and the sole ground upon which he
secks a writ of coram nobis is that the jury
trying him under the indictment were
wrongfully influenced by a rumor that he
was the father of the unborn child of the
16 year old sister of prosecutrix. The mo-
tion for a new trial set out that such rumor
was unknown to appellant or his counsel
until after the verdict was returned but the
rumor had permeated the jury box and the
jurors in their deliberation considered such
rumor and were influenced by it in arriv-

ing at their verdict. The bill of exceptions
made a part of the record the affidavits
considered on the hearing of the motion for

a new trial.

Counsel for appellant made an affidavit
that on Aug. 18, 1949, the day after the
verdict was returned, W. W. King, one of
the jurors trying the case, made a statement
that the jury in considering the case gave
considerable weight to a rumor that appel-
lant was the father of the unborn child of
a 16 year old sister of prosecutrix, and the
sheriff who had the jury in charge “helped

~~»

On SEE

FSPOHS


written, Howard (

a ae ee eS Ne eee Oke eee

t beca iuse | was willing to

(dn t do

do ony tia to save Mrs Cooley,
Howard told the judge and “jury
But the mixed panel—seven women

and five men-—brought Ina verdict of
i| murder in the first degree
\ recommendation. for mercy.
Which meant that Howard was doomed
llows

‘ath sentence,
as et been carried

opr ty ,
siti ly yy}

to the ea

Phe ce however, has not
out. \s this is
Whose picture appears
i>) sits sullenly in the death

On part

house at San Quentin Penitentiary,
awalting the outcome of the appeal
Which automatically stayed his execu-

Won.

T he t

Mrs. Cool took over

The

tria l over,

( (

face. “Goodness

why would anybody want to hurt

phanlv on his

amazement al
particulars. | tolc
the case

Sten, both of vou,” | said, “Wwe
eet at the bottom of this,
cause it looks hke Muse ts going to die.
omebody tried to murder him, and it
| going to be successful.
Was someone who knew
old man and tried to kill him for
some. definite reason. Do vou know
1 had anvthing against Muse
reason might want to kill
say Vou saw him yesterday
. MCA. and were kidding
him. | want you to tell me just who
and just what you were kid-
about.”

also. betrayed
ked eaverly for

apout

OGNS [hh hes

Wwe Dbelleve

Was tere

me ny
HWne nim

Boll

~

blinked at this barrage of

questions, and Swann answ
with a gesture, as if what he said wg
Wholly immaterial: /

“Oh. let's see--Irve, myself, Balfard
Ratchife and coup of guys | Know
only by sight were tanding on the cor-
ner of |hird and Bebadhw. ay in front a
the “Y’ talking to Muse. The/old’ ma
Was showing a roll of bills arund, and
somebody in the crowd not teed one of
the fellows had his knife fn/his hand

and told Aluse to
a knife

\\ ay Was he
thout the Knifes Y
, friend of Muse’s. for the
old man laughed ds answered, ‘Oh,

look oul yhi s guy has

referrifé to—fl mean

ckhlavel know him. You
ne, beZand his knite won't
h money did Muse have

he doing showing it

id a bad habit of pulling
ind popping olf about it.
he said he had ov a thou-
roll and we krdded him
hes use ODOU\ believed
HDL MOe
Ral ilile

ed Clay Riddle

Minued from page 38)

Hed

ered /

ft he e

pot tebe, ehbika LITAL Lite SW ELETE SS OU
deal had not been actually consum-
mated

In his will, Cooley provided that his
wife should receive his entire estate re-

gardless of his marital status at the
time of death. Howard, incidentally,
knew this.

To Clyde, the boy, Cooley left but
three hundred dollars. The youth,,

however, did not contest the will.

Mrs. Hanan, broken up by Cooley’s
death, sailed for South America, in-
tending to be gone for a year. After
her departure, Clyde Cooley announced
that, upon her return, she would adopt
him as her ‘son.’

And thus has fitis been written to
Pasadena’s love murder.

“h - don't know—he’s an
salesman, | think, and livés over ;
‘YY. He eats over here with the Fst of
us.”

After asking a few more qu
told Swann and Mack to
letective headquarters an
we would like to have

StIONS We
G down to
Wall fOr us,
informa-

they had. given statement
form for our records
\Wea then decided eo to the Y.M,
CA. and talk to Aatcliffe and any one

else Whe row Muse in hopes of

picking vt jer information about
the old ma

We $ at a drug store and
called He /N Spi to learn the old
inan’s and to determine

any money in his pock-
t in. I was informed
ithorities he had not

~ Only sixty-seven
in his pockets.
We asked for Rat-

operat ing
cents had been |

At the Y:M‘C

cliffe, and the clerk pointed out a man
reading a newspapek in Xhe front of the
lobby. ,

Muse and
told him the

Ratcliffe said he kn&w NG
Was surprised when we
old man had been hurt.

“What happened to hi
“Is he hurt badly?”

“Somebody beat
with a hammer,’
Is going to die.”

“My God. that’s terrible,
old man well.”

We asked him when he had laX seen
Muse, and he told us the same \tory
told by Swann and Mack. He also
membered seeing the old man display
large roll of bills. but said he did ne
know how much money was in the wad!
He recalled the bricklayer and the con-
versation about the knife; but like
Swann and Mack. he considered it pre-
posterous to think the incident could

?” he asked,

him o
| rephed,

the head
guess he

| Anew the

have had anything to do with the at-
tack on Muse

We asked him to come down to head-
Quarters with us so that we might get

his written statement.

Make Secret Investigativ
hoger fi Big Age w ork home. or travel.

RICAN DETECTIVE SYSTEM |

190 Broadway New York

and
four
horoscope.

G. P. ©. Box 635,

HOROSCOPE

two questions

answered. Or,
questions

answered without
sirthdate and one dollar.

Aida K. Pendieton

New York

Write today for this new book. It telis you how
a law training will shorten your road to suc-
cess. It also carries a vital and inspiring mes-
sage to every ambitious man. Find out about
the opportunities that await the law trained man.
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home. No obligations. The book Is absolute] oy

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3601 MichiganAve. Dept. 3,4 ¢ Chicago, Hil.

‘Shame on you

Gistarrase ed in compan : otl 2x? l
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terrible fear of your supe s. Be chee r-

ful and confident of your future! f
Your fauulte ‘easily overcome so you ‘> $

enn enjoy life to the fullest. Learn
about method to overcome basbfulness.

Send 25c. for my pipazing book, I,
RICHARD BLACKSTO AL,
B-168 Flatiron Bldg. New York

I
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Dept. 311-C, 3601 Michigan Av C}

Coolev

irder,
Jarettes

early
to. tell
dving.”
le time
he first
{ called

ze and
dnight
depart-

down
t Colo-
to eat
garage

le and

v that
from a
rtment

ee

the
NOOd-
msel f
de love

at Wo-

incipal
told a
ve and
she re-
ler fre-
re that
2 apart
arilous
é round
much
love-
but

rd, she
lise lO
id Se-
Mrs.
fo the
‘r man

August, 1930

to their original theory of robbery and
release Mrs. Cooley.

“But when | found that I had not
fooled them with my story about being
assaulted I confessed to a killing that |
didn’t do just because I was willing to
do anything to save Mrs. Cooley,”
Howard told the judge and jury.

But the mixed panel—seven women
and five men—brought in a verdict of
guilty of murder in the first degree
without a recommendation for mercy.
Which meant that Howard was doomed
to the gallows.

The death sentence, however, has not
as yet been carried out. As this is
written, Howard (whose picture appears
on page 15) sits sullenly in the death
house at San Quentin Penitentiary,
awaiting the outcome of the appeal
which automatically stayed his execu-
tion.

The trial over, Mrs. Cooley took over

The Master Detective

the management of her husband’s and
Howard’s business. It appears that
Cooley’s statement in the Elks Club on
the night that he met his fate was rather
premature, and that the selling-out
deal had not been actually consum-
mated.

In his will, Cooley provided that his
wife should receive his entire estate re-
gardless of his marital status at the
time of death. Howard, incidentally,
knew this.

To Clyde, the boy, Cooley left but
three hundred dollars. The youth,
however, did not contest the will.

Mrs. Hanan, broken up by Cooley’s
death, sailed for South America, in-
tending to be gone for a year. After
her departure, Clyde Cooley announced
that, upon her return, she would adopt
him as her “son.”

And thus has finis been written to
Pasadena’s love murder.

The Red Clay Riddle

(Continued from page 38)

plainly on his face. “Goodness, man,
why would anybody want to hurt that
old fellow?”

Mack also betrayed amazement and
asked eagerly for particulars. I told
them in part about the case.

“Now listen, both of you,” I said, “we
want to get at the bottom of this, be-
cause it looks like Muse is going to die.
Somebody tried to murder him, and it
looks like he’s going to be successful.
We believe it was someone who knew
the old man and tried to kill him for
some definite reason. Do you know
anyone who had anything against Muse
or for any reason might want to kill
hime You say you saw him yesterday
at the Y.M.C.A. and were kidding
him. I want you to tell me just who
was there and just what you were kid-
ding him about.”

OTH blinked at this barrage of

questions, and Swann answered
with a gesture, as if what he said was
wholly immaterial:

“Oh, let’s see--Irve, myself, Ballard
Ratcliffe and a couple of guys | know
only by sight were standing on the cor-
ner of Third and Broadway in front of
the ‘Y’ talking to Muse. The old man
was showing a roll of bills around, and
somebody in the crowd noticed one of
the fellows had his knife in his hand
and told Muse to ‘look out, this guy has
a knife’.”

“Who was he referring to—I mean
about the knife?”

“It was a friend of Muse’s, for the
old man laughed and answered, ‘Oh,
he's a bricklayer, | know him. You
can't kid me, he and his knife won’t
hurt anybody’.”

“How much money did Muse have
and what was he doing showing it
around?”

“Aw, he had a bad habit of pulling
out his money and popping off about it.
| remember he said he had over a thou-
sand in his roll, and we kidded him
about that because nobody believed
he had that much money.”

“Who is Ballard Ratcliffe?”

“I don’t know—he’s an_ insurance
salesman, I think, and lives over at the
Ve He eats over here with the rest of
us.

After asking a few more questions we
told Swann and Mack to go down to
detective headquarters and wait for us,
as we would like to have what informa-
tion they had given us in statement
form for our records.

We then decided to go to the Y.M.
C.A. and talk to Ratcliffe and any one
else who might know Muse in hopes of
picking up further information about
the old man.

We stopped at a drug store and
called the hospital to learn the old
man’s condition and to determine
whether he had any money in his pock-
ets when brought in. I was informed
by the hospital authorities he had not
regained consciousness and was still in
the operating room. Only sixty-seven
cents had been found in his pockets.

At the Y.M.C.A. we asked for Rat-
cliffe, and the clerk pointed out a man
reading a newspaper in the front of the
lobby.

Ratcliffe said he knew Mr. Muse and
Was surprised when we told him the
old man had been hurt.

“What happened to him?” he asked,
“Is he hurt badly?”

“Somebody beat him on the head
with a hammer,” [| replied, “I guess he
is going to die.”

“My God, that’s terrible, I knew the
old man well.”

We asked him when he had last seen
Musé, and he told us the same story
told by Swann and Mack. He also re-
membered seeing the old man display a
large roll of bills, but said he did not
know how much money was in the wad.
He recalled the bricklayer and the con-
versation about the knife; but like
Swann and Mack, he considered it pre-
posterous to think the incident could
have had anything to do with the at-
tack on Muse.

We asked him to come down to head-
quarters with us so that we might get
his written statement.

Make Secret Investigations
Earn Big Money. Work home or travel.
Fascinating work. Experience unnecessary
Particulars FREE. Write Dept. G. ~~~

| AMERICAN DETECTIVE SYSTEM |

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four questions answered without
horoscope. Birthdate and one dollar.

Aida K. Pendleton

G. P. ©. Box 635, New York

Write today for this new book. It tells you how
\ a law training will shorten your road to suc-
cess. It also carries a vital and inspiring mes-
sage to every ambitious man. Find out about
the opportunities that await the law trained man.
Find out how you can learn law rightin your own
home, No obligations. The book {s absolutely FREE.

Write Today—por paxile low tuition fee

American Correspondence Schoo! of Law
3601 Michigan Ave. Dept. 341.¢ Chicago, Iil,

QASHFUL

“Shame on you!’ Are you nerrous,

embarrassed in company of the other sex? l
Stop being shy of strangers. “Conquer the
terrible fear of your superiors. Be cheer-
ful and confident of your future!
>

Your faults easily overcome #0 you

my ean enjoy life to the fullest. Learn

add about method to overcome bashfulnena.

Send 25c. for af epezing book.
RICHARD BLACKSTON

B-168 Flatiron Bidg. New York

E A DETECTIVE

. ° {
Make Secret Investigations!
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38 The Master Detective

cemetery. It appeared that the assailant jumped over the
grave and ran toward this wall instead of going out the
front gate.

Following his course | found a small, but heavy ball-
faced mechanic’s hammer. It was new and still bore the
label of a hardware manufacturer. Although rain had
beaten upon it for more than a half hour, it was stained
with blood. Old Man Muse evidently had been beaten on
the head by a fiendish hammer-wielder.

Handling the hammer carefully in order to preserve what-
ever finger-prints might be on it, | wrapped it in the green
tissue paper which had protected Muse’s bouquet and stuck
it in my pocket.

Following the tracks of the mysterious visitor, I soon
found where he had climbed to the top of the brick wall.
Other footprints
showed plainly
where he had run
along the top of it
more than twenty- i
five feet before ‘|
jumping to the iH}
sidewalk outside. Wy os

if DECIDED to ii}
take Brand and i.
Klehm to head- i
quarters for a more i} ae
thorough question- ep
ing and to make an HI
official record of il
their statements. ii

The first thing | i
did when I got i
there was to call
the hospital. Car-
ricato informed me \
they had rushed |}
Muse to the oper-
ating room for an
emergency opera-
tion. His skull had
been fractured in
several places. He Ih PSs ee eros
was unconscious 1 ee
and the officers had 7%
been unable to talk to him.

All indications were that I
had a real murder case on my
hands, because the surgeons
said Muse could not live more
than a few hours.

Calling Sergeant Elmer
Smith, secretary of the Louis-
ville Police Department, I
started re-questioning Klehm
and Brand.

“Think hard about what
the old man said when he
was lying in the office,” |
urged them time and again,
for | knew his semi-conscious
mutterings in all probability
concerned: the identity of his
assailant.

Finally Brand after think-
ing hard about the matter,
said:

(Above) The killer hides his face

while being taken to head-

quarters. (Right) The slayer on
the witness stand at hfs trial

“The only thing I could make out about what he said was
something about a man he knew coming to the cemetery
with him——”

“Yes, and I asked him who it was,” Klehm cut in.

“What were his exact words?” | urged.

“He said he did not know the name but that he had met
his companion at the boarding-house,” Klehm answered
thoughtfully.

“Did he say this man hit hime”

“No, not exactly,” Brand remembered. “He kept repeat-
ing ‘He done it! He done it!’ and that’s all we could make
out of his talk.”

This meant’but one thing to me. Muse had been attacked
by some acquaintance, probably a pretended friend, and I
nust check all of his acquaintances as soon as possible be-
fore the guilty one had time to cover his trail.

As soon as the two men left I got in touch

with Pittelko and Carricato at the hospital.

t I told the latter to go back to the cemetery

and to canvass the neighborhood thoroughly
for anybody who might have seen Muse that
morning and to check up on any suspicious
il persons who might have been seen near or in

i| the cemetery.

: | asked Pittelko to meet me at 134 East
Gray Street, the address of Muse’s boarding-
house, which I had obtained from Brand. l
sent two district men to keep watch at the
old man’s bedside.

In fifteen minutes I was at the Gray Street
address and found.the place was an ordinary
boarding-house where meals were served to
many persons who resided elsewhere. Pittel-
ko arrived shortly afterward, and we started
questioning quite a number of persons who
i had gathered to eat Sunday dinner.

Yes, Mr. Muse lived and ate there. He

|} had left about 7:30 o’clock in the morning
(if and gone to the cemetery on a street car. He
was a harmless and friendly old man. Every-
\ body liked. him.
All this we learned before we informed
those present that Muse had
been injured. Not a soul
seemed to know anybody
who might have wished the
old man harm or who might
have desired to kill or injure
him.

Two other men arrived as
we walked out the front
gate. They were Richard
Swann and Irving Mack who
lived at the Young Men's
Christian Association, three
blocks away. They were just
coming over to dinner.

“Muse? Why certainly |
know him,” Swann said.
“Saw him yesterday after-
noon at the ‘Y’. A bunch of
us were over there kidding
him.”

“Well,” | informed them,
“somebody who wasn’t kid-
ding him tried to kill him
this morning. Have you any
idea who might ,have carried
the kidding that far?”

“Why, hell, no!” Swann ex-
ploded, surprise registering

(Continued on page 77)

NI
Se
lar
vi

to
comes mos!
in public,
and féted
pect, the S
dangerous
their favor
satisfactior
That syste
It was a
Marshal «
Allied Arn
visit Amer

—

78

“T can’t tell you anything more about
this, but I’d like to see you get the
man who attacked Mr. Muse,” he said.

I was very anxious to question all
three of the men carefully in order to
obtain the names and descriptions of
every man in the crowd who had seen
Muse display the roll of money. Pit-
ielko and | agreed that robbery was
probably the motive for the attack, and
it was possible that the robber was one
of the group who had talked with Muse
on the night before he was slugged.

WE took Swann’s statement first. He

could add nothing to what he had
already told us. He said the only per-
sons he knew in the crowd that night
were Muse, Mack and Ratcliffe.

We called Mack in, and he repeated
the little he knew about Muse. He told
us, during the course of the questioning,
that he had known Ratcliffe for six or
eight months and said he understood he
was an insurance agent and that he had
come from down in the eastern part of
the State. When we questioned him
closely about whether he knew if any
person in the crowd the night before
had been in any need of money he
laughed and said:

“T guess we all needed money for
that matter, but now that you ask it,
Ballard Ratcliffe is in the habit of
borrowing small. sums of money from
his-friends, but usually he is prompt in
paying it back; in fact he tried to bor-
row some money from me last night,
but I was broke myself and couldn’t let
him have it.”

Further questioning of Ratcliffe re-
vealed nothing of importance, and it
seemed we were no nearer the solution
of the mystery. None of the three men
knew the full names or addresses of
other men in the group who had seen
Muse display his money.

Just as we finished talking to Rat-
cliffe, Detective Sergeant Shelby Car-
men, another member of the homicide
squad, called me into the outer office
and told me he had been to the Y.M.
C.A. looking for Pittelko and myself.
After learning we had left with Rat-
cliffe, he had asked a few questions
about the insurance agent.

“The clerk told me Ratcliffe owed
about two weeks’ rent Saturday after-
noon and had asked for a little time to
pay it. But | found he paid it off this
morning. Got anything on himP”

I told Carmen we had absolutely
nothing on-Ratcliffe but merely brought
him down to take his statement. I out-
lined the case to him as far as it had
developed and we decided to ask Rat-
cliffe where he had obtained the money
to pay his bill. Neither of us wanted
to overlook anything, no matter how
insignificant it might seem.

Ratcliffe seemed surprised when we
asked him about the bill but told us he
had won some money on the races Sat-
urday afternoon.

“Well then, what were you trying to

borrow money from Swann last night -

for?”

“T didn’t try to borrow any money
from Swann last night,” he snapped.
“Tt was Friday night. I had money last
night.”

The Master Detective

“How much money did you win on
that horse, and what was the name of
the winner?”

Ratcliffe stammered about a bit and
finally said he had forgotten the name
of the horse he had bet on. This was
rather strange in itself. What person
goes to a race track, wins money, and
cannot remember the name of the win-
ning horse? As to the amount of
money he won, Ratcliffe said: “It was
several hundred dollars.” i

“You mean to tell us you won several
hundred dollars on a race and can’t
remember the name of the horse you
bet one”

Ratcliffe appeared somewhat ner-
vous.

“That was the first time I was ever
at a race track,” he said. “A bunch of
us were betting. Race horses don’t mean
a thing to me, and | really don’t recall
the names of any of the horses that ran
that day.”

THs was far from satisfactory to

me. It was possible this could have
happened, but somehow it didn’t sound
just right. Additional questions brought
out that Ratcliffe really didn’t know
much about race tracks. His descrip-
tion of the manner in which bets are
placed and the location of the betting
windows was vague. In fact he couldn't
describe the layout of Churchill Downs
in any detail. Facts that would im-
press any visitor to this historic race
track did not seem to have registered
on him at all.

After another hour of questioning
which developed nothing, | let Ratcliffe,
Swann and Mack go, telling them to
stay close to their rooms in case |
should need them. All three agreed to
do so.

That afternoon I went to the Louis-
ville Street Railway Company, and with
the aid of officials there found the
names of the street car conductors and
motormen operating on the Chestnut
and Barret Avenue line between 6 and
9 o'clock in the morning. Checking
the street-car schedules with the time
of the crime, I picked out three con-
ductors who could have seen Muse.

The first man I talked to did not re-
member seeing. Muse or anyone of his
description, on his car. ;

My next stop: was a car. barn at
Twenty-eighth Street and Broadway.
In a few minutes I had located Fred A,
Carter, a conductor. He-expressed sur-
prise when | informed him of my mis-
sion. He knew Muse and had spoken
to him that morning when the old man
boarded his car at 7.40 o'clock at First
and Chestnut Streets.

Carter knew Muse well because he
had seen him almost every Sunday
morning. He told me that Muse was
accompanied by a younger man that
morning and that both had left the
car at Saint Louis Cemetery. He took
it for granted the young man was a
friend of Mr. Muse as they had sat to-
gether and talked during the ride.
When asked to describe Muse’s com-
panion, Carter told me he had paid no
particular attention to him but said he
might recognize him if he saw him
again. As clearly as the conductor

could recall, Muse’s companion was of
medium build, had black hair and wore
a grayish-brown suit. I took Carter
with me back to headquarters.

Remember, at this time | had un-
covered only one questionable state-
ment. That was Ballard Ratcliffe’s
faulty memory regarding his money.
For that reason I sent out to the Y.M.
C.A. and had him returned to head-
quarters. [ brought Carter into my
office. When Ratcliffe came in I asked
him a few questions in order to give
Carter a chance to get a good look at
him. I hadn’t up to this time told the
conductor | had wanted him to identify
anybody nor had | said anything to
him about Ratcliffe.

I watched for some sign of recogni-
tion, but the conductor only stared at
Ratcliffe. Sending the latter out of the
room | asked Carter whether he had
ever seen Ratcliffe before.

“Who is that fellow? You know, now
that you ask me, he resembles the man
who was on the car with Muse this
morning. Of course | wouldn’t say pos-
itively he was the same man, but he has
the same build and the same look. The
other fellow had on a different colored
suit.”

But identification of this sort was
not sufficient to hold anybody on.

I sent Carmen to the Y.M.C.A,
with instructions to search Ratcliffe’s
room. It was a wild shot in the dark.

IN about forty minutes Carmen came
into my office with a bundle under
his arm. Without a word he laid on my
desk a suit of clothes and a pair of
shoes. The suit could certainly have
been classed as “grayish-brown”. The
lower part of the trousers were damp.

The shoes were soggy, and caked
en the soles and uppers was red
clay.

“Il found these in Ratcliffe’s room,”
Carmen said.

You can imagine my feeling when I
took the clothes and soggy shoes into
the room where Ratcliffe was waiting.
I had the suit draped over my arm,
covering the shoes. I watched Ratcliffe
closely as I closed the door.

“Did you ever see these before, Rat-
cliffer” I asked.

He did not wait a second to answer.

“Let’s see it—why, yes, that’s my
suit,” he replied, with a puzzled expres-
sion on his face. It was not what you
could call an expression of fear or
nervousness. I’ll admit | was a little
disappointed.

“When did you wear it last ?”

“T had it on this morning,” he said,
his eyes searching my face eagerly.

He said he had been out in the rain
during the morning and got wet.

] then asked him to trace his move-
ments from the time he got up that
morning until the time "ittelko and |
had seen him in the Y.M.C.A. lobby.

“All right, sergeant, if it'll do you
any good. I got up this morning about
six thirty, shaved and bathed, and de-
cided to go back to bed for a while. |
got up again about nine thirty, had
breakfast and went for a walk. I
stopped by The Seelbach (a downtown
hotel) and watched a few games of

pool
Street
Streets ¢
] went
read for
walk abc
came bac
to my rr
Questi
had been
had neve
“Ratcl
what | ¢
get this «
got off tl
brought
and sho\
He sta
out as 1
drew bac
sionless
Those ar:
remembe
what are
What’s a
I know.
me. Let
in the r
clothes
business.
reason to
didn’t hu
of mine.’

HE m

muscli
nervousl\

We let
Picion. |
cliffe was
vict him.
on his <b
the evi
stantia

My big
regain
take a lov
man who
cemetery’

About
geant Pit
and told :
from und
thetic anc
few minu

Withou
were goin
tomobile
_ Carrica
ing us jus
hoping t!
enough 11
identify
made ar
thing pou
be sure w:
body eve
it was the

I shall
shortly ai
the hospi
stood at tl
and Serge
table on
poised.

A white
of bewilde
like an im
cato, grin
Ratcliffe »
hind us.

~.


708 SOUTHWESTERN REPORTER. [Ky.

er embraced it. All murder is willful. Both the appellant
on tann wee principals in the killing. Counsel have discussed at some
length the law relative to principal and accessory. No such ania gary
Both were present; and, in case of murder, one who, being present, aids an
abets him who gives the mortal blow, is equally 4 principal. 1 Whart. im.
Law, § 113. In law they both wield the weapon and give the fatal blow,
Each is equally guilty. If A. and B. go out for robbery, and death saa
in the prosecution of the felonious design, it is murder upon the part of —
although but one struck the fatal blow. It would often be impossible to
charge in the indictment what particular part each took in the homicide, nor
is it necessary to a conviction to show it. Such nicety would be a ete
to justice, and acover forcrime. It is sufficient in such a case to aver the
manner of the killing, since in legal contemplation it is the act of all who
are present and aid in its commission. The requirement of greater particu-
larity is not only unnecessary to — the accused to defend himself, but it

‘ould be imental to public justice. : oe

wit Be next contended that the second instruction authorized a conviction
upon the mere presence of the appellant at the killing, without regard to in-
tention or act upon his part; and it is urged that the question of existence or
non-existence of malice upon his part should have been submitted to the jury.
Undoubtedly, one may be merely present at a homicide, and be guiltless. ie
several be present, and acting in its commission, it is equally true = ey
may be guilty in different degrees. One may be guilty of murder, and an-
other of manslaughter. ‘The one dealing the fatal blow may be guilty of man-
slaughter only, while the party assisting may be guilty of murder, or ice
versa. It depends upon the question whether the one or the other is move
by malice. 1 Hale, P. C. 446; 1 Russ. Crimes, 510. If, however, A. conted-
erates with B. to make an attack upon C., or to commit a felony, as to rob,
or if, being aware that B. is actuated by malice in the matter, he is present
and assists him, and death results, both are equaliy guilty, although but one
strikes the fatal blow. Here the instruction, however, distinctly told the
jury that they could not convict the accused if Parker struck the biow, unless
be was not only present, but aided and abetted him in the killing. Itis true
it does not tell them, unless by implication, that he must have done so from
malice; but, under the circumstances of the case, the accused was not prej _
diced by this failure. Instructions must be given according to the state 0
case presented. Here there was no manslaughter. Evidently no Brees
should have been given upon that subject. There was no claim of sel —
fense, or that the accused acted in sudden heat and passion. Hewas en gaged
in a midnight robbery; and in carrying out this purpose, common to him .
his confederate, he held the light that his coadjutor in crime might eer t oa
life of the sleeping victim. Evidently it was nothing but murder. = c)
jury had veen told in express language that they must believe bey ond al rea-
sonable doubt that the accused in what he did acted from malice, yet a con-
viction for murder must have resulted. The testimony was clear and —
ing. There was no conflict init. The circumstances in evidence, as well as the
appellant’s confession, placed his guilt of the crime of murder beyond —
tion. As the jury could not possibly have acquitted him or found him gully
of manslaughter only, it results that an instruction which failed to tg y
tell the jury that they must believe beyond a reasonable doubt a hala
actuated by malice could not have worked to his prejudice. The ins ruc ji i
offered by him, and refused by the court, were objectionable in shaped re-
spects. It is needless to point out the defects, because they pear y in-
tended to present to the jury the question of malice upon the part o a: 1€ a
cused; and, as we have already seen, if they had been given, the resu =
not have been different. The jury were expressly directed to acquit, un re
the guilt of the accused was proven beyond a reasonable doubt. We have the

Ky.J COMMONWEALTH 0. 8T. BERNARD COAL CO. 709

more carefully considered the case owing to the severity of the sentence.
Not a single mitigating circumstance appears. The appellant deliberately
took part in a robbery resulting in the assassination of a sleeping victim, and

the voice of justice and public safety demands the severest punishment,
Judgment affirmed.

COMMONWEALTH 0. ST. BERNARD COAL Co,

(Court of Appeals of Kentucky. November 24, 1888.)
TaXATION—EXEMPTIONS OF CORPORATIONS—DEDUCTION OF INDEBTEDNESS,
Under the former revenue law of Kentucky, which required certain corporations
to pay a tax on their property equivalent to the tax on real estate, such corpora-

tions, as well as natural persons, are entitled to deduct their indebtedness from the
value of property not required to be listed.

Appeal from court of common pleas of McCracken; W. S. BrsHop, J udge.

Information filed originally in the county court, by the “auditor’s agent” for
McCracken county to recover from the St. Bernard Coal Company taxes al-
leged to be due the commonwealth. The agreed facts are that the company
has always assessed with the auditor, and paid taxes on all the real estate it
owns; that it has owned for several years about $10,000 worth of property
not required to be specially listed for taxation, and on which no taxes have
been paid; that it has during the same period owed debts amounting to from
$30,000 to $50,000; and that the $10,000 worth of property has never been
assessed, because defendant’s indebtedness exceeded this value.. The county
court rendered judgment in favor of the plaintiff, which judgment was re-
versed on appeal to the common pleas court, and plaintiff’s petition dismissed.
From this judgment plaintiff appeals.

Gilbert & Reed and P. W. Hardin, for appellant. Henry Burnett, for ap-
pellee.

Pryor,J. The questions in this case arise under the former revenue law,
and have no application to the law as it now stands. The mining company,
in making its report to the auditor, or, rather, in paying its taxes into the
treasury of the state, deducted from the value of its property not enumerated
or required to be listed the value of certain boats belonging to the company,
that value being greatly less than the indebtedness of the company. The
statute required such a company to pay a tax equivalent to the tax on real es-
tate on the value of its property. That, by its language, includes every spe:
cies of property owned by it. It is claimed that the legislative purpose was to
place a burden on certain corporations that was not imposed on a natural per-
son, requiring the one to pay taxes on all its property and the other to deduct
his or her indebtedness from the value of property not required to be listed.
Whether or not the privileges given a corporation by the state that do not per-
tain to the individual citizen is a sufficient consideration to make this dis-
crimination is not necessary to be decided. The practice has prevailed in the
state for many years to permit this deduction by the corporation, and to place
a different construction on the Jaw from that placed by those who have re-
ceived the taxes would open the door for much litigation, and involve many
companies in pecuniary trouble. They have given in their land, their horses,
mules, and other property required to be listed, and deducted their indebted-
ness in the same manner the natural citizen has, and, equality in the burden
being at least equitable and just, we are not disposed to invite litigation by
disregarding the construction placed upon the statute by the other depart-
ments of the state government. Judgment affirmed.



subs tantially as follows: ' I went to Parker's house a little after supp r time one night, but
after awhile his wife got me-some supper, I had come directo to his house, down the road that

leads from a small town some twelve miles distant. 1 had not been long at Perker's house before

he proposed that we go to Mr, Rhodes’ home and get what .money he had. We went up to,the house

and Looked in at the window, but as Mr. Rhodes was not asleep, we.moved back into the shadows
of the tree, That was about @ or 9:30 o'clock, ‘Je then went in the room, by.breaking in the

door, We took his watch and a breast-pin, Mr. Rhodes made a noise as if waking up, and we
jumped out of the window, After about three-quarters of an hour we again went back into hii
room and were searching for his pocket-book @X@NZH when we heard a boy that worked on the farm
coming up*the path fromthe fashpond, We again hastily ran out of the room by the doorway... In
going down the long porch Parker, who was next-to the wall, knocked down an ax that was leaning
against the wall, He then said to me, ‘Jim, you take the ax and kill Mr. Rhodes,' I told him
that I was not going to kill the oldman and that if he wanted Mr, Rhodes killed he had better
do it himself as I would not, He then picked up the axe, and going into the room where, Mr,
Rhodes was sleeping, struck him two heavy blows onthe head,’ Mr.,Rhodes moving a little as

we went out of the door, Parker went back into the room and struck him three more powerful blows
in the breast. At last, seeing that we had killed him, we covered his face with the sheet,
and, going out, I slammed the door so that it was fastened by the latch. I and Parker. then
went home, and the next morning I left Parker's house for another part, of the county," Thw
latter part of the Ross confession was verified by the sister of Rhodes, finding him the next
morning after she had burst inthe door, Parker, after the confession of Ross, was arrested,
and in his possession were found the breastepin and watch, He was, after some testimony in ..
his behalf, acquitted and released, He proved an alibi by three witnesses, and that Ross had
left the watch and pin at his house, Ross, after his confession, was, placed in the, county, jail
but on rumors of a mob reaching the judgé-of the county he ordered Sheriff Rawling to board
yesterday morning's packet and bring Ross here for safekeeping. Ross is a dark brown negro,
516" in Beight and about 30 years old, with avery good countenance. Ke laughs about the crime
as though it was a mere joke, He will be kept here until the time for his trial comese"

LOUISVILLECOURIER-JOURNAL, Louisville, Ky., 5-9-1888.

JAMES ROSS Raccel Rrendenmures Kye, Feb. 8, 1889

Appealed and affirmed: 9 SOUTHWESTERN 707

James Ross, colored, the murderer of Mr, Benedict Rhodes, will be hanged for the crime at Branden-
burg at 7 o'clock this morning, The murder occurred April 6 of last year and was a most cowardly
a deliberate one, Mr, Rhodes was found in his house where he lived alone, one morning, with his

1 crushed and the carpet and the walls smeared with his blood and brains. Death had resulted

kh itnly, it was found, but several blows had been struck after the old man had fallen, The
house had been robbed dnd those who first) discovered Mr, Rhodes! condition found a large ax in the
yard,-the pole of which was covered with brains, hair and blood, .The ax, it was shown, belonged to
Ross and he was arrested, charged with the murder, The greatest feeling prevailed over the matter,
and it became henebssty.t6 remove the prisoner to the jail in Louisville to prevent his being
lynched, Ross was / arraigned at the fall term of the Circuit Court, pleaded guilty and was sentenced
to death," :
LOUISVILLE COURTER=JOURNAL, FED. 8, 1889,

"at sunrise James Ross was taken from his cell in the jail and 20 minutes later his lifeless body
was hanging from the scaffold, He was not a bad looking negro, in fact, he was considerably awove
the average-in appearance, although his intelligence was not of a high order, A more meek ahd ine
offensive appearing individual it would be hard to imagine, Yet the crime which he committed was one
of the most brutal and cowardly in the annals of the state - the murder of Benedict Rhodes for the
purpose of robbery, The crime was committed tpril 6, 1888, the victim being brained as he slept in
bed, Ross has never denied the crime but at first did not express much penitence for it, About two
LOG Cf | wks, ago, however, he joined the Catholic church under the guidance of Rev, Father O'Connor

and since then he has devoted his entire time to religious matters, As the day for the execution
drew near he became morose and sullen, but last night he had braced up considerabley and at 5
o'clock this morning when the guards entered h@s cell, he met them with a smiling face, He ate a
hearty breakfast and after smoking a cigar expressed his entire readiness to go and carelessly asked
how long he would have to wait, At 7:15 Sheriff Hardin. and Deputy S, P, Woolfolk entered the cone
dermed man's cell and read the death warrant; at. 7: oO ° "clock the march to the scaffold was commen-
ced, Ross walked between the two officers with his head uncovered and limbs unbound, Father

O'gZonnor followed closely behind, ‘hen the scaffold was reached the crowd made room and Ross ascen =
ded thesteps with a firm tread, Once on the platform he looked in every direction a few

minutes and then coolly leaned down and untied his shoes, "Have you anything to say?" asked
Sheriff Hardin, "Not one word," was the answer in a firm voice, The black cap was adjusted and the
rope placed in position , In another instant, the signal was given, and the rope was cut, It
was just 7:6 when the drop fell, Ross' neck was broken, and he struggled but little, Six minutes
afterward his pulse beat was 3) and in 10 minutes it was almost imperceptible, At the expiration of
@l mins,, the body was cut down, life heing extinct. Before death Ross had given his body to
Junius H, Rollins of M@WXH¥XXXEXWHAXXXXAKKRAAZNAX Brandenburg who is atteneding a medical school in
Louisville, Ross' body brought to Louisville on the mailboat, praned in a wagon and turned over to
Dr, W. C, Dugan, Professor of Anatomy of the Louisville College of Dentistry, The ghastly relic
was presented to him as a subject for dissection by Mr, Rollins, the medical student to whom Ross
willed his body,"

LOUISVILLE COURIER-JOURNAL, Louisville, Kentucky, 2-9-1889 (Woodcut likeness on page two)

"Sheriff H, C, Rawling of Meade County, broght to the county jail from Brandenburg yesterday
afternoon James Ross, colored, who is charged with the murder of Ben Rhodes, a wealthy farmer
of that county living near Big Spring. The crime, which so excited the people of Meade County,
was committed on the night of April 6 about 11 o'clock, The deed was not discovered untal the
next morning, The whole county hunted for the m derer but the search was fruitless, After
a while the neighborhood quieted and gave up the hung, Sheriff Rawlings, however, ontinued to
work onthe quiet and finally became so thoroughly convinced 86 Ross' guilt that he had one of
his deputies go to the southern part of the county last Saturday and arrest Ross on Suspicion,
Ross was found at work with a feather renovator company at a Mr, Turner's house and seemed not
afraid of proving his innocence, Ross mst have been convicned that his crime was covered up or
he would have left the country, as he had a month to go whever he wanted to, He was taken to
randenburg and lodged in the county jail, His examining trial was to have taken place Monday
morning, but he conf essed having committed the crime and claimed that Walter ‘arker, also colored
was his accomplice, This caused the examining trial to be postponed, Walter Parker and his

wife had been subpeened as witnesses in Ross! b fb i
who was fixing up a line of defence, that as Par ar had gone be ee RR Rin, | SE ohh edhe ehhormeys

whole thing away and tell how they had killed Mr. Rhodes, He then, in a laughing way, narrated
howthey broke into the house and killed old man Rhodes as he lay asleep in bed. His story is


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ING. NOVEMBER 30, 1955.

1 Bact t

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SECTION 1 ~

ids $25,000

fromm First Page | °F’? office. awaiting i decision. Ceneral Hospital employee.
were

ssociation Three Louisvillians Die aca
pr Ease In Chair at Eddyville |Get Ready

Catueed trea Fe thee art 10, Som ot wine ne| EOF Elections

wille, phonso F; 19, Buec in en effort to got e big turnout ..
William F. Bil | an interdenominational religious Clarence a y White, 21, of | at the prectact elections. - :
Snow, worker. The three knelt in 435 E Mad were tried for} The publie ord docan’t
spbiunt, and Wellace Blair prayer several tines while the the same offense take om “interest in: such elee-
be | case was waded ednsiderstinn. sentences without of | Hons, he noted. ;
sneer. DeBerry, lasmarty of the 100 parole. aie taid thet in cach prectact
Be. election least person
ak the Red nee SID convtined in Gainey ey TA Thnwe Me Crebbed ser!) will be wearing an “I'm A
commit Carta court Apel ay ence ‘The women said the three men Booster” button. That person,
is drawing. up articles of of the fatal shooting of Eddins abbed her at the corner’ of said, will “do any floor mateu-
wee the es Set Rage ot Crestwood, was Sictsca vad Mediaoa to che lan iM ry to see thet our
sate today fee ener OMY shot te deat, dagen weave General Hospital and walked to- side is properly recognized and
gy t¢ today for approval, tat the elub ward ber eer, She said they drove | Properly counted.
ill See Tax Officials | DeBerry, a0

i ‘Army :

CR) ORES Pete ae ~ @3—of ina oearty pork
rdery said be already has) V8? Orrested—February. 23-

& kssured the new name wij, ‘4t year im Gam Antonio, Tex,

x 1), from Fort Knox.
is been granted Ardery will
© {Je it with Jefferson County | * Tive other men were arrested
uit ‘Court an convicted in the
Once the chatter is on Cle. pcr mitted mabbing Mra: B
dery wil] tthe organiza |! sentences were
or. bles petro ee Burney Devis, 21. of 1018 Ww, the throst with va ee
al Revenue © Service - offi. Chestaut, aad
Ps for @ decision on whether | 24, of 3625 Du Valle Drive. pome work he

Bowman, arrested dierites and the regular organ
accepted” When the charter! W5erW he had bese See era eg ee x

the 120 counties.
tha} age Curtis Lee Col 37, of ~ Medical evidence showed the dded:
Pah. vomuertn ey ‘Aube 312 B eman, to 21. T2yeareld D tie Part He added:

*In many, many “counties, wes
ottagioee. years for manslaughter, reduced worker and bookbinder hed beer Bot going to have a factional
fight.

; 4 are
Palmer said funds already col-j {rom murder. eee
count and that.a letter will be

: 2 e've been able to give a
ted will be Keld in an escrow} Others’ Get Sherter Terms Trie€@ Three Times . little, ‘take a little; end have

2 toall donors , Given Wyeer sentences for Bowman's case went to tria)
PP ore nes me manslaughter, peduces from eae tunes before hts ‘rinal con-
ae returned | murder, were John Lancaster NE aay F
ot setichegtons the seen @, of Newburg. and Nelson Mc: The: first time, October 21
Coutributing Address Given i < Shecklés, formeriy. of 1600° Judg.

Ardery said a full-seale, fund. S. 3ist, was convicted in Crim- teaced to death in the electric

tnehed as’seon aa ineorpors- | om But Curtis granted hie request 7
OB papers are filed. !

ribute to the fund can do so by | es 4 sentence.
Gail ontribut to: B ; |
i, “Liberty National bark | AL $20.50 A Pound

“ince all of the legal angles brought Pennsylvania State Uni-| 13, 1965. At that me. twe

opening in Jacksonville, Fla, position,
Sunday, Scoggan said the re. The school won both the grand
Cervers will be represented there and reserve-grandc ham pion
by proay. | steer awards of the 1956 exposi-

He has named WR. “Rory” | tion top :

>” returned -9 verdict

Kyan, general Manager of the |
Mitneapolis Baseball Clob and badour II

The’ reserve-g ran d champion son County.”
which repurtedly ran up more! . a
than $100.000-in debts in operat. | #teer, PS Elleenmere 11, weigh-

fj
wD, has threatened to shuw up Pound, second “highest. price of
at the ‘nor jengue meeting tu. record for ®. second place> win |

two weeks #29, promised offi

i . i
‘wilh their representative at the ALFL-CLO. President
Jo Kounville Meeting 16 get~e

29 (UP) take} Y (TOUTE era

d — eo; 4 a7 1a
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summer Washington, Nov

ete PF

ATKIRCHDORFER'S.-.
SUPER APPLIANCE STORES

FRIGIDAI
Fabulous Food Freezer-Refrigerator

In The Blood |

; TW. 184, Bowman pleaded guilty in| Susceptibility te Colds
)Elroy, 42, of 141 Chestnut. wo arp, aware wen:| Ts Declared Hatediiney

MERE COMpsign will be inal Judge Frank Ropke's court chair. Seattle, Nov. 29 () — Whether:

catch cold: when you get

r ° {fora new trial after attorneys
and ha i ; your feet wet or sit in a draft
In the meantime. Ardery said, | Gr C mpion derpnca aae bed inct By pin | depends upon your heredity, a
ribute te the fond nh oo ft | Steer Auctioned | automatically: earried the’ dots | phraicten at the University of.
7 ee Washington Medical School

Second Jury Deadlocked reported today. Fey
rust Company, Louisville 2, Ky , A jury deadlock resulted trom | Persons who can Paddle

| Chicago, Nov. 29 (2%) —Two ury deadlock r
Ae Sean is Sonne | grand-champion steers today | Bowman's second trial on Apeil around {n the rain or snow with.

Melbioat toni out catching cold probably are’
ole at Out for the death pen- by the Tack of «
Ul pot be completed-in time Yeraity nearly $25.000 cash at; Protected by
for the minor-league meeting the International Livestock bens EI ‘ares hae Peet ceciais abnormal gene of

The third time, & Jury delib- | hereditary factor, Dr. Arno G
pol 30° minutes on May 5 Motulsky told a clinical sesstoug
: op; of the Ameriean Medical Ae
xullty “and set the ishment
at death, ee sociation. ‘

tre winner, PS Trou} During Prosecution .ef the| ‘Those who get the sniffies at
, Weighing 995 pounds, | case, Assistant Commonwealth's | the first ex

f Id at tion today for} Att mga
ion, to represent the Feceivers' $2050 4 potted hiaeee maby ments ii Fea saat Rareseaale’ aon fed 4
. ‘ of the most dastardly, in. | supptess the gene and make
Cubans May Show Up grand champion. The total Drice |} human, and ba

sically — crue) susceptible people resistant, but
THR silks byndicatet "2! $20,397 50, ~~ crimes ever to occur in Jeffer the attempts to de this are only

in the research stage so far.

roan to colds have
le, Be added, te

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hi 3 ember 30
SHECKLES, Robert Lee, white, elece Kye (Jefferson) November 30,

SHECKLES v. COMMONWEALTH Ky. 515

Cite as, Ky.,

policy contemplates that the insured for-
ward the papers, or delegate that duty to
his representative. If the latter negli-
gently failed to do so, his negligence would
be imputed to his principal, the insured,
and the Company would not be liable. But
it is clear that the statutory duties imposed
upon the Secretary of State in nonresident
motorist cases are significantly less than
those which the Company contemplated
when it wrote the term “representative” in-
to Condition 2 of the policy.

(6] In support of our conclusion as to
the intended scope of the policy’s applica-
tion to facts such as are presented here, it
may be emphasized that the judgment upon
which this action was based was obtained
under a nonresident motorist statute. It
is a matter of common knowledge that valid
judgments frequently are obtained under
these statutes without actual receipt of the
summons by the defendant. It is reason-
able to assume that liability insurance com-
panies are aware of this fact, and there-
fore would disclaim expressly any liability
for judgments so obtained if they did not
intend to insure motorists against them.

The insurance policy under considera-
tion contains no disclaimer of liability for
judgments obtained under nonresident mo-
torist statutes without actual receipt of the
summons or notices by the insured. In-
deed, a contrary intent may be drawn from
Agreement VIII which states expressly that
the policy applies to accidents occurring
anywhere in “the United States of America,
its territories or possessions, Canada or
Newfoundland.” Clearly, the policy does
not limit the Company’s liability to judg-
ments obtained in those jurisdictions that
require actual receipt of the summons by
the insured in every case.

[7] Since many states have nonresi-
dent motorist statutes, and since the in-
surance policy purports to protect the in-
sured against judgments rendered in any
state, the Company should be deemed to
have accepted the risk of liability for judg-
ments obtained under those statutes with-
out actual service of notice and summons
on the insured. If the Company did not in-

289 S.W.2d 515

tend to accept that risk, it would have been
a simple matter to place an express dis-
claimer in the policy.

[8] Because Condition 2 of the policy
was fulfilled in every respect, and that was
the only defense presented by the Company,
the judgment of the trial court must be set
aside. Since the facts were stipulated, a
judgment for Staples should be entered,

The motion for an appeal is sustained.
The judgment is reversed, with directions
to set it aside, and to enter a judgment for
the appellant.

MONTGOMERY, J,, dissenting.

° KEY NUMBER SYSTEM

“aAums

Robert Leo SHECKLES, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky,
Feb. 3, 1956.
Rehearing Denied May 11, 1956.

Defendant was convicted of rape. The
Circuit Court, Criminal Branch, First Di-
vision, Jefferson County, Frank A. Ropke,
J., rendered judgment on the jury’s ver-
dict, and defendant appealed. The Court
of Appeals, Montgomery, J., held that evi-
dence, heard by trial court in chambers,
sustained court’s conclusion that defend-
ant’s confession was not obtained by
“sweating” and hence was admissible in
evidence and that defense counsel’s argu-
ment to jury that confession was “beat
out of” defendant was improper as not
based on evidence heard by jury.

Judgment affirmed.

1. Criminal Law G=1158(4)

Trial judge’s decision that defendant’s
confession of crime charged was admissi-


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SHECKLES , Robert Lee, white, electpoctued Kentucky (Jefferson). eo

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