Kentucky, M-P, 1878-1992, Undated

Online content

192 8 SOUTH WESTERN REPORTER, 2d SERIES (Ky.

jury to determine the guilt or innocence of ap-
pellant, and we have no authority to disturb
a verdict based upon evidence of facts and
circumstances which meet every demand of
the rule of law applicable to the situation.

[4] Appellant complained in his motion and
grounds for a new trial of the rejection of
competent evidence offered by him, but in his
brief he fails to point out any such evidence
or ruling, and a careful reading of the tran-
script of the evidence has failed to disclose a
single instance of the kind. The same is true
as to incompetent evidence admitted for the
commonwealth. The only exception along
this line shown by the record is to the action
of the court in admitting in rebuttal the tes-
timony of several witnesses who had not been
excluded from the courtroom during the trial,
although the rule requiring separation of the
witnesses had been asked and applied. The
transcript shows that the court limited the
testimony in rebuttal strictly to contradiction
of the appellant’s testimony to the effect that
his hands were the source of the blood upon
his clothing. The court was alert to protect
the appellant against any testimony in rebut-
tal other than that which was clearly compe-
tent as such. Indeed, the court excluded one
witness, an officer, whose testimony might
properly have been heard. The trial courts
have a broad discretion in applying the rule
respecting the separation of witnesses, and
this court has uniformly refused to intervene
in such matters, in the absence of an abuse of
discretion. Civil Code of Practice, § 601;
Schleeter v. Commonwealth, 218 Ky. 72, 290
S. W. 1075; Music v. Commonwealth, 186 Ky.
45, 216 S. W. 116; Boyd & Jones v. Common-
wealth, 194 Ky. 75, 238 S. W. 182.

[5] The appellant criticizes the conduct of
the commonwealth’s attorney during the prog-
ress of the trial and in his closing argument
to the jury, insisting that it was prejudicial
to his substantial rights. It appears from the
transcript that, during the argument of the
assistant commonwealth’s attorney, he stated,
among other things, that, “if this man is giv-
en a life term in a penitentiary, he will get
out in a few years.” This statement was ob-
jected to, the court overruled the objection,
and the defendant excepted. This court has
dealt frequently with complaints of improper
conduct and arguments on the part of com-
monwealth’s attorneys, and has fully ex-
pounded the law upon that subject. Slaugh-
ters v. Commonwealth, 149 Ky. 5, 147 S. W.
751; Lawler v. Commonwealth, 182 Ky. 185,
206 S. W. 306; Chappell v. Commonwealth,
200 Ky. 429, 255 S. W. 90; Bailey v. Com-
monwealth, 193 Ky. 687, 237 S. W. 415; Bolin
v. Commonwealth, 206 Ky. 608, 268 S. W. 306;
Linde v. Commonwealth, 208 Ky. 98, 270 S.
W. 451; Welch v. Commonwealth, 189 Ky.
579, 225 S. W. 470; Housman v. Common-
wealth, 128 Ky. 818, 110 S. W. 236.

[6] All arguments by the attorneys for the
commonwealth should be based upon the evi-

dence and the deductions logically flowing
therefrom, and should not undertake to influ-
ence the jury by extraneous matters or by ap-
peals beyond the limits defined by this court.
We cannot say, however, from this record
that the remarks referred to were prejudicial
to the substantial rights of the appellant.
Upon the authorities cited, and others there-
in mentioned, we are constrained to hold that
the statements of the attorney in this case did
not constitute reversible error.

The court submitted to the jury eight in-
structions. The first one covered the subject
of willful murder, and is in the form often ap-
proved by this court. The second defined, in
accordance with the decisions, what constitut-
ed a deadly weapon, and left to the jury to
find from the evidence whether the beer bot-
tle offered in evidence was such a weapon,
and fully advised the jury that, unless they
believed from the evidence beyond a reasen-
able doubt that it was a deadly weapon, as
therein defined, they could not so find, or con-
vict the defendant of murder. The third in-
struction was as follows:

“No. 3. Though the jury may believe from
the evidence beyond a reasonable doubt that the
defendant, not in his necessary self-defense,
killed said Anna Eslick as set out in instruction
No. 1, but do not believe from the evidence be-
yond a reasonable doubt that the beer bottle was
a deadly weapon, they will nnd the defendant
guilty of involuntary manslaughter, an offense
included in the indictment; and fix his pun-
ishment at imprisonment for a time in the dis-
cretion of the jury, or at a fine in their discre-
tion, or at both such fine and imprisonment, and
they may say in their verdict that said fine or
imprisonment or both shall be at hard labor in
their discretion.”

The fourth instruction correctly defined the
words “willfully” and “with malice afore-
thought.” The fifth properly submitted the
law of self-defense. The sixth advised the
jury that a reasonable doubt of defendant’s
guilt entitled him to an acquittal, and, fur-
ther, that a reasonable doubt as to the degree
of the defense, if one was committed, required
them to convict of the lesser crime. The sev-
enth merely prescribed the form of verdict,
and the eighth was an exact duplicate of the
third, above quoted.

[7] The only complaint of these instruc-
tions made in brief for the appellant is that
instruction No. 3 and No. 8 are identical. It
appears from the record that such is the fact.
It was doubtless an inadvertence, which
would have been corrected by the court if it
had been called to his attention. The instruc-
tion was a proper and necessary one under
the evidence. Duplication of it could not
have been prejudicial to appellant. The most
that could be said of such repetition is that it
tended to emphasize the issue there presented
over the other issues involved in the case.
The jury did not find appellant guilty under
instructions No. 3 or No. 8, but under instruc

Ky.) IRVINE TOLL BRIDGE CO. v. WILLIAMS 193
3 S.W.(2d)

tion No. 1, which properly submitted the issue
of willful murder, and which was the only in-
struction under which the death penalty could
be inflicted. The instructions were carefully
prepared, and amply safeguarded all the
rights 6f the appellant. We have held in civil
cases that the duplication of an instruction on
contributory negligence was not prejudicial,
even though it had the effect of emphasizing
the defense of contributory negligence, upon
which the verdict for the defendant might
have been based. Herndon v. Kentucky Trac-
tion & Term. Co., 214 Ky. 36, 281 S. W. 1036;
Trent v. C. & O. Railway Co., 221 Ky. 622, 299
S. W. 556.

The same rule must apply in a criminal
ease. Under section 340 of the Criminal Code
of Practice, this court is only authorized to
reverse a judgment of conviction for any er-
ror of law appearing on the record, when, up-
on the consideration of the whole case, the
court is satisfied that the substantial rights
of the defendant have been prejudiced there-
by. No suggestion is made as to how the
rights of the appellant could have been preju-
diced by the repetition of an instruction upon
an offense of which he was not convicted.
The letter of the law should never be permit-
ted to kill its spirit. Rutherford v. Common-
wealth, 78 Ky. 639: Hendrickson v. Common-
wealth, 147 Ky. 301, 143 S. W. 998.

[8,9] Another insistence of appellant is
that the verdict was contrary to the law and
evidence. What has been said in the earlier
part of this opinion as to the facts proven dis-
poses of the contention. The evidence points
to the guilt of the appellant, and is plainly
adequate to sustain the finding of the jury.
It is the jury, and not this court, that is pro-
vided by the Constitution of the state for the
determination of questions of guilt or inno-
cence under proper instructions and compe-
tent evidence. Our function in this respect is
limited to the ascertainment from the record
whether there is any evidence from which, if
believed, the jury could find a verdict of
guilty under the law, as defined in the in-
structions of the court.

[10] The motion and grounds for a new
trial complained of a refusal on the part of
the court to discharge the jury on motion of
the defendant. We find nothing in the record
upon which such motion could be based. In-
deed, no such motion appears in the record, or
any ruling of the court thereon. It is a set-
tled rule of practice that errors complained of
in a motion for a new trial are not reviewable
here, in the absence of an exception taken
and shown by the bill of exceptions. Crimi-
nal Code, § 282; Dalton v. Commonwealth,
216 Ky. 317, 287 S. W. 898. The record shows
exceptions to many minor rulings of the trial
court which were not made the basis of com-
plaint in the motion for a new trial or in the
brief here, but, because of the gravity of the

case, we have examined them, and agree with
counsel that the rulings in each instance were
so obviously correct that discussion thereof is
not necessary.

Upon a careful consideration of the whole
record, we have reached the conclusion that
the appellant had a fair trial, and that no
ground exists for interference with the ver-
dict of the jury. The punishment inflicted on
the appellant is the most extreme known to
the law, but if, as the jury has found, he com-
mitted the crime, he was alone the architect
of his fate. He may not justly complain that
society lawfully exacts of him the penalty
prescribed by law for the crime he committed

in taking with malice and without mercy the:

life of a helpless woman,
Judgment affirmed,
Whole court sitting.

(223 Ky. 141) -

IRVINE TOLL BRIDGE CO. et al. v. WIL-
LIAMS.

Court of Appeals of Kentucky. Feb. 14, 1928.

1. Judgment €—>668(1)—Judgment of court of
competent jurisdiction binds parties, who must
carry it out until set aside.

Judgment of court of competent jurisdiction
not only binds parties, but it is their duty to
respect the law and carry out judgment until it
is set aside.

2. Bridges @—>21(6}—County fiscal court, au-
thorized to purchase bridge as provided by
Judgment, could contract for painting it.

County fiscal court, having authority to pur-
chase bridge from tolls collected, as provided by
agreed judgment, had authority to do such
things as were reasonably necessary and appro-
priate for best interests of county, and hence
could contract for painting bridge.

3. Bridges €=>21(6)—One painting bridge un-
der contract with fiscal court, after judgment
providing for purchase of bridge by county,
could recover from county, though judgment
was subsequently set aside. :

One painting toll bridge under contract, let
by fiscal court after entry of agreed judgment
that bridge should become county’s property
when net tolls collected amounted to stated sum,
could recover therefor from county, though
judgment was afterwards set aside for want of
power in bridge company’s president to agree
thereto.

4. Bridges €==21(6)—One painting bridge under
contract with fiscal court after judgment pro-
viding for purchase of bridge by county could
not recover from bridge company.

One painting bridge under contract, let by
county fiscal court after entry of agreed judg-
ment that bridge should become county’s prop-
erty when net tolls collected amounted to stated
sum, held not entitled to judgment against bridge
company, which repudiated judgment, and had it
set aside for want of power in its president to
agree thereto.

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

3 S.W. (2d)—13

a 9 @

In January of 1954, Circuit Judge Faust Y. Simpson ordered Moss out of the County

he was gone near iy three years. He w srrested in Webster County on a robbery charge
and sentenced to Eddyville prison. He was released on Sunday, Sept. 22, and was back in
Henderson County jail the next day, along with his wife Dorothy Osborne Moss, on a
drunkenness charge.

Moss filed suit against the State and various officials for $10,000 damages on. grounds
he was injured when guards at Eddyville threw tear gas on him in a cell. Then he petitioned
the Courts to stay his execution while he followed that suit through the Courts.

He also contended the action of the guards amounted to an attempted execution by

gas and that the impending execution would place him in double jeopardy. His suit was thrown

out of a lower Court and the Court of Appeals has ruled against his double jeopardy

contention.

_"
wee gy we § rv

es Meee Henderson :
MOSS, Kelly, white, electrocuted Kentucky State Prison (MMMMEMM County) March 2, 1962.

ui »

”

So ite ea SPRL ARTA Ca ries out’ a Sa int oases Bes App tee paabnnpetitas SS SIN an BBY, oh ve! pees
Ps rie
° 7 |
Gleank x Journal Friday March 2, 1960C.

KELLY MOSS DIES.

PRTITION FOR STAY OF EXECUTION TURNED DOWN BY COURT OF APPEALS.

—

Nag” *
rd

The restless spirit of Kelly Moss was stilled just after ‘iidnight this morning at
Eddyville Penitentiary when the State carried out his execution for the 1957 slaying of
his stepfather, 7l-year-old Charles Abbitt, in a small frame house on Cumnock Street here.

Moss, 47, held onto his hope for a stay of execution until the last, but it did not

come. Yesterday the State Court of Appeals turned down three petitions by Moss for writs

to pospone his execution in the electric chair. Earlier this week the Supreme Court
Be a ce declined for the third time to review the trial of Moss.

Moss, convicted in May, 1958, has contended that the Kentucky Court of Appeals

Rae Se es erred in refusing him a new trial. The Supreme Court on Oct. 10, 1960, and on Oct. 9, 1961 ‘

Boe oS. refused to act on appeals by Moss. Justice Douglas ementsd this week to the refusal,
making the counts vote 8 to l.

Abbitts body was found in the kitchen of his home on Nov. 6, 1951, and Moss was

arrested and charged with his fatal beating the next day. He was captured behind a

Pees. at

Baptist Church at Robards, and returned to the local jail. He was later removed to the

Eddyville penitentiary for safe keeping.

This was the second date that was set for Moss' electrocution. He managed to avoid

z RSS os" le the first, Jan. 6, 1961, by a series of legal maneuvers.

Moss has fought his legal battles for four years,recently without an attorney.. not
“sg eek Na ait He an educated man he was credited with having a good mind and he prepared many of his writs

F BEE ora Oe himself.
: He was also credited with preparing writs for fellow prisoners when in custody on \

i Pe ' earlier occassions for less serious offenses. Moss had a record of seven arrests for

{ ae a eee breach of peaee and three for assult and battery between 1950 and 1953.

atom rte pect iam npapioais isa I Soaps ene

Se ie Ve i
sh iach OOS Sais

ciel & Journal March 3, 1962 3

MOSS WILL NOT BE BURIED HERE.

Kelly Moss will not be returned to Henderson for burial, a family spokesman said
yesterday. Moss, 47, died just after Midnight yesterday in, the electric chair at
Eddyville penitentiary for the slaying of his 7l- year-old stepfather, here in tenderenk:

A man called the Gleaner yesterday who said he was speaking for the family of the
condemned slayer. He did not identify himself but just wanted to make it clear that Moss!

body was claimed by the family and would recieve a proper burial.

Moss! execution brought to a close his four years legal battle to escape
electrocution. Moss offered no resistance as he walked from his cell to the electric
chair, Warden Luther Thomas said. Moss was strapped into the chair at 12:09 and
pronounced dead at 12:1) A.M.

A few hours before the execution, Moss told Thomas, " I wasn't guilty of the crime and
you know it." Moss told Thomas he was framed.

Prison officials made a final check with Gov. Bert Combs office in Frankfort as the
hour of execution neared and were advised there was no need to grant a stay.

Convicted in the Nov. 7, 1957 fatal beating of Charles Abbitt of Henderson Moss
used legal maneuvers in his battle for life that took his case three times to the

Supreme Court.

.. O'BRIEN, Glaude, and WHITNEY. Earl, whites, hanged Texington, Kye, July 2h, 1903

Vase vine pier Ret att gle Oat na ei near Gr creo ts cris ammeter sna manatee et
: 7 2 Bee owe es 3 ge - x ale ,, "

- Lepicallen Ky. 1/24 /)903- Sart Whtruy oy Mechelle Volaudke, |
oe ee 0 Bren 4 Nurs lore Ranged atSicP am tn tx yard & ity "Tey cl
Od the Hf eae Ut tires An Led Few the 2eapprtd ot the
eo Gurunk. 120th theek, Rares With te Pauals O' Brews Wes tered]
“ins AE Bes calle? a AA eo bE 230 ou Che Worry Of /0/12)
yee ys IGo2) Urhen O'Brian thtthuy Littree the Heme ty Avie Clow Ae
manner Wealthy worehard t-24¥-Crofederal arldirr, dud Linth revolvers lee

WA fou, Atiainrdid Hrot He ald gertlanan pice vee Te? he, :

TRO ppedee oumenud Nrr Clie whe conned . Are Chon hed

tL yed pw « Hha Shdorn Cann had Adiaed lp aud Wwaraitling) 22
ra the dike of in Ped Ne tren thet Hasesh ti bed» Ha togePhing|
Nea pow tie ore, ber Ha porn og Mae ine, lke Kodialae |
: Rerun Abit Quad Wor Le snap u floor Waring ta rele ac htat fo
wee ager Na Chinn nes thy wert, oT ted to dgacat™ hia AE, Vin |r nsneenseseemeEIOHe
| Merceding (wert Mencowed le Poioyte fer aage fesping OPPriem
: ei Wee firme Leal temp he (] 21 i) lactase, ; Yea Avo
er denion, hs : ,

9 rectal wn Nesturtu. |
at ie / : :

a saa. SRL eens

NED, Slave, black, hanged Ballard Co., Ky., November 24, 1854..

Ned, the slave of Mrs. Susan Thompson was executed for the crime of voluntary man-
slaughter.-Ballard County Circuit Court Order Book, October Term, 1854, pages 195-204.
The State Auditor’s Report, Document I, page 15, 1855-1856, reports the payment of
compensation in the amount of $1,150. to the owner as compensation.

ad | i} e SMa Tite. =e ge
me bho read fa toe se: : ‘
nq, Vaused bee tun ioe as *s tia CE oe
vig | thoxe who happen it tex? Hoes tgs Videt
in The serene Was gut et PANEL dee Hal ii '
mm pcContrast wath Live ar dain ae, aes \ i
“~hpoad. Then too One ora rod, watts as Ura
trainson for the ciy has niger an The

eould dote aecomuindate tie purntras Ae

eect a
oy) Matter Of euurse. ON sitche crcnst ons, Loe
ve, fupasor portion: of the Crows is PUTT pOsee asl 4

the sterner sex, but now cnet then sou

4 Psee Uright aud sagecv-eved Ligmdes, radiaut ta

Qj their Wealth und charms, Whe wold enrapt

qieneé attention, and the ark, busting
ap Paueens, PASC Lec ved and sefii as some poet's

ne | dream, Whe Wou.d ealk iCavweav, and Getween

re} the two the spectator Was suapiy upset by bis

at coutfusiou,

*
FT WHoeM TOGIVE CREDIT,
1) This was the day whicha laree mecority of

githe people in this and neighboring counties
fi have been looking forward (to fur over three
‘S| Sears, when the last of the perpetrators of the
rs! Gibbons murder sbould breathe bis last, and

aly] thereby pay the penalty of his own Nendish

it} Work, es Neal's twoacculnplices having “gone
re) before’ —at the end of aPrope. Lhe twoggiris
X-} raped and murdered were each about four
uo “ee Years old, while Hobble Gibbons, who

as murdered, Was younger. The gentlemen
diw aie took the matter in band and determiued
s. | to ferret it out were Messrs. A.C. ( ‘aAluphell,
di John Calder, Jonu Russell, Sam S. Savage,
fe} John L. Parrell, M. FL Bell and R. oS. Carr.

.¢| They were untiring in their efforts to bring
Py; about arrests and convictions, and as the last
d | sad scene has been enacted they are proud of
hj thelr achievements. They spared neither
3} time nor money, but went to work for the
bf j entire community.

GRAYSUN WAS UP FARLY
o pris morning, as it was a settled fact the ad-

r- | vePtised programme was going to be executed
8 | to the letter, and ail wanted front seats. They
il; Were all satisfied, as the scaffold had been

erected in @ convenient place with a small
hillon either side. Al! got a good view, and
- | Were elated over the fate that was meted out
Ay | tO thie ain-smirched eriinfual. Neal retirea
at one o'clock this morning, fell asleep at
once, and siept suundly until 6:9, when he
Was awakeued by the guards, He got up,
Gressed, and spoke of feellug unusually well.

[for breakfast at eight o'clock he de-
fe Voured with a ravenous appetite three fried

esgs, three biscuits, @ dish of stewed corn,

@ about one pound of breakfast bacon, one pint
of coffre, pick tee, dc., ail of which he enjoyed,
and calmly awaited the fatal hour witb no

t sign of fear ur excitement. At ten o'clock
Neal feecived &@ paper from Alf Burnett con-

; taining aletter froin Neal to Burnet’, which

Neal claimed was written in blood taken
from his left arma, thanking Burnett fur his
| loyalty in his behalf. At the same houra
Meseeuger brought tim letters from his wife
{Sud mother. He read them without BAtgu of
Weakness, and banded the: ty your repre-
eentative. Koto were pathetic and mate
aud implored him to

TVLY. THE TRUTH,
At nine O'elock Judge Mtrotber entered the
jail, had a short conversation with Neal, and
Volanteered his services ty procure spiritual
2 lvisers if desired. Naai assented, aud ac-
rdvugly an hour jeter Hevs. Hit. W isetian,
the M. BE. Church South, and J. FF. J. Me-
K inater, ofthe M. k. Caurch, appcared on the
1}/@ene, At the vuteet Neal tofurmed them
that he was resigned to his fate. He professed
@ perfect reronciiiation to hix Ciud. and io the
Mvet earnest matner asserted bis Lnnocence
h | Of the crime fur which be ted been seitencedt
todie. All morning he manifested (Le same
PiIRMN BOs AND CALBN KxA

Weevil:

NEALS FEATURES WORE WELTCUT,
And tis faciad expression Way rather pleas-
tf. but there wae an ungainly broad place
vet Ween his eves: vet he was one of Graod’s
ereatuces oa tnag. Long vears ago, When Che
Wish fora home sang its siren soug in his une
tutored heart. ne found the buxom maid iu
the connty of Boyd. There Was a wooing, &
wedding and the lovers nestled down amid
domestic joys. In Hfe William Neal was a
husband, afather. A widow and three chil-
dren are left to Keep green his mnemory, and
fight the battle for bread as best they can.

At dark ‘to-nizbt this place was almost de-
populaieu, the Visitors having returued to
their bomes, end Grayson will soon assume
the eveu teuor of her way,

ag
attt

ALE W. BURNETT.

The above ts a good likeness of Alf W. Pur.
nett, the Charleston, W. Va., detective, who
has spent eo mochof his time a his own
funds in an endeavor to densest Me his be-
lief in the fauocence of Craft and Neal. Le.
tective Burnett is a man of bull-dug tenacity
aud perseveranoe, as bis face Iudicates, Once
a believer ip a tbeory he will stick Waowl
he ei{ber demonstrates beyond cavil Ms trath
or is convinced beyound doubt of pa error.
“ince the comimissivg of We Ashland Lraged)
burnett bas devoted wa great deal of eusryy tu
ahow that Craft and Neal were innoveut of
the crime for Which they have euffered,

Neal's Life.

Ko mur b has beeo written and pubtisted
coucerting the sickening detalls of abte min!
celebrated case, (he most dastardiy that was
ever chruniefed io the criminal Caleudar of
RKhentucky, thata repetition would te arp ies.
However, your correspoudent coneiuited to
Kicak @ few Of Che most tiportant fects in the

pitetines, and as a fareweiler ulve thea to the { Orwell erat mT PMA MNQtIRAM f

prubtic,

Win. H. Neal was bora tn Putnam County. |

wiy @, in le@ where his father tesidet a few
years, and Chem remuved to Maen t araiite,.
Whence, aMer reaiting @ short (uo. come) vest.

iS raiiie Ouealy, Obie” Hic father cuss uss: | @ heres can ieee ie at

4 Bee ead ath, oP . ‘ Ry
eee Nenteu you Mibkiies ; ae | tetied ey 3 as a rege ihe ake ta ie \
cheat apa a a mitts of deaths Whee Chee woe Sa MAT AA a Pe gery eee pe td 1
Cd Weide eyelet bea het diame tat) 9 Gigs a ae TSO 8 ATA as ROE gi
icsd daa pepepared four alo tiie weiles og chil- pha dave Don gabe Grid Movers x - wel, ~
BS wrt LRERIS ES Tae is . fee Ue) det SO
eaud-Lv, dear wifeand citidrety oMoters. utd i's viptiods ON Nee ft atest e ay dard oN
fathers, brothers and sisters, fareteih ou, patty of Lingee Wiha brand or 4 tH .
firewel Mee®oine to heavens. My lust and pthem, ht whore lee ne eGhidre whe
dving werd to vous do am dihocent of The | were Guilrneed amb AG Wide Ahat mir: ae
choatge for witeh Druaust dies fo diave under baled ets Hite that -atteniyied Sep ete ae
rone hard trials, troubles and. tribulations | aryed? Pipe fe the Vales Qf oa pene. |
pand declared the truth, and will declare it] ye ae Aare evident that marl ther ad mi |
even Unto death. Your husband, tongues be fouerd tn iife asad Liere would | }
SAV ILLIAM HOONEAL” not have been all these turee pear of the?!
“law's detay aud tne > lak-payerts: obes Ay,
drained of: their thopsands tayise “aomnana ; a
chance to kaddie tTheeriine on sorne cue else, ag
Our Wentucklans tou eam bose sight oof tie!

murderer, and thus erie goes on viw tipped
of i andthe resultis that koslings ar
onthe inerease, and the State is not redeem.
ing Mer good name in the caustry, The juries
of the country should exthanee their surpios
sVinpathy for henip, and oer ln tue
ehokiug Dustiness,
THE FALL OF THE CURTAINS,

Soreads the last chapterin the history of
the Ashland crime, and the life of Waiil;
Neal, Who was eonvieted of the most beinous.
of crimes, for whieh his two aceunplices
have paid the penalty with thefr necks, end im
he bimsecf was to-day Compe let to lay down
his life to puy the penalty of jis dark deed,
The sable robes have boon putvside for the a
pale wrapping at the pall, the t 28

#5 pags
Pha he a, Dee

ALY

Diet the tomb,
and one mure vVietim to wicked passton has
fullowed tn the wake of the thousands who
have goue before to Keep death DUS Ww AL his

ghastly carnage. Even so lt might be. Aste f°
the curtuin falis, ; eo ele
The Feeling at Ashland. et

SECial YINPaTCH TO THE ENUCiRER,

ASHLAND, HY... March w7.—Tre sade ts hy
over~Neal bas been choked to ¢fath, and i¢/ au
the balance of mankind are sat, ae atthe [sim

result the citizens of this place
are happy, Here it was that ty

d vicinity
e Erime was; ‘

committed, and the opinion ts uatwersal thar |
the perpetrator Spat all at last exptated | vt!
thelr dastardiy deed. Woen the news was Ct
Wired here this afternoon that Neal had been | CC
bung OUF people brestbet easier, as they | OF’
Were fearful [ost something wok! turn up Teles
by which the galiows would be enemted ou! wt!
ts Victim nena
Neal's remaics arrived eS eees bury tow | Caee
night, aud were conveyed to the residence of | Wit
hie father-in-law, Hiram Rice. nearthat place | 2a
ves?

The funeraiwiii take Place Sanday. Burial
veer Asi iad.

An Old Citisen Drwps Pnest.

OrBctal Dishatia TU Tew BNGL Ran.

— WAN ESVILER. antiog March wom “Seeaire | SA
Mosee Harlan. a brother of the jate bivu, | Wwte
Aaros Harlan. forwieny Mou ber ot Congress | B. ¢
from this district, drotgpent deat fast night ove:
Troll paraivee of the heart. Ne wid cighteen | ine
Yrare Justice of Clear Ureek Towuship aud | for i
twenty Years trustow, besides Sing other pare fetal
eitluts af pietile trust Hey was a nisg wf one
eyhendd characior @ genuine “oid achool! feed
PBeGliemaa.”” aud eetgeumeal all over tie] fro
cuanty, tte fyuerei wi be Scuday foremoois,
at tem aieieoe. Hiss age was seventy four :
yee minal aM Masth Ug. ‘ Ni
: ek Sap Sepharose ie 7 ent
Stabbed Five Times and W tl bed, Cap
j of
CMATT ANined ay TENS, Mareb 2 A most | beal

oor
gard
etd
eon!

atroeiois murat wae Oomiuitteat in Rome
| deat Hight A cwlared botel man named
itermy Orr losuited a young man named bred
The iatter slapped the peaee ‘s face,

a ©

W al lac.

as “oor dhe

es
a, Pet Ky.
&
“oO David NICHOLS, Appeitaity *
ag v. ir
wt COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.
Oct. 14, 1955.

eX (2123/55

Prosecution for murder. The Jeffer-
son Circuit Court, Criminal Division, 2nd
Branch, L. R. Curtis, J., rendered judgment
of conviction and defendant appealed. The
Court of Appeals, Stewart, C. J.; held that
evidence justified jury in concluding that
malice aforethought existed.

Affirmed.

1. Homicide €=231

* Evidence sustained determination that
death dealing stab in back was committed
with malice aforethought and supported
conviction of murder,

2. Criminal Law @=20, 552(1)
Homicide €—231

The words “malice aforethought” mean
a predetermination to commit an act with-
out legal justification or excuse, and may
be proved by either direct or circumstan-
tial evidence, or it may be established by
the very fact of a killing itself.
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of ‘Malice Aforethought”,

3. Homicide €=269

Any homicide deliberately and cruelly
committed is a fact from which the jury
may find malice aforethought.

4. Ceteiinal Law @ 738

Tt is within the province of the jury
alone; fo determine the existence of malice
aforethought from the circumstances at-
tetiding so _—— act.

5. iiaieds oubas ae a ee

af atts . = ra i-¢ Ms

283 SOUTH WESTERN riguadrexsesvare 2d ane

’ ‘existed. Bei.

Sad

From‘ testittiony of eye-witness of thé
crime. aljone,,making out a complete case:

—~ |

Mb ca WI {> al’

Pf premeditated” “pnd” deliberaté murder,
NO, Semblante OF ‘self-defense, "justifi-

siden, or excuse,, the, j ity would. Bé ‘justi-

: fied in: sotchiding that cae ernest

pipers wh

Ste 10% ern vere wt !

1@. Criminal Law 2783) se SSE Ya ew git
“e “In murder prosecution, where during

as tte

time Commonwealth’s attorney was cross-

examining defendant as to whether he had
been convicted’ only one time as testified
to by him on direct examination or four
times, the court on its own motion ad-
monished ‘jury ‘to consider such’ evidence
solely for whatever effect it might have on

defendant’s credibility and to no further i

extent, the admonition was proper and
adequate.

7. Witnesses €=337(5), 345(!), 350 |

Commonwealth may show for the pur-
pose of attacking the credibility of a wit-
ness that he has been convicted of a felony,
and this, together with the punishment he
received, may be brought out either by a
court record or by the witness himself, and

the rule applies as well to an accused as ;

to an ordinary witness. CR 43.07.

8. Criminal Law @=814(2)

In murder prosecution, instructions
covering wilful murder, voluntary man-
slaughter, self-defense, and death caused
by an accidental act were only instructions
warranted by the evidence in the case.

a nd

C. Ewbank Tucker, Louisville, for appel- |

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

STEWART, Chief Justice.
David Nichols, convicted of the wilful

murder of Mary Georgia Roberts and sen- |

tenced to death, has appealed and urges.
these grounds for reversal: (1) There was
“fo evidence of malice aforethought as to-
“the: crime committed; (2) the trial judge
failed to:\properly admonish the jury with

Sandal to=cL (Uosdetjer)

°sY toote

Whose

ue
a rr oe re
ete

aan vereeith - ti, Tas
respgct, to averages of prior convictions. ‘of
y, appellant; and., (3) the rower

iat ‘oft the'v

ath in Ne ‘the: jury'e +43 ao 4

rae vii. tn le x, Hk Naren
ah aan ta'determing ithe; ‘Yalidity, of the

first grodnd,* we must!’ fevitw-the evidence.

- Eight witriesses testified in chief for the —

Commonwealth, ‘and the knif¢, with. which
appellant did the fatal cutting,. along with
itwo photographs, were admitted in evidence.
Appellant was the only witness who took
the stand,in his own behalf, ‘Three wit-
nesses testified in rebuttal for the Common-
wealth. |

Mary Georgia Roberts and appellant, both
colored, had been ‘living together in con-
cubinage for 8 or 9 months prior to the
killing. According to appellant, on the
morning of May 21, 1954, they departed
from their home in Louisville to go to their
respective places of work with the -under-
standing that he would pick her up that
afternoon. However, around 2:30 or 3:00
p. m. Mary left her job and proceeded ‘to
the home of her mother, Emma Ferguson,
in or near Anchorage. Appellant went to
meet Mary after he had finished his day’s
work but failed to find her where she had
agreed to wait for him. _ When he got back
to his home he was unable to get in, so
he went to a niece’s house around 5:30 p. m.
at 120 Oldham: Street and from there
*phoned Mary at ‘her mother’s home. Em-
ma. Ferguson answered the call‘ and sum-
moned Mary to the telephone: Appellant
said Mary asked him to come after her.

' Around 7:00 or 8:00 p. m. he called a
taxicab to take him ‘to the Ferguson resi-
dence. Raymond Smith, the taxicab driver,
picked appellant up at 120 Oldham Street
and was paid‘in advance for the trip to
Anchorage and back. En route, appellant
appeared normal and calm to Smith. Upon
reaching his destination, appellant gut out,

- went inside, and Smith, parked his taxicab
in front of the Ferguson, house and waited

. for the return of appellant. Smith said
. appellant was gane for, about ‘10. minutes.
. Inside the: house were Mary and her sister,
Jonetta Marshall, who had arrived at the
- home of her mother around 6:30 p. m. - with

a 24—12%

" NIOHOLS v. COMMONWEALTH
Cite'as, KX. 283 8.W.2d 184.

Pym, and. ‘Mary went

‘HOBTQ pyaieg *S'IOHOIN.

‘her six ‘smail child?en. v were watchin
television, . According to Jonetta, appe
‘Tant “knocked, on the door around 10:C
to the, door. Fro
thig: point’ on ‘the, ‘testimony is in confli
as to what franspi red. i.

The Chtunpewiaiiin:. inisiste- an we
‘only one eyewitness:to the killing, namel:
Mary’s sister, Jonetta. The following |
her story: Emma Ferguson and Jonetta
six children were in a back bedroom aslee
at the time appellant entered the’ livin
room. When Mary got up from: her. chai
to answer the knock on the door appellar
came in and spoke to Jonetta. The latte
then -retired. to the bedroom to° feed he
baby. An open archway separated ‘the bec
room from the living room ‘dnd. she sai
Mary and appellant were never out of he
sight. As she raised up from the bed wher
the baby lay and looked through ‘the arch
way, she saw appellant in the act of stab
bing her sister in the neck with a knife
No words had been ‘previously spoken be
tween appellant and the deceased. | Mar
was in a sitting position in the chair an
appellant stood over her, knife in hanc
slashing the upper part of her body. Jon
etta screamed and called for her mothe
who came running from the bedroom, bu!
by this time, appellant had left the livin

‘room and was already outside the house

Jonetta rushed to the window, saw the nam
of the taxicab appellant had come in, tel
ephoned the police and ‘Teported the i “inci
dent. r

Emma Peni testified sha hich t
bed around 9:00 p. m. When she entere
the living room she saw Mary slumped ot
the floor rug near a chair in a pool o
blood. She also’ testified that twd week
prior to the killing Mary had'tome''ti’ th
Ferguson residence with her “faté” swolle:
and a tooth knocked" qut, ‘Appellaiit late
came for her and pleaded with‘ ‘hef to re
turn to his home, saying, “T' won't bothe:
you any more”, and induced her to gX
back to him.

A road block was nots. ¢ up in th
neighborhood and the taxicab. was soor

— on U. S.'60 near St. par

My! o: *
Pera

182 A Century of Wayne County, Kentucky

an old and respected citizen of the county. Gibbs shot Oatts from
an ambush in the woods.

“He was convicted upon purely circumstantial evidence. One
of the incidents tending to his conviction is often referred to as
showing that ‘murder will out.’ Upon the ground near the scene
of the crime was found a piece of half-burned red cloth, which
had been used as wadding in the gun that fired the fatal shot.
It was then remembered by some one, and upon the trial proved,
that on the day of the killing Gibbs had purchased in town some
red cloth known as turkey red, and of this the scorched wadding
was found to be a sample. One witness testified to hearing the
shot and exclaiming, “There’s Dave Gibbs’s old musket, he must
be Hunting.’ These incidents with others, confirmatory and cor-
roborating in their nature, convicted Gibbs.

“Ee was driven in a wagon to the place of execution and the
wagon was stopped immediately under the gallows. The rope
being adjusted around his neck, the wagon was driven from under
him. Just before he lost his footing, he sprang into the air, suc-
ceeding, as he intended, in breaking his neck.

“A negro about 21 years of age was the next victim of the
allows in the county. He was convicted of raping a 12-year-old

- daughter of one John George Hubbard, a carpenter who formerly
lived in this place.

“The assault was committed under circumstances of especial
and peculiar atrocity and well merited the severest penalty known
to the law. _

“William Ayres next atoned—in the feeble measure which an
assassin’s death can atone—for the brutal murder of a young man
named Daffron, son of ‘Uncle’ Hayne Daffron, of this county.
Daffron had returned home from the Confederate Army with a
disabled arm, which had withered away until he was unable to
use it, as the result of a gunshot wound.

“Ayres was a member ofa band of Union guerrillas and
together with a man named Jesse Bell, went to the home of young
Daffron and cruelly murdered him. Daffron, with his one arm
grasped the gun of the murderer and averted its muzzle for a
short time while he prayed for his life. His prayer was without

A Century of Wayne County, Kentucky 183

avail, and he fell the victim of as bloodthirsty ‘a spirit as ever

expiated a life of crime upon the gallows. |
“Ayres left this immediate country at the close of the war.

The father of the murdered man learned, six or seven years after-

ward, that Ayres was in Bowling Green, Ky. Going thither, he

recognized him upon the street, had him arrested and brought
hete, where he was tried, convicted and executed.

His companion, Bell, was also arrested and would have
suffered the same fate had not Ayres after conviction and sentence
sawed through the bars of the jail and made his escape.

He was gone several months, making his way as far as
Peoria, Illinois, at which point he was arrested and brought back.
During his absence Bell was tried and the County Attorney,
believing Ayres had made good his escape and disliking to take
the life of Bell, who was but a principal in the second degree
while the chief offender went unwhipped from justice, told the
jury he would be content. with a verdict of 21 years in the peni-
tentiary which verdict they returned. Thus Bell escaped.

“The execution of Granville Prewitt yesterday completes the
dark chapter.” .

_ John Bartleson, a splendid citizen, was killed June 8, 1889
in an argument with Thomas Bates who was intoxicated. His
son, Emerson Bates, running up to protect his father struck Mr.
Bartleson, killing him, bringing gloom and sadness to the whole
county.

March 3, 1865, an act of Legislature authorized the County
Court of Wayne County to sell the courthouse.

_This courthouse was in the center of the square. It had been
built of logs in 1801 and a brick courthouse had later been added
in front facing north. The courthouse was sold but it was not
until 1876 that an act was passed that énabled the county to raise
funds by sale of bonds to build a new courthouse.

In that year Milburn and Milburn, architects, drew plans for °

the building which burned in 1898 where the present courthouse
stands. |

On February 3, 1818, the Legislature had passed an act to
establish a bank “to be denominated the Monticello Bank, in
Wayne County with a capital stock of $100,000 to be divided

180 A Century of Wayne County, Kentucky

discipline, remarkable and exceptional ability as a teacher, but for
his high sense of honor and integrity, justice and obedience, and
for his lofty dignity and high standing as a Christian minister.
Those pleasant and profitable school days under his direction and
management and happy associations are well remembered.

—-]. W. Hall.

Life was pleasant in those days with neighborly attentions in
sicknes$ and distress, and graciousness in social contacts.

These were free high-spirited people quick to resent a slight
yet generous to forgive, and disagreement was often settled
summarily by a fight, ending in a handshake. Captain Tuttle
tells some amusing stories of those days.

James Hardin, a young attorney, partner of Tuttle, was an
exuberant young fellow. Standing one day with some other
young men on the street, he saw a barrel of salt lying near the side
door of a store. Jumping up, he turned somersault over the
barrel, landing on his feet on the other side, a feat of great
agility. .

He looked around for the applause to follow. Dr. C. A.
Cox said, “that’s nothing, a cow could have done it.” Hardin
retorted: “A jackass couldn’t.” Said Cox: “A jackass did.
Whereupon Hardin was at him and they fought with fists until,
satished the insult was avenged on both sides, they shook hands
and left in complete friendliness.

On another occasion says the Captain, I played cards till far
into the night, winning straight along. | The next morning I
called upon my opponent for a settlement.

“You treated me in a very ungentlemanly manner last night,”
said this opponent, M. D. Hardin. “You're a liar,” said ‘the
Captain. Whereupon “Mr. ‘Hardin knocked me down and we
fought, gouging and kicking each other until we were tired.
Then we shook hands and forgot the whole thing.”

These were gentlemen of the old school and this was a sort
of code duello by which satisfaction was secured.

a eee

A Century of Wayne County, Kentucky 181

But tragedy stalked into the county on more than one occasion.
In 1886 the whole county was horrified by the story of Prewitt’s
crime. He had held a grievance against a man named Jarvis for
some time and going to Jarvis’s home in the eastern part of the
county he brutally slaughtered both Jarvis and his wife. Their
son, a child, escaped and ran a mile to a neighbor and spread the
alarm. He was quickly apprehended and trial with conviction fol-
lowed. It cannot be doubted that Prewitt was criminally insane.
The Monticello Signal of January 13, 1887, gives an account of
the hanging from which the following extract is taken:

“The hanging of Granville Prewitt brought the largest crowd
to town to-day that has been here for many years. It was esti-
mated at 4,000 persons and probably this was too small. They
began to come in last night and the hotels and livery stables were
crowded. This morning strange faces were seen on the streets
by sunrise. They came from all over the County and adjoining
counties. Some even from Tennessee were present. A more
excited and anxious throng was never seen. The crowd was
surging and pushing each other from one side of the town to
the other all day. Whenever any little commotion would arise
the whole mass of surging humanity would rush thither with .
eager expectation of seeing the doomed Prewitt.

“The gallows was erected in the rear of the court-house
yard, around which was an enclosure, rising two feet above the
platform. Everything was visible to the eager spectators until
after the trap was sprung.

“The beam to which the rope was fastened was 16 feet high
and the scaffold 7 feet high and 8 feet square. The fall was 4
feet and the rope with which he was hanged was 7% of an inch.

“There was scarcely a standing place unoccupied for 30 yards
around the gallows. Every tree, house-top and fence was covered
and so thickly that one barn-top was completely crushed in.

“Only 60 were permitted to enter the enclosure; tickets for
which were at a premium, selling at $5.00....

“Since the organization of the county only four men have
suffered the penalty of judicial execution within its borders. The
first was. David Gibbs convicted of the murder of Roger Oatts,

A Century of

WAYNE COUNTY
KENTUCKY

1800-1900

AUGUSTA PHILLIPS JOHNSON

THE STANDARD PRINTING COMPANY

INCORPORATED

LOUISVILLE KENTUCKY

PUBLISHERS

The reproduction of this book has been made
possible through the sponsorship of the Nicholas
Mercer Chapter, Daughters of the American
Revolution, Monticello, Kentucky.

A Reproduction by Unicrapuic, INC.
+400 Jackson Avenue
Evansville, Indiana +7715

Nineteen Hundred Seventy Two

Binding by
MopERN PreE-BInDING CoRPORATION
Portland, Indiana

|
:
|
|

HISTORY OF TAYLOR COUNTY. a

speech commenced at 6 o’clock two
minutes and ten seconds.

Judge Barbee arose and commenced
his speech at 5 o’clock and _ thirty-one
minutes. He wenton to give some
eases where there had been some per-
sous convicted of murder ou cireun-
stantial procf, that afterward the per-
son that was said to be murdercd made
their appearance. He brings his speech
to a close for supper at 6 o'clock and
twenty-fiye minutes, in P. M.

Now being the J0th of the same inst.,
at 8 o'clock and eght minutes, A. M.,
the jury was called, the Judge re-
sumes his spevel at 8 o’elock and forty-
nine minutes, He goes onto make a
great many suppositions about the
exse of murder under consideration,
and expounded the law that related to
aurder, and winds up at 9 o'clock,
fifty-seven and oue-half minutes, mak-
ing aspeech of 121 minutes and thirty
seconds, by telling the jury they would
feel bad if they were to convict the
prisoner, and after being hung for
killing Franees Murphy, and she was
tw eome back, or to appear alive and
well. He seems fo insiston the law
and eyiience being sufficient to acquit
the eriminal,

Now Judge McFernin commences
inatone thatmy pen can not de-
acribe. It was 9 vo’clock aad fifty-
sight minutes. He goes on to show
very plainly from the evidence that
Philip Murphy was the guilty man.
He spoke of the blood that rose
under those log heaps, and stated
that the prisoner thought that when
he bad burmed the body of his af-
foctionate companion, and beat the
bones to pieces, that he thought
thatthe work was complete; that no
eye could regognize them; but, ah!
says the Judge, he was mistaken;
there are physicians in our land that

cun tell you the difference between
the bones of a hog and a human. He
also mentioned that the Common-

e-
eee ed
i

wealth had proven that the sign th»

was present in the first murder, whe:

Cain killed Abell, was present in this
case,the green bottle fly, and It
made a great impression on the
jury and bystanders. Now he wound
up by saying that “I have discharged

my duty, be the consequence whet it
may.” Itis ll o'clock and ten sin-
utes, A. M., and at this period of his

- speech he stated tirat the proof was

much stronger than it was in the
case of Hamilton, cf Barren county,
that was hung. This struck the
mind of the surrounding crowd with
deep and melancholy interest Now
it being 1l o‘’clock and twenty min-
utes, he stopped for A. Hardin to
inake objections to the in-
structions that were agoing to be
offered tothe jury. At 11 o’clock
and thirty-four minutes then Me-
erin resumed his speech to make
out the guilt of the prisoner beyond
a reasonabls doubt. This should
huve been written before I wrote
the conclusion. He concludes his
speech at 12 o’clock and seven min-
utes, making a speech of one hour
and fifty-one minutes in length.
Now A. Hardin. Esq., commences

his speech at 120’clock and seven-
teen minutes and thirty seconds.
He made a atrong effort to break
down the chain of evidence; he at-
tacks Miss Parthena Underwood and
Miss Sally Johnson, this being th-
second time,and tries to build uj
his main chat.ce onthe testimony of
Mr. George Workman, that he,

Workmen, had been there all the
time, thatisinthe day time, and
had never seen or smelt anything
unusual about the place, After «
worthy effort of twenty-four inti-
utes and thirty seconds, the Coart
adjourned for dinner at] o’clock aud
fifty minutes,

baad

——_-

Now, after di:
Hardin resumes hi
in a very able, bu’
ner, bow the pris:

guilty, by saying

that ten guilty

ished than one in:

suffer. Now @ he
ibiriy-t WO *®iiek aay
ryman t go out,
speech again at
minutes and thirty
concludes’ his sp:
eitzhteen minutes «
making a speech -
and thirty-three
hours aud fifty-th:

Now Captain Ga:
Commonwealth’s
mences his speech
ty-three minutes
onds. He reasene::
and seemed to co:
circumstances tog:
sible manner, an.
the inconsistetier.
some of the lawye
in the case.

Now they — sto;
o’cloeck and forty
at 7 o’elock. thirty
thirty seconds, he
and gues on to shi.
dark deed; every?!
was dark; and stx
awful must the s:

peeracte of they ey

ag - erfe
oh fo egy set
ie ey
Parstors,
wy up the «
sanner, and -
10 san almost en
heart of ademon- |
by saving that he »
the Reyro boy tha’
of been the grzity
want ang liveug «
such a horpie «-
has not bad fe po.

i¢

ee =

to tell on you.
at will injure you
‘ead and gone, but
I did kill my
Now Mrs. Mason
im, what his old
«tl herto tell him.
‘me out like a man
and the rest of
to say: *‘Now,
aman and you
‘tid commit. the
had come along
pany, when we
nan, now at that
nink that we was
towether that 1
‘the, “DT had te
‘nel they must
av they can, for
‘f vannot say
-*s battle is al-
rough one,

‘¢ he, the
wanted to see
and had two
tj come and

*, although she
on that she

» he Was appre-
‘his deed he tad
ats suid by these
this matter. rhear
Ne tear when
were presented
vw they were
who was killed
. heaps, where
‘oO, nor did. it
ro 6eountenance at
i ste saw her dear
of the geaard, (),
ad weep ter poor
9, Parthena, it
nt for hum, for

hii be a@€ no bene.

ix cast, a he is
yorld and that uw a

! hailip Win i qaeem
er went oop cud

4 es lS is ane a onda

HISTORY OF TAYLOR COUNTY. 11

asked him if he wanted anything to
eat, so the criminal stopped and hung
his head a while, and said he did not
know. ‘‘Well,’’ said the jailer, ‘‘eould
you eat some pie and milk?’’ He re-
plied that he thought he could. Sothe
jailer went and gut somesfog dam, and
the criminal took a glasg.of milk aud
two pieces of pie, a few minutes be-
fore he was taken out of jail. He also
put a large chew of tobacco in_ his
mouth, and kept it in until just before
he was swung off, when he threw it
out of his mouth. The said Philip
helped the Sherlfi to fix for his exeen-
tion, and swung off like a bold soldier,
and died like a lainb; he did not seem
to mind it at all. For some time be-
fore the day of his execution, he said
in tho presence of the jailer and others
that if they did haug him they would
have a fat shoat to hang. Now we
may all reasonably suvpose that the
criminal was a man destitute of human
feeling, for when he was called to the
Court House for him to be tried for
the crime he had committed, and was
remanded back to jail, the jailer did
ask him: “Philip, I am going to ask
you a question. When you saw those
bones that were on the table, and
knew they were the bones of your
wife, and the bones that you had slept
with, ate with, walked with, and been
with, did you not feel bad?’’ ~~ His’ re-
ply was that he did not, and said it
without any echéck of conscience at all,
but seemed to be quite composed when
he made this answer.

This is the trial of Philip Taylor
Murphy, commenced on the 28th ult.
The Judge called for him and _ the
jailer brought him to the Court House
about 9 o’clock, A. M., and at about 11
o'clock tne Court decided on trying
him, and commeaced making up the
jury. It was very difficult to get a
jury made up, but at length the jury
was made and sworn, after which the

witnesses were called, about twenty in

Si ahh yi ale a

number, and among them were four
physicians. After the necessary ar-
rangement the the Court proceeded to
take evidence, which was somewhat
tedious. The proof was strong c¢ir-
ecumstantial proof, but no direct proof
inet ‘tote Lhe hones that were
four in these log heaps near his
house were pronounced by the pliysi-
cians to be the bones of a human be-
ing. Now it is about 3 o’¢lock, Pp. M.,
onthe 29th ult., the counsel com-
menced discussion of the case. The
debate was opened by S. Puyear, the
County Attorney. He went on to
show the guilt of the accused by. com-
menting on the evidence fin a plausi-
ble manner. After a speech of one
hour, two minutes and thirty seconds,
he coneluded by saying:

“Tf you, gentlemen of this jury, do
believe that the prisoucr is) guilty of
the charges set forth in the indietment
found by the grand jury to make outa
verdict of guilt; end, if on the other
hand, you believe from the law snd
evidence that has been detailed before
you are not sufficient to convinee you
of his guilt, you. on your oaths, will
have to find him not guilty.’

Eli Towles, for the criminal, ad-
dressed the Court and jury. Now. it
being 4 o’vlock, ten minutes and forty
seconds, he niade a strong effort. to
throw the evidenee of Miss) Parthena
Underwood and Miss Sally Johnson,
and finally the counsel on the side of
the defendant succeeded in doing it,
after a speech of fifty-one minutes and
twenty seconds. He left the ease with
the jury as far as he was concerned.

Now, at 5 0’clock and two minutes,
Monroe Adair arose against the crim-
inal, and addressed the jury in a very
solemn manner; quoted a great deal
ot Seripture and went on to revert the
conviction of the prisoner at the bar,
and after a speech of twenty-eight
minutes and twenty seconds, closed
by saying, “‘let there be justice done
te the eriminal.”’ The gentlenian’s

1 i Te Bi. tina INE! Atlin lw 08s 38

‘
=

Sims aichien tame tuts asthe oat a aa

Pe ae al

10 HISTORY OF TAYLOR COUNTY.

giying herany chance to make peace
with her God: but I hope the Lord
will pardon her for all the crimes she
has committed in this world. She was
about twenty-seven years of age.
when or about the time that IT killed
her. ©, my God, to that IT strayed
fromthe moral path of rectitude and
went on in sin and wickedness, until
if has’ brought 3 Al utimerv end.
Now, my young readers. | want) you
to take warning, and be aware of bad
company, and that intoxication is eal-
culated to bring any¥ man to ruin, if
they indulge in it too strong, as many

aA one does

Now. | will tell you all what did take
place between Mrs, Sally Mason as. it
regards conversation, She, Mrs. Ma-
son, Was at the jail door one day, and
was talking with the eriminal about
hitn killing his wife. ‘This eonversa-
tion did take place between them, af-
tersentence had been upon the erim-
inal, or te was condemned by the
Grand Jury. Mrs. Mason said to him:
“Phitip, Dam going to ask you one
question, and that is; Did any one of
your people help you to Kill and) burn
your wife??? and he replied that no
one helped him. ‘*Well,”* said she, “T
ani going to ask vou another question,
and if you do not want to tell it, you
need not say anything about it, but if

“any of them did help you, and you do

not want to tell. you say nothing about
it." So the criminal looked down, as
though he was looking on the door sill,
for some time, until LT spake to him,
and said: ‘Philip, I have heard it
said that silence gives consent.’’ Then
the criminal replied, and said: ‘Sally,
{ have not told you that they did help
me. I then said: ‘‘Philip, I do believe
that sume of your people did help you
to kill vour wife.’’? Now the criminals
brother, Henry, spake and said to
him: ‘‘Philip, you may tell anything
on me that you want to tell.’’ Philip
stopped talking to Mrs. Mason, and
said: ‘‘Henry, do not get mad at me,

for I have nothing to tell on you.
father, or mother, that will injure you
or them after I am dead and gone, but
I do own that I did kill my
wife my own self.’’. Now Mrs. Mason
went on to tell him, what his old
mother had requested her to tell him.
She wanted him to come out like a man
and tell all about it, and the rest of
them. and went on to say: ‘‘Now,
Sally,if [was to killa man and you
Was with me when I did commit the
murder, and any one had come along
and eaught us in company, when we
were concealing the man, now at that
time would not they think that we was
inthe crime or deed together that I
had done. Now,’’ said he, ‘‘I had to
fight my own battle, and they must
fight theirs the best way they can, for
my hands are tied and I cannot say
one word. Although my battle is al-
most ended, it has been a rough one,
tow, for me.’’ Now before he, the
criminal, was hung, he wanted to see
Parthena Underwood, and had two
letters wrote to her, for to come and
see him, but she refused, although she
had pretended and let on that she
loved him so well before he was appre-
hended, and tried for this deed he had
committed, and it was said. by those
who knew all about this matter, that
Parthena never shed one tear when
she saw the bones that were presented
to her, although she knew they were
the bones of her sister, who was killed
and burned inthe log heaps, where
they were found. O, vo, nor did it
alter or change her countenance at
that time; but when she saw her dear
darling inthe hands of the guard, O,
yes, she could ery and weep for poor
Philip, her beloved. O, Parthena, it
was too late to lament for him, for
your lamentations will be of no bene-
fit to him for his die is cast, so he is
bound to leave this world and that in a
short time.

Now before the said Philip was taken
out of jail, the jailer went up and

A Ea vmiie th eiaRia bB aa

pak

asked hi
eat, sot
his head
know. ‘
you eat

plied thz
jailer we
the crim
two piec
fore he
put a lar
mouth, ¢
he was s
out of In
helped t
tion, anc
and died
to mind

fore the
in the pr
that if t!
have a f:
may all»
criminal
feeling,

Court H:
the crim
remande
ask him
you a qu
bones th
knew th
wife, an
with, at
with, dic
ply was

without

but seen
he made

This bs
Murphy.
The Jud
jatler br
about 9:
o'cloek t
him. ane
jury. It
jury ma
WAS mac
witnesse

roven that t the sign thac,
[1 the: first murder, wher
bell, was present in thie
en” “bottle - fly, and *

hat “I have discharged
RRO ENS 5" ai

eeeee and ten nile
od ut this Pp eriod 1 &
fied tliat ithe proof was
r than it was in the

this

urrounding ¢ crowd with

= the~ in-_
t mere. ‘agoing to be
jury. At. Ib o'clock
ir minutes: ‘then Mc-
Ki his speech to make
of the prisoner beyond |
doubt. >This should
it yefore” I. wrote)
: “concludes _his
clock and seven “min-
a speech ot’ One hour
ninutes in length. ;

dine “Esq... commences

SEE Abe: 5 gaat

{2 “olelock and seven-
cand “thirty. seconds.
rong ‘effort. to break
n of evidence: he cat-
‘thena Underwood and
inBoONn, this being the
nd tries to ‘build up
ce on the testimony of
Workman, that he,

been there all the

the day’ time, and _

nh or smelt anything
the ‘place, After u
ef twenty-four min-
seconds, the Coart
dinner at 1 o'clock und

he
at Ampression ‘on the
anders.” Now he wound ©

he consequence what it_

lton, of Barren county, oe
forages ieeitick the. ia
aucholy. interest Now i
jock. and ‘twenty. mine
ped foray “Hardin to- ~

Now, fatter dinner” was over, A.
Hardin resumes his speech, showing
in a very able, but a mysterious man-
~ ner, how the prisoner might not be
guilty, by saying that _it was better
that ten guilty persons go unpun-
ished than one innocent man should
suffer. Now it being. 4 o’clock and
thirty-two and one-half minutes, a ju-
ryman to go Out, now he resumes his

~~ speech again at 4 o’clock, thirty six
‘ _ minutes and thirty socondey he now
= concludes his speech at 5 o'clock,

- eighteen minutes and tae meconds:

- making a speech of the length of 200
\ and thirty-three minutes, or three
_ “hours aud fifty-three minutes.

Commonwealth's Attorney; “he coin-
mences his speech at 5 o'clock, twen-
’ ty-three minutes and forty-five see-
- onds. He reasoned well on the subjeet,
_ and seemed to connect the my sterious
cireumstances together in a very plau-
_ sible manner, and accounted for all of
_ the inconsistencies of the evidences as
- some of the lawy ers seemed to make
_in the ease. ages
Now thee stop for supper at 6
o’elock and forty-fiye minutes, and
at 7 0’elock thirty-eight minutes and
_ thirty seconds, he resumes his speech,
sand goes on to show the horrors of tha
dark deed; everything was still and it
‘was dark; and stated in a manner how

"tg

person if they could have. seen him
burning his wife iu them log heaps.
The whole Court House seemed still,
and all of those around seemed to be
deeply interested in the ease; and in-
“winding up the ease he spoke ina sol-
e€uul Manner, and exclaimed in a voice
‘ that was almost enough to melt the
heart of a demon—he closed his speech
by saying that hu wished to God that
_ the negro boy that hung himself might
_ of been the guilty one, for he did not
want any living being to be guilty of
“such a horrible crime as it _was; that
hus not bad its ebaeee in the. gr nole,

HISTORY OF TAYLOR COUNTY..; ware ky Be

Now Captain Gaiter, he being fie’

And. they seemed to fullymappreciate

< “cloc kin the ala,

_durity w -orship, every eye was turne
“awful must the scene haye been to any —

; to their looks, that there were

history of ih pa He roti that’ the
blood ran vold in his veins. Judge ye
then what must have been the scene
it the blood ran cold in his veins, for i
he was a brave (aptain in the Mexican.
war. He now concluded by saying:
**May God wait.on you in the. hour. of.
your tribulation.’? <=» oe
It being 8 o'clock, ehirty mules
and thirty seconds, miaktie ae a speceh,
of 1) minutes and fifteen. seconds. ieee
The j jury retires to ‘their room “now,
8 o’elock and thirty-two minufes, ‘after
a little it was heard by a gentleman i in.
the Court House yard that there” were 2
eleven in favor of hanging him, and _
one in favor of not hanging him. Se
about I o'clock the jury came iu and
was cOaducted to the tavern, where”
they were locked: up during the night:
aud the next morning, it} being Suns-
day, August 30, they. rere seen start--
ing off together, going a south course.
tu the grove. What. asolemn scene — > -
the destiny ofan individual hanging, &
On their say-so. “And what an impor es
tant duty did they have to discharge

it, for peir Intentions seemed to ine
eate, yea to the Gareless: observe ry
that there was something of a_ Serionts
hature pervading their minds.” SAt! IL 2
they came “to” ‘the
aN God, and they all set together .

hiinse

upon them, to say anything i in

thing of the deepest interest the
day was 4, based in great ‘solemnity

purer litter as Piney fell. upo
Temple of Justice, at length they
tirely faded out Foe our view, “the
bells pexan to Boh their dole ‘ful tun

baa eee Oe

140 KENTUCKY REPORTS [Vol. 283.

fine and imprison him within these limits in its reason-
able discretion.

Laurel county, according to the indictment, is a local
option county and has adopted local option therein as
provided for in sections 2554c-1 to 2554c-42, Kentucky
Statutes, being chapter 1 of the Acts of 1936.

_ Subsection 17 of the act provides that when an elec-
tion is held in the entire county and the majority of the
votes cast are against the sale, etce., of intoxicating liq-

uors, then the provisions of the Prohibition Act shall be
applicable.

The punishment provided under section 2554c-28 for

a first offense committed in violation of this act, such as

this case appears to be on the face of the indictment, is

a fine of not less than $20 and not more than $100 and,

‘if a person, he shall in addition be imprisoned in the

oy jail for not less than thirty nor more than sixty
ays.’’

However, the punishment authorized under the in-
struction given by the court, under which appellant was
found guilty of violating the Local Option Law, seem-
ingly was based upon section 2554b-195 of the Alcoholic
Beverage Control Law, contained in Carroll’s Kentucky
Statutes, 1939 Edition, supplemental to the 1936 Edi-
tion of the Statutes.

_ This section, under which the court here, we con-
ceive, erroneously instructed the jury, fixes the penalties
for the violation of the different sections of that act or
for ‘‘trafficking in alcoholic beverages without a license’’
and covers altogether a different territory from the pro-
visions of the Local Option Law, providing penalties for
the illegal sale of whisky in local option territories.

Clearly the offense of which the accused was here
found guilty under the evidence was for the violation of
the Prohibition Act, the punishment for which was
therein expressly provided for as above stated.

Such being the case, the court should have in-
structed the jury under section 2054¢-28, providing the
penalties for violation of the Local Option Law.

We therefore conclude that the trial court, in so in-
structing the jury, committed a reversible error, for
which the judgment, based thereon, must be, and it is.
reversed.

Phillips v. Commonwealth 141

Phillips v. Commonwealth. |
May 21, 1940.
Appeal from Jefferson Circuit Court
Criminal Division.
Loraine Mix, Judge.

1. Homicide.—In a prosecution against a negro for the murder of

his common-law wife, defendant’s evidence, including testimony
that an herb doctor told him that his wife had fed him some-
thing, and that he became ill, suffering from disorders of the
stomach and head, held insufficient to require an instruction on
defendant’s mental condition.

9. Criminal Law.—A plea of not guilty in a murder case includes

all defenses, excusable, justifiable, or otherwise, whereas a plea

of guilty excludes all defenses.

John H. Geer for appellant.

Hubert Meredith, Attorney General, and W. Owen Keller, Assist-
ant Attorney General, for appellee.

Opinion oF THE Court By Cuter Justice Rattirr—
Affirming.

Appellant has appealed from a judgment of the
Jefferson circuit court sentencing him to death for the
murder of Ella Williamson, his common-law wife with
whom he had lived about nine years, excluding two or
three months immediately preceding the homicide. In
the motion and grounds for a new trial a number of
alleged errors are set out, but in brief of appellant they
are all abandoned except one, viz., that the court com-
mitted error in failing to instruct the jury on appellant’s
mental condition.

When the case was called for trial appellant entered
a plea of not guilty, but at the close of the evidence for
the Commonwealth he voluntarily withdrew that plea
and entered a plea of guilty. However, notwithstanding
the plea of guilty he took the witness stand and testi-
fied in his own behalf. It appears, however, that he tes-
tified before the jury in the hope that his evidence might
tend to mitigate the penalty.

Appellant testified to two states of fact; One was
that when he entered or was attempting to enter the
room where he shot deceased she met him at the door
with an iron poker and assaulted him with it and he shot
her in self-defense. However, the evidence of the Com-
monwealth’s witnesses was overwhelmingly to the con-

/40 See TE CV D1 (zd) /ol4

*ol6t 692 ATOL | ucsaerzger) dS AY *oeTe ‘qty Syoetq SAauey *‘SdTTIIHd

TRIAL

APPEALS

LAST WORDS

y . 4 A
UA g i- FPori.g AW tttihit to. LE fe, W/L On£zLez Ltd - Qrpelrore
iG

“7 CLAA L- CFF Law A
7 s ;

EXECUTION

SOURCE

’ Cte s/o t

NSF -7/) 0 Lolo
ee ee

FRANK NEWTPN OFFICES SUPPL¥F-DOTH

1 KENTUCKY REPORTS [Vol. 283.

trary and it is admitted in brief of appellant that the
Commonwealth’s evidence was sufficient to sustain the
verdict. Hence we need not enter into a detailed discus-
sion of the evidence. Other matters testified to by ap-
pellant and upon which the insistence for the instruction
dealing with his mental condition is based, are in sub-
stance that he became ill, suffering from disorders of
the stomach and head. He said an ‘‘herb’’ doctor in
Indiana told him that his wife had fed him something.
The doctor referred to by. appellant was not intr oduced
as a witness and we have no evidence bearing on that
point except the bare statement of appellant. that the
‘herb’? doctor gave him that information, or rather an
opinion of the doctor not based upon any facts so far
as the record discloses. If it be conceded that appellant
had been fed something, the facts testified to by him
were wholly insufficient to show that the deceased was
the guilty party. It is not contended for appellant that
there is any merit in this evidence. The only contention
is that his evidence was so strange and unusual that it
was sufficient to show that appellant was of a low-grade
mentality and a mental derelict and suffering from the
superstition, whether it be true or not, that the deceased
had poisoned him. Appellant and deceased were ne-
groes, and the further argument is that appellant being
born ‘of a race who a few generations ago came from
the jungles of Africa with all the superstition and ‘‘voo-
dooism,’’ characteristic of the primitive colored race,
uncultured and unlettered, believing in no hereafter and
that life is only a survival of the “fittest, and once his
strange and unusual evidence is taken into considera-
tion, it is apparent that he was a man of low-grade men-
tality and being overcome by these strange delusions
and super stitions, the killing of deceased was not w illful,
intentional or malicious, but the result of brooding and
a mental strain with which he could not cope at the time
of the killing. However, once the purpose of appellant’s
testimony relating to the alleged cruel treatment in-
flicted on him by “deceased i is taken into consider ation,
his story does not appear to be so strange and unusual
as counsel represents it. Evidently the purpose of his
evidence was to appeal to the sympathy of the jury by
impressing on them the eruel and inhuman treatment
he had suffered at the hands of the deceased in the hope
that it might mitigate the punishment inflicted upon him.

pw |

>.
Sell v. Pierce 148
It may be conceded that appellant’s mentality or in-
telligence is below average, but a reading of his testi-
mony does not convince us that he was insane or so des-
titute of mental capacity as to require an instruction
on insanity or otherwise submit to the jury his mental

condition as a defense to the offense charged, to which
he had plead guilty.

A plea of not guilty includes all defenses, excusable,
justifiable or otherwise; while on the other hand a plea
of guilty excludes all defer nses. However, aside from
this legal theory we have considered the evidence and
find it insufficient to require an instruction dealing with
appellant’s mental condition. But notwithstanding the
plea of euilty, the court gave to the jury a self-defense
struction and all the usual instructions given in homi-
cide cases except on insanity or otherwise submitting
to the jury the question of appellant’s mental condition.
He had the benefit of his self-defense story, the only de-
fense offered in his evidence.

I‘inding no error prejudicial to appellant’s substan-
tial rights, ‘the judgment is affirmed.

Whole Court sitting, except Judge Rees,

Sell et al. v. Pierce.
May 21, 1940.

Appeal from Clinton Cireuit Court.
J.S. Sandusky, Judge.

1. Partition—Where one-acre tract included in petition for sale of
lands for distribution of proceeds to heirs of deceased owners
had been conveyed by owners and deed recorded, purchaser of
land at sale had constructive notice of deed and conveyed to its
assignee only an equitable title in property subject to the deed.

2. Partition—Where petition for sale. of lands of deceased owners
included one-acre tract which owners had conveyed by deed
which had been recorded, purchaser of lands from successful
bidder at sale having knowledge of recorded deed, and that pur-
chaser of one-acre tract resided thereon and claimed title to it,
was not entitled to possession of one-acre tract.

3. Judgment.—Where judgment ordering sale of land described
land by reference to adjoining landowners and commissioner’s
deed did likewise, an attempt to show that judgment was not
intended to include one-acre tract conveyed by deceased owners

490 Ky.

judgment of the County Court before juris-
diction of the Circuit Court is invoked ex-
cept where the sheriff refuses to settle or
absconds, Fidelity Deposit Co. v. Logan
County, supra; Fidelity & Casualty Co. v.
Breathitt County, 276 Ky. 173, 123 S.W.2d
250. A circuit court has no authority to
make a settlement with a sheriff in the first
instance. Rice v. Bradley, 203 Ky. 775,
263 S.W. 336.

We are of opinion, therefore, that the
court should have sustained the demurrers
to the petition as amended.

Since it is probable a proper course may
be pursued upon a return of this case (Bush
v. Board of Education of Clark County,
supra), it seems well to consider some of
the questions of evidence raised on the ap-
peal.

[7-9] The testimony that the deceased
sheriff had agreed that the amount shown
on the proposed settlement was due is
competent as an admission against interest.
The appellants have argued that the county
officials and others who gave that testimony
are disqualified as witnesses under subsec-
tion 2 of Scction 606, Civil Code of Prac-
tice, because they are interested, being tax-
payers, and were testifying as to transac-
tions with a deceased person. In such a
case as this, the true test of disqualifica-
tion is that the witness has “a present, cer-
tain, and vested interest, and not an inter-
est uncertain, remote, or contingent,” or
that he would gain or lose directly and im-
mediately thereby. Truitt v. Truitt’s Adm’r,
290 Ky. 632, 162 S.W.2d 31, 35, 140 A.L.R.
1427; Trevathan’s Executor Vv. Dees’ Exe-
cutors, 221 Ky. 393, 396, 298 S.W. 975.
The interest of these witnesses is too re-
mote and inconsequential. Thus, we have
held that a policyholder in a mutual insur-
ance company is not disqualified by such
interest to testify for the company as to
the statements of the deceased insured per-
son in an action on a policy. New York
Life Ins. Co. v. Johnson’s Adm’r, 72 S.W.
762, 24 Ky.Law Rep. 1867. And citizens and
taxpayers by reason of that fact alone and
because of such pecuniary interest are not
to be excluded as jurors in the trial of ac-
tions by or against a city or county. City
cf Pikeville v. Riddle, 191 Ky. 231, 230 S.
W. 37.

[10] Arthur Dixon, the auditor and
commissioner appointed by the Fiscal Court
to make the settlement, never did testify
that his statement was correct. Ile told

192 SOUTH WESTERN REPORTER, 2d SERIES

where he got the figures, but the original
documents or the records do not appear to
have been produced or presented to the
court or to counsel for the defendants. This
testimony appears incompetent in some par
ticulars, but principally because of its hear-
say nature, i. e., because he did not testify
as to what the official records revealed but
rather did testify what his statement
showed. Edelen v. Muir, 163 Ky. 685, 174
S.W. 474; Bush v. Board of Education of
Clark County, supra. The bases and meth-
ods of accounting in surcharging a sheriff's
settlement, as well as a consideration of
competency of evidence, are stated in Bush
y. Board of Education of Clark County,
supra; Livingston County v. Dunn, 244 Ky.
460, 51 S.W.2d 450; Knox County v. Lew-
is’ Administrator, 253 Ky. 652, 69 S.W.2d
1000.

[11,12] The method by which the com-
missioner arrived at an indebtedness of
$1,000 for 1941 taxes, that is, by averaging
the amount collected for three previous
years, is not proper. Legal rights are not
measured by the law of averages even
where one is unable to prove his cause or
to establish his defense. Barker v. Stearns
Coal & Lumber Co., 291 Ky. 184, 163 S.
W.2d 466.

Other questions are reversed.

The judgment is reversed on both the
original and cross-appeals.

Ww
© E KEY NUMBER SYSTEM
T

301 Ky. 531
POOL v. COMMONWEALTH.

Court of Appeals of Kentucky.
Feb. 5, 1946.

{. Homicide €=309(4), 341

In murder prosecution against defendant
entering guilty plea, failure to instruct
jury on voluntary manslaughter was rever-
sible error, where defendant did not know
the effect of the guilty plea and his test!-
mony disclosed that he was guilty of man-
slaughter and not of murder.

2. Criminal law C274

In murder prosecution against defend-
ant who was of low mentality and did not
understand the effect of his plea of guilty,
trial court should have changed plea to

POOL v. COMMONWEALTH Ky. 491
Cite as 192 S.W.2d 490

“not guilty” after hearing defendant’s evi-
dence disclosing that defendant was guilty
of manslaughter and not murder.

3. Criminal law €=824(1)

In criminal actions, the trial judge
must give the whole law of the case, and
the defendant is not required to make a
request therefor.

———

Appeal from Circuit Court, Christian
County; Ira D. Smith, Judge.

Charlie Pool was convicted for murder,
and he appeals.

Reversed.

White & Clark, of Hopkinsville, for ap-
pellant.

Eldon S. Dummit, Atty. Gen., and H. K.
Spear, Asst. Atty. Gen., for appellee.

DAWSON, Justice.

The appellant was indicted for the will-
ful murder of Mrs. Virginia Harris. He
entered a plea of guilty and was given the
death penalty. He urges the following
grounds for reversal:

First: The court misinstructed the jury.

Second: The verdict was against the
law and the evidence.

The facts are as follows:

The appellant and deceased’s husband
were tenants on the farm of George Harris
in Christian County, On the afternoon: of
April 26, 1945, appellant went to a barn on
the Harris farm where Mrs. Harris was
milking. According to the testimony Mrs.
Harris asked the appellant to go to the loft
and throw down some hay. He asked her
if she would go up first. Whereupon, she
picked up a small plank and struck him.
He took the plank from her and beat her

over the head with it, causing the injuries —

which resulted in her death.

Shortly after the appellant’s arrest he
made the following confession:

“May Ist, 1945. I, Charlie Poole, make
this statement in the presence of W. E.
Rogers, Jr., Howard Major and George
Harris, fully and voluntarily, without
threat of any harm being done me, nor
without promise of immunity of prosecu-
tion.

“On Thursday, April 26th, 1945, I had
been drinking a good deal. About 5 o’clock
in the evening I went down to the stable
on Mr. George Harris’ farm where Mrs.

Virginia Harris was milking; she had her
little boy about two years old, and her
daughter about five years old with her. I
went into the stable where they were, and
I asked Mrs. Harris, ‘How about going up
into the loft with me’. She got mad and
threw a plank at me. I then picked up
the plank, which was about three feet long,
3 inches wide, and an inch thick. I hit her
on the head hard with the plank three or
four times; she fell down staggering, and
I picked her up and carried her just out-
side the stable and put her on the ground
over the gap. I then went back into the
stable and let the mules out; one of them
knocked the little girl down. I did not hit
her. After I had hit Mrs, Harris I did not
have intercourse with her. I then left the
stable and went over to my house and
stayed awhile. I then went up to Mrs.
George Harris’ house and borrowed a dime
to get a gasget for the tractor, it was then
about 6:30. I came to Hopkinsville, Ken-
tucky, got the gasget and I then began to
worry about what I had done. I told Mr.
Harris that a mule had hurt Mrs, Harris.
I don’t know why I killed Mrs. Harris, I
must have lost my mind.
Ilis
“Charlie Pool”
Mark

Appellant, being financially. unable to
employ counsel, was represented by two at-
torneys appointed by the court. They have
filed a very short brief indicating that they
perceive no errors in the record. On the
other hand, the Attorney General has taker
the position that the appellant did not have
a fair trial. He argues that the testi-
mony of the appellant at the trial was, in
effect, a change of his plea of guilty to
willful murder to voluntary manslaughter,
and that the court erred in failing to in-
struct the jury on voluntary mansjaughter.

The only instruction given the jury by
the court was one of willful murder. The
appellant testified that he resided on the
farm of George Harris and had lived there
all his life; that he was forty years of age;
that on the day of the crime he went to
Hopkinsville and bought some whiskey and
drank a part of it in the forenoon. He
said that he drank some more of it about
4 o'clock in the afternoon, shortly before
he went to the barn where his victim was
milking. The pertinent part of his testi-
mony is as follows:

“* * * Al I got the clevis. Mr.
Boyd’s wife called me.

ee an © Mkt eae A
pt hep 5 YAyg “9

“ea

Bien Sims f~ yas

apse

ade icdastliby

this ane

Va ‘ "%

all jerky junkies

sty trip to the Station

KENTUCKY

HASN'T USED

THIS CHAIR

THE COURIER-JOURNAL — SATURDAY, FEBRUARY 29. 1992

652 =«&Ky.

knife in his other hand. Moss testified that
it was necessary in his defense to kick
Abbitt three times as Abbitt attacked him.
He said Abbitt’s head hit on the table and
again on the kitchen sink. Abbitt fell un-
der the sink. Moss denied striking Abbitt
with either of two pieces of metal water
pipe, one of which was found to have had
blood stains on it. A pathologist who per-
formed an autopsy gave the cause of death
as “subdural hemorrhage due to blunt
forced trauma.”

Moss was apprehended the following day
some 14 miles away huddled on the floor
of. a “privy” behind a colored country
church. Two knives were found in the
yard where Moss was arrested, which,
Moss said, were used by Abbitt in attacking
him. When told that Abbitt was dead,
Moss dropped his head and said, “I am in
a world of trouble, ain’t I” and “Well,
that’s one of the worst things I have ever
done.”

Appellant urges that prejudicial evidence
as to another offense was adinitted.

On cross-cxamination, Moss was asked:

“Do you remember the time after
you got back from the penitentiary
that Mr. Abbitt drove you out to the
cemetery, didn’t you make him drive
you out there by sticking a gun in
the back of his neck?”

Moss denied having gone, but admitted
having been arrested for being drunk. Ilis
mother also was asked on cross-examina-
tion concerning this incident. Moss was
released from the penitentiary about 45
days prior to the killing.

In Spencer v. Commonwealth, 107 S.W.
342, 344, 32 Ky.Law Rep. 880, evidence
of a difficulty between the appellant and the
deceased which occurred two months be-
fore the homicide was held to be admissible
“to prove ill will or malice on appellant’s
part toward deceased * * *.” Again, in
Lewis v. Commonwealth, 312 Ky. 191, 226
S.W.2d 934, testimony concerning the ac-

832 SOUTH WESTERN REPORTER, 2d SERIES

cused’s conduct and statements made about
two months prior to the fatal shooting was
held competent to show motive and state
of mind. See also Perkins v. Common-
wealth, 227 Ky. 129, 12 S.W.2d 297; Wood-
ard v. Commonwealth, 228 Ky. 254, 14 S.
W.2d 773; Carter v. Commonwealth, 258
Ky. 807, 81 S.W.2d 883.

[1] The evidence complained of as br
ing prejudicial was properly admitted as an
exception to the general rule, under which
appellant contends that it is inadmissible.
It showed appellant’s state of feeling to
ward Abbitt and is admissible for the pur-
pose of showing who commenced the diff-
culty. Shepperd v. Commonwealth, Ky,
322 S.W.2d 115; Roberson’s New Ken
tucky Criminal Law and Procedure, Sec-
ond Edition, Section 434, page 575.

[2,3] Appellant contends that the evi-
dence is insufficient to sustain the verdict
in that it fails to show malice. “Malice
aforcthought” has been defined as a pre:
determination to do the act of killing with
out legal excuse, and it is immaterial how
suddenly or recently before the killing such
determination was formed. McHargue ¥
Commonwealth, 231 Ky. 82, 21 S.W.2d 11
See Turner v. Commonwealth, 167 Ky
365, 180 S.W. 768, L.R.A.1918A, 329, fot
a history and explanation of the phrase.

A reading of the testimony in this cas¢
reveals the ill will of Moss toward the de
ceased because of his marriage to Mos*
mother. This feeling was expressed soor
after he was released from prison am!
again on the day of the killing. The cf
cumstances of the killing and the nature
of the injuries inflicted, while not conc!
sive, are shockingly indicative of strom
ill will. Appellant’s statements after bein¢
arrested show a realization of wrong 4°
ing. The circumstances of this case aft
such that every element of murder has bee*
sufficiently proved and the evidence ful
sustains the verdict. Byrd v. Commor
wealth, Ky., 283 S.W.2d 191, It shew
be noted that this suggested error has b®

ser

aa ceca

BROTHERS v. CASH Ky. 653
Cite as, Ky., 332 S.W.2d 653

considered even though no motion for a
directed verdict was made at any stage of

the trial., Bowman v. Commonwealth, Ky.,
290 S.W.2d 814.

[4] The final ground urged for reversal
is that the trial court erred in denying ap-
pellant’s motion for a new trial based on
newly discovered evidence in the form of
the affidavit of Woodrow Moss, appellant’s
brother. Appellant has been confined in
the Henderson County Jail since Novem-
ber 8, 1957, He was tried on May 22 and
23, 1958. The affidavit of his brother was
presented on June 19, 1958. In substance,
Woodrow Moss stated that he had watched
the altercation between appellant and de-
ceased through the window of the house;
that he saw deceased attack appellant with
his knives and saw appellant repel him;
that he thought they were drunk, and when
appellant left, so did he, thinking no more
about it; that he left town that same night;
and “it was almost two months later that
lever knew that Charles Abbitt was dead,
It was might near 1958 before I knew Kelly
was charged with the murder.” '

Counter-affidavits of the Common-
wealth’s attorney and sheriff were filed,
from which it appears that Woodrow Moss
was confined in the same jail on December
23, 1957, and again from March 4 to 14,
1958, He again was in the same jail from

June 4 to 9, 1958, after appellant’s convic-
tion,

The statements of Woodrow Moss are
highly improbable. Despite his knowledge
of appellant’s trouble, he failed to come
forward and testify at the trial or until
‘ome time after the trial. There was a
complete lack of diligence on the part of
‘ppellant since he had an opportunity ta
learn from his brother any helpful infor-
mation while Woodrow was in the same
jail twice prior to the trial. The affidavit
fled fails to show when Woodrow in-
formed his brother of his knowledge or
why he did not disclose it prior to the trial
after he learned appellant was in trouble.
Under these circumstances, the ‘statements

contained in the affidavit are of little or
no probative value. The trial court was
justified in denying the motion for a new
trial on the ground of newly discovered
evidence.

In fairness to the counsel who have
briefed this case on appeal for appellant,
it should be noted that they were not the
trial counsel.

Judgment affirmed.

Ernest E. BROTHERS, Jr., an Infant under
the Age of 7 Years, by Ernest E. Brothers,
Sr., Father and Next Friend, Appellant,

Vv.

John A. CASH, Albert M. Laughner, t/d/b/a
Laughner Chrysler & Plymouth Company,
and Amos Tomlinson, Appellees.

Court of Appeals of Kentucky.
Oct. 16, 1959.

Rehearing Denied March 25, 1960.

Action for injuries sustained by five-
year-old pedestrian when struck by defend-
ant’s automobile. Verdict for the pedestri-
an in Circuit Court, Hardin County, J. W.
Hodges, J., set the verdict aside and he ap-
peals. The Court of Appeals, Clay, C., held
that the evidence of the defendant's negli-
gence was insufficient for the jury.

Judgment affirmed.

1. Automobiles €=245(8)

In an action for injuries sustained by
a five-year-old pedestrian when struck by
the automobile of the defendant, evidence
of negligence of the defendant was in-
sufficient for the jury. CR 50.02.

2. Automobiles €>162(1)

Motorists are not insurers of children.

SION ee 9 te ames ree

‘THERE WAS NO OUTC

RY.

YOU COULD NOT TELL WHEN HE PASSED

TO DEATH.’

KENTUCKY’S

LAST

EXECUTION

In 1957 a persistent felon named Kelly
Moss was released from the Kentucky
State Prison in Eddyville. Six weeks
later in his hometown of Henderson, he
visited fearful violence on his 74-year-
old stepfather, Charles Abbitt. A power-
ful man, Moss was 30 years younger
than his stepfather; he probably could
have killed Abbitt with his bare hands.
Instead, he used a pipe to bash his skull.

Moss pleaded self-defense, claiming
the old man had a gun. Jurors were
unimpressed. Upon conviction, Moss
was sentenced to die in the electric

He was hardly unique: Since christen-
ing its electric chair in 1911, Kentucky
had electrocuted people at the rate of
one every 100 days or so.

Less than a year before Moss killed
his stepfather, three Louisvillians were
executed on. the same. night. That.

threatened the state record of
seven, set on July 13, 1928. .

One thing about Moss was unusual —

andunforeseeable: He would be the last

lian Carroll (ater governor), sued. the-
Si So ee

Kentucky’s. landmark school-reform
case. He is now acting director of Ken-
tucky’s Department of Public Advocacy,
charged with keeping death row prison-
ers from execution. But on March 1,
1962, he was an unknown state function-
ary, visiting Eddyville to witness the
electrocution of 48-year-old Kelly Moss,
scheduled for a few minutes past mid-
night.

This is an edited version of Corns’
recollections, as told to the writer:

Kelly Moss’ mother was the only per-
son who had visited him during the time
I-was working the case. Before the ex-
ecution, she had said she didn’t want to
come and see him. She used very harsh,
profane language. She could chip the
bark off any tree with just her language.
She said she wasn’t coming anymore.

As I recall, somewhere around 6:30 or

7, we were sitting inthe warden’s office, :

and a guard advised the warden that
Kelly’s mother had arrived and was in-
sisting she see him. She had brought

some minister with her. They came in. -
Mrs. Abbitt was in her usual fit of 2

yelling, shouting, cursing, d
everything. F * e,
Warden (Luther) Thomas-was avery
kind, gracious, soft-hearted fellow... .
He said, “It’s just five hours before we
execute her son. Even though the rules

‘say she should have made her final visit ..:

24 hours ago, I’m just going to have to
let her go see him.” ;

"He said, “We've worked so hard to get

' Kelly calmed down. He’s in a good state

‘of mind.”As good as you could be in
civil rights. In court, Moss challenged © those circimstances, in my opinion.

‘his pants to show’

state had already:

the tear-gas pellet and allowing him to
lie in his cell for two days; him
tothe electric chair, amount-

, he
ed ta double le argument
didn’t Scand te strane: but his

was clear-for ‘his ¢xecution. %

. January, :
eda warrant

Well, Mrs. Abbitt no sooner gets down

poe there (to Kelly’s cell), and this minister
Praye®’. is with her. Kelly has got his plate on his

lap. As soon as he sees his mother, he

claimed the EF
tried ‘to kill him. by. shooting him with *thT0WS the plate up against the ceiling.
gas

He said, aa are you doing here, you
: te) —?

clectnggited before sunrise on March 2,."" But ie candor, the minister seemed so

. Buy exe

Na
Lee

come back and be with Mrs.
he didn’t want to leave. Warden

ciel. ooo Dire to ests Puuric sy bNor es Aare Te cote

Thomas said, “Let's make it as easy for
her as we can.” She hadn't had anything
to eat, so we sent out somewhere; I
think Warden Thomas provided the
money out of his own pocket to buy her
a meal. He unplugged the clock in the
room where he asked the lady — or two
ladies — to try to keep Mrs. Abbitt
company.

An hour or two later Mrs. Abbitt sud-
denly realized the clock had been un-

_ plugged. And she really went into an-

other verbal and physical tirade and
stomped or hit one of the ladies on the
foot with something so hard she broke
her foot, or her toe, and we had to get
her taken care of.

Then we went ta the cellblock, oh, five
or 10 minutes before the execution. They
had an observation chamber there; the
glass goes almost all the way to the
floor. So you stand within 20 feet, per-
haps less, of the electric chair.

Kelly came in wearing pajamas and
house slippers. The guards had to make
the electrical attachments on the feet
and the arms. They had sponge rubber
attached to the electrodes. Apparently
they had been washed with some sort of
solution. When they clamped those on, a
little water dripped in one of Kelly’s
house slippers, and he just cursed every-
body out good for getting water in his
house slippers.

They were very businesslike, yet they
were very gentle with them.... You
could tell they had a sense of compas-
sion for him. It was not done with any
vindictiveness, or anything like that.
Even when he cursed over getting water
in his shoe, no one fussed at him.

He was sitting down in the electric
chair. They put an electrode on his head;
his head had been shaved, just. a little.
They made the connection on the arms
and put a little cloth over his head. The

inister gave a brief prayer and stepped

There was a small closet-like area for

would merely sit rigidly in the chair.
Then when they would switch, he would
slump, then sit back up erect.

It happened so quickly. So quickly: I
mean, you. hardly know it's come and
gone, because no sooner did the minis-
ter step outside the door, the switch was
pulled, the doctor went in and ‘pro-
nounced him dead, the mortician was

E
it
‘

right there at the door and took him
away. I would say 300 seconds, five
minutes from the time the prayer started
until he was gone. ‘
In defense of Kelly, he took it, I
thought, very stoically, after that one
outburst about the water in his shoe.

I thought him to be very intelligent. I
would just characterize him as a very
mean person, physically abusive. He
never indicated any remorse at all, or.
any change of heart. I would have
thought that by the time of the execu-
tion, you wouldn't be so aggravated that
you’d curse out your mother, throw your
plate against the ceiling, or if you got
water in your house shoe, it would be a
big issue. People might say, “Well, he
was not competent mentally.” But he
was talking just as rationally as you and
I are now. He just seemed to be a very
mean person.

Well, I used to get an awful lot of
letters from his mother. She was aware
of the fact that Assistant Attorney Gen-
eral Savage had died of asphyxiation.
And she used to write me on toilet tissue
about once a month. They were big

letters; back in those days for 24 cents,

you could send a heck of a letter. :

She’d write on toilet tissue, and she’d
always conclude by saying, ‘Perhaps
your chimney is stopped up tonight. I
hope so.”

Male death row inmates are housed in
this area at the Kentucky State
Penitentiary at Eddyville,

~~
TU ULAN

“saturday, Feb. 29, 1992/ SCENE Page-9

valle , 9

Jens

650 Ky.

the compensation which would be due the
employee. Thus the claim made more than
a year following the accident but less than
a year following suspension of voluntary
payments was not barred by limitation, due
to the provision in 4914 Kentucky Statutes
(which contained that part of KRS 342.185
quoted above) extending time for filing a
claim to one year after the suspension of
voluntary payments. This case controls the
point under discussion in the one at bar.
Appellant should therefore be allowed to
be heard de novo on‘his claim before the
Board.

Wherefore, the judgment is reversed and
this case is ordered remanded to the Board
for a hearing on appcllant’s application for
an adjustment of his claim.

332 SOUTH WESTERN REPORTER, 24 SERIES

trial on ground of newly discovered evi
dence in the form of an affidavit by defend
ant’s brother where the statements con
tained in the affidavit were of little or ne
probative value.

Judgment affirmed.

1. Criminal Law @=371(4)

Where on cross-examination defen
ant was asked “Do you remember the tity
after you got back from the penitentiary
that deceased drove you out to the cem*
tery, didn’t you make him drive you ov
there by sticking a gun in the back of he
neck?” the evidence was properly admitte
as an exception to the general rule exclv!
ing evidence of another offense for th

MOSS v. COMMONWEALTH Ky.
Cite as, Ky.,

‘earned defendant was in trouble, the state-
ments contained in the affidavit were of
ttle of no probative value and the trial
urt was justified in denying motion for
sew trial on ground of newly discovered
evidence.

——_—~

Odie Duncan, Henderson, Richard A.
“obertson, Robertson &-Robertson, Owens-
‘oro, for appellant,

Jo M. Ferguson, Atty. Gen., William L.
Brooks, Asst. Atty. Gen., for appellee.
MONTGOMERY, Chief Justice.

Kelly Moss received a death sentence
for the murder of Charles Abbitt. The

651

332 S.W.2d 650

completion of service of his fourth felony
sentence. After his release, Moss had
traveled about the country before return-
ing to Henderson on November 9D, 3007.

The next morning he visited his mother
at the home where she lived with Abbitt.
He left after the noon meal. Moss de-
clined an invitation to stay overnight with
the Abbitts, giving as his reason that Ab-

_ bitt did not want him. He admitted that
he “was drinking a little,” but said,
“There was a quite a bit of ill feeling to-
ward me and he (Abbitt) didn’t want me
to come around and I didn’t intend to come
around no more.”

That evening Moss returned to Abbitt’s
home in a cab. There was testimony that

purpose of showing defendant’s state ef ‘ases urged for reversal are: (1) Admis- Moss had been “drinking” and had the
iD <3 mind toward the deceased and for showit¢ won of incompetent evidence; (2) insuffi- odor of alan os his breath. When Moss
— & Ww who commenced the difficulty. tncy of the evidence; and (3) improper afrived at Abbitt’s, he told the cab driver
st - ° ae ‘nial of a new trial. that he would have to go into the house
. us 9 Homicide e511 for the money with which to pay the 50-75¢

. et — Charles Abbitt was found dead in the
ne oe eel “Malice aforethought” is a predet ‘tchen of his home in Henderson on No-
mination to do act of killing without lege vember 6, 1957 Eight ribs in his left side
? excuse and it is immaterial how suddet’* : j Se
we > ’ ere broken. e h
Kelly MOSS, Appellant, tly before the killing such deter broken The bridge of is nose and
* or recently ‘e hyroid (sic) bone (hyoid cartilage)

- NWEALTH of Kentucky, Appellee. mination was formed. ) ‘tre fractured. The head was extensively
er ° . _ ‘uised, ‘with multiple lacerations of the

cab fare. The driver followed Moss to the
door. When Moss knocked, Abbitt “pulled
the blind back,” “cracked the door” about
six or eight inches, and answered, “She is
not here.” Moss forced his way into the
house, saying that it was his “dam house

--.*s
@uriwe

Uni

See publication Words and Phrase

Court of Appeals of Kentucky.

May 22, 1959.

Rehearing Denied March 25, 1960.

Prosecution for murder. The Circuit
Court, Henderson County, Faust Y. Simp-
son, J., entered judgment sentencing de-
fendant to death, and the defendant ap-
pealed. The Court of Appeals, Mont-
gomery, C. J., held that evidence that de-
fendant had forced the deceased to drive
him out to a cemetery by sticking a gun in
the back of his neck some 45 days prior to
the killing was properly admitted as an ex-
ception to the. general rule for the purpose
of showing defendant’s state of feeling to-
wards the deceased, and for showing who
commenced the difficulty, and trial court
was justificd in denying motion for new

for other judicial constructions and de
nitions of “Malice Aforethought”.

3. Homicide 231

Evidence established defendant's #
will toward deceased because of his rece
marriage to defendant’s mother and s*
tained conviction for murder.

4. Criminal Law ©=939(3)

Where defendant moved for new trie
based on newly discovered evidence in
form of an affidavit of his brother vint
in substance stated that the brother wat’
the altercation between defendant and
ceased through window of house and #*
the deceased attack defendant with ae
and defendant repel him, but affidavit f*
to show when the brother informed o
fendant of his knowledge, and why he a
not disclose it prior to trial after he ‘ee

«alp and extensive hemorrhage beneath
Se scalp and in the cranial cavity in and
‘neath the covering of the brain. There
‘tte bruises and lacerations on various
tts of the body. The immediate cause
“death was a hemorrhage inside the skull
“ulting from injuries to the head,

Abbitt was about five feet, three and one-
‘lf inches tall and weighed 135 to 145
mands, He was 74 years of age and had
wen in declining health. He had married
* mother of Kelly Moss on August 13,
"7. On the evening he was killed, Abbitt
‘ad taken his wife to church services and
“turned home alone.

Kelly Moss was a much younger man
Ban Abbitt. He was six feet, two inches
* height and weighed 220 pounds. He

1 been released from the penitentiary
® Eddyville on September 22, 1957, on

and that he’d come in when he got ready.”
The cab driver remained outside for a few
minutes and in the cab four or five minutes
more before leaving,

Moss’ version of what occurred is that
he entered at the invitation of Abbitt to see
for himself if his mother was present.
While he was looking around, Moss said,
Abbitt locked the door. He claimed that
they got into an argument in which Abbitt
accused him of “trying to bust my mother
and him up, trying to get my mother to di-
vorce him,” and in which Abbitt said “he
was going to salt me away.” Moss ad-
mitted that he had been trying to get his
mother to divorce Abbitt.

To sustain his plea of self-defense, Moss
said that Abbitt attacked him with an open
knife, threatened to “cut (his) Goddam
head off” and “slashed at my throat.” He
said Abbitt had some keys and an unopened

¥: 9 fk 9 * OW
*Z961 §Z YouRy (AQUNOD UOSZepUEH) qs Ayonquey °OeTe "ATTEY °ss

war

the)

Williams, Jackson Lee, Joseph White,
Hamilton Smith, Hutehens Smith,
Giles Cook, Amus Davians, Robert
Tate, John Martin, Garland ©. Hub-
bard and James Mayes. The Judge
ordered John H. Carroll, the jailer, to
return the prisoner back to jail. The
time that the names of each juror was
called, that is at the close:of this, was

8 o’eclock and fifty-two minutes, thie

jury was discharged. .

It seems that the prisoner did not
understand the true nature of the ver-
dict; he imagined that it was a similar
verdict to the one the Court of Inquiry,
and Grand Jury had found agaist him.
Now they had found him guilty, and
accordingly lodged him in jail: but he
has been informed by seyeral that the
nature of this verdict was to hang him
without he could get a new hearing be-
fore the Judge passed sentence upon
him; andalso he has been informed
that if the Judge passed sentence the
only chance is for the Governor to re-
prieve. But all of this is » mere noth
ing, and when the time rolls round he
will, in all probability, be hung.

He has been visited by both ladies
and gentlemen, anda great many of
them haye admowished him in regard
to a future state, but it seems all to
have no effeet upon him whatever.

Now John C. Sanders visited him
one Monday, the first day of Septem-
ber, and he asked Philip T. Murphy if
he was agoing to come out and confess
the whole matter, so the rest of the
‘amily might be eleared from the prej-

iwesof the community. He said he

‘i not know what to do about it—he

ould say one thing, ‘‘the bones that
were found in the log heaps were not
hog’s bones.”’

Now Dr. H. White tells me that. on
Wednesday, the third of the present
matant, that he, in company with
sume ladies and gentlemen, visited the
gloomy cel) of this unfortunate being;
when they approached the door of his
apartment, Dr. White spoke to him,

HISTORY OF TAYLOR COUNTY. 15

and eafled him by name. The doctor
addressed himself to the prisoner in
the following elegant manner:

‘Sir, here are some ladies that have
ceme to see you.’’ He remarked that
he did not kuow what they wanted to
see him for, in the fix that he was
placed in at the present time. The
lostor repliedydhiak very courteous
Wanier, that it was throug an act
friendship that they had chosen to
yisit his lonely habitation, and also to
try to prevail upon him to make prep-
aration for the habitation of that never-
dying soul of his, that would dwell in
eternal bliss or woe. The doctor did
not tell me that he precisely told the
crimtnal the language which Lam about
to pen down, but it was the same in
substance. “Sir, Ido not think you
will ever get a new hearing.’’ He re-
plied and did ask, “did you hear the
Judge say anything about it??? No,”
Was the answer of the doctor. “Well,”
replied the criminal, ‘‘you do not
know then whether | will get a new
trial or not.””) The criminal goes on to
state that it was not) worth while to
getanew hearing without he could
get a change of venue to some. other
county.

I did forget to mention in the proper
place that the doctor observed to him,
“it will not be long before you come
out of here, but [ do not know wheth-
erit will be very pleasant for you or
not.”’) The criminal remarked that he
did not knowthat it would) be any
worse than being confined in that
dismal abode.

Mr. James C. Hubbard says: ‘*Phil,
what is your hope for the future
world. or do you ever think about it?”
He then laughed and said, ‘tyes;”’
showing that it was of little moment
to him. ;

He also remarked that he could not
read. Oh! may I appeal to this Com-
monwealth for a more prominent and
striking a matter than than this is. I
now appeal to you also, for if he, the

ea ‘aia aS san Shi tas RAM A

2 RRO AY WRIRES Yep tageal Bes) it? 2?

mere rican ae are tant Say

(Oa hea ead

OME,

16 HISTORY OF TAYLCR COUNTY.

criminal, had been a man of good ed-
ncation, he might have been a good
man; but he had not that one thing
most needful toa man. Now the sys-
tem of public instruction is loudly
called for. The amount of money it
cost the Commonwealth to convict this
poor degraded being, would have given
him an elementary education, and in
all probability made him an ornament
in the high courts of society.

There has been a great many -a-
dies and gentlemen to see the poor
criminal, and on all occasions he
manitested the same careless con-
cern about his present and fnture
state. Now on the 4th of September,
1851, at 2 o’clock, a large assembly
of people collected at the Court
House to hear the sentence passed
upon the poor man, and at 2 o’clock
sight minutes and thirty seconds,
the Jailer with the criminal and the
guard made their appearance, going

slowly from tbe jail. and preceeded

until we all reached the Court House
yard, and after we entered the
Court House there was an alarm
raised in the house. Now at that
time none of us knew what it was,
some thought one thing and some
another; some thought it was the
Court a falling, but it was not so. It
was said that it was a plot, made up
so that the prisoner might make his
escape, but he was the best suldier
that belonged to the crowd. Whata
soldier he wonld have made, and in
fact the Judge said while the criimi-
nal was under trial, that it was a
pity he had done so bad, for he
would have made such a good regu-
lar soldier. Now all the alarm proved
to be the sleepers giving way under
the Judge’s bench and clerk’s table.
Now when all ths superstition was
cleared away, the Jadge, now on his
seat, clothed in the robe of author
ity, he now addressed the eriminal,
and said to him, “Philip T. Murphy
hoid up your right nand.” The

criminal did s0. Then the Judge
asked him: ‘‘Have you any reasau
to show wdy judgment shall nvt be
pronounced against you?” He spoke
and said; “That the way circum-

‘stances was when he was taken up,

and the way they were, evidently
meaning to say that since he was
proven guilty, that he had nothing
to offer fer a cause and was going to
tell, as was thought by all present,
about the murder, when the Judge
stopped him and told hin that he
did not want him to tell anything
about that part of it, he only wished
te know whether he had any plea to
offer or not. He answered and said
“None.” It was now 2 o’clock and
eleven minutes, and the Judge went
on to state in a mild and discreet
manner the nature of the crime. and
what a lamentable case it was for a
young man like him, just in the
bloom of youth and vigor of health,
to be consigned to the silent tumb,
that agreeable to the course of na
ture that he had much before him.
The Judge says to the prisoner:
“For the offense against your God
and country, you shall be taken out
on the 10th day of October next by
the Sheriff of Taylor county, and
hanged Ly the neck until you are
dead.” Itisnow 2 o’clock, twelve
minutes and thirty seconds. The
Judge still goes on to state, “that
you had better make preparation
forthat never dying sout of yours,
now that the time is short that you
can repent in, but it cam be done.’
The Judge seemed to manifest a
great deal of firmness and discretion
in the case. Now all the lawyers did
think and say that the Judge would
shed tears when he pronounced sen-
tence upon the criminal, for they
said they had never seena sentence
pronounced in allof their practice
without tears being shed by their
bonor. But it was not the case with
our Judge. In this case he seemed

te possess that
feeling for his f
nen's conscien
‘vy and wisely,
ft igs now 2 0
minutes and tt
the Judge give
to take the pris
where he had t
aT dunes.
(weoutve-cipiit i
oner has been
tants and it is t
he will-confess ;
hue,

Count

QL OST «
/ 6 diseuse
the eo
lished, in 1848, bh
to be issues at

generation know
them, even trom
Was one questio
the attention of .
WAS ONE amet t

with, that in sti
question with ths
one which Lives
trouble to-das.
question,

When Tastor «
lished ther arn
itn the @arare 4
that at tha: toc

cord wii thre geen ade
culed Ob Waggon
oat was called

cate roads or

»ounties to the r
Some of thes
known now and
Among them »®
road, Lexing tee
Greensburg amd
ambia and Lartre:
were a few other

BB in Ahn oN ties Gein Rae dian ST ine 20 i ag bed Baal

HISTORY OF TAYLOR COUNTY. 17

to possess that degree of justice and
feeling for bia fellow nau, that sets
men’s consclencea fres to act honest-
ly and wisely. May God attend you.
It is now 2 o’vlock, twenty three
minutes and thirty seconds. Now
the Judge gives orders to the Jailer,
to tuke the prisoner back to the jail,
where he hed to onter thet dark and
gloomy dungeen, a 2 weiuck and
twenty-<igit mingwa Pt The pris-
oner has been seen by many visi-
tants and it ia thought by some that
he will confess ull of it before he is
hung.

County Roads.

OST of the issues that were
/ L diseussed by the people when

the county was first cstab-
lished, in 1848, have long since ceased
to be issues at all, and the present
generation know but very little of
them, even from hearsay, but there
was one question that first occupied
the attention of our Magistrates, and
wus one among the first to be dealt
with, that is still a very important
question with the people to-day, sud
one which gives our Courts no little
trouble to-day. We refer to the road
question.

When Taylor county was firs estab-
lished there were but few public roads
in the county. It will be reunembered
that at that time we had no railroad,
and all the goods brought here were
hauled on wagons, and hence we had
what was called ‘‘thoroughfares,’’ or
publie roads running through the
counties to the railrond north of us.
Some of these thoruughfares are
known now ander their old names.
Among them was the Lee’s Ferry
road, Lexington and Nashville road
Greensburg and Lebanon road, Col-
embia and Lebanon road, and there
were a few others, but these were the

most important, and used most fre-
quently when the county was first es-
tublished.

Our first Magistrates knew that in
order for the county to build up rap-

idly it must have more. public roads, .

and better roads, in all parts of the
county. Hence almost the first busi-
ness transacted by the County Court
after the officers were Sworn in was
the appointment of viewers to view
out roads in different directions.

The first roads viewed out after the

county was established was the roads

leading from Saloma to Campbells-
ville, and the road from ‘‘John Ben-
ningtield’s to the Adair county line.’’

Messrs, James W. Lively, R. P.
Sanders, George W. Asper and A. F.
Gowdy were the appointed yiewers of
the Saloma road, and Messrs. Richard
P. Rice, Henry Benningfield and ——
Jackson were the appointed viewers
of the road to the Adair county line.
Soon after this, other roads were yiewed
out, and it was not long before new
ronds were penetrating almost every
part of the county.

The roads have been gradually im-
proving all along since the establish-
ment of the county, until now we have
good roads compared with those of
the earlier history of the county. But
there is still room for improvement,
and our county officials are still giving
this question their careful attention.

In the near future we hope to see
graveled roads all over the county,
and a system inaugurated that would
keep them in good repair. Good roads
are necessary for the prosperity of ev
ery county, and with creeks running
through almost every section of the
county, which would furnish an abun-
dance of gravel that could be placed
on the roads at a very small expense.
We see no reuson why we should not
have as good roads as any county in
the State.

SS RMT TIN, skies tet

“wie ge PORE IE LS PON HI ey =

goths et

Sr eee To

Eagle Oe

vay rte 3 “a

14 “HISTORY OF TAYLOR COUNTY.

trial of the poor and unhappy criminal
and at the same time cast down with
their thoughts to the future state of
the poor unfortunate man, who had
sought the life of his bosom friend,
and sent her to her long home from
whence no traveler returns, one whom
he had sworn at the hymenial alter to
d 2 and potest in preferetce to all
others. He had thus in bk -pliptin
tuken to himself a wife, id bound
himself-in that high responsibility, but
dreadful to relate that this degraded
man bad not done the part that 1 hus-
band should have- done. Now we
want to know where is the poor crim-
inal’s children, this makes me pause a
while, but they speak not, they have
heen consigned to the silent tomb,
there to rest until Gabriel sounds his
trumpet, then may they arise and go
to Abraham’s bosom. where they may
find peace and happiness. Now on
Sunday night, it was a night of great
anxiety to all concerned, and even to
the poor African slave appeared to be
interested in the final issue of the
pending question, after a long dreary
night the gray morning began to peep
and the morning star twinkling in her
silver, and at length the fiery sun hove
in sight, and as he rose slowly his lu-
minous rays fell upon this lower world
which showed on our churebes and
Court House, and it at length sought
the fuee of the poor prisoner through
the grates of his gloomy prison cell.
and bade him arise and hear his doom.
Every one was anxiously waiting for
the honr to eome when the Court
should eonvene. Now when the hour
arrived the major part of the people
assembled in a melancholy group at
the hall of justice, to hear whether the
twelve jurors were going to say that
thou art the guilty man. After the
jury was called and all of them an-
swered to their names the judge’ told
them to resume their labor. They had
not been gene a great while when one
of them called for some paper. All

gyes were turned toward him to see if
they could discover something peculiar
in his countenance, but he acted the
part of a wise and discreet man. He
stepeed calmly and bravely through
the bar unti] he reached the Clerk’s
table, where he obtained some paper,
then he turned and firmly retraced his

steps uy esse ree until he dis-

pared A Sow moments passed
wht anotiwe of the jurors was seen
descending the stairs. When he had
got «bout half way down he _ halted:
the judge called to him and wanted to
know what he needed. He answered
that he wished to have a form, when
the judge remarked to never mind a
form, but for them to bring down their
verdict and he would put it in form for
them. So the juryman retired back to
his room, every one pretty well satis-
fied in their minds that the jury would
find the aceused guilty of the murder.
So accordingly the jury soon made
their appearance, and the verdict was
handed to the Clerk when it was read
to the criminal and all present, an-
nouncing the guilt of the prisoner at
the bar. John Shreye, foreman, so
say you all gentlemen, the Judge re-
marked that they had better return to
their 1oom and make out the count set
forth in the indictment that found their
verdict. Now when the foreman an-
swered and said that they had agreed
upon the first, that is the prisoner ex-
ecuted his work with unknown weap-
ons. that was inserted, or in fact it was
written upon the indictment by the
Judge, after which all the jury were
called, and as they answered, the
question was proposed by them, ‘‘do
you agree to this yerdict?’’ they all
answered in the affirmative; they
seemed to appreciate their duty and
justice to their fellow man. It is 8
o’clock and forty-six minutes, and the
first day of September inthea.M, The
jury was dismissed, but I will give you
the names of the jury. The first was
John Shreve, the foremen, Samuel

deminer maie serenle en

Williams, Jackso
Hamilton Smith
Giles Cook, Am
Tate, John Marti’
bard and James |

ordered John H.

return the prison¢

time that the nam
called, that is» att

8 o’elock an: =fift

jury was discharg
It seems that th
understand the tri
dict; he imagined
verdict to the one
and Grand Jury h
Now they had fou:
accordingly lodged
has been informed
nature of this verd
without he eould g
fore the Judge pas
him; and also he }
that-if the Judge p
only chance is for
prieve. But all of
ing, and when the
will, in all probabi

He has been vis:
and gentlemen, an:
them haye admoni
to a future state, b
have no effect upo:

Now John (‘". Sa
one Monday, the fi
ber, and he asked |
ne was agoing to e
the whole matter,

vmily might be ele

Geesof the comm:

-i aot know what

-ould say one thin;
were found in the
hog’s bones ”’

Now Dr. H. Whi
Wednesday, the th.
instant, that he,
some ladies and ge:
gloomy cell of this
when they appraac:
apartment, Dr. Wh

MUSIC, Charles, white

Soe
reset

oe we
?
~~

wo wwe 2 i
o
:

night the fetlowing were elect-

-
ms
- ; Ty a.
e eee a
b RRS ts

bite Gooner D. . Mo, 11 Saturday} Page—Robdinson

een eae ao

ees ¥. ne 4 ~
te”. Beak : at
“i yaks ore nmsigl tS ed ee
SEM SRS ae Sata tas
* it apy, SE ie oe oe

“ » fatality won ae
in="s
meg

| Say night”

. A \ ey aS es eee ee _ pica
: S
. - ~f ‘
ied
: yi - . y

MUSIC, Charles, white, elec. a coated Count a March 10, 2920,

GEN

DATE Or 2 FIA wy
F~Fl- 49/9

artes Droteigcle 90 dha ve . a.

i eo ae derb Lita SA Mi enty i! ee. OF. tts Neipala ded tad b _f :
Yh? 1 rcenaya PO Y MO) kot Matfisll pained dai, shsilicy sli pe
ie + el Fadl, capblisisd thst Ad. Miata: tafftiired tecleys ladicts Lerces,

igh? of Yad: Ularee a tetsise cf Meme wet deco (IRS ES YX Chat
dihen te Lleted bu? fis alle, fold Whee 2b), Ul Liraedt .
thad gpa te fied ix ailjdginne

- son ‘\
Lie Ke, 45 (Allo \otbwatiw (16)

44 KENTUCKY REPORTS. [ Vol. 186.

before the trial concluded is disputed, but if we should
leave this feature entirely out of view and treat the case
as if both parties announced ready for trial without ee
thing being said at the time as to the absence of Kelly
we are yet of the opinion that under all the facts and
circumstances of this case it was prejudicial error not
to permit the affidavit of Kelly to be read as a depost-
tion.

Keily was the only person on the tender when the
accident happened and it is plain that he was a very
material witness for the company. He was present in
court on the day the case was set for trial but it was
not called until the next day and in the meantime Kelly,
without the knowledge or consent of the company or
its counsel, left the court on a temporary visit to an ad-
joining county and counsel for the company pee the
right reasonably to and did expect that he wou d re-
turn in time to testify as a witness but when it appeared
he had not returned on the second day of the trial a post-
ponement was asked for about one hour or until the
arrival of the train on which Kelly was expected to and
did come, but this request was denied, as was also SA
motion to permit the affidavit as to what Kelly wou
say to be read as a deposition.

“We have not overlooked the practice that matters
like this are largely in the discretion of the trial court
and its rulings will not be disturbed unless it appears
that the discretion was abused. It may also be admittea
that when the attorney for the company discovered at
the time the case was called for trial that Kelly was
not present he should then have asked a arena
postpenement on account of his absenee, but the sa pa
of the attorney under the cireumstances to make. this
motion did not, as we think, justify the court in view
of the affidavit filed by counsel, in refusing to postpone
the trial for one hour or to permit the affidavit of what
Kelly would say to be read as his evidence.

We are further persuaded of the prejudicial effect ’

of the absence of Kelly’s evidence either in person or by
wfiidavits by the reference made to his failure to testify
by counsel for plaintiff in his closing argument.

; Another error assigned is misconduct of counsel for
plaintiff in the arugment of the ease to the jury. tee
matter, in view of the fact that there must be another

of abik: ROLES ERE to eS

ee ee

shina

1. Criminal Law—Trial

Musie v. Commonwealth. 45

trial, we may pass without comment except to say that
the argument of counsel, although perhaps proper ex-
ceptions were not saved to it, was in more than one
eespect highly improper.

Other alleged errors in relation to the admission and
rejection of evidence and in giving and refusing instrue-
tions are pointed out by counsel but we do not find that
the trial court committed any substantial error in these
respects. :

Wherefore the judgment is reversed with directions
for a new trial.

Music v. Commonwealth.

(Decided November 14, 1919.)

Appeal from Boyd Cirenit Court.

Separation of Witnesses—Discretion.—The
requirements of section 601 of the Civil Code for the separation
by the court of witnesses, upon the request of a party litigant,
is not mandatory or imperative upon the court, but are intended
only to vest him with power to separate the witnesses upon
request, if in his judgment justice and the orderly and proper con-
duct of the trial require it, and unless it appears from the record
that the court abused its discretion to the prejudice of the sub-
stantial rights of the parties requesting the separation, the judg-
ment will not be reversed for this error.

2. Criminal Law—Evidence of Commission of Other Crimes.—Proof

of the commission of other crimes by the defendant is generally
inadmissible, but such proof may be admitted if the commission
of such other crimes is recent, for the purpose of establishing the
identity of the accused, or to show his guilty knowledge, or a
particular criminal intent on his part, or malice or motive for
the commission of the offense for which he is on trial, or that
the other crime was a part of a plan or system of criminal actions.
But the court should admonish the jury of the purpose for which
such testimony is admitted.

Criminal Law—Arrest—How Made—An officer may attempt to
arrest one when he has reasonable grounds to believe that suck
person has committed a felony, and in making the arrest it is his
duty to inform the alleged offender of his purpose, and perhaps
of the crime with which he is charged, but these duties will not
be required of the officer if he is prevented from doing so by the
unlawful acts and conduct of the one attempted to be arrested
or if such person knows him to be an officer and knows the of
fense for which the arrest is attempted to be made. Instructions

2s A Ape arty Pr [<= pHE_PORTSMOUTH:T I

a ov ‘W DET BANK WHEN a

and little won, Don, hank when the eo japon y sald
of Portsmouth, ‘had aj} Mrs, Davis. ate far as I can remen-

Amy er, dust _the. isso of, ify
Co ee ee co

y vere ances the patrons in the| om and had- just received’ the bank-
Federal Savings Bank: thook whea I saw ‘something black and
ga two | aeaee bandits entered it) juely looking sticking. over my shoulder!

‘all: ‘the, patrons and em-|and a voice said. ‘Hands up? I
enter 2, bage vault aml, “.*’What's the Joke? asker. the mun
. while. they pillaged the bank “behind the counter.” | °.

an ee E >This ds no joke; this ts a hold-up.’
: Liss | ‘reply. “And ‘then the robber
ig’ danghter oftordered the hanker to, tata around
of SS jand put his face aguinxt the wall.
Freat§ street. lhe in also a sister of | j Then,. very politely, he made nig Join
ah etolial “epeersrame? of Robinson | him, with my face against the wall,

Iitte Don, of course, in my arms,

wees

“Don hed eter "awe in a bank, | hess were gl work, for 1 heard dimilar}

at least te transact business, for with commands to ‘shut your eyes’ aud |
; cre mother arranging th? details, Don | seemed to fecl the presence of others |

“ . <- Wee there to open a savings account) joining our live-up against the wall, ’

ee the Commonwealth Federal bank} aithongh -I didn't: dare steal a look, rs,

. > Military_aveane and Fort street. cnrious as I was.” I heard one of the} ~*~

2 erage as. ae aon Ms teach nae So Sem say..“Huh, there_ doren't seem

od * % J B 4 cs

oon ae. , |
Re 7 pecthe: rt £5 $etaak ee
tail Gumpinnemanintacs sseateaapeecrtg 2 ax

_ now that they were’ taking: me inte the

Bow ttle Don | “and: his “heave. Fault, but at that time I had no idea! 4

> theeg’s tened mother, were lockeg | of where 1 was going.

-, ti ie dark vault of the bank by the} “-As soon as T dared 1 opened my
a dqndite. was ‘related. by Mrs. Davis atjeyex, but it was as dark an night
: glayed..with his mewest posscasion, af Don, frightened at. the dark, started %

bright, shiny benk-book.. to cry. Other people were in the rauit
oot llleard- lars —¥- het itd rece OH nel BOLLE Os... sae

Order, “Hands Up!” . eae man, but I do not know. who they
ee! ‘was the only cuxtomer in the | were..”

ive 2: Repnbiican, 2Club_ will, hold. the! “President Frank. Klefer will, preside
; : firet- meeting since {ta annual election for the first tlm and several hmpor- |
———6E Been at 130 tonight hr te reome— rant esters ett on oT
a = fat te Masonic Temple. }dlspoxition.

= “Ashtand Officer Dies From inn —
eae Wound; Gun User. Missing] _ CAMP SHERMAN, SOLDIER AND AND

‘Chartes ‘Hatt . = : Car ape fear Bow Wear Tals ee ee
Set as or ‘sho wee. shot by, be was of the opinior the state will of-
+wo ts when he attemp- | 'fer an _@uual amount. ‘ ‘ ; "
Nte8t te “arvede : then: faturday ‘cight'|~ Toa7 niet “het up the” cee ing et 4aletn-- Rieele. a soldier from Camp | nection with | a \ fight he engrged nr with wires
> dled Monday in the Kings’ Denginers | the Trask hotel in {Ashland oe “1 | Sherman, and @ young woman giving Stephen OUxborn at the Kellamy home | 7}
2 hespital_at Ashland, a clock Satorday_night. Ther rompelled | the name of Bessie Morgan, who wer: | 0% Sixth street a few days ago. He beurh
2% Little hope was entertained for his! the Proprietor at the point of # Wistel larrveted and charged \ | with a statutory Wee taxed the CWeth. ete I nab
; ~_ Steavery as one of the bullets penetrat- : ito apen the cash register and fook allt sa a 7" i , sates —Buckter—amt Tey —onneon. | j fort
wee his ung. > : = ivffense after © police euught them roun shoe B
‘ae nthe Ashiand chief of police telephon- ! lithe imemney — it, contained. ——Patrolman ven upying fhe same reon at a restau- Taped eer. bot after Ketting | show

SER r merase nig ter hy ae PER

ape

iTatticld and other officers startet to ay night raised a row A)
aw sttatiiclt ce sMlsces planted to lrg t . ‘a pe
: ‘ ng the death of Hat-:warch for the bandits and at even. Coc oe perso Cres oe ppg prs ‘Achidticottomntrenes tarts
Bee held, saying that the city of Ashlanil iteenth street and Greennp street in Kaps handed each a fine of $25. William ino the coats, while | Run
ALE oe hy eT a gh Kaltand, two men wha had Teen hidhyg WBS Hiatt, Raver End yourig manit Second xtreet, "oe mia wisi ote a
oss a se ntotat ¢
behind a: goede hax spaaped up: and beaded guilty to a charge-ef. disord. | priaon - bE persist)
onclbgy ‘tate Gli ote a8" @etiuonal fired one shot Hathe't wae his . ¢@tly conduct made against him in con- Meech oan Ld ean he “making ei on

46 KENTUCKY REPORTS. [Vol. 186.

in this case examined and found correct in submitting to the jury
the rights and duties of the defendant at the time the deceased
attempted to arrest him. :

4. Criminal Law—Argument of Counsel—wWhile it is the duty of
an attorney in his argument to the jury to confine himself to the
law as laid down by the court and the testimony as given by the
witnesses, yet he is allowed a reasonable latitude in drawing con-
clusions and deductions from facts and circumstances appearing
in the case, and unless he in his argument radically departs from
this rule and injects into the case poisonous, irrelevant and pre-
judicial matter, for which nothing in the record furnishes justifi-
cation, the judgment will not be reversed for this reason alone.

5. Criminal Law—Witness Not Accomplice Because Jointly Indicted.
—A witness is not necessarily an accomplice because he is jointly
indicted with the defendant on trial, and if the testimony con-
clusively shows him not to be an accomplice, the court is not
required to instruct the jury as provided in section 241 of the
Criminal Code; nor is such an instruction necessarily required
even though the witness be an accomplice, if his testimony is
substantially the same as that of the defendant.

W. D. O’NEAL for appellant.

CHARLES H. MORRIS, Attorney General, and BEVERLY M.
VINCENT, Assistant Attorney General, for appellee.

Opinion or THE Court By JupcE TuHomas—Affrming.

From a judgment of the Boyd circuit court convict-
ing him of the crime of murder, and fixing his punish-
ment at death, the appellant, Charles Music, prosecutes
this appeal. Defendant’s victim was Charles W. Hat-
ficld, and the killing oceurred about twelve-thirty on the
night of March 30, 1919. The deceased was a policeman
of the city of Ashland, and met his death under the fol-
lowing circumstances, which are established by the
undisputed testimony found in the record. _ :

Sometime near twelve o’clock on the night in ques-
tion, the appellant and his codefendant in the indict-
ment, Edward Bradley, forcibly robbed Charles Hill,
the owner and proprietor of the Bragg hotel, located
in Ashland. The robbery was accomplished by the two de-
fendants in the indictment suddenly appearing in the of-
fice of the hotel, in which the manager was the only person
at that hour, and putting him in fear with drawn re-
volyers took his watch and some money from his person,
some money from the cash drawer behind the desk, and
they then tore down the telephone, backed out of the office

Sith dle tana bl

SO PRON NR
Sa ely "

Music v. Commonwealth. 47

with revolvers drawn on the manager. They then

disappeared up the street. The victim of the rob-
bery immediately notified the police department and
they at once instituted a search for the robbers. The
deceased, Hatfield, about thirty minutes thereafter dis-
eovered them near the corner of Fifteenth street and
Greenup avenue, and while he was trying to arrest them
the defendant and appellant shot him with a 45 auto-
matie Colt’s pistol, from which shot he died soon there-
after. Ilis death was not instantaneous, however, for
after being shot he fired at the defendant (or both of
them) some five or six times, his pistol being one of much
smaller ealiber than that used by the defendant. <All of
the witnesses, without contradiction, testified that the
first shot was much louder than those following it, and
that there was a slight intermission of perhaps a sec-
ond or so between the first one and those fired by the .
policeman. Immediately after the shooting, which at-
tracted the attention of the other searching policemen,
the defendants in the indictment were pursued through
alleys and streets of the city, in which pursuit the de-
fendant Bradley was captured, but the appellant suc-
ceeded in making his escape and was captured two days
thereafter in Lawrence county. After shooting Hatfield,
and while fleeing from the officers, the defendant threw
away his pistol and his overcoat, both of which were
afterward found and identified as being his property,
or at any rate as being the overcoat and pistol which
he had in his possession on the afternoon preceding the
killing when a number of witnesses saw him in different
paris of the city wearing the overeoat, and to some of
them he exhibited and tried to sell the pistol. He had a
German pistol at that time which he also tried to sell.
To one witness he tried to pawn both pistols for $7.00,
but requested a loan of another one which was in working
order until the two pawned by him could be redeemed.
The overeoat was further identified by several witnesses
who saw defendant wearing it on the fatal night, both
before and after the killing. The deceased, at the time
he was killed, was wearing his uniform, and according
to the preponderance of the testimony, he was also wear-
ing a light overeoat, on the outside of which was his
policeman’s badge. All the witnesses testified that he
also wore his policeman’s cap.

42 KENTUCKY REPORTS. Vol. 186.

It was proven by the Commonwealth that the two
pistols in the possession of the defendant on the after-
noon preceding the killing were stolen from the window
of a store in Huntington, West Virginia, on the night
of March 29. The witness so testifying not only identi-
fied the pistols by their appearance, but he had them
on exhibition in the store window and had taken their
numbers. It was also proven by the Commonwealth that
the offense of robbing a store house is a felony under
the laws of the state of West Virginia.

Robert Dawson, introdueed by the Commonwealth,
was yard conductor of the Chesapeake & Ohio Railway
Company, and had charge of a switch train which was
doing some switching on the night of the tragedy. The
witness was standing on Front street about two hun-
dred and ninety feet from the scene of the killing and
saw what occurred. He testified that he saw two men
somewhat in the shadow of a telegraph pole, one of
whom had on an overcoat; that the latter ran toward
the middle of the street and fired the fatal shot at Hat-
field, who immediately started to fall; that as he fell
he drew his pistol and commenced firing; that Bradley,
who was not wearing an overcoat, did not appear to
have anything to do with the shooting, but got behind
a box by the side of a telephone pole just after defend-
ant fired the fatal shot and about the time Hatfield com-
menced shooting; that immediately after defendant fired
the shet, he ran, as did also Bradley, about the time
Hatfield ceased shooting. The engineer of the switch-
ing train corroborated the conductor in some partic-
ulars. )

Appellant’s codefendant, Bradley, was introduced
by the Commonwealth, and in stating what occurred at
the time of the killing, he said:

‘Well, me and this man, Music, we was coming out
of the alley turning into 15th street, and within a couple
of feet from the corner of 15th and Greenup this police-
man came along, he said ‘stop there a minute,’ and
Music. savs, ‘stop hell,’ and turned around and fired
this shot. I seen the officer in back of us and then the

officer commenced shooting and I got behind a post until
he shot out, and that is all I know about it.”’

He further testified that he had nothing to do with
*he killing and did not know that appellant was

Music v. Commonwealth. 49

going to shoot, nor had there been any agreement
or conspiracy between him and appellant to kill deconssd
or any one else; nor had there been an agreement to re-
sist arrest. He said he did not see the policertinn until
after the defendant had fired at him when ‘velo
turned and saw deceased and recognized him as a police-
man, or supposed him to be a policeman from his cap
He corroborates the conductor and engineer ag to his
hiding behind the box and runnine away about the ti
the shooting ceased. 3 vr
The defendant introduced no witnesses but himself
Ife acknowledged having the pistols at all the times te:
tified to hy the Commonwealth’s witnesses: that he ue
Bradley had committed the robbery at the hotel ike
that he shot the deceased. In relating what transy = ;
at the time, he said: ‘ Tis as
“Well, sir, me and Bradley was coming up this
street, and there was some one came rielit “out behind
us, out of the alley, and says ‘wait there,’ and I looked
around and seen him just start up with a gun anid T
pulled my gun and shot. I done it to save my life.’?
Te said that he did not know that the deceased ~ iS
a policeman but he did not deny seeing his hay tos
badge or cap. Other minor facts and circumstances ap-
pear in the record, bearing more or less mpon the ruil
of the accused, but the above constitutes substanti: lly
the testimony in the case. atin
7 It is urged for a reversal that the court erred (1) in
oe to separate the witnesses, upon motion of the
defendant. (2) In permitting the introduction of ae
petent testimony by the Commonwealth. (3) In refusing
to admit testimony offered by defendant (4)
Tn instructing the jury. (5) In failing to instruet the
‘ry conecernmg the evidence of Bradley. who it is
claimed, was an accomplice, as required by section 24]
eta Criminal Code, and (6) Prejudicial argument
he ae attorney for the Commonwealth in addressing
‘ eg considering these in the order named: (1)
pede ae y the Civil Code, which applies in the trial
bigs oe ie hs ides that the presiding judge
ms ee = nee court room Witnesses of the ad-
fe ral oF under examination, if either party re-
S it, and it is insisted that‘it was prejudicial error

< oa

50 KENTUCKY REPORTS. [ Vol. 186.
for the court to overrule the motion made by defendant
for that purpose. The application of the section has
often been before this court, and it has uniformly been
held that its only purpose was to vest a diseretionary
power in the trial court to exclude and separate the
witnesses, but it has never been held that the failure to
do so was prejudicial error authorizing a reversal of
the judgment, unless the particular facts and cireum-
stances of the case made it so. The section has never
been construed as mandatory or as imposing an lmpera-
tive rule. It simply gives the party the right to ask for
the separation, and the authority in the court to grant
it, subject always, however, to the exercise of a sound
discretion.

In the case of Jackson v. Clem, 82 Ky. 84, the court,
in considering the section of the Code, supra, recognized
the necessity of construing it in a way most conducive
to a just and proper practice by leaving the question to
be determined by the presiding judge in the exercise of
a sound diseretion, the court then said:

“This, it seems to us, is the meaning of the pro-
vision of the Code on this subject, and when it provides
that, when cither party requires it, the judge may ex-
clude from the court room any witness, it is a matter ad-
dressed to his discretion.

“The word require means simply the right of the
party to make the motion to ask for the exclusion of
the witness, and is not a demand that the court 1s com-
pelled to comply with.’’ - ;

The case of Salisbury v. Commonwealth, 79 Ky. 420,
relicd on by defendant, does not announce a different
rule. It does not appear that the judgment was reversed
for the alleged error of failing to separate the witnesses,
hut whether so or not it was held that the witness sought
to be excluded was the prosecutor of the defendant, as
well as a witness, and because he was a prosecutor the
rule should especially apply to him.

But the rule as announced in that case has long
since been departed from, and it is now held that the
prosceuting witness may remain in the court room if it
is necessary for the proper conduct of the trial, even
though a motion may have been made for the exclusion
of all the witnesses. There is nothing in this case to
show that defendant’s rights were prejudiced in the

Ce ceded

t ai Powe 2 Re tae,
BD a i
OPER Ee OU RE

ng
ia
— §
“
23
&
ae
3

Music v. Commonwealth. 51

least because the witnesses were allowed to remain in
the court room. Nearly all of them testified to different
facts and circumstances looking to the guilt of the de-
fendant, and there was not and could not be any occa-
sion for any collusion or conspiracy among them to forti-
fy each other or to give false testimony, and even if the
matter complained of should be regarded as a technical
error, we would not be authorized to reverse the judg-
ment therefor unless it was prejudicial to the substantial
rights of the defendant. For other cases dealing with
this question, see Druin v. Commonwealth, 124 South-
western (I<y.) 856; Greer v. Commonwealth, 27 Ky.
Law Reporter 3338, and Baker v. Commonwealth, 106
Ky. 212,

The incompetent testimony alleged in appellant’s
(2) contention consists mainly in that relating to the
robbery at the hotel and of the store in Huntington,
West Virginia. This testimony no doubt was admitted
chiefly for the purpose of showing that defendant not
only had committed recent felonies which would au-
therize the policeman to arrest him, but it also tended
to show the motive of defendant in taking the life of
deceased which was to avoid arrest for those felonies.
The general rule existing, without exception in erininal
practice, is that evidence of other crimes is competent
to show identity, guilty knowledge, intent or motive, and
the evidence may also be admitted where the offense
charged is so interwoven with other offenses that they
cannot be separated. The more recent cases from this
court so helding are Clary v. Commonwealth, 163 Ky.
48; Romes y. Commonwealth, 164 Ky. 334; Richardson
v. Commonwealth, 166 Ky. 570; Commonwealth v. Me-
Garvey, 158 Ky. 570; Thomas v. Commonwealth, 185
Ky. 226, and Hickey v. Commonwealth, idem, 570.
A substantial statement of the rule is thus made in
the Clary ease referred to:

‘“When one is being tried for a crime the relevancy
of the proof of other crimes of which he has been guilty
1s only in case where a crime has been proven and the
proof of some other erime is necessary to identify the
accused as the person who committed the crime proven,
as above stated; or where it is necessary to show guilty
knowledge in the accused, it is relevant to prove that
at another time and place, not too remote, the accused

52 KENTUCKY REPORTS. [Vol. 186.
eommitted or attempted to commit a similar crime to
the one of which he is accused; or where it is necessary
to show a particular criminal intent in the person on
trial, or to show malice in him, or the motive for the
commission of the crime, or to show that the crime of
which he is being tried is a part of a plan or system of
criminal actions, it is relevant to prove against the ac-
cused, under proper instructions of the court to me
jury, other crimes of which the accused has been guilty.
The court in the instant case admonished the Jury as
to the purpose for which it might consider this com-
plained of testimony, and we are confident that it was
not error to admit it when accompanied with the ad-
monition. | —
The (3) error complained of is so wholly immaterial
as to scareely require our consideration. The defend-
ant’s attorney asked him while on the stand where he
was reared and whether his parents were living or dead.
For some reason the Commonwealth objected to this
testimony, which objection was sustained. There was
no avowal as to what the witness would say had he been
permitted to answer the questions, and for this reason
alone the error, if material, could not be considered by
‘us. Under no aspect of the case could it be said that the
cefusal of the court to allow the questions to be answered
was prejudicial to defendant’s rights. Por aught that
appears it may have been prejudicial to permit answers
to le made.
The (4) ground, complaining of the instructions
eiven to the jury, is based upon the contention that they
deprive the defendant of the right of the exercise of
self-defense, whether he knew the deceased was an officer
and attempting to arrest him or not, but we do not so
eonstrue the instruction. Those which it 1s claimed con-
tain the vice complained of are numbers pe and 3.
They are too long to insert in this opinion. Suffice it to
cay that under instruction number 2 the jury wert
not authorized to convict the defendant unless they
found from the evidence that ‘‘at the time of such shoot-
ing he knew or had notice that said Charles W. Hatfield
was a police oflicer,’? and number 5 did not deprive
defendant of his ordinary right of self-defense unless
he “‘had notice that said ITatfield was a police officer.

Fi
=

ve, site ey
ie es MN a te Be a er a oy da a ie a
Gaeta Bil al eR vy WR SRS: a

Music v. Commonwealth. 53

The court did not submit in any of the instructions the
duty of Hatfield to inform the defendant of the fact that
he was about to be arrested, or the nature of the offense
with which he was charged, for the two manifest rea-
sons (a) that according to all the testimony the police-
man did not have time nor opportunity to so inform the
defendant (Hickey vy. Commonwealth, supra, and eases
therein referred to), and (b) that defendant knew that he
had just committed a felony and was at that time fleeing
from apprehension. Besides, the testimony of Bradley,
who is the only witness who told what the deceased and
the defendant said at the time, contain facts, which are
uot denied, and which show that defendant knew the
purpose which the officer had in view when he said ‘‘Stop
there a minute,’’ after which defendant said ‘‘Stop,
hell,’? and immediately fired. No reasonable person can
read this record without being convineed beyond doubt
that. the policeman was killed to prevent the arrest, and
at a time when defendant knew that he was a policeman
and intended to arrest him. While the instructions are
not connectedly drawn, we think they submit in sub-
stantial form the law governing the right of the defend-
ant under the facts and circumstances of the ease.

In considering the (5) error relied on, it may be
briefly disposed of upon the ground that the witness
Bradley is not shawn by the testimony of any one to
he an accomplice in the crime for which the defendant
was tried. The fact that he was indicted jointly with the
defendant does not make him an accomplice if the testi-
mony in the case shows that he was not one. Thus in
Gregory’s Kentucky Criminal Law, page 824, it is said:
‘“The mere fact that one person is indicted for, or
charged with, a crime in connection with another, does
not make him an accomplice, and whether or not he is
an accomplice is a fact to be determined like any other
fact, from the evidence.’’ The text is supported by the
cases from this court of Sizemore y. Commonwealth, 10
Ky. Law Rep. 1; Smith v. Commonwealth, 148 Ky. 69;
Deaton v. Commonwealth, 157 Ky. 325, and Nicoll v.
Commonwealth, 169 Ky. 491.

In the Deaton case, upon this point, it is said:

__ “It is erroneously assumed by appellants that they
(Commonwealth’s witnesses) were accomplices. The
fact that they were so indicted does not make them so.

“gf owe

- - “ tate, F bs ‘ a
: . ~ a hey ua ar pelienntinn — —— ; >
Sa comare, . ' 7
—

bill and agreed w

raoged peepee ee eee | crtee ope araeet, 0 e0c8 the tnerena tn
ope

Rid eee perty, growing crops, ‘ ontoring

rence the te ge r vs ; ;
NT—The Atiasta Howor, partly fur Mr. Devic the bill in a forcible | POTmal schools, also refused to adopt

nn se mnestincn meetin campo ee,

NOTIO ETO. me

A n 4
‘ABTER FLOWEPS. My etek of flowers for RR
EK Raster decoration wil) th pe -Re

aan

i #@a80n, be superd

amend ment to defray the ei penmes of the
Apply to . He in favor of contracta, >i }
Win + hk and abip ip perfect arder to polnat, : if on ; meee HIRSH FIELD — By A lereah tl . iminal w t etre ped “ge oa i of the school fa
ris rn apes mew HITARER, Houston, POR RENT—A” very deeltable residence. fur force civil contracts, he genera! revenne: the

toh. thern wure storing « yment of the
ed, t© all rooms, with | bull was | Ment re
G aby re3 LADIES OROHESTRA ‘can be en hath, vervant's rooms and outhouse firet class A grneral debate eneued, and the Lcted
Rage or su

S Patved by a vote of 17 to 6, bureaa wae re , and some ner bane
Mer resorta, concert halls, eto residence fora private family for tho eucaner. Ne » ts wld A _
Address H. GREY FE. 304N. wth wt : Philadelphia, la. Apply at a? Tremont atreet t, voxt ton, PEK feb by cxpieaaan? pF. pom ce a the | renee. tent oe oe rons
fk OR INFORMATION of all who are Victims to } OR RENT.My residence for the sumuar, water waa passed, and the Benate adjourned = the vent weppeeted bat the E
ravages of red or cutting ante in cares ae furnished, Teo rooma and throom. N. E until 8 o' ngton was y deme
ean fad an infallinie eXtermivator tn otro : corner Church and Tenth AR HUR a HOMER, clock a ; iegtes stro
ER Drovemt Wace Ton ties BY Wb ROCK AS he al a ASjonraed til to nigh.
rl y v cR "> ie ae. oh ween enty fourth en. Weoty Afth >
s HE MANGasiC WATER OL RES maay of the ply to J LEVY & BROB. livery stable : On mction of Mr. Evans the regular order The, suede a
mac malignant di eares thes baffle the skill of pay ° : q |

bore rok kext corner ak | "hy iuspended and the house jot ball be furnished the Su Court &
ct bn ‘ . IR RENT fron warehouse on the eornerafl | _ 2 amendment | ** D prem
t sini F LE wis Moot Ee eee art - Strand and Nineteenth street, Terma easy. No. to submit a prohibition

Y Seat : 10 the constitution to a vote of the people, was | “4 General mated t PP od a ae
* Apply to ©. L, CLEV ELAND law except leav ng ou pat
Bryao, Texa tekenup, A vote wasteken without debate, new notary act is likely to reeuit in the ar

PAK TIES visiting New TICANS Can secure Com Z ard the resolution was engrossed by a vote of olptment.of $000 or 10 000 notaries, so that i
ee rocins in private family: fines’ leew. CITW BUSINESS caRps. 14 to 7, would be @ heavy tax to furnish each one wit
Hon: terms reasonable. Ad P.O. B ine New Orteans, vas PATTES The boure bill authoriztn county commis these books.

M: GENENWAL CONTRACTOR slope rs to appoint @ sheriff. if the sheriff elect- On motion of Mr. Henderson the House too
FOR SALn. FOR ed by the people should fail to take the oath of vp the bucket shop bill
SPRINKLING BURIRERS AND RESIDENCE | cthce end qualify, was laid before the Senate 7 Piaber propoeed am amendment to dette

F yer aide, iY heat oattie, principiy Band 9 + ryt PONTE. ; end parsed to a third reading. becker ; which iechuded cotton, prod
Fl dae “as bas nee £ x wn Pa ioe omen Cane ARANTE ED ar LOW RATES, The bouse bill suthorizing the county coa- sbope,
} Kk SALE .

i; ai SPECIALTY, | ™Misslopers to exact, poder certain circum in (tock exchanges where futures are ¢

hanke ROASTED AND GHocND. ' | stances, ten dave road service, was laid before
& 4 ’ J q N Ri h ‘

TO BE KEMOVED

Ren > Mr. Tenkeraley resisted the amend ent.
Just opemed “155 Pos toffee Street, between Bist the pte and billed by m vote of 12 to 9. made a furious onslaught cpon Galveston
ies and ta COFFER Mr. Davis entered a motion w reconsider the beadquarters of bucket shope and stock
BU! Ns THE FINEST COPPER the vote by which the bill was killed gambling
‘ii hn r ’ The bouse bill to protect persons in the apt 4 ®
ee ee Cooter | reread Bones aa arated Bet. | «The Route ill to. seotect pe gnivoraty he | , Mr; Fisher todicated how operations in oo
: ; : : , chanks | lonatie, blind, deaf and dumb and orphen | [°° of other exchanges 7
4. ALLEV & OO MARKET. Center, between Market aod Mechank , ’ in futures,
‘ nataieiaipeates streets. A full Hue of smoked moat aod sausge | asylum lends, antl to = pemaltied for A lively debate Was expected, bat Mr. Pes.
}: ‘ Mb Nene. Bh KY and sr ag re a ¥ tor ve Telephone your orders. = ei fpobs nag with their legal ta, was dleton ~~ Beil, with the er law brought th
: rr ” pe We f ape tet fg dee uel IRke ° ree ceulvery. 4 i i led up by r Kleberg and a bytane a
bon Airs Selina tedintale 6 cm “ } | KAUFFMAN bas opened up ai ihe corner of ra Belen of the rules mee te o yote — Gn mon ee
JRANGE TRERS itn vo sede > etane ~~ ee Tend Comoe [Speeic. buthds >, The bouse bill authorizing the substitution ome jected and pawed to engrow
reMifid at ones ii heaet corner Lenn anc \ LETE &ToOw
Chsret ‘ROACH R HOMER SItune” “ Seedy Bact on ent rae Oocaeeen pasued | . The eemate bill to confer jartetiction upon
k tytn tt 10 Veteran Doo. Btralght Land olathe cee a wecond hand ytoen, bougbt and Under @ suepewaton of he cabo lower courts to enforce liens poe real estate
(* Meate per | Bext door rear } ator bol eile parsed.
SOOTT & LEVI KE YOUR VAULTS AND cuaapoo a house peppers ar wlan ta ny eee one The senate bill to open reservations for the
i ; ; Cleaned our Odoriess Machi a § . Sp ay Se, location of confederate and veteran iand-scr ip
[rin ang German Pieland Gepoat’ Mokindes |- Soaks Reta Butt, doriom, Mectingry, © Fat throne Goal page Caer a sospeadon coed
4 etal mm? German Port rhe pen * idl .
Hydranuiic Cement, aod all Kinds of building mate Sn SEAR SR = = of the The senate bill to make aldermen Mabie &
lott thie bane ; The Bouse bill fixing the compensation for
rial. Guarantees the best at Bottom pes, Ne m MILLIN ERY. road ‘ in the Jif t counties of for bri ;
mM. P, IO. : : ve wuperv Unceren nate defi boundary line
Direct Importers and Dealers ; $ : is % MM Gia BEY Rew goods & noveliiea Aspieg. | the Btate was jaid before the Senate. Consid. PB eo gions ning me -
“OR SALE, OR EXCHANGE FOR GOOD SAD. | LVI did tine of sehool laces, embroideries: | «rable ry discussion ensued, and the _, =aptnoncr to authorise the capitol board
k hie te ~ ell b sundowns, 10c. MARIAN LALOR, 209 & 210 P.O. at. bill was finally on the table.
A die ponies, one fine, well bred stallion, about 16 to cowtract for the use of granite in exterior
ba ds bigh, welght nearty 1100, one. Sass ae and a pd vee bebe gra penalty oem ad welle of the State-house, under construction
cood driver, S4aM §. "Ds ; enforcemen local option : .
Me Livery stable, Houstoo, Tex. |.» SOFMSSIONAL Law. i motion ing % motion to takeifup The

erse Goodrich, ast'y-at-i 1% Dear M a ffe otfened amend ¢ fai
OR SALE Darh 1 Jersey Cattle, regis. ae Po ast" y-at-iaw, r. Pteuffer an. ment ex. | ™otion falled. ;
tered and full Bloot; Toxee releet ‘Address Divergins Cicaga, Links hte paren sxe | empting wine grown in the county from the ee Mil fixing venue of foreign corpora
. T, Jester, Valley Hill Stock Farm, Corsicana, T. : legally tranaanted visions of the act, which was lost, and the

Ul passed. Adjourned till morning
Sewing Machines; full-size Sheet Music, bk 5 , The bouse bill g the road law eo as "RILLEO ore.
/ULITZ, 186 Postofiice street. near 24 street STRETCHED Hemp. to permit county comm to proceed to Raina
WO ARKIVE—Ey bark Daj hne, a cargo of DYCK. Neal ae ae . | lay out roads with or w i the county sur- | The Comt of Commission of Appeals Gove
FRHOFF Portland Cameant? also, ia store, 4 | WOltem save Last of the yey Marter vezors was passed. Ont of Extetence Next Octover.
I suppiy.of masons’ and plasterers’ materials: ore, Meonged at Grayson, Ky. providing for the recording of (Ormctal To Tap News |
jot ¢(rpamental and wn “es Sy Grayson, Ky » March 2 — Wiliam Neal, marks ang brands of cattle and the regulation Averm March 27 ten seiai
are, Flower Pota, etc. “ $ sak gee ty coasiderabie
vig Srepierrtain and Dealers, Galveston. Tex the last of the Ashland murderers, was | of estrays, was 3

feeling engendered in the debate in the House
: . ; trought bere last night from Mount Sterling | The bill aut sheriffs, constables, etc,

OR SALE—ONKE MACNRALE & URBAN OOM. eties ademnifying bonds, . the bill to conti
bination lock fire rot ae ra hotter for execution. A large crowd greeted him at | '0 make sur >’ rat ren sheet 8 ty reeds me
*, cheap XA 7 —” LO,

the Court of Commis.
eech station. He was firm and composed and ac eee — of Appeals aay ‘Peaches ot Foun, =
LYLON and sll grades of Oil Crockery and maintained his innocence to all of the many | purchase sevesat copies of several vol. | /#Dnan, Taylor, and Combes of Dallas, killed
4 Housekeeping Goods at J. P. LALOR & "8, umes of the Court of Appeals re | ‘Mf the commission. There was no jwestion of
arket, between Sith and Sth streste per Bay es = Preaktene ePatacen and ports and to prohibit the eer gnting | the abitity of the commumioners, and the ab |
> here . and refused the attendance of mintenn want of Court of Appéals reports to the exclusion tack of Woods, of Kaufman, hed no effect.
$4. at rail. ‘this morning. At 1 o'clock he was taken to of the State hereafter, and so TaN | The Benes whe é to believe ite day of
Buy your Wall Paper of ‘ where a large crowd was waiting ‘to print, publish and sell the books, Heh vsefulness had nd to credit fully the
: D. twos Yanened asd Tan erat b {re nMe® Up and passed ander « suspension ftatement of fact made by Taylor, It cocurred
. Portiand and Rosendale geet end piston Nea! ascended raed shot to miner Drobibiting the gits ormle of pistols toma, ane FRM Tarioe had stated
Paris, composure. that Judge t him, in
Me |. said: “ —you! all bill the time for the versation that
in host aban oto tall o Netra of taxee until July 1, this year, was laid before Supreme Court's Se ap pour
Toss to-day to suffer for @ heinous crime | did not | the Senate work of Commission of A
commit. At one innocence will be es- Mersra, Randolph, Kleberg Hall and Tray- To-day in the debate a:) extract of a written
GRO, H HENCHE sso tabliabed beyond « dourt I bid you one and | lor spoke warmly in advooacy of the bill. statement of Judge Willie.was reac he
POMS AND BOARD. | 8/1 good-by Ob, Lord, Thou knowest [am | _ Mr, Bbannon opposed the will he | hed said ve Taylor that “Ave
AA ee innocent; into Thy hands I commit my soul, od dt, Would be the wealthy judges on the Gould do more
No SR MELY SCRNISHED SOUTH ROOMS, | I am insocent.” The leat words were said | land # that would be most 1 work than on the Supreme Court and
No. 67 Church street, oppésite Tremont just es the drop fell, He was red The bili was passed, however, by almost « three on the commission, because it took one.
i dead in ten minutes, None of ni relatives | nsnimous vote, third of our conmultation time to go over the
UK KEN] —Large south room, nicely tac | were present The bill to prevent any of the state instite- commissioners’ decisions, but if the bench was
pi bed. oostheast corner of Winnie aat Twenty. Johe Sexton Hanged for Marder. ——. Grawing ellen the treesary | ict Increased the commission should be con
oe Foulsvittx, Ky., March 27.—Johu Sexton | “iho bill to detach Bnelbiy” sviae from the | “ured.
URNISHED rooms to feat, with or without wae sanged at oe oe me the Fourth and add it to the Rocce 5 Fah dis- r. iaylor, inhis a t, said Juige
td. 362 Chorch street, between 17th and 16th, apt tenn Tc Be . fare €

Willie is mistaken as to w & he said t me |
trict, was laid before the Senate and indeti. remem ber distinctly what he did say. He had

: robLery, Sexton murdered Rowden last Jul ¥
UKNISHED ROOMS TO RENT—Wer om | 1bter tron | i, ae 10 o'elook | BO Stch reasons as I did to remember. toe t

without board. 61 Winnie *., corner 4th st.

‘ wes seek I thought at the
y boarders will be taken bi ye ter why Teens, 4 sy eo 4 to-morrow. time that statement was inconsiderate!
= | jar diene, bet fer three ses formerly lived ae BBR made and it waa tht took 0s ser ery
RAR pent ge ~ | in Tr die ears House : a
TERIOR BUSINESS CARDS. brother te Pulaski coaaier He was leaving [SPEctat ro Tae News) their time upon the work of the commission. | ;
Pino a a ficiog orew t Encx, bet Sexton decnped bim back by some MORNING SESaION Leetonia conversation was the Proposed |
CILDING STON i Me The from behind. . ecnstitu amend ments, 1 whether @ .
‘ opene An ee . ode yt yk tl Qranite gt poh bis brother in-law, Carter, Avsti7, March 27.—The house bill to author. or teven judges would be ieee. and whee | |
tuilding purposes and. pavements Address [| of committing a murder, and swore ton him. | ize substitution of copies of indictments and | stated that we could not agree upon more i
paar —-_~ | Soetasaaiiey Sra beost tas | snerpehen gus“ rm eiegefoage iia ee: |
Pik @ Vins e a tye wrenger whoen body was found last aprlog ia Mr. Foster, of Grayson, Os appeal 00 | because the Work of the commission |
CONTRACTORS aND SULLDERS the seme vicinity, obtain action on the bill ‘die for a geo potas Cent ent of the time ot the Su ty
Pees BRd specifications furnished on application. a logical survey, but failed. | preme I remember it perfectly well I | .
fquarters. Halletrevilia Lavaca county, Tex, Liberty, The honse bill fixing a heavy flae for pre- aie py be spoke incons{ lerately, butam | a
(Rraca: To Tus News.) venting any person having @ claim upoa | “#Pored to think this last statensont os co time
FISH, OYSTERS urTo. F " | is correct, Ewe
red : ueery, March 27.—The friends of Mra te ena lands from settling upon sams, pase’, | Mr’ Teh lor then contended the comimion, | *
eraser MSH AND OYsTERA 4B. Likens, of Houston, were greatly sur- The House refused to Teceds from amend | baving been created asa temporary expeticat |
ars prised to learn from Tue Naws of yesterday

ments to the senate bill to prevent huntiag | '© clear the business on
desires nab 24 ntaed sz | that she was in tod ¢ circa She higber courts, and having accomplished that
BiAGINI., ¥tnesale Fish and Oyster dealer. igen matances. and fishing on inclosed lands, and concurred : ’
Hotels “anil families tully ‘oupiied. “Coun basa brother here who is able and more than | in inede hipeadeseen to the house bill for | should vo looger exist
solicited and promptly executed. Box 1i willing to assist her in any needs, but who, | providing for city taxes for
ALVESTOR FISH AND OYSTER OOMPANY,

ha © dikcussion closed, a vote was taken and!
prove & motion to reconsider was lost by @ vote of
until yesterday, was ignorant of her nocessi- | ments; concurred in the senate amend. Stood The commission, upon this failure
ne ss p ena ties ments to the house bill restoring jurisdiction to renew the law Ro™ Out f existence Bext
B laktan 20 The care of Thomas Vinters was tried in the /*to Camp court.
; )

ne , October N
‘ : The house bill to provide for 4 nating
. Whobsnale I » in FISH and OYSTBRE, District Court to-lay. The jury brought fn a

verd f u r in the second d ree and resurveying, and establishing lines of achool The Irohibition & ae ndment

dere solicited from the country ee ene ome at ten years in the peal: 7 pemed 1c ¢ngromament, ae i ieaih. 9: Paes tee + F

= , tentiary, ‘The defendant was represented by © noure Provide for laying o Avstiy, March The Senate todas p

MACHINERY BTO, Colone Yo. F. Stephens, W, L Douglas and J, | justices and clection Precincts tn unorganized seed tO etgrossmment the pt z int vate
REALE lrow pipe, tron Aitings fhe whee FP. Lavier, and the State by Captain J. V. Lao counties passed, ; ! : “a A ha : . ‘4 a
@ter apd gas: brass pbs : ar yt Pe de«crip- | and Colonel J. G. Winter. The arguments of The senate bill come UP to require the attor Hon to submit « prubibition amen ment to the | wy
steam and hand pumps steam sy tr ag: bolita, | counsel were unexceptionally good, ‘The | Bey-general to secertain it any railroads of censtitation to @ vote of the people, The Sen | th
and washers for bridge and car butlders argementcf J. V. Lee, district attorney, was | Texas have viclated sections 5 and é>erticie ; ;
JESSE ASTALT, :

Le ‘2. the con it
est 8 ar Hid effc t. ; 10 f
t Strand Ualveaton. 1 ple pe 4 vr

let and Satis

+ the Halle Sheriff. :

| Te. rw Worked Smoothly and the Coe
' domnet Died Baal .

p ALL Le
{no

b piace. were cruwded with vehi-

ory Performance by

4 The prisoner, escorted by G. W. Armstrong,

x. s 4 iy! et a

* And a Péctng ot Balet Ta Exam! & .
oe ae et [Cemeernmatice.. ifr

_ Jeqeal, Sheri Holcomb cut the rope, and

a
ame In. nineteen (minutes the pulse
er when Taye Men Sow Beawe at the 4

¥ lotta, written by him at midnighy aod asked

| e00n be at reat with my Savior and those de

wit wo no good; only prerere to pores in a

| coneeot that horrible crime for which must

soir. on tha sogttuid you keep as a memorial o

foftyouand my children, |...

watnt-1- “Dear wife, I am dying for eerime thiat
day, {1 didn® commit; one day it will be proveh.
alg go- | Tel your mother, father, and alse iny mother,
| father, brothers and alsters, to nest me tu

Yee)

vars orth of ‘the ‘tall, yest outeies of the
| town, which was reached in ten minutes.

“‘The.terrible trageay which occurred in Ash-
land, Ky., on the night of December 23, 128,
and the subsequent events that bave trage
pired in connection therewith, are still fresh
in the minds of the people. That Emma Caz-
rico, Fannie and Robbie Gibbons were mur
dered; that upon the confession of ‘Georgs
Ellis, he and Elis Craft ang Wm.
Neal were arrested, indicted and @on-
vieted of the crime; the former ~ten-
tenced to the peuitentiary for life, dut
huhg by a mob in June, 12: the latter two |
nvicted and sentenced to death, and of>-
taining a new trial, and the subsequent com
viction of Ellis Craft, and the infliction of the.
death penalty, whieh wes affirmed by the
{Court of Appeals, and his execution at Gray-
aon, Ky., October 12, 1883; and the further con-|
ourrence of .the highest "Court in the case of
William Neal, and ,his execution Axed to
take place February 27th; the intervention
of Lieutenant and Acting Governor Hind-
man in granting Neal a feapite for thirty
days, at the eleventh hour, are facts well
known to the readers of the Exquingr, ©
At the time gnd place above mentioned,
abouts midnight, Wm. Neal, George Eilts and
Ellis Craft, armed with an ax and
proceeded to the bouse of Mru. Gibbons, who
was absent from home, and who had got.
Emma Garrico to stay that night with ber
children, effected an entrance to the house |
through a window aad repaired to the
ing apartments of the girla, Once in, their
Orst object was to dispatch Fobbie Gibtans,
which was dowe by (raft, who ee
with Fannie Gibbons. He sclnbacan
dealt Robbie a blow on the head and sig
sulted shortly afterward. Craft, afte =
dering hia victim, returned to Fannie @
bons, palled her off the bed onto theftoora
Favished ber in the moeg: Drutal | maz 7
While this was going on Neal vas cont}
-ffling with Emma Carrico, suecped |)
getting her off the bed on ts r,
and succeeded in his bellish ign of
| Favishing her. Having accom; thelr!
| ftem@ish purpose, Fanr . ou “ well :
etrock on the head by Craft with Waxend}
instantly killed, while Neal dealt Cars
rico a blow’on the head with @ cro thes
her soul into eternity. Then) omeet

up all traces of their datanable de 4
Ellis procured a can of coal-oll, sata
clothing of their; dead victims ‘wi
them on fire and all three left the box
butiding Was diecofered to be on fire, b:
citizens arrived tn'time to eee eu
mains of the ebildren ou,

- RAPK, MURDER AND ARSON, s

The above is a brief s\ nopats of tab
affair, and these three sin-soaked gevyn
arrested and convi¢ted upon the tiphee
of rape, murder and arson, not simp. ea :
mere statement @f George Qilis, bat
chain of circumstantial evidence that as
strofig to be misconstrued. Lhe oMmictais @
citheens were untiring in their efforts br
about a coaviction, Even after the
the necused money Was spent by the
iu procuring witndscs for tiem,
meya to defend them, That they 1

trinle there te no 1; thet they were er
alike, there ts but ptttle, if any, zene

Depoty Sheriff, ascended the scaffold. He ran
up the steps, and turning to the crowd talked
very little. He said that the hour for his de
| partare had come. He did not want to waste
words or tarry here, as thia world of woe was
neé bis home; said he was in no place to tell
a “Jam not guilty of the hefnous crime
which I stand convicted. One day my
imppoence will be established. I id 798 one
all farewell.”

A$ 106 p. m. the black leap anid! noose were
ted, Deputy Sherif Armstrong gave the

ff} Wiliam Neal was:

LAUMCHED INTO BTERXIZY. | :

were only slight: heavings about ‘the

onased to beat! in. twenty minates life
pronovhced extinct by Drs. B.S. Riceand
+ Btrother, death resulting from strangu-
, and his body was cat down, placed in
n and tarned over to friends, who were
40 -Peceive it, and conveyed to Catlette-

pear which place the remains will be
Sunday. ‘There were Rca pecrvices wt

\"SH2 ADDRESS or NEAL sk
fon the scaffoli contained sud-
uy the same dec! one of innocence
® by Craft on the ghilows, and are re-
a with the same diversity of doubt and
gle’. He stood it well, and was not dis-
about the neck. Fally two thousand
‘witnessed the execution, and a more
sey crowd ‘assembled apy-where.
P was little or 86 drunkenness, and every
‘Body, was well. behaved—quite a contrast to
ang of suske-hunters ibat aseembied
edn the. 2th ultimo. - One-toureat ine
arO ‘wee composed of ladies. 5x?
: q TO HTS WIFR.
s : handed your reporter the tofiowins

ene same be published: ~

tee “GRaveos, Kr., March 9, 1886
: Dean Wive: As this is my iast night
th you know how sad I feel, and with
re I atate truthfully to you that! will

ones that have fallen asleep, who. ong you and i
did jove so dearly. 1¢ 19 bard for you and I
and @ur dear litte ones to part, but God's will
be deme, and you-may rest assure@ that we
Will Meeet-again, and never, no nevef, to part.

Pq ourlitsie ones to be truthful and hon-
é ith al! men. * Raise our children up on
fer of God,vo when their trogbies are
‘pd earth they will have a ho youd
ve. You must: net grieve mo, it

ca “Hoge f ttate to you again’ my entinginac-

dle. j-morrow. Thank God, 1 he , told,
but the truth concerning 3
sn do Isto put my trast in God, fr He
) Deut for us all, and will to Hiaown ap.
pointed tlie vindicate me of, the charge. As
eupdived likes nen J will dje iike a man,
the trap, and what i ey ePipe aany

Gay the guilty one will be brought te

Judgee of the Cogrt of Appeal
them all this disgrace wilt he takenon

tnature deliberation, have vensiea aR
in the case warranted the Quding by &
and the judgment tthe lower ty 2

gUlsing the fact t sa Samcaee conk
poople believe in the entire
these parties, eve
altering them fy |

that bright home above. I forgive all, as I
hope to be forgiven, Pray that Gud wiil tor.
give these who hate sworn my Ute away.

tatious clarenes, the modeat

‘the Lt pretentious wagan | bid vet and me flavins baliine wrcus me Oo ek!

Ohi dear wife, it le 69 heart-rending to me to free talker, and bh. exatiod

NEAL, William, white, hang

| ibe etn OP Ea? ait Me”)

ed Grayson, Kentucky, March 27, 1885.

: a ts init

whea he stanés ot Geath's threshold.
hearty Gidner at 11:20, and! dressed at
a3: Five Bhorill tnformeé the petsoner that

. ie eee
’

a
i

" ae

hire thepe, Walag io Lae crowd talmed | 1 ihe mine of the paophe
(Rare bed come. He did not want to waste | @ered; that upon the don!
| Waphe or tarry bere, as this world of wee was} Ellis, he l

sept

ebout midnight, Waaieal,
Ellie Craft, armed with an

id + £

3 a
© $

a % 4

#.. #5%

ett teas tttice pis

To Mita wire.

54 KENTUCKY REPORTS. [Vol. 186.

Ochsner v. Commorwealth, 128 Ky. 761; Sizemore v.
Commonwealth, 10 Ky. Law Reporter, 123; Nelms v.
Commonwealth, 82 8. W. 260. That fact, like any other
fact, i3 to be ascertained from the evidence.’’

Furthermore, the rule is that where the accused tes-
tifies to substantially the same facts as does the alleged
accomplice, he is not prejudiced if the court failed to
give the instruction concerning the testimony of an ac-
complice. Frick vy. Commonwealth, 29 Ky. Law Rep. 187.
It is therefore apparent that this ground of complaint
is without merit.

The alleged misconduct of the attorney making the
closing argument to the jury, of which complaint is
made in ground (6) consists in these remarks:

“They (the defendants) knew they were going to be
arrested; policeman Hatfield said, ‘Hold on there, boys,
the Bragg hotel has been robbed, you fill the bill, wait
until I investigate.’’? . . . ‘‘We do not ask him if
he stole those pistols in Huntington, we knew he did it.’’
. . . “He plead not guilty and compelled us to prove
his guilt, and after we had proven he fired the shot that
kill-d Charles Hatfield, his attorney took him into the
room there (pointing to the jury room) and told him
that it would not do for him to contradict all those wit-
nesses, and that he had better admit the shooting, and
say he did it in self-defense and did not know Hatfield
was a policeman.’’

The last remark complained of was withdrawn by
the attorney when the objection to it was made. The
defendant’s attorney at once denied the fact contained
in the statement, all of which occurred in the presence
of the jury, and the court said: ‘The jury will try the
ease on the law and the evidence, alone.’? The proper
latitude to be allowed an attorney in his argument to
the jury has frequently been. before this court, and in
each ease it has been held that reasonable inferences to
be lrawn from the facts and circumstances might be
made and commented upon, and that to do so was not
prejudicial error. The law in such eases recognizes the
frailty of human nature, and that in the heat of argu-
ment inappropriate remarks are liable to be made, but
unless they are altogether unfounded from any fact or
cireumstanee appearing in the case, and manifest such

Music v. Commonwealth. 55

a wide departure from legitimate deductions as to be at
once poisonous and prejudicial, a reversal will not be
ordered for that reason alone. But if the complained of
remarks are entirely foreign to anything appearing in
the ease, and if they were made for the purpose of tak-
ing an undue advantage and such was their probable
effect, it is the duty of the court to reverse the judgment
rendered upon a verdict so obtained.

We do not find the remarks complained of in this
case to belong to the latter class. While the attorney
for Commonwealth in some of them assumed facts for
which there was no express testimony, yet they were
fairly deducible from the cireumstances, and besides
the court directed the jury in substance not to be in-
fluenced by them, but to ‘‘try the case on the law and
the evidence alone.”’

It might be safely said that no trial is faultlessly
conducted, and if the proceedings of the courts in con-
ducting tedious and expensive trials could be set aside
for every technical error, however non-prejudicial, there
would be no end to litigation, and the Commonwealth
would be bankrupted in an effort to apprehend and con-
viet offenders. Our conclusion is that the judgment should
not be reversed for the alleged error now under considera-
tion. The penalty in this case being the severest known to
the law, we have given thorough consideration to each
of the grounds urged for a reversal of the judgment, and
are unable to say that any of them furnish just cause
for setting it aside. The Iegislature in fixing the penalty
of death as punishment for murder realized that there
are occasions where the magnitude of the crime anu-
thorized its infliction. It is not for.us to comment on
the wisdom or lack of wisdom of this law, but to admin-
ister it when and where the facts and circumstances de-
mand it.

Finding no error authorizing a reversal of the judg-
ment, it is affirmed. . i

—s

238 Racial Violence in Kentucky, 186 5—-1940

several white men seen in the area. Late the second evening, Jennie
Bowman regained consciousness for a few minutes. A physician asked,
“Jennie, who was it that struck you?” She replied, “It was a Negro.”
Two men had broken into the house, and during the struggle she had
cut one of them in the face with the goblet. Police Chief John H.
Whallen, a major political boss in Louisville, decided to personally in-
vestigate the matter. After obtaining a description of the girl’s assail-
ants, he instructed his officers “to thoroughly search from cellar to
attic every black saloon, lodging house and dwelling in the city. Sen-
tries were posted at all the depots and steamboat landings in the city
and turnpikes.” In their sweep through Louisville’s black community,
the police arrested more than one hundred black men, many of whom
only marginally fit the description Bowman had given. One man,
William Patterson, “a vicious and desperate negro,” was arrested on
general principles. The police justified holding Patterson because of
his extensive police record. Several days later, the major break in the
case occurred. A white woman came forward to say that on occasion
she had employed a man to do chores around her house and that she
had once again required his services. Upon finally locating his house,
she had been shocked to see scratch marks on his face. Within an in-
stant, she said, she realized that he fit the description of Bowman’s
attacker. The police, strong in numbers, quickly arrested the man,

Albert Turner, who also had a police record. Within minutes of being .

arrested, Turner confessed (newspaper accounts fail to say whether he
did so freely or under duress) but refused to name his accomplice.
Word leaked out of Turner’s arrest, and a mob formed, intent on
lynching him. Chief Whallen and a group of officers then secretly
took Turner to Frankfort. Before reaching Frankfort, they stopped and
questioned Turner once again about his partner. According to the
newspaper, Turner, still in a state of fear at the thought of being taken
by the mob, agreed to talk and implicated William Patterson. Turner
shifted most of the blame to Patterson, explaining that he suggested
robbing the house. Once in the house, Turner came up on the girl,
who grabbed the goblet and cut him. Turner admitted to the police
that he then hit her with the iron poker. But it was Patterson who,
upon entering the room where the girl lay unconscious, hit her re-
peatedly with the poker and wanted to rape her as well. Turner pre-
vented Patterson from raping Bowman by threatening to beat him.
Realizing that he was on the verge of solving the case, Whallen had

“Sacrifice Upon the Altar of the Law” 239

Patterson brought to Frankfort and placed in a lineup with several
other black men. Turner easily identified Patterson as his accomplice.

Stories of the arrest of Turner and Patterson made headlines in the
newspapers. The Courier-Journal, the most respected newspaper in
the state, ran drawings of the men that depicted them as almost
animal-like. In a front page editorial, the paper called their crime one
that “has few parallels for atrocity in the annals of crime in civilized
communities, or elsewhere for that matter.” When the paper went to
press, Jennie Bowman was still alive and from all accounts had not
been raped, but the paper said Louisville citizens wanted, and should
get, prompt executions: “The blood of the culprits cannot pay the
penalty of their crime.” The Courier-Journal said it was merely re-
porting on the people’s collective anger over this horrible crime. “The
fact that the assault had been committed in the broad light of day,
when fathers, husbands and brothers leave their homes unprotected
added to the general indignation.”

Several days later, police officials returned Patterson and Turner to
the Louisville jail. Aware that a mob might rush the jail, Whallen
ordered his officers to be on alert. At midnight, a mob of five hundred
men, heavily armed and carrying a section of a telegraph pole, marched
toward the jail. The police demanded that the mob disperse and ar-
rested ten men when the mob refused to move. Only by charging the
mob were the police able to scatter the crowd and end this threat of a
lynching. Two hours later, the mob returned but was again dispersed.
It is clear that Louisville’s leading citizens led the mob, for among
those arrested during the second lynching attempt was John Letterie,
a member of the state legislature, and Allen McDonald, a leader in the
Law and Order Club, which claimed to promote honesty in govern-
ment. Not arrested, but rumored to be the instigator of the mob, was
a well-known physician who had informed the mob that no white
woman could rest easily until criminals like Turner and Patterson
had been killed. To prevent further trouble, the mayor sent a request
to the governor for the militia and additional weapons. The governor
responded by sending five hundred men and a Gatling gun. The mili-
tia’s presence turned out to be vital, for the next evening some ten
thousand people gathered in front of the jail and demanded the pris-
oners. As they had the night before, the police made arrests, this time
taking thirty-eight people into custody. After having previously called
the attack on Bowman one of the worst incidents in the history of

= ne renin AS

Pap ee ape pier en tte sat

Oe
iad

on June 22, 1888; and
“July 1, 1887

Racial Violence in Kentucky

ae wy Pa

1865—1940

Lynchings, Mob Rule, and “Legal Lynchings”

Se ae:
a

°F RE PPR or? oy

LOUISIANA STATE UNIVERSITY PRESS

Baton Rouge and London

ya"

i
H
Veblen apa liee 2 Ew Dit ae Nae tie

PATTERSON, William, piaék, hanged Louisville, . KY

TURNER, Albert, black, hanged Louisville, Ky., on

j 6 ND Bae ‘a goat

om ¢

‘ ¥
RY
z

4
‘ Sieinhts nny Saipeinesmeiiets tats ae mah Bn DE A las ase er caca acne aecinte oxeonsac adeams moe ca oe ie Rresiphiannan eit cup tpcainecnnete

ind ar da hae ae ahs Bits i hen cha a

236 Racial Violence in Kentucky, 1865-1940

court explained that the case of Commonwealth v. Johnson, which
had been decided by the Kentucky Court of Appeals on June 29, 1880,
had said the language limiting jury duty to whites only was uncon-
stitutional: “It was not until after the grand jurors who returned the
indictment against Bush had been selected that the highest court of
Kentucky, speaking with authority for all the judicial tribunals of that
Commonwealth, declared that the local statutes, in so far as they ex-
cluded colored citizens from grand and petit juries because of their
race, were in conflict with the national Constitution.” In reversing
the ruling of the Kentucky Court of Appeals in Bush’s case, the Su-
preme Court remanded the case to Fayette County Circuit Court and
ordered a new trial.*

It would be another year and a half before the final resolution of
the case. During the February, 1884, term of the Fayette County Cir-
cuit Court, the sheriff was ordered to summon two hundred persons,
without regard to race, from whom a jury could be selected. As had
happened in Bush’s previous trials, only white men were selected for
the jury. The trial started on February 12 and ended the next day with
the all-white jury reaching a guilty verdict. Once again the case was
appealed, and Kentucky’s highest court again affirmed the ruling
of the lower court. This time, however, the United States Supreme
Court refused to review Bush's conviction. The nation’s highest court
was Satisfied that blacks had not been excluded as potential jurors,
and in the view of the justices (as stated in the 1879 case of Virginia v.
Rives), the mere absence of blacks from the jury did not mean that a
black had been discriminated against.

After having four trials in the Fayette County Circuit Court and
having his conviction reviewed by Kentucky’s highest court, the
United States Circuit Court, and the United States Supreme Court,
Bush was out of appeals. His execution was set for November 21,
1884. In his final statement from the gallows, Bush told his version of
what happened on the fateful day, January 13, 1879. He shocked the
huge crowd with this statement: “Mr. Joseph Van Meter did not tell
you he destroyed his infant before its time.” According to Bush, Mrs.
Van Meter had been forced by her husband to have an abortion. Rumors
about the abortion had quickly surfaced in the home of Isaac Van
Meter, and Joseph Van Meter had assumed that Bush had told about
the killing of the fetus. Bush also denied having an intimate relation-

33. Bush v. Kentucky, 107 U.S., 110—23 (1882).

“Sacrifice Upon the Altar ofthe Law” 237

ship with Annie Van Meter, stating emphatically that the girl’s father
concocted the story to cover up the accidental shooting. The doomed
black man concluded that he had not been given a fair chance to vin-
dicate himself. A Lexington newspaper disagreed, saying that of the
forty-eight men from Fayette County who heard the various cases,
forty-seven said Bush should die and only one said he was not guilty.
Furthermore, the reporter believed that the jurors had been fair and
thorough in their deliberations regarding Bush’s fate. The all-white
juries “were made up of our best citizens, not likely to be so unani-
mous in their opinions unless convinced of his guilt,” argued the re-
porter. The whites witnessing the execution were impressed with
Bush’s composure while facing death, “all saying they never saw such
a remarkable exhibition of nerve and coolness in a criminal.”

Although race was not the only factor leading to their convictions,
two blacks were involved in a highly publicized trial in Louisville in
the late nineteenth century. This case clearly shows the phenomenon
of legal lynching: The two Afro-Americans were convicted in the
minds of the general white public before the trial started. The case
also illustrates a morbid fascination that many people of that era had
with criminals. About ten o’clock on the morning of April 21, 1887,
Mrs. A. Y. Johnson and her two children left home to spend the day
visiting relatives. Remaining home to do the chores was their domes-
tic servant, Jennie Bowman, a white woman in her twenties. Almost
two hours later, the son returned home to get an item left behind by
his mother. After Bowman failed to answer the door, the boy climbed
in the window and found the house in total disarray: Furniture was
broken and blood was everywhere, and the trail led to a bedroom up-
stairs where Bowman was found unconscious. Her mouth was tightly
bound with a wet towel, and her head and face were badly lacerated.
A medical report would show that Bowman’s jaw and skull had been
crushed. Two items in the bedroom had obviously been used by the
young woman and her attacker: “At the head of the bed was found a
heavy iron poker, covered with hair and human blood... . On the
floor was found the stem of a stout glass goblet that had been used by
the girl in her desperate struggle.”*

After talking with several neighbors, the police began a search for

34. From April 22 to July 1, 1887, the Louisville Courier-Journal ran stories almost
daily about the case. Information in this and following paragraphs has been drawn from
these stories.

PARKER, John

-year-old black many was hanged at
on June 2, 1878, for the murder of

barber in Somerset, in Marche

ne 22, 1878 ( 3-1)

Jonn Parker, ax 9
Somerset, Kentucky,
George Franklin, a black

NATIONAL POLICE GAZETTE, Ju

A Young Murderer Hanged.
| SOMERSET, Ky., June 3.—Juhn Parker, & yuung ;
aelores man, nineteen years old, who : killed :
| Geo, Franklio, & colored barber.in this place, in

| March, was hanged hero yesterday fur the crime.

‘hele Dan Eller used to recall

last hanging in Wayne County

- By: Alice Eller Coffey

Today as snow is falling and

the cold winds are whistling

outside, my memories turn
backward to days long ago when
we sat by the fireside and
listened to those old fireside
chats.

There were no television or
radio in those days and-only
kerosene lamps for reading.
Many a long winter evening we
wauld sit listening ta our
parents s telling us of y years gone
by. Some of these stories were
related many times. Some were
tales of horror---like the last
hanging in Monticello court-
yard. .

My father Daniel Eller---Uncle
Dan’ as he was called by
many---was a good story teller.
My mother was a good cook
and our house never lacked for
company. Sometimes neighbors
would come in and set for the
evening as was the custom then.
Often, we brought our school
mates ‘Wame with us for the
night and after supper with a

ring of cotton around and open
fireplace. we would pluck seeds
from the cotton to make batts for
quilts. ;

Warming the cotton made the
seeds easier to pull. It was then
we would have our father tell us
about the last hanging in
Monticello, so our friends might
hear it told also.

My father had a _ good
deliverance of speech. His
description sometime was so
vivid and clear it was as if the

scene was almost happening

before your eyes.

Here is his eye witness account
of the hanging and his version of
the crime as it was told at that
time,

My father was born March Zi,
1870. The-crime was committed
in the late 1870's or early 1880's
by Grandville Pruitt, ‘‘Grand’’
as he was called.

My father related the victim
Garvis Buck had sold a horse for
30 dollars. Grand Pruitt, under
the influence of whiskey, went
to his home. As Buck was on his
knees. building a fire in a
fireplace, Pruitt struck him from

behind.

He clubbed him to death for
the $30 which was a lot of money
in that day. A sister and her son
lived with Buck. Pruitt attacked
the sister and as he killed her
the dog attacked him giving the
little boy a chance to run away.

Pruitt gave chase but the small
boy hid in a briar patch. Pruitt
passed within a few feet of his
hiding place searching for him
but failed to find him.

Grand Pruitt was convicted and
sentenced to hang. On the day
of the hanging ring side seats
were sold to a few. My father
being a young boy climbed a
tree mear the scaffold. He
described Pruitt as tall, well
built, handsome, What a pity for
a man like that, to die!

What a crowd! Enormous in
size. Trees and house tops were
covered.

After Pruitt climbed the
scaffold he spoke to the crowd.
His words were whiskey had put
him on the scaffold. His advice
to people was to leave it alone as
they could see what it had done
for him.

punt WV it berte

The little boy was on the
scaffold. Pruitt asked him to
forgive him and shake his hand.
The boy refused.

My father said, ‘'I will never
forget that little red headed and
freckled-faced boy.”’

He also said Pruitt put on his
own black gloves. Then he
looked up at the. sun for a
moment before he pulled the
black hood over his head.

My father said the rope jerked
as a fish line does when a big
fish is om it.

My father did a lot of jury duty
in years after that. But never
when capital punishment was to
be considered.

There. were 4 legal hangings in
Wayne County, but this one was
the last one.

There wasn’t another murder
case in Wayne County for 25
years following the last hang-
ing.

Alice Eller Coffey, a resident of
the Jabez community of Wayne
County, is the author of a book
on old-fashioned recipes and
folklore called. ‘‘Grandmother’s
Scrapbook.”’

4 Lo 2F

.4 “\
ft it t \

reversible error, we, in
“Such evidence woul

dence like that in qu
era) law recogniz.

ush (Ky.) 1; K
(Ky.) 340; Siler v.
W. 1030,

It is true
457, 132 &

ed the jury orally,
would not on an

ten instructions.

‘on, and there is no gen-
its competency, it clea

; Coppuge v.
by v. Com., 12

v. Com., 14 Bush

d, also,
not preju-

In the case at bar the record shows that

that the appellant duly ente

also shows

246 SOUTHWESTERN REPORTER (Ky.

the action and several rulings of the court
referred to, and in the motion for a new tria)
made these rulings a part of the grounds
urged therefor, It therefore conclusively ap-

be in writing; and ‘this error, if there

were no other appearing in the record, is guffi-

to the lower court to sét it aside and grant
appellant a neytrial consistent with the
opinion.

(197 Ky, 154)
POWERS v. COMMONWEALTH,

(Court of Appeals of Kentucky. Oct. 27, 1922.
Rehearing Denied Jan. 26, 1923.)

{. Criminal law @--59(4)—Other crime must
be in furtherance of orlme agreed upon to
render confederate liable.

Accused cannot be convicted of an inde-
Pendent crime committed by a confederate, un-
lesa its commission necessarily took place in
the execution of the common design either to
promote its execution or to prevent discovery
or escape.

2. Homicide €=>234(5)—Evidence held to show
killing was in furtherance of robbery agreed
upon.

Evidence that accused and three confed-
erates had agreed to commit a robbery upon
the occupants of an automobile, and that the
driver of the automobile, who was still sitting
at his wheel with the engine running so that
he could have pursued immediately, was shot
and killed by one of the confederates, shows
conclusively that the killing was done, either in
the attempt to commit the robbery or to aid
the escape, so that all participating in the rob-
bery were guilty of the killing.

3. Homicide ¢@=—34!1—Fallure to Instruct on
conspiracy held favorable to accused.

In a prosecution for homicide committed
by one of four confederates while engaged in
the perpetration of robbery, where an instruc-
tion authorizing a conviction of defendant if
the jury found a conspiracy between him and
the confederates would have been proper, the
failure to give such an instruction was error
favorable to accused, and he cannot rely there-
on for a reversal of the conviction.

4. Homicide @>309(2)—Instruction on volur-
tary manslaughter held unnecessary.

Where deceased was killed by one of four
confederates who were perpetrating a robbery
while deceased was sitting in his automobile,
it was not error to fail to give an instruction
on voluntary manslaughter, even though no
witness testified to seeing the actual firing of

exceptions to

the shot.

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

Ky.) POWERS v. COMMONWEALTH 437
(246 8.W.)

5. Homicide @=>36—Killing In commission of
unlawful act not manslaughter unless kill-
Ing or wounding was unintended.

The rule that the killing in the commission
of an unlawful act is voluntary manslaughter
applies only where the killing was wholly un-
intentional and was the result of some mistake
and at a time when the perpetrator thereof
did not intend either to wound or kill.

6. Criminal law ¢@=>369(3)—Proper rebuttal
evidence Is not Incompetent because It shows
commission of other offenses.

Where accused had testified that he had
been sick and had not associated with his con-
federates prior to the night of the homicide,
evidence that he had been seen with them at
several different places shortly before that
night was proper rebuttal evidence and was
not rendered incompetent because of the fact
that other robberies were committed at the
times and places at which accused was seen with
his confederates, of which facts the jury may
have known through reading the papers.

Appeal from Circuit Court, Kenton County.

James Powers was convicted of willful
murder and the death sentence imposed,
and he appeals. Affirmed.

John T. Murphy, Martin J. Brown, and
Stephen L. Blakely, all of Covington, for
appellant.

Charles I. Dawson, Atty. Gen., Thomas B.
McGregor, Asst. Atty. Gen. and Orie 8.
Ware, Commonwealth’s Atty., of Covington,
for the Commonwealth. :

THOMAS, J. Appellant, James Powers,
was tried in the Kenton circuit court on an
indictment returned by the grand jury of
that county accusing him of the crime of
willfully murdering Morris Lee by shooting
and killing the deceased with a pistol, or
that Isaiah McKnight or George Sanders
in the same manner murdered the deceased,
and that appellant was present at the time
and did willfully, maliciously, and with his
malice aforethought assist, aid, and abet the
Perpetrator of the crime in the cammission
of it. He was convicted and the Geath» n-
tence imposed. His motion for a ‘we trial
was overruled, and he has appealed, insist-
ing upon a number of alleged errors which
ning be disposed of in the course of this opin-
jon.

Before considering them seriatim, we deem
it appropriate at this point to briefly refer
to the facts leading up to and attending the
shooting which have been-so completely, suc-
cinctly, and fairly stated in brief for the
commonwealth that we have concluded to

incorporate it herein, and it is in these
words:

“Appellant James Powers, and one Isaiah
cKnight, who made a full and complete
statement when arrested, met on Sunday even-
ing about 6 o’clock, January 22, 1922, on Third

Street near Madison avenue, in the city of
Covington, and proceeded to a point near
Seventeenth and May streets in said city,
where they secured an automobile, and then
the two went to 905 Nassau street, Cincinnati,
where they picked up George Sanders and Ray
Rogers. These four proceeded in their auto-
mobile, McKnight driving, from Cincinnati,
through Newport and Covington, and back to
Cincinnati; then they ran to Hamilton, Ohio,
and remained there but a few minutes, and
then returned through Cincinnati to Covington.
crossing the C. & O. Bridge into Covington,
at the foot of Main street, and went immediate-
ly to the southeast corner of Pike and Rus-
sell streets, arriving at this place between 10
and 10:45 o'clock p. m., on the same evening,
January 22, 1922. They parked their machine
on the east side of Russell street, facing north-
wardly, near the corner, and south of Pike
Street. The machine was so parked that
those sitting in the machine could see the
front of the Strand Theater, a moving pic-
ture house owned by Harry Lee, and operated
by him and his son, Morris Lee. About 11
o’clock, Harry Lee and his wife, Jennie Lee,
Morris Lee, a son, and Ruth Lee, a daughter.
came out of the theater and got into the Lee
machine, which was parked in front of the
theater. They moved westwardly on Pike
street and turned around, and then went east-
wardly to Madison; thence southwardly one
block to Seventh; thence eastwardly three
blocks to Garrard; thence northwardly to
the Lee home at 618 Garrard street. As goon
as the Lee car moved away from Pike and
Russell, Powers, McKnight, Sanders, and
Rogers followed them in their machine, and
came up behind the Lee car, when it stopped
on the east side of Garrard street between
Sixth and Seventh, and then the bandit car
moved on northwardly to the left of the Lee
car, stopping alongside the Lee car with the
hood of the bandit car gtanding about three
feet further north than the Lee car. When
both cars were stopped, they were standing
alongside each other, and the front of the
bandit car was setting at an angle and further
northwardly than the Lee car. When the Lee
car stopped, Mr. Lee got out of the right side
of the front seat, leaving his son, Morris Lee,
who had been driving the machine, sitting in
the machine at the wheel with his engine run-
ning. Mrs. Lee and her daughter had also
gotten out of the machine at the same time.
This was a cold night, and the streets were
somewhat covered with ice. The father pro-
ceeded to the side door of the home to get a
dog, which they usually took with them to the
garage, and Morris Lee remained at the wheel
with his engine running, waiting for his father.
Just as the bandit car stopped on the opposite
side of the machine, from which the Lees had
alighted, according to the testimony, Sanders
alighted from the front seat and Powers from
the rear seat of this car, and, before any one
was seen by Mrs. Lee, a shot was heard. Im-
mediately following the shot, some one came to
the sidewalk from behind the cars and held
a pistol in front of Mrs. Lee, who screamed
and ran down the sidewalk some distance to
the front of the Caldwell home, where some

People came to the window, and at this point

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

‘souer *SuaMOd

Ay *oeTe feqtTum

) uoJUey) d

rf
/

“€Z6T £QT Sung uo (f£ uno

* 440 246 SOUTHWESTERN REPORTER (Ky,

from those presented by this record that we
Zeel it unnecessary to pursue the question
further.

[5] But counsel in brief offer the further
suggestion that, inasmuch as the killing of
the deceased was not originally intended but
may have been the result of the attempted
robbery, which was an unlawful act, the
case comes within the well-known principle
that if one, while engaged in an unlawful
act, kills another, which latter act was not
intended, he is guilty of voluntary man-
slaughter, and for that reason such an in-
struction should have been given in this case.
What we have heretofore said disposes of
this contention, but it might be further add-
ed that the doctrine contended for, when
applicable at all, prevails only where the
killing, as the result of the unlawful act,
and which would thereby reduce it to volun-
tary manslaughter, was wholly unintentional
and was the result of some mistake and at
a time when the perpetrator did not intend
to either wound or kill. It has no applica-
tion where the wounding and killing were
designed and intended. We can therefore
find no room for a manslaughter instruction
under the facts of this case.

[6] Lastly, it is contended that the court
erred in the admission of certain evidence
offered by the commonwealth. As we have
heretofore remarked, defendant claimed that
he was sick for some weeks before the com-
mission of the crime for which he was con-
victed and that during that time he was not
associated with any of his confederates, nor
did he drive with them or any one else in
an automobile. In rebuttal the common-
wealth introduced witnesses to prove that
on some four or five occasions, extending
up to the day before the killing of Lee, the
appellant, sometimes with part of his con-
federates and at others with all of them,
was at places at night in the city of Coving-
ton, Ky., and in Cincinnati, Ohio, and that
they were driving the same machine that they
were in when Morris Lee was killed. The
court did not permit the witnesses to say
what appellant and his associates were doing
on those occasions, but one witness, when

asked, “How did they come?” answered,
“They rushed in with pistols.” Of course,
the purpose of the question was to elicit the
mode of travel of appellant and his asso-
ciates, 1. e. whether they came to the place
in an automobile or otherwise; but the wit-
ness misunderstood the question and an-
swered as indicated, whereupon the court ex-
cluded the answer and admonished the jury
not to consider it. The basis of the com-
plaint of that character of testimony is that
on each of the occasions inquired about the
places visited were robbed by the appellant
and his associates, two of which occurred
on the night of January 14th, preceding

occurred on the night of January 21st, the
day before. It is insisted that the testimony
was highly prejudicial because it tended to
poison the minds of the jury who had a gen-
eral newspaper knowledge of the commission
of those crimes. In the first place, it might
be seriously doubted whether the evidence
would have been incompetent if it had been
expressly proven that appellant and his as-
sociates committed robbery upon each of
those occasions, since such testimony would
tend to prove a systematic plan of criminal
action on the part of the defendants in the
indictment. Bullington v. Commonwealth,
193 Ky. 529, 236 S. W. 961; Moore v. Com-
monwealth, 188 Ky. 505, 222 S. W. 934; Musie
y. Commonwealth, 186 Ky. 45, 216 S. W. 116;
Clary v. Commonwealth, 163 Ky. 48, 173 8.
W. 171. But whether so or not (and we do
not determine the question), the common-
wealth had the undoubted right to contra-
dict appellant by showing that his testimony
as to his conduct and whereabouts preceding
the commission of the crime for which he
was on trial was false, and that, instead of
being sick and confined to his room and had
not ridden in an automobile with any of
his associates, as he testified, he was regu-
larly engaged throughout that time in pro-
miscuously driving around with them in the
same automobile; and it would have been
an anomaly in the law that such universally
recognized competent testimony could be
rendered incompetent by the appellant's
criminal conduct in perpetrating robberies
at the several places where he was proven
to be. Counsel for appellant admits that the
testimony was competent, but for the fact
that the places where defendant was proven
to be were robbed on the respective occa-
sions. The law will not allow an accused
the privilege of eliminating such competent
testimony from the case by his own wrong-
ful acts, and we are convinced that no error
was committed in the admission of the com-
plained of testimony.

The gravity of the punishment in this case
is such as to demand of us the most pains-
taking care and attention in its considera-
tion, all of which we have endeavored to
give to it, and have been unable to find any
error committed at the trial, much less one
that, in the least, could be considered preju-
dicial to appellant’s substantial rights. This
case and its facts are 80 similar to those in
the case of Lawler V. Commonwealth, 182
Ky. 185, 206 S. W. 306, that we deem it not

from that opinion:

“The defendant had the course of a useful,
upright life before him. He did not choose to
follow it, but rather to travel the devious path
that leads to destruction. He has been shown
to be guilty of a most atrocious murdet,
prompted by no other motive than robbery.
The Legislature, in providing for the death

the killing on the 22d, and the last of which

penalty for the crime of murder, realized that

inappropriate to insert herein this excerpt

Ky.) HALL v. COMMONWEALTH
(246 8.W.) -

there were cases of sufficient magni -
serve the punishment of death.” If thene ra
such, this case comes within that class. We
must administer the law as we find it, and if
one constructs for himself a bed of thorns
he has no one to censure but himself. We
think there can be no doubt of defendant’s
guilt, and being the sole author of his con-
= = — — the consequences, since
nd anythin
thorize our ‘otulhingene = ee ee

Wherefore the judgment is affirmed.

(197 Ky. 225)
ALFORD v. COM

(Court of Appeals

WEALTH.

(. Criminal ig @=>1064(1)—Error not sho

and grounds for new tria

cannot be considered.

2. Intoxicating {Iquors

bad character for vjefation |
prosecution under Afquor — i"

. |B. McGregor, Asst. Att

versal are urged: Fi
in refusing the pe

Upon the contention that th
e vertlict
wholly upon the evidence of o =
it is claimed by appellant’
Pi aig and whose e
8 Wholly uncorroborgfed, as 1

8 required b
section 241 of the Criminal Code; and, pi

8 to appellant's reputation for
ton of the liquor laws. ;

*| tution against putting i

not embraced in, or pointed out by, the
tion and grounds for a new trial, pal pacar

that evidencp“of defendant’s bad character
of the liquor laws was incom-

shoe v. Commonwealth, 195 K
. y., 762,
S. W. 1024; Davidson v. Commonwealth,
196 Ky. 307, 244 8. W. ullins v. Com-
monwealth, 196 Ky. 61 5 S. W, 278.
Because of the -indicated error, the
sed, with directions te
a new trial and for further
nsistent herewith.

Criminaj

law 20i—Prosecution by state

authorities for same act not

olation of prohibition laws is
the provisions of either state op-federal Consti-

the same offense by a prjef prosecution for the

authority.

reuit Court, Floyd County.
Jonath all was convicted of operating

Charles I. Dawson, Att;

He pleaded for-
,» a8 follows:

ct Court, Eastern District
t Catlettsburg, Ky., re a

by the court, and
is punishment fixed at
y confinement in the coun-
day, he appeals, urging a re-
. se he says that by a provision

(1] The first alleged error relied upon is

of the federal as well as the state Consti-

@=>For other cases see same to, be
Dp

438 248 SOUTHWESTERN RHPORTER (Ky.

Powers, who was identified by Mrs. Lee as the
man following her, jumped into the bandit car,
and it drove away.”

Deceased was discovered with a shot
through his head and it was resting on the
drive wheel.

That statement is fully borne out by the
evidence heard on the trial, and the only
substantial qualification that may be stated
is that Powers and Sanders testified that the
latter got out of the automobile at some
point in Covington after the return trip from
Hamilton, Ohio, and that he was not at or
near the theater, nor was he present at the
time of the attempted robbery, which testi-
roony on their part is flatly contradicted by
McKnight and Rogers, and other facts and
circumstances proven in the case thorough-
ly convince us that their testimony ts cor-
rect and that Sanders was present from the
time the quartet got into the automobile in
the early part of the evening until it was
abandoned on Isabella street in Covington
after a circuitous drive following the kill-
ing, and near 12 o'clock at night. The evi-
dence shows that all four of the accused re-
mained in hiding from two weeks to near &
month after the killing, some of them a por-
tion of the time in Cincinnati, Ohio, and
some of them at different places in Coving-
ton, Ky.; but we will not incumber this opin-
fon with a detailed statement of what the
evidence showed with reference thereto. It
was furthermore shown by McKnight and

Rogers, both of whom testified for the com-
monwealth, that the purpose of the parties
from practically the beginning of their com-
ing together was to commit robbery, but
whether they intended the particular one
attempted until the stop on the east side of
Russell street near its junction with Pike
street and in view of the Strand Theater,
which was operated by the father of the
deceased, does not clearly appear. It was
conclusively proven, however, that there was
formulated a common design and purpose to
rob that theater or the persons operating it,
after the stop was made, as soon as it closed
for the night and when a favorable oppor-
tunity presented itself. Powers in his tes
timony admitted the common purpose to
commit the robbery, but he denied that el-
ther he or Sanders got out of the automobile
in front of the Lee residence, and that Rog-
ers and McKnight, the latter of whom was
driving the bandit car, were the ones who
got out of it, and that the latter admitted
after the shooting, and before they aban-
doned the car, that he was the one who per-
petrated the crime, which is denied by Mc

Knight and Rogers, who state that Powers

and Sanders were the ones who got out of it,

and that one or the other of them immedi-
ately did the shooting, and that when it was

frustrated they got back into the car and
the four immediately drove away.

It will be seen that Mrs. Lee positively
identified appellant as the one who came
around her car upon the sidewalk with a
pistol in his hand, and her daughter corrob-
orated her to the extent that some one of
the four did so present himself with a pis-
tol, but because of witness’ position and,
perhaps, insufficient light, she was unable
to identify appellant as the one who did so.
Appellant denied that he had a pistol on
that occasion, but said he owned one which
was in his room, and other testimony con-
clusively proved that he had it with him on
that trip. He also testified that prior to
that time, and since about the middle of De-
cember, he had been sick and was confined
in his room, which was located at a named
place, and that he had not been out or stir-
ring around to any extent for that period of
time, nor had he been with any of his con-
federates during that time, and that he had
not during that time ridden with them or
any one else to any place in an automobile.
It will be observed that there was no con-
spiracy charge in the indictment, either to
commit murder or to commit robbery, or the
further one that in carrying it out the de-
ceased was killed in furtherance of the com-
mon design, and the court only submitted to
the jury in an appropriate instruction the
issues (a) whether appellant himself did the
killing in the manner necessary to constitute
murder, or (b) whether McKnight or San-
ders did the killing in the same manner and
appellant was present, counseled, aided, ad-
vised, and abetted the perpetrator in the
commission of it. No instruction on volun-
tary manslaughter or self-defense was given,
and it is strenuously argued that the court
committed grievous error in not giving the
manslaughter instruction and in failing to
give one on conspiracy to commit the rob-
bery and its concomitant that the killing
was necessary in carrying it out or to ald
the parties in preventing discovery or in
effecting their escape, or both.

{1,2] Just in this connection we might
pause long enough to notice the objection
that the evidence is insufficient to show that
the killing was the natural result of carrying
out the common design of the parties, or
that it was necessary, in carrying it out, to
effect escape or to prevent discovery. A
number of authorities are cited from foreign
courts to the effect that one may not be
guilty of an independent crime committed by
a confederate, unless its commission “nee
essarily took place in execution of the com-
mon design either to promote the execution
of the common design or to prevent discov-
ery or escape.” In other words, it is in-
sisted that the particular crime committed
by an associate or confederate, and for

ascertained that the robbery was about to be

which defendant is on trial, in order to @&

Ky.) POWERS vy. COMMONWEALTH 439
(246 8. W.)

tablish his guilt, “must have been shown to
have been done for the furtherance or the
prosecution of the common object and de-
sign for which they combined together,” and
that where the particular crime committed
by the associate or confederate was inde-
pendently of and totally disconnected with
the common purpose and design and not
necessary to its accomplishment or to pre-
vent the discovery or escape of the parties,
only the perpetrator is guilty, and none of
his associates may be charged therewith.
We heartily subscribe to the soundness of
that contention, but the facts of this case
do not bring it within the doctrine, since it
is glaringly apparent that the killing of Mor-
ris Lee, if not done to render the robbery
the more easy of accomplishment, by re-
moving him as an obstructor and by ter-
rorizing the victims, was certainly done to
aid in preventing discovery and in effecting
escape; for the testimony is beyond dis-
pute that he was sitting at the wheel of the
automobile he was driving with its engine
running, under which circumstances he could
immediately pursue the fleeing robbers, if
indeed he could not assist in preventing the
robbery. It is manifest, therefor, that the
act of killing him was done in furtherance
of the common purpose and design within the
thoroughly established rule relied on. The
facts of no two cases are precisely alike, but
those found in the case of Anderson v. Com-
monwealth, 144 Ky. 215, 137 S. W. 1063, are
80 analogous to those contained in this rec
ord that we are convinced that the principles
announced in that opinion apply here and
furnish a complete answer to the criticism
now under consideration.

[3] But it is insisted that although there
was no conspiracy charge in the indictment,
yet it was the duty of the court to give an
instruction on conspiracy to commit the rob-
bery, and that the killing of the decedent was
necessary in order to carry it out or to pre-
vent discovery or escape, and the case of
Dorsey v. Commonwealth, 17 S. W. 183, 13
Ky. Law Rep. 359, is relied on for this con-
tention. That case holds that, where there
is evidence to prove a conspiracy, an instruc-
tion based thereon may be given, although
there is no such charge in the indictment,
and the giving of such instruction under the
circumstances was one of the alleged errors
relied on by the accused in that case. The
court decided the point against him and up-
held the action of the trial court in giving
the instruction. ‘The judgment, however,
was reversed, but for other and different
reasons. As in that case this court sustain-
ed the action of the trial court in giving the
instruction, so might we sustain the giving
of one in this case if the court had given it,
Provided it was correctly drawn. The ques-
tion, however, for determination, is whether
the failure to give it was detrimental and

It is so plain to our minds from every rea-
sonable or logical standpoint that the only
one prejudiced by the failure of the court
to give the instruction in this case was the
commonwealth that we deem but little dis-
cussion necessary. If the failure to give the
instruction was beneficial to appellant, he
most certainly cannot complain, and that
it was so is perfectly manifest. Without it
the jury could not convict him, unless it be-
lieved beyond a reasonable doubt that he
murderously did the shooting, or that some
one of his confederates in like manner did
it and he was present, assisting, aiding, and
abetting the act. If the instruction had
been given, the jury could then have con-
victed him if it had believed beyond a rea-
sonable doubt that the conspiracy had been
formed and that the killing, though done
by another, occurred as a necessary conse-
quence in carrying it out, or in order to
prevent discovery or to effect escape, al-
though appellant may not have been present,
or actually assisting, aiding, and abetting
in the commission of the crime. So that the
failure to give the instruction relieved ap-
pellant of conviction under one possible the-
ory of the case as presented by the evidence
introduced, and it is not allowed to him the
right to complain of the failure of the court
to give the instruction when such failure was
an error committed against the common-
wealth and in his favor.

[4] It is next insisted that the court erred
in not giving an instruction on voluntary
manslaughter, and we must acknowledge
that we are a little confused as to the
grounds upon which this contention is based.
The best we can gather from the argument
of counsel is that, inasmuch as no one saw
the actual firing of the shot that killed the
deceased, the case should be governed by
the principles announced in the cases of
Rutherford v. Commonwealth, 13 Bush, 608;
Ratchford v. Commonwealth, 28 8. W. 499,
16 Ky. Law Rep. 411: Messer v. Common-
wealth, 90 8S. W. 955, 28 Ky. Law Rep. 920;
Bast v. Commonwealth, 124 Ky. 747, 99 S.
W. 978, 30 Ky. Law Rep. 967; Frasure v.
Commonwealth, 169 Ky. 620, 185 S. W. 146;
Ratliff v. Commonwealth, 182 Ky. 256, 206 S.
W. 497; and Bowlin v. Commonwealth, 195
Ky. 600, 242 S. W. 604. In those cuses it
was announced that where there were no
eyewitnesses to the perpetration of the
crime, and local conditions or other facts
appearing in the case indicate that a
struggle may have occurred, or anything
else appearing from which it might be
concluded that the killing happened in
some other way than as the result of mur-
der, it would be the duty of the court to
instruct upon the whole law of the case,
including, of course, the giving of one on
voluntary manslaughter. We have no such
conditions here, and the facts upon which

Prejudicial to appellant's substantial rights.

those opinions are rested are so far removed

Within Moms [Ed eae
egg et Wa

RECORD

ita. | 72% (726 paeieddge shegdbes
Cane ELilcet (esis) 30 bleat | full Cruaded- hatr Gottee

OTIVE

Synopsis f 7 ie at kor Kew2r ataS 7 Sauth Luxfoty
7 = tricaled With Lv battle Lege. Lives Ou.% tuth bask.

fas 1 face lashed Fad dith resaere Lathan
tu Caddy

TRIAL

APPEALS

EXECUTION

190 8 SOUTH WESTERN REPORTER, 2d SERIES (Ky.

(223 Ky. 128)
MOORE v. COMMONWEALTH.

Court of Appeals of Kentucky. Feb. 14, 1928.

{. Criminal law @==552(3) —Conviction for
crime may be had upon circumstantial evi-
dence, but evidence must exclude every rea-
sonable hypothesis of innocence.

Conviction for crime may be had on cir-
ecumstantial evidence alone, but evidence must
be of such character that it may not be recon-
ciled with presumption of innocence of accused
person, but must possess such force as to ex-
clude every reasonable hypothesis of defend-
ant’s innocence.

2. Homicide @=-268—Evidence held for jury In
prosecution for homicide.

In prosecution for murder, evidence held

sufficient to require submission of case to jury.

3. Criminal law @-=>1159(2) — Appellate court
has no authority to disturb verdict of guilty
or innocent, where evidence makes clear case
for jury.

Where, under evidence, clear case for jury
to determine guilt or innocence of accused aris-
es, appellate court has no authority to disturb
verdict based on evidence of facts and circum-
stances which meet every demand of rule of law
applicable to situation.

4. Criminal law @==665(1), 1153(5)—Separa-
tion of witnesses Is largely In court’s discre-
tion, and appellate court will intervene only
for abuse (Civ. Code Prac. § 601).

Trial court has broad discretion in applying
rule respecting separation of witnesses under
Civ. Code Prac. § 601, and appellate court will
refuse to intervene, in absence of abuse of dis-
cretion.

5. Criminal law @-=723(1)—Statement of pros-
ecutor in argument to effect that, If accused
was given life, he would get out in few years,
held not to constitute reversible error.

In prosecution for murder, where assist-
ant commonwealth’s attorney stated in argu-
ment to jury that, “if this man is given a life
term in a penitentiary, he will get out in a few
years,” and statement was objected to, and on
objection being overruled, exception was taken,
held that statement was not prejudicial to sub-
stantial rights of accused, and did not constitute
reversible error.

6. Criminal law @==720(6)—Arguments by at-
torneys for commonwealth should be based on
evidence and deductions logically flowing there-
from.

All arguments by attorneys for common-
wealth should be based upon evidence and de-
ductions logically flowing therefrom, and they
should not undertake to influence jury by ex-
traneous matters or by appeals beyond limits
defined by appellate court.

7. Criminal law @=>1186(4)—Duplication of in-
structions in prosecution for murder held not
prejudicial, in view of statute (Cr. Code Prac.
§ 340).

In prosecution for murder, where two of
instructions were identical in substance, held,

that duplications did not constitute error, since
right of accused was not prejudiced thereby, in
view of Cr. Code Prac. § 340, providing that
judgment of conviction shall not be reversed for
any error of law appearing on record, when,
on consideration of whole case, court is satis-
fied that substantial rights of defendant have
not been prejudiced thereby.

8. Criminal law @—1159(1)—Jury, and not ap-
pellate court, is provided by Constitution for
determination of questions of guilt or inno-
cence,

Jury, and not appellate court, is provided by
Constitution for determination of questions of
guilt or innocence under proper instructions and
competent evidence.

9. Criminal law @—1159(2)—Function of appel-
late court in determining guilt or innocence of
accused is limited to ascertainment from rec-
ord whether there is evidence from which jury
could find verdict of guilty.

Function of appellate court in determining
guilt or innocence of accused is limited to as-
certainment from record.of whether there is any
evidence from which, if believed, jury could tind
verdict of guilty under law as defined in in-
structions of court.

10. Criminal law G=—=>1066, 1091(10) — Errors
complained of in motion for new trial are not
reviewable in appellate court, in absence of
exception taken and shown by bill of excep-
tions under statute (Cr. Code Prac. § 282).

Under Cr. Code Prac. § 282, providing for
manner in which bill of exception shall be pre-
pared, errors complained of in motion for new
trial are not reviewable in appellate court, in
absence of exception taken and shown by bill of
exceptions.

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

William Moore was convicted of murder,
and he appeals. Affirmed.

S. L. Greenebaum and L. D. Greene, both of
Louisville, for appellant.

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

WILLIS, J. Anna Eslick, a colored woman,
lived in a rooming house at 657 South
Twelfth street, Louisville, Ky. On December
8, 1926, her lifeless body was found locked in
her room. The only means of access was
through a window. A broken beer bottle with
a jagged end was found upon the floor of the
room. The woman’s body was still warm, the
right side of her face was badly cut, the right
eye destroyed, the nose broken, the skull frac-
tured, and many cuts and bruises on the fore-
arms. The room and contents were spattered
with blood and brains. Death had been
caused by the fractured skull and erushed
condition of the head, caused by heavy blows
with the beer bottle, or some such weapon.
Other roomers in the house heard a thumping

——

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

Ky.)

MOORE v. COMMONWEALTH 191

3 S8.W.(2d)

sound in the room where the crime was com-
mitted, and also heard the victim’s vain cry:
“Don’t let him kill me—open the door!” It
was then dark, and shortly thereafter the wo-
man was found in the bloody and mutilated
condition just described. It was plain that a
crime had been committed, and the police
were called, and arrived upon the scene in a
few minutes.

The appellant, William Moore, was arrest-
ed about 11:30 p. m., and accused of the crime.
He was later indicted, tried, and convicted of
the willful murder of the woman, and a sen-
tence of death pronounced upon him. He has
appealed to this court and insists that the
lower court erred: (1) In denying a peremp-
tory instruction to the jury to find him not
guilty; (2) in rejecting competent evidence
offered by him, and in admitting incompetent
evidence on behalf of the commonwealth; (8)
in permitting improper conduct by the com-
monwealth’s attorney during the progress of
the trial and in the closing argument to the
jury; (4) in failing to instruct the jury on
the whole law of the case; (5) in refusing
to vacate the verdict as contrary to the law
and the evidence; and (6) in the refusal to
discharge the jury on motion for the defend-
ant. We shall consider these complaints in
the order stated.

{1] It is urged that the evidence, being cir-
cumstantial, was insufficient to warrant the
court in submitting the case to the jury, or to
justify the conviction, for the reason that the
evidence is as consistent with defendant’s in-
nocence as it is with his guilt. It is the rule
in this state that a conviction for crime may
be had upon circumstantial evidence alone,
but the evidence must be of such character
that it may not be reconciled with the pre-
sumption of innocence that attends every ac-
cused person, and must possess such force as
to exclude every reasonable hypothesis of the
defendant’s innocence. Mullins v. Common-
wealth, 196 Ky. 687, 245 S. W. 285; Wendling
v. Commonwealth, 143 Ky. 587, 137 S. W. 205;
Mitchell v. Commonwealth, 217 Ky. 155, 289
S. W. 208; Daniels v. Commonwealth, 194
Ky. 513, 240 S. W. 67; Johnson v. Common-
wealth, 217 Ky. 705, 290 S. W. 693; Hill v.
Commonwealth, 191 Ky. 477, 230 S. W. 910;
Denton v. Commonwealth, 188 Ky. 30, 221 S.
W. 202.

It is therefore necessary to examine the evi-
dence in this case to ascertain whether or not
it measures up to the requirements of the le-
gal test.

[2] Monroe Weston testified that he lived in
the same building where the crime was com-
mitted, and, after supper, as he was leaving
the place, he went through the room of Anna
Eslick, and paid her 50 cents which he had
previously borrowed from her. He found the
appellant, William Moore, in the room, en-
gaged in an angry argument with Anna Es-
lick. The witness said that appellant was in
the habit of visiting Anna Eslick almost every

day and Sunday, too. At the time Weston
saw Moore with the deceased the door to the
room was unlocked, and partly open, and, as
Weston approached, the argument was sus-
pended, but, as he left, it started again. He
walked a short distance to a store where he
purchased a few articles, and in a few min-
utes heard the police coming to the scene of
the crime. He returned, and found Anna Es-
lick’s room occupied by the police, and Anna
Eslick dead. Weston testified that the appel-
lant had on a gray coat when he saw him with
the deceased. When arrested, he did not have
on the gray coat, but it was found hanging on
the wall at his home. Appellant said he had
not worn the gray coat for some time. The
pocket contained a street car transfer bearing
the date of December 8th, and showing it had
been obtained about 4:45 p. m. that day.
Blood was found upon the gloves, shoes, coat,
shirt and hat of the appellant. An effort had
been made to wash the blood from the coat,
shoes, shirt, and perhaps from some other ar-
ticles.

The blood spots on all these articles were
dainp, and the washed articles were still wet.
Appellant first denied to the officers that the
spots were of blood, but a moment later re-
ferred to some chickens and a rabbit as the
possible source of the stains. He ran when he
first saw the police, and, when apprehended,
he requested some one to tell his wife that
they had got him for that, and, when asked
for what, he declined to say.

We are of the opinion that the evidence for
the commonwealth was of the character, qual-
ity, and quantum calculated to induce belief
beyond a reasonable doubt that the appellant
was the murderer of the unfortunate woman.
O'Brien v. Commonwealth, 89 Ky. 354, 12 S.
W. 471, 11 Ky. Law Rep. 534.

Appellant apparently thought so himself,
for he went upon the witness stand, and el-
ther denied or explained as best he could all
the damaging facts and circumstances that
had been adduced against him.

He testified he was not at Anna Eslick’s
room on that fatal day, but on the day be-
fore; that he did not deny there was blood
on his clothing, or attribute it to animals, but
testified that the blood came from his hands,
nose, and a mashed finger; that his message
to his wife after he was arrested referred to
some trival matter, and he did not then know
he had been picked up on a murder charge.
He claimed he was working on his automobile
that evening, and, after the work was fin-
ished, he attended a show at the Lincoln
Theatre. Aside from his own testimony, ap-
pellant introduced only one witness, a colored
preacher, of limited opportunity to know, but
who testified that the appellant was a peace-
able citizen and of good reputation.

In rebuttal, the commonwealth offered evi-
dence contradictory of appellant’s testimony
regarding his bleeding hands.

[3] The evidence made a clear case for the

*QZ6T-ET-L (Uuosdegjer) *Ay *oeTe *HOBTQ *STTITIM “HUOOW

a ee

a Se oe a

reelf:

he got up from her
“the Lord
” Bo she got up
ré went og togeth-
ne think er know
jagh the influence
» bad doings of her
tI had it in my
ke her life away
| did intend to do
3 went on up to
new ground, but
to burn herup. So
‘cond one, and my
the same;
got to the third
, is my time to do

then

vil was urging me
ito the heap and

mit,

and while

vet of turning or

bi
uc

having a hand-
‘and as she was
w the stick back
art of the
> she fell

to make a finish

vice more, which
which killed her
close to the log

'e house after I
snd after I bad
| I stopped and
-w that her clothes
_ went back and
ms and laid heron
» burn her up, as
eni to the house
vo I then went
all until daylight.
*er, putting on my
she new ground
vere. I also went
/my wife was ly-
| that heap and
or, what was left.

whieh was he:
| body, that the
a, 80 | jelt ha:

j
|
4
|
i
i
i
|
|
i
|

: aes

ie coal? a ee

> TO the — mestice

HISTORY OF TAYLOR COUNTY. i.

aud with the help of George Work-

man we got »ur breakfast. After we
eat I then told George te gu to plow-
ing, and afterI had washed up my
dishes I then went out.to mending up
my leg heaps; while George was plow-
ing close by them, and if he had taken
any notice of the heap that the remains
of Frances were on, he could heve
even her there. for she lay im full
view, but he did not see her. So I
concluded to keep him from seeing the
remainder of the corpse. I then told
him to take the plow to the shop to
get it sharpened. ThisI did to give
mea chance to burn up and conceal
the balance of my wife. After George
had left forthe shop, I took what re-
mained of the corpse and fixed her in
the heap so I could pile the chunks on
her, so as the rest of her would burn
up, and enable me toconceal the bones
of my wife, but I did not, and got dis-
appointed in it, this being on Wednes-
day, between the hours of 8 and 9
o’elock in the morning. I then blew
the horn, but refused to tell the cause.
I then went to my father’s pretending
to look or make xome inquiry about
my wife. This I did in order to de-
ceive the people, but did not do it, for
they soon mistrusted how she went;
and as forthe gui being fired, I did it
myself; I shot at a whip-poor-will, but
did not kill it This gun was a rifle.
Now I will tell youabout those bones

that were found in the log heaps: they
were the bones of my wife, and not the
bones ofa hog. There was a large
pile of them. Now I thought it would
be the best way for me toscatter them,
so I got me a piece of hickory bark,
and with a large splinter I gathered up
some of them on the bark, and did not
earry them to the other two log heaps.
This I did in order to conceal them, as
I thought, as well as 1 could. but could

not do it. I also broke some of them
with a stick. ‘Now I will tell you all
about the stick that they ai! talked so

much about. It was the stick I had to
lay the worm of my fence with. Now
I would suppose that all the people
might think me altogether in the fault.
I will tell you, at night when I would
come in from working hard all the
day, and lay down to take my rest,
she would begin to groan and moan so
as to keep me from sleep; also to ag
gravate me, I now tell this as to let
you all know, and each one to judge
for themselves, but her sister was the
whole cause of my downfall, also my
death. Now, my readers, I would
suppose that you are anxious to know
something about Parthena and myself.
Now when I aad my wife were apart,
I made Parthena a proposition, that if
she would marry me. that we would go
off to the State of Indiana. and she did
agree to do so, and go with me. Bat
we did vot get off in time; but Par
thena and I did live together, as though
we were man and wife; and still she
was willlny forme to kill her sister,
and take her as my wife, and she was
willing to take me as her husband, for
she knew that I did intend to kill my
wife, and haye all reason to believe
that if Parthena had been there with
me, when | killed Frances, that she
would have helped me, for they lived
together badly; they would disagree
and fight very often, then they would
make peace again, but would not stay
s0 long, before they would fall out
again.

I now say, and do think that Par-
thena ought to be dealt with just the
same asmyself, and be punished, as
wellas me for the same crime, al-
though she did not help me, but she
told me if I did not driye Frances off,
that she would leave me. I did not
want either of them to leave at that
time.

Now my wife Frances is gone to the
world unknown to me, I have often
seen herin my sleeping moments. O,
my God, I am sorry for what I have

vor sanaliepibn TAL 2, wa 3 é vt at A aS i

tia.

8. HISTORY OF TAYLOR COUNTY.

done, it being the only murder I ever
committed. She was the mother of
five children, but none of them = are
living, they all left this world young.
Now it is true that [ did commit tnat
most horrid murder, and for it T must.
die that ignominious death, with the
rope around my neck, for whieh I
hope the Lord will be with me unto
the end. | said that my wife was the
mether ot five children, that were born,
and she was likely for one when I
killeck-her; if she had lived about two
months longer, she would have been
the mother of six children. Now, my
readers, this is the 13th of September,
Isd1, aud what {say shall be the truth.
I know that my time isshort on earth,
soifstunds me in hand io tell noeth-
ine butthe trath while I do live. Twas
born and raised in Green county, Ken-
tucky. Tama stout voung man, and
on the day of my exeeution, TI will be
twent\-tWo years and forty-seven
days of age; my Weight is about 175
pounds, better than six feet high, but
it is all nothing. Pmust die. Now I
will tell you a ciremmstance that took
place between Parthena and myself.
When To owas) working at Benjamin
Anders, she came up to the fence, and
e:uled me to her, and we stayed) there
some time a talking together. but [de
not recellect What passed, but one
thing I do remember, that was, that I
did intend to kill her sister) Frances:
she did not disapprobate it, but made
threats that she would kill Frances
herself. Parthena did strike her with
the axe, andat one time she struck her
With a chair and hurt her badly, and
nid brag about it now while me and
my Wife Was apart. Parthena and me
still continued to be with each other
as though we were married. and did
keep it up until a short time, ora few
days, before I did kill my wife. Now

Parthena and me has not spoke to-
gether since I made the proposition to
marry ber. and go off with her the

last time. I then asked her if she
loved me well enough to marry me
and treat me well. Her reply was,
that she never saw but one man. that
she loved well enough to marry and
go live with, and that was me. Then
1 told her that 1 loved her just as well
as she did me. Now [ thought if I
eould get shet of my wife TIT would
marry Parthous. hus efter I had killed
Frances } dit net intend to marry
Parthena, but tuke her as housekeeper;
but wy intention was not to stay with
her long before I would leave her. But
[do with shame confess the eonver-
sation that passed between Parthena
and myself, was the whole reason of
me killing Frances, my wife, and as I
have stated above that I did intend io
marry Parthena, but not after 1 had
done the murder, for T had = altered
my notion now. Parthena left me on
Saturday, aud went to her father’s,
and eame back the next day, whieh
Was Sunday, and went back to ber
father’s again, this being the 4th of
May, and on Tuesday the 6th, of the
same month, late in the eyening, I
did take the life of my wife, and after
I had committed this awful murder,
and done all T could to conceal her, I
then sent for Parthena to eome baek
again, but she sentime word that it
would not do to come back yet. But
I do not tell who T sent word by. I
also did send some word down to her
father to make some inquiry about
Frances, for she was gone off. Now
Parthena Knew all about it before she
left me, so she did not return until
Sunday. the [Ith, then she came back,
it being in the same month. Now this
is not the only time that I did intend
to kill and put my wife away. There
was once when we were going te
James Nestrusts, 1 had itin my mind
to killher and throw her in James
Childer’s mill pond.

Little did my poor wife know thar |}
intended to kill her, when she was

helping me to }
the day before
little did she tl
the devil, Part
to kill and com
accomplish my
me, and for the
die, and I supp
just that I shou
{ sev again, it
dewil that cause
of my wife. O
it to some frien
haye told me n:
that they might
notion of doing
my Lord! if I«
me, just as she
I struek her, ar
world, so free ¥
But I now say
hard hearted P
deed that I hav
; _the whole and s
you know that
and told me if |

that you would
to my being you
flattery. for you
me that I wast
and eneourages
But if you had
tohave done, a:
kill my sister |
have you hung
done it for this
and I must die
you will go clea
so I now leave >
your God, to «
thinks best; bn
Parthena, I am
for that dreadfu
sister, and wha:
to be the truth,
on this earth, n
my life goes do
sun, and as I #
ment for that d

also say you ow

ERR, ARREST RE Dane

A SCE RE E0 ae i ai A lids Batt DR Esl od al

one man tbat
fo Marry and
me. Then
just as well
sought if I
“ife IT would
'» Thad killed
4 GO marry
CURGHOE PCY:

‘o stay with
iveher. But

, the conver-
| aw Parthena
'e reason of
vife, and as I
did intend w
“after Lo lad
had altered

- left me on
er father’s.
dav, Whiecis
ack to ber
the fth of
of the

iT |

fe, and atter
vfulo murder.
neeal her, |
vome hack
sord that it
ck yet. But
sword by. I
pown to her
| quiry about
lie off. Now
't hefore she
return antil
e vame back,
Now this

i did intend
iWaV. There
‘re going 1
inmVv mind
ero om James

‘know thar |
he@ she wax

ice
we

i i A a

egret Se ERE

abel ssa tate, See

helping me to plant corn, on Monday
the day before 1 did kill her: I say,
little did she think at that time that
the devil, Parthena, were layinga plan
to kill and conceal her. But I did not
accomplish my design, for it all fell on
me, and for the same I: am _ bound to
die, and I suppose it is nothing but
just that I should suffer for it. Now,
I say again, it was Parthena and the
devil that caused me to to take the lite
of my wife. O, that I had only named
it to some friend, so that they might
haye told me not to dothat sinful act;
that they might have put me out of the
notion of doing anything like that. O,
my Lord! if I only had her back with
me, just as she was one minute before
I struek her, and if I owned all this
world, so free would I give for her
But IT now say again, O, cruel and
hard hearted Parthena, you know this
deed that I have done, that you were
the whole and sole cause of it all. Now
you know that you did apprubate it,
and told me if I did not put her away

that you would leave me. Now owing
to my being young I listened to your
flattery. for you know that you told
me that I was the only man you loved,
and eneouraged me in killing my wife.
But if you had acted like a sister ought
tohave done, and said to me: if you
kill my sister T will tell of you and
have you hung for it, | would nothave
done it for this world. But it is done
and I must die for it, and | suppose
you will go clear in this lower world,
so I now leave your case with you and
your God, to deal with you as he
thinks best; but I say one more time,
-arthena, 1am going to be hanged
for that dreadful deed of killing your
sister, and what 1 say now, I want it
to be the truth, for my time is short
on this earth, my glass is almost run,
my life goes down, just even with the

sun, and as I say you deserve punish-
ment for that deed as well as myself. I
also say you ought not to escape the

- HISTORY OF TAYLOR COUNTY.

laws of our land for that) murder. {:
will not be long before I will leave tii-
world, and go te a world unknown to
me, and to try the realities of that up
per world, which will be on Friday,
the 10th day of October, and I am _ in
hope that on that day, or before, I can
have it to say before this world, that |
am going to leave it in peace wlth all
mankind, and also to say, as to my
treatment while [ was in, jail,..was
good, for the jailerand his wife were
kind to me, and treated me well and
showed all the kindness to me they
could, aud forthe same | hope that
God will reward them. But now, in 2
few more days, | must bid them and
this world farewell, and if [| ean only
die in the arms of Jesus it will he well
with me, but if I should die out of his
arms it will be ill with me. So | re-
sign myself to his will for the sake of
His Son, for to pardon me for what I
have done, for I must confess before
Him, and with shame, that IT have
sinned in Thy sight, and the things
Thou hast commanded me not to do,
they are the very things I have done,
for Thy commandments tells me that I
shall not commit adultery, that I did;
that I should not kill, that I did, in the
most dreadfnl manner; also that |
must not take the name of the Lord,
thy God, in vain, for the Lord will not
hold him guiltless, that taketh His
Name ib vain; also to: remember the
Sabbath day and to keep it holy, but
that I did not. | have went contrary
to God’s commandments in taking the
Lord’s name in vain, in Sabbath day
breaking, also in committing adultery,
and the worst of all, in killing her who
was my bosom friend, and that looked
up to me for protection, and to be-
friend her in all things, and thought
me her friend and shield in the time
of danger. But, UO, my God to think,
that instead of being a kind and affec-
tionate husband to her, I haye turned
out to be her greatest enemy, to kill
and hurl her into etermty, without

bie, Aad

6. - -« HISTORY OF TAYLOR COUNTY.

not stay apart long from each other, so
we came together one more time. Now
Parthena Underwood came to liye with
me and my wife, sheis my wife’s sis-
ter. She did not stay long before her
brother came and took her hume to
her father’s, but she did not stay long
before she came back to my house
again, and she stayed with us about
five years, which wasa sad stay for
me and my poor wife, for she is the
cause of my dofnfall. The two sis-
ters could not agree together, for they
would quarrel and fight with each
other, then make friends with each
other again, but- would not stay so
long before they would break out
again; and so they lived all the time.
Now I will tell you something about
Parthensa and myself. After Frances
and I were married about one year,
Parthena came to live with us, then
we commenced haying communication
or intercourse with each other, and we
did keep it up until just before I killed
her sister Frances, which was on the
6th day of May 1851. This I had in
contemplation for three years before I
did do that most horrible deed, but
never had it so strong in my mind un-
til about three months before I did kill
my wife, but did not know how or in
what way to conceal her after I had
killed her. The more I thought about
it the more it appeared to be pressed
on me to kill her. Now I had many a
plan to kill and hide her, but at last 1
thought of some log heaps I had made
on my new ground a few days before
I committed the murder of my wife. I
thought that they would be a good
place to burn her up in. Now, on
Tuesday morning | said tomy wife:
‘‘Frances, will you go to the new
ground with me and help me mend up
my log heaps ’’ She said she would,

but told me that Ihad better not xo
out in the night air, but said she: ‘‘If
you want me to go with youl will do
so. Then I said toher: ‘‘Come, let us

go now.'’ Before she got up from her
seat she said to herself: ‘‘the Lord
have mercy on me.’’ So she got up
from ner seat and we went on togeth-
er. But little did she think or know
that I intended through the influence
of the deyil, and the bad doings of her
sister, Parthena, that I had it in my
hea! and heart to take her life away
at that time. Now I did intend to do
it at that time, so we went on wi to
the first heap in the new ground, but
it was not sufficient to burn herup. So
we went on to the second one, and my
thoughts were about the same; then
we went on until we got to the third
one. Now, thinks I, is my time to do
the deed that the deyil was urging me
todo. We went upto the heap and
commenced mending it. and while
Frances was in the act of turning or
lifting np a chunk, I having a hand-
spike in my hands, end as she was
stooping down I drew the stick back
and struck he on the back part of the
head, and when {I struck her she fell
on her left side, but to make a finish
of her | struck her twice more, which
made three times, which killed her
dead. Now she lay close to the log
heap. |! started tothe house after I
had killex! Frances. and after I bad
walked afew steps, I stopped and
turned around, and saw that her clothes
were on fire, | then went back and
picked hur up in my arms and laid heron
the log heap, sc as to burn her up, as
I thought Then I went to the house
and took a horn ortwo I then went
to bed. and | slept well untildaylight.
I then get up, and after putting on my
clothes, |} went to the new ground
where the ing heaps were. I also went
up to the heap where my wife was ly-
ing. |] walked up to that heap and
saw the remains of ner, what was left,

and not burned «up, which was her
head and part of her body, that tie
fire had not consumed, so 1 left hea«
just so and went back to the hones

Se at Sa a abt 5 Rae ae

aud with the |
man we got 2
eat I thea teid
ing, and after
dishes I them -
my leg heaps;
ing close by th
any notice of |
of Frances we
seen her there
view, but he.é
concluded to .
remainder of ‘
him to take th
get it sharpen
me a chance t:
the balance of
had left for th
mained of the
the heap so I
her, so as the
up, and enab!
of my wife, b
appointed in :
day, between

~o’elock in the

the horn, but
I then went t
to look or ma
my wife. Tk
ceive the peo

they soon mi:

and as for th:
myself; I she
did not kill r

Now I will
that were for
were the bon
bones of a hx
pile of them.
be the best *
so I got me:
and with a lL:
some of ther
carry them ‘
This I did
I thought. &
not do it. I
with a stiek

about the st

AE RER GE RAE ENN a BNI CE

892 SOUTHWESTERN REPORTER. ~ (Ky.

testimony; for a belief so decided and clear as to be beyond a reasonable doubt
cannot possibly be produced in the mind of a man who reasons at all, by a
mere preponderance of testimony.

We have carefully examined the record in this case, and, perceiving no error
of law occurring at the trial to the prejudice of the defendant’s substantial
rights, the judgment must be affirmed.

COMMONWEALTH 0. HopxKINs.

(Court of Appeals of Kentucky. October 8, 1887.)

1, Bastarpy—ConcraLine Birta—InstTRUCTIONS. :

On trial of an indictment under Gen. St. Ky. ¢. 29, art. 4, 3 14, for concealing the
birth of a bastard child, the court instructed the jury that “though they may be-
lieve, to the exclusion of a reasonable doubt, that she gave birth to a bastard child,
and willfully or intentionally concealed its birth, yet ifit was known, or with rea-
sonable examination or test could have been known, by those examining it, whether
it was born dead or alive, they will tind her not guilty.” Held error.

2. SAME.

On trial of an indictment under Gen. St. Ky. ¢. 29, art. 4, 314, for concealing the

birth of a bastard child, the court refused to instruct the jury that ‘‘if they believe

_* * * that the accused * #* * feloniously did conceal the birth ofa child,
the issue of her body, which, if born alive, was or would have been a bastard, by
secreting or placing said child in a privy vault or sink, so that it might not be
known whether it was born alive or not, they will find accused guilty as charged,
though they believe that afterwards it was ascertained that said child was born
alive.” Held error.

Appeal from circuit court, Henderson county.
P. W. Hardin, for the Commonwealth.

Lewis, J. The offense for which the defendant, now appellee, was in-
dicted and tried, is described in section 14, art. 4, c. 29, Gen. St., which is as
follows: “If any woman be delivered of any issue of her body, which, being
born alive, would be a bastard, shall endeavor privately, by drowning or se-
cretly burying the same, or in any other way, directly or indirectly, to conceal
the birth thereof, so that it may not be known whether it were born alive or
not, she shall be confined in the penitentiary not less than one nor more than
five years.”

The evidence in this case tended to support the charge contained in the in-
dictment, and the lower court ought to have instructed the jury as to the law
contained in the section quoted; but, instead, the following instruction was
given, which authorized the jury to acquit upon an hypothesis not provided or
contemplated by the legislature: “Though they may believe, to the exclu-
sion of a reasonable doubt, that she gave birth to a bastard child, and will-
fully or intentionally concealed its birth, yet if it was known, or with reason-
able examination or test could have been known, by those examining it,
whether it was born dead or alive, they will find her not guilty.” The evi-
dence in the case discloses the fact that issue was born of the defendant,
which, if born alive, would have been a bastard; and the further fact that
she privately attempted to conceal its birth by putting it into a privy vault,
so that it might not be known whether it was born alive or not. It was
therefore not material to the question of guilt, under the statute, whether it
was born dead or alive, nor whether the matter might have, by an examina-
tion or test, been determined one way or the other.

For the commonwealth two instructions were asked, both of which were
refused; but, as there is no material difference between them, we quote only
one, which is as follows: “The court instructs the jury, if they believe * * *
that the accused * * * feloniously did conceal the birth of a child, the is-
sue of her body, which, if born alive, was or would have been a bastard, by
secreting or placing said child in a privy vault or sink, so that it might not

Ss 4
oe
aA
is #
cd
<a
2
ts PY
%
od
Bed
i
4
ef
*
ae
|
ae
brs
“ake
te
*
i
“
ee
3

4
aS

Re Sa
ae 5)

See

ae
fete

764 SOUTHWESTERN REPORTER. (Ky.

including distillers, were prohibited from selling liquor by retail insuch district, to
be used asa beverage ; and that the adoption of chapter 29 repeals the provisions of
chapter 106, art. 2, 2 3.

Appeal from circuit court, Elliott county.
P. W. Hardin and J. B. Hannah, for appellant.

Lewis, J. A. D. Jarrell, having been indicted for the offense of unlaw-
fully selling spirituous liquors without license in civil district No. 1, Elliott
county, and upon the trial found by the verdict of the jury not guilty, the com-
monwealth prosecutes this appeal. It is alleged in the indictment and shown
that the offense charged was committed after an election had been held, anda
majority of the legal votes of that district cast against the sale of liquor
therein, in pursuance of “An act to regulate the sale of spirituous, vinous, or
malt liquors in this commonwealth,” known as the “Local Option Law,” ap-
proved May 26,1874. The main question in this case is whether it was proper
to give the following instruction: “Although the jury may believe from the
evidence * * * that the defendant sold the * * * liquor as defined in
the first instruction, yet if they further believe from the evidence that the de-
fendant was a distiller, and that the spirituous liquor sold to the said Click
was of his own manufacture, and sold at his residence in quantity not less
than a quart, and the same or no part thereof was drunk upon the premises
where sold, then the jury will find the defendant not guilty.” And the cor-
rectness of that instruction depends upon whether the act mentioned operated
to repeal section 3, art. 2, c. 106, Gen. St., then in force, which is as follows:
“Distillers of ardent spirits have the privilege of selling at their residence any
spirits of their own manufacture in quantities not less than a quart, but not
to be drank on the premises,”

It is provided by the local option law that after the entry of the certificate
of the examining board, showing that an election had been held and a major-
ity of the legal votes cast against the sale of liquors, it shall be unlawful for
any person to sell any spirituous, vinous, or malt liquors in any district, town,
or city where a majority of the legal votes has been so cast, and any person
who sells such liquors in said district, town, or city shall, upon conviction,
be fined, etc. The seventh section is as follows: “The provisions of this act
shall not apply to any manufacturer or wholesale dealer who, in good faith
and in the usual course of trade, sells by wholesale, nor to druggists who sell
for medicinal purposes on a prescription made and signed by a regular practic-
ing physician; but no physician shall make or sign any such prescription, ex-
cept the person for whom it is made is actually sick, and such liquor is ab-
solutely required as medicine; and any physician who makes or signs any
prescription for such liquors except as provided for in this act shall be guilty
of a violation of the act, and on conviction fined twenty-five dollars for each.
offense.”

Although the repeal by implication of pre-existing statutes is not favored,
nevertheless, if two statutes relate to the same subject-matter, and the subse-
quent one is plainly intended to prescribe the only rule that shall govern, it
will repeal theformer. That the local option law was intended to exclusively
govern the sale of spirituous, vinous, and malt liquors in every district, town,
or city where it is put into operation, is made manifest by the title of the act,
the full and conclusive effect given by it to the decision of a majority of the
voters against the sale, and by the particular reference to and enumeration of
those excepted from its provisions. And asthe only classes in terms excepted
are manufacturers and wholesale dealers who sell by wholesale, and drug-
gists who sell for medicinal purposes, it is reasonably certain no others were
intended to be. For the exacting condition put upon the manufacturer and
dea!er to sell onlyin good faith, and in the usual course of trade by wholesale,
and upon the druggist tosell even for medicinal purposes only upon a prescrip-

Ky.] PATTERSON 0. COMMONWEALTH, 765

tion made by a regular practicing physician, shows that the purpose was to
prohibit all persons, including distillers, selling, in such district, town, or
city, liquor by retail to be used asa beverage. In our opinion, the act had
the effect to repeal section 3, art. 2, c. 106, Gen. St., as to every district, town,
or city where it has been or may be put into operation by a majority of vot-
ers, and such was in effect the decision of this court in the case of Hovage v.
Com., (MS. opinion, May 23, 1882.) It therefore follows that the lower court
erred in giving the instruction quoted, and the judgment is reversed, and
-cause remanded for further proceedings consistent with this opinion,

(86 Ky. 313; 99 Ky. 610)
PATTERSON v0. COMMONWEALTH.

(Court of Appeals of Kentucky. November 23, 1887.)
1, Homicipe—Inpicrment—INpoRSEMENT OF *‘ TRUE BILL,”
On the trial of an indictment tor murder, the statement in the record that “the
foreman of the grand jury, in the presence of the grand jury, reported an indictment,
a true bill,” against defendant, shows sufficient compliance with the provisions of
Crim, Code Ky. #3 119, 121, that an indictment must be indorsed ‘‘A true bill,” and
must be presented by the foreman.
2, Same—Evinence—Co-Derenpant CoMPETENT WITNESS FOR STATE. {
On the trial of an indictment for murder, a co-defendant who has been tried and
convicted on a plea of guilty is a competent witness against defendant.
8. Same—Evipence or AccompLice—ConFEssIons.
Under Crim. Code Ky. ¢ 241, requiring the testimony of an accomplice to be cor-
roborated by other evidence tending to connect defendant with the commission of
the crime, and declaring that corroboration merely showing the commission ofthe
offense and the circumstances is insuflicient, evidence of confessions of defendant
may be received in corroboration of the testimony of the accomplice, where the
comnnission of the offense has been established.
4, Same—Evipence—ExrrajupiciaL Conresstons—Corpus Detictt.
Under Crim. Code Ky. 3 240, providing that an extrajudicial confession will not
warrant a conviction unless accompanied by proof of the commission of the offense,
it is not necessary to instruct the jury that evidence of a confession should be cor-
roborated by other evidence tending to connect defendant with the commission of
the offense; and, where the commission of the offense is established beyond ques-
tion, itis unnecessary to charge that evidence of such confession, unaccompanied
by proof of the commission of the offense, will not warrant a conviction.
6. Same—Instructions—ReAsonaBLE Doust.
The refusal of the court to charge that “the jury cannot convict the accused on
a mere preponderance of the testimony, but the law presumes his innocezce until

3 _,. he is proven guilty to the exclusion of a reasonable doubt,” is not error where the

court has fully charged that the innocence of the accused is presumed, and it is the
duty of the jury, if they can reasonably do so, to reconcile all the facts and circum-
stances with that presumption; and if, upon the whole case, the jury entertain a
reasonable doubt ofthe guilt of the accused, or of any material fact necessary to the
proof of his guilt, they should find him not guilty.

6. Same—VeErpict—Conviction ror Lower Decree.

. Under an indictment for murder containing a charge of former convictions, which
the jury were instructed to disregard, a verdict of ‘‘ guilty as charged in the indict-
ment” is good, although Crim. Code Ky. $ 262, allows a conviction for any lower
degree of the crime charged in the indictment.

7. SaMe—ReManrks oF CounseL—Faitcre To Ossecr.

The court will not reverse a judgment of conviction for any alleged misconduct
of the commonwealth’s attorney in his argument which does not appear in the bill
of exceptions to have been objected to at the time.

8. Same—AppraL—By-Stanper’s Binu or Exceptions.

Civil Code Ky. 2 337, providing that “a party objecting to the judge's correction
of an exception, which purports to state the evidence, may, within five days after
the bill is signed, file the exceptions as written by him, if its truth be attested by
the affidavits of two by-standers,” does not authorize the court to consider a by-

, Stander’s bill ofexceptions purporting to show that certain statements wereim prop-
erly made, to the prejudice of defendant, by the attorney for the conmonwealth in
his argument, which, though objected to at the time, the court failed to exclude

:;| from the consideration of thejury or to pass upon, wit.

dtstitets oh bhai he sete,

be i
aay
BOS

766 SOUTIIWESTERN REPORTER. [Ky.

‘9. Same—Review or Evinency on Aprrar—FErrors or Law.

Under Crim. Code Ky. 2 310, providing that a judgment of conviction shall be
reversed for any error of law prejudicial to the substantial rights of the defendant,
the court has no power to reverse a judgment of conviction upon the ground that

_ the evidence is not suflicient to support the verdict.
10. SAmME—Derrnpant’s PLea—Sratine To Jury.

The record in a trial for murder was as follows: ‘The defendant, W. P., is this
day brought into court, * # # and came parties by counsel, and the said de-
fendant, having heretofore pleaded not guilty of the offense charged in the indict-
ment for his trial, puts himself upon his country, and the attorney for the common-
wealth likewise.” Zed, that the record shows that the requirements of Crim. Code
Ky. 2 219, which provides that ‘the clerk or commonwealth’s attorney shall read
to the jury and state the defendant’s plea,” were substantially complied with.

11. SAame—Evipence—HrarsaAy—Harmurss Error.
On a trial for murder, one ofthe witnesses was permitted to state that he had, on
a certain occasion, said to another person, he could discover with his naked eye a
*. spot of blood on the hat-band of the accused. e/d that, inasmuch as he testified
before the jury to the same fuct, the accused was not prejudiced.

Appeal from circuit court, Jefferson county. For former opinion in this
case, see ante, 387. ,

Matt. O Doherty, T. L. Martin, and N. R. Harper, for appellant. P. W.
Hardin and Aaron Kohn, for appellee.

Lewis, J. Appellant having been indicted jointly with Albert Turner,
though tried separately, for the murder of Jennie Bowman, and by the verdict
of the jury found guilty and his punishment fixed at death, prosecutes this
appeal.

It has been often decided that this court has no power to reversea judgment
of conviction in a criminal prosecution upon the ground the evidence is not
sufficient to support the verdict. But as provided in section 344, Crim. Code,
“a judgment of conviction shall be reversed for any error of law appearing on
the record, when, upon consideration of the whole case, the court is satisfied
the substantial rights of the defendant have been prejudiced.” We will there-
fore refer to the evidence no more in detail than is necessary to determine
whether it tends to establish the guilt of the accused, and whether he was
tried and convicted according to law.

The crime with which he is charged was, as appears from the evidence, com-
mitted between the hours of 9 and 10 o’clock of the forenoon, in the dwelling-
house of A. Y. Johnson, situated in a populous part of the city of Louisville.
The statements of the deceased, made after she was injured, and without objec-
tion admitted in evidence as her dying declarations, and other cireumstances
proved on trial, make it clear that the deed was done by two men. But noone
but Albert Turner, who had been tried for the offense, and, pleading guilty, con-
victed, testified directly that Patterson, the accused, was one of them, though
there was other evidence, some of which will be hereafter referred to, tending
to corroborate his testimony. In behalf of the accused several witnesses tes-
tified to his presence in another and distant part of the city at or about the
time, as proved by others, the crime was committed. But it was the exclusive
province of the jury to decide as to their credibility, as of all witnesses in the
case, and also whether, giving full credence to their capacity to recollect, and
disposition to truthfully testify in regard to the precise times and places they
saw him, it was still impossible for him to have been at the house of Johnson
when the crime was committed. ,

We will now consider the alleged errors of law:

1. It is contended the record fails to show the accused was legally indicted;
and the two sections it is argued were violated or disregarded are as follows:
- “Sec. 119, The concurrence of twelve jurors is required to find an indict-

Ky.] ; PATLERSON v. COMMONWEALTH. 767 -

ment; where so found, it must be indorsed *A true bill,’ and the indorsement
signed by the foreman.”

“Sec. 121. The indictment must be presented by the foreman in the pres-

ence of the grand jury to the court, and filed with the clerk, and remain in his
office as a public record.” : ;

The record on the subject is as follows: “This day the foreman of the grand
jury reported an indictinent, a true bill, aguinst Albert Turner and W liam
Patterson for willful murder, and previous convictions, which said indictment
is as follows,” etc. ? :

By his failure to either demur to the indictment, or move to set it aside for
the causes now relied on for reversal, both of which steps are authorized by
the Code to be taken in the lower court, the accused has waived his right to
make the objections in this court. But we think the two sections were sub-
stantially complied with. For it is expressly stated the indictment was In-
dorsed “A true bill,” andit also sufficiently appears to have been signed by the
foreman. ‘The objection that it was “reported,” instead of being, in the exact
language of the Code, “presented,” is a mere play upon words commonly un-
derstood when used in that connection to mean practically the same thing.

2. Following the provisions for impaneling and swearing the jury to try
the issue in a criminal prosecution is section 219, as follows: “The clerk or
commonwealth’s attorney shall then read to the jury and state the defendant’s
plea.” The record is as follows: “The defendant, William Patterson, is this
day brought into court, * * * and came parties by counsel, and the
said defendant, having heretofore pleaded not guilty of the offense charged in
the indictment for his trial, puts himself upon his country, and the attorney
for the commonwealth likewise.” Though it is not in terms recited in the rec-
ord that either the indictment was read or the defendant's plea stated to the
jury, it does appear that an issue was formed, and for the trial of it the de-
fendant put himself upon the country,—the jury in legal parlance being the
country,—and the attorney for the commonwealth likewise. — And, as the pro-
ceeding thus recorded by the clerk can be properly done only in presence of the
jury, it is at least a fair, if not necessary, inference, and such as the record
authorizes, that all that was necessary to be done to inform the jury what the
charge was, by reading the indictment, and what the plea was, by stating it,
was done. We therefore think the record shows the requirement of the sec-
tion quoted was substantially complied with. : :

8. In the case of Com. v. McGuire, 7 Ky. Law Rep. 814, it was decided by
this court that all persons are now qualified to give evidence as witnesses in
judicial proceedings, except those expressly excluded by section 8, art. 8, Cs
29, Gen. St. Article 8 referred to contains eight sections, the last one being
as follows: “If any person be convicted of either of the offenses described in
the five preceding sections, he shail ever afterwards be disqualified from giv-
ing evidence in any judicial proceeding, or from being a witness in any case
whatever.” By section 5, c. 107, Rev. St., it was provided that, “except as
otherwise expressly provided, no person who has been or shall be convicted of
felony * * * shall be competent as a witness in any case unless he has
been pardoned; nor shall a person convicted of perjury, or subornation of
perjury, be a competent witness although pardoned.” But in Broaddus v.
Broaddus, 10 Bush, 299, the rule was laid down, and ever since adhered to,
that “when a section in the Revised Statutes has been omitted in the General
Statutes, or any change made, however slight, in a general law, the whole law,
as found in the Revised Statutes on that subject, must be treated as repug-
nant to the provisions of the General Statutes.” As, therefore, scction 8, art.
8, c. 29, relates to the subject of disqualifying persons as witnesses who have
been convicted of crimes, and is the only section in the General Statutes con-
taining any provision in regard thereto, it must be treated as controlling the
question of Albert Turner's qualification as a witness in this case... And, as he

|
i
|

390 . _ SOUTHWESTERN REPORTER. [Ky.

makes necessary to corroborate the evidence of Turner, an avowed accom-
plice; and also erred in failing to instruct the jury that Turner’s evidence
could not furnish the corroboration necessary to the support of evidence of an
extrajudicial confession.

The two sections of the Code bearing upon the question are as follows:
“Sec, 240. A confession of a defendant, unless made in open court, will not
warrant a conviction, unless accompanied with proof that such an offense was
committed. Sec. 241. A conviction cannot be had upon the testimony of an
accomplice, unless corroborated by other evidence tending to connect the de-
fendant with the commission of the offense; and the corroboration is not suf-
ficient if it merely shows that the offense was committed, and the circum-
stances thereof.” It will be seen that the two sections are materially differ-
ent; for while section 241 requires a corroboration of the evidence of an
accomplice “by other evidence tending to connect the defendant with the com-
mission of the offense, and the corroboration is not sufficient if it merely
shows that the offense was committed, and the circumstances thereof,” sec-
tion 240 requires, in order to convict upon evidence of confession, only that
it shall be accompanied with other proof that such an offense was committed.

In Craft v. Com., 80 Ky. 349, this court held that it is the duty of the
court, when an accomplice testifies for the commonwealth, to instruct the
jury as to the law contained in section 241; and the lower court, accordingly,
properly gave such an instruction in this case. But it was not necessary or
proper to instruct that the evidence given by the witness Adams of the con-
fession to him by the accused should be corroborated by other evidence tend-
ing to connect the accused with the murder of Jennie Bowman; nor was it
necessary, even, to instruct that his evidence would not warrant a convic-
tion, unaccompanied with other proof that she had been murdered, for that
fact was beyond question. It being indubitably established that the offense
had been committed, the evidence of Adams, like any other tending to con-
nect the accused with the commission of it, might have been properly consid-
ered by the jury to the extent they believed it all, as corroborative of the tes-
timony of Albert ‘Turner.

4, The verdict of the jury is in these words: “We of the jury find the ac-
cused, William Patterson, guilty as charged in the indictment, and fix his
punishment at death.” Counsel contends that verdict does not conform to
the statute, does not fix the degree of the offense, and ought, therefore, to
have been set aside.

Section 262, Code, provides that, upon an indictment for an offense consist-
ing of different degrees, the defendant may be found guilty of any degree not
higher than that charged in the indictment, and may be found guilty of any
offense included in that charged in the indictment; and by section 268 all of-
fenses of homicide are made degrees of the same offense in the meaning of
section 262.

Tt has often been held that a defendant may be convicted of manslaughter un-
der an indictment for murder. But the defendant in this case was not charged
in the indictment with manslaughter, but with murder, and consequently the
words,“We * * * find theaccused * * * guilty as charged in the
indictment,” mean that they find him guilty of murder, and cannot be made
to mean anything less or else; and, such being the case, we cannot conceive
wherein consists any violation of or non-compliance with the law; much less
do we see how this defendant has been prejudiced by the manner in which
the verdict is worded.

It is proper to refer to the fact that the indictment contained a charge of
former convictions, but that charge the court instructed the jury to disregard
and not consider. It is too plain for doubt that the jury meant to find the
defendant guilty of murder, and the language of the verdict unambiguously
conveys that meaning.

Ky.] PATTERSON v. COMMONWEALTH. 391

5. The bill of exceptions shows that, whenever an objection was made to
the conduct of the attorney for the commonwealth in his closing argument to
the jury, the court, in the presence of the jury, ruled in favor of the defend-
ant; but, according to a well-settled rule, this court cannot reverse for any
alleged misconduct of the commonwealth’s attorney, in his argument, which
does not appear in the bill of exceptions to have been objected to at the time.
In this case, it appears that what is called a by-stander’s bill of exceptions
was prepared, and is now before us, which purports to show that, during the
argument of the attorney for the common wealth, certain statements were im-
properly made by him to the prejudice of the defendant, which, though ob-
jected to by his counsel, the court failed to exclude from the consideration of
the jury, or pass upon.

Section 337, Civil Code, by which proceedings in criminal as well as civil
cases are regulated, provides that “a party objecting to the judge’s correction
of an exception, which purports to state the evidence, may, within five days
after the bill is signed, file the exceptions as written by him, if its truth be
attested by the affidavits of two by-standers.” But no authority is given to
this court to consider any questions of law made during the progress of the
trial of either a civil or criminal case, unless they appear by the bill of excep-
tions, regularly approved and signed by the judge, to have been presented to
and passed on by the court. Nor are we authorized to assume, upon the evi-
dence of a by-stander’s statement, that the court has failed or refused to pass
upon such questions when made.

In the case of Garrott v. Ratliff, 7 Ky. Law Rep. 463, this court said: “The
truth of what the judge states or certifies as the bill of evidence may be con-
troverted by the affidavits of by-standers in the form of a bill of evidence; but
when he certifies as to his own rulings and exceptions, taken during the prog-
ress of the trial, we know of no practice that authorizes his statements, or
the verity of the record as made up, to be assailed either by by-standers, or the
affidavits of parties interested in the litigation.”

It is proper to say, in justice to the judge before whom this case was tried,
that he states he passed upon every objection made to the argument of the
commonwealth’s attorney which was heard by him; and his statement should,
for obvious reasons of public policy, independent of the law on the subject,
be taken in preference to that of by-standers, Who may be neither disinterested
nor qualified to act.

6. For the defendant the following instruction was asked, but refused by
the court: “The jury cannot convict the accused on a mere preponderance of
the testimony, but the law presumes his innocence until he is proven guilty
to the exclusion of a reasonable doubt.” That instruction contains the law,
and the refusal of the court to give it as asked would be sufficient cause for
reversal if the same idea was not fully expressed in some other instruction;
but if it was substantially, and in such manner as to be clearly understood,
embodied in another instruction, the refusal of it in the form presented did
not, nor could, prejudice the defendant.

Instruction No. 5 given by the court is as follows: “The law presumes the
innocence of the accused, and it is the duty of the jury, if they can reasonably
do so, to reconcile all the facts and circumstances of the case with that pre-
sumption; and if, upon the whole case, the jury entertain a reasonable doubt
of the guilt of the accused, or of any material fact necessary to his guilt hav-
ing been proven, then they should find him not guilty.” And in instruction
No. 1 the jury were told, in substance, that in order to convict the accused
they must believe, from all the evidence, to the exclusion of a reasonable doubt,
he was guilty of the offense charged. It seems to us that these two instruc-
tions so fully convey the idea contained in the instruction refused that any
jury of ordinary intelligence would readily understand that they have no right
to convict a defendant of a criminal offense upon a mere preponderance of tha

ANA

sre enone
ea
=~
=

G35

OF 2

2k?
aot

SSNIVER

OL OF £3*

thease Si ROE MRIS OP Ai AA

erm orang:

BS, 3
ipa
ee
4
he PS
id o
¥ ‘
“
*
<*
xf
*
‘
hee
i
3
- <
=
tee
eS
BSS ae
ed
Reh:
Pisera
fe
a4
ee
i

.
r
bt

No
r

“1!
wed EE oF Le Sew

770 SOUTHWESTERN REPORTER. [Ky..

requirement of the Code. And although murder ang manslaughter are de-
grees of homicide, and under an indictment for the former a person may be
convicted of the latter, yet as murder itself is not divided by our statute into
degrees, as is the case in some other states, that part of section 257 requiring
the degree of the offense to be fixed in the verdict has no application to this
case. The language of the verdict seems to us too plain for doubt as to either
the offense the jury intended to find the accused guilty of, or the punishinent
fixed.

7. The bill of exceptions shows that, whenever an objection was made to the
conduct of the attorney of the commonwealth in his closing argument to the
jury, the court ruled in favor of the defendant. But it appears that what is
called a “bystander’s biil of exceptions” was prepared, and is now before us,
which purports to show that during the argument of the attorney for the com-
monwealth certain statements were improperly made to the prejudice of the.
rights of accused, which, though objected to by his counsel, the court failed
to exclude from the consideration of the jury or to passon. Section 337 of the
Civil Code, by which proceedings in criminal as well as civil cases are regu-
lated, provides that “a party objecting to the judge’s correction of an excep-
tion which purports to state the evidence may, within five days after the bill
is signed, file the exceptions as written by him, if its truth be attested by the
affidavits of two by-standers.” But no authority is given to this court to
consider questions of law made during the progress of the trial of eithera
civil or criminal case, unless they appear, by the bill of exceptions, regularly
approved and signed by the judge, to have been passed on by the court. Nor
are we authorized to assume, upon the evidence of a by-stander’s statement,
that the court failed or refused to pass upon such questions when made. In
Garrott v. Ratliff, 7 Ky. Law Rep. 463, this court said: “The truth of what
the judge states or certifies as the bill of evidence may be controverted by the
affidavits of by-standers in the form of a bill of evidence; but, when he cer-
tifies as to his own rulings and exceptions taken during the progress of the
trial, we know of no practice that authorizes his statement, or the verity of
the record, as made up, to be assailed, either by by-standers, or the aflidavits
of partics interested in ihe litigation.” It is proper to say, in justice to the
judge before whom this case was tried, that he states that he passed on every
objection made to the argument of the common wealth’s attorneys, which was
heard by him. And for obvious reasons of public policy his statement should
be taken in preference to that of by-standers.

8. For the accused the following instruction was asked and refused by the
court; “The jury cannot convict the accused on a mere preponderance of tire
testimony, but the law presumes his innocence until he is proved guilty to the
exclusion of a reasonable doubt. » ‘That instruction contains the law, and
the refusal of the court to give it as asked would be sufficient cause for re-
versal, if the same idea was not fully ex pressed in some other instruction. But
if it was substantially, and in such manner as to be clearly understood, em-
bodied in another instruction, the refusal of it in the form presented did not nor
could not prejudice the defendant. Instruction No.5, given by the court, jis as
follows: “The law presumes the innocence of the accused, and it is the duty
of the jury, if they can reasonably do so, to reconcile all the facts and cireum-
stances of the case with that presumption. And if upon the whole case the
jury entertain a reasonable doubt of the guilt of the accused, or of any mate-

rial fact necessary to his guilt having been proven, then they should find him
not guilty.” And in instruction No. 1, the jury were told, in substance, that
in order to convict the accused, they must believe, from all the evidence, to
the exclusion of a reasonable doubt, he was guilty of the offense charged. It
seems tous these two instructions so fully convey the idea contained in the
instruction refused that any jury of ordinary intelligence would readily under-
stand that they have no right to convicta defendant of a criminal offense Npon

foGe

Ky. é
y-J BEATTY v. BEATTY’S ADM’R. 771

a mere preponderance of the testi i
: > ndera sstimony; for a belief so decided :
@ beyond reasonable doubt cannot possibly be scahuat 1h a tet te .

man w ho reasons at all, by mere pr eponderance of ev idence.
We have carefully examined the record in this case, and perceiving no er-
,» and, 8

ror of law occurring at the trial judi
é ring < al to the pr antial ri
the accused, the judgment must be a aberyns ar ae ‘f

; Bear d SAT!
Ty and others v. Bearry’s ApM’r and others.

(Court of Appeals of Kentucky. November 29, 1887.)
1, Partition—Finat JupGMEnt—APPFAL.

A judgment of partition i
Wg, among the heirs of real
a. r ‘ estate of an es ’
Wut teal ter toh eee ye division without forther Stew cf te ee
— pecrharsd or3 a final determination of the rights of the parties, and
2. Descent anp Distriputlon—ADVANCEMENT—EVIDENCE

The controvers.
's as oO n had received
y w as to the amount a so a e ’

The evidence of int i
— , 1 nterested parties was that he
He —ae invested in certain property. A deed and mortgage were filed j
per es pods pobhinvby adn yenpeyt cverin: $9,500 of this amount Met thoee ie
2 , he y the father agains ich w j ist
i en rages Nee the controversy, shone thes thie eae toe ated on
or sete * property in the deed was afterwards sold by the tether: for
“* gon, in deistaietne thir hore nace very ay Fe heirs of the
- e ng t state of the father, with $ s.
Held, that it conclusively appeared that the $9,500 was iy lace ig

', could not be charged
| Som panne sce __ the son as such, and the amount charged should have

as advancements,
had received $15,-

Appeal from Louisville chancery court.

Ef. #. McKay :
pte: y and Samuel Cleaver, for appellants. C. B. Seymour, for ap-

Lewis, J. The parties to this action united in ing j

I : ; asking judg

a aw ee estate left at his death, in 1881, by Oy eke

cot a ene of appellants D. I. and IF. H. Beatty, grandchil-

allotment of lowers see wide bps Papel gw mgt opisres suk Oe

ent.c : y issi svee All: ‘

Rr Sehor a to — amount received by Jolin Beatty, pitens ocnyeoay

= vig Sore should be charged therewith in the partition and Savision
er term, 1883, of court, the chancellor rendered pi ear are

substance, that E. D. Beatty received, as an advancement from D. L. Be

which is to be charged to him in the partition of the realty therein seratiaes

$2,000, ‘ Jeatty i
Pigs i eer pn ts wider ee as ‘e advancement, $13,-
‘ } - TL: - W. Beatty in snch partition; th;
Lagden een to dower in said realty, and W.R., E. A pice priest
pit phen . to one-fourth, and D, H. and F. W. Beatty each to se
ao ’ . oe ae ever, to the charges above respectively adjudged against
radee tie partiane rer adjudged that persons therein named as commissioners
ict pe parrpimnriown to the terms of the judgment, first setting apart
pealryesae Barca estate to the widow, and then dividing the remainin
Hrsg phan hs np parties entitled thereto, charging them sempeesivety
intra: sae peor ap ae against them; and, in case the share of any part}
Lanse ae . t x amount charged against him, the excess of the char,
ies flo wxs 2 Kone dots at oavetin the a of the other one-third to
, i é ion. he commissi rs WwW i '

report the value of the several pieces of property, each Aah eerie

ally set out and described i j
poe gedit Baan t ed in the judgment, and .ilso the value of the life-

768° SOUTHWESTERN REPORTER. | | [Ky.

not appear to belong to the class excluded thereby, he was, we think,
ache Sermitied to testify. It is true, as section 8 reads, persons nos py
of perjury and false swearing, denounced in sections 1 and 2 of article 8, are
not excluded, and may testify, while those convicted of subornation of perjury,
and the various statutory offenses of the same class, described in the five pre-
ceding sections, are disqualified. Obviously that omission was not intended,
and resulted from oversight. But it does not affect the question of Turner's
competency one way or the other, for, as said in Broaddus v. Broaddus, this
court cannot * * * look tothe Revised Statutes to supply any defect that
may appear in any general law introduced in the General Statutes, prt 5 ear
laws as are expressly left unrepealed.” If there was any doubt on the suk ject,
it would be removed by section 241, Crim. Code, hereafter quoted, where the
qualification of an accomplice to testify as a witness In behalf of the common-
is recognized. : ;
Ve it rf ou the court erred “in failing to instruct the jury that evi-
dence of extrajudicial confession of guilt was not such evidence as the law
makes necessary to corroborate the evidence of Turner, an avowed accomplice;
and also erred in failing to instruct the jury that Turner’s evidence could not
furnish the corroboration necessary to the support of evidence of an extraju-
dicial confession.” The two sections vat Code oe to proof of contes-
si t estimony of an accomplice, are as follows: :
baer Ser dry Ginnie of a defendant, unless made in open court, will
not warrant a conviction, unless accompanied with proof that such an offense
Wirsoe Dal, * conviction cannot be had upon the testimony of an accomplice,
unless corroborated by other evidence, tending to connect the defendant with
the commission of the offense; and the corroboration is not suflicient if it
merely shows that the offense was committed, and the circumstances thereof.
In 2 Greenleaf on Evidence it is said that all confessions of this kind, extra-
judicial, are receivable in evidence, being proved like other facts, to be weighed
by the jury. But in the United States the prisoner's confession, where the
corpus delicti is not otherwise proven, has been held insuflicient for his con-
viction. See sections 216, 217, and cases cited. The same author further
says that there is no rule of law requiring the testimony of an accomplice to
be corroborated by other evidence, but that it is now so generally the prac-
tice of judges to advise juries not to convict of felony apon the seygnnes ~ Je an
accomplice alone, and without corroboration, that its omission would . re-
garded as an omission of duty on the part of the judges. Section 380. See-
tion 240 of the Code is consistent with and was intended to give + angst
sanction to the rule applicable to the confession of a defendant, just tee —
previously been. And section 241 is in accord with the uniform prac - re)
the courts at the time the Code was adopted. But there isa material differ-
ence between the two sections; for while one relates to the legal effect to be
given to a confession when proved as a fact, the other not only prescribes the
legal effect which may be given to the testimony of an accomplice when cred-
ited, but also determines the condition upon which the jury may give vad
credence to it. The converse of the proposition stated in section 240 is reed
if the confession is accompanied with proof such offense was ee
is, with proof of the corpus delicti,—it will warrant a conviction. But —_
proof is not, according to the plain language of section 241, sutlicient ve :
oration of the testimony of an accomplice to authorize a conviction, other ~~
additional evidence tending to connect the defendant with the commission te)
i uired.
nah pened page ga Ky. 849, it was held to be the duty of the court, when
an accomplice testifies for the commonwealth, to instruct the jury as to the
law contained in section 241; and the court has, in this case, properly given

such an instruction.

Ky.] PATTERSON: V. COMMONWEALTH. 769-

In the case of Cunningham v. Com.,9 Bush, 149, it was said: “The mani-
fest meaning of this provision [the same as section 240] is that besides the
proot of confession a defendant may have made of his guilt, unless made in
open court, there must, to warrant a conviction, be other evidence conducing
to prove him guilty of the offense alleged to have been committed by him.”
And the court did, in this case, following the rule there laid down, give the
following instruction: “Any confession of the accused, or statement amount-
ing to such, if there be such in the case, will not warrant his conviction, un-
less same is accompanied with other proof that the offense charged was com-
mitted, and tending to connect the accused with the commission thereof.”

Although the conclusion, announced in the Cunningham Case, is some-
what different from the views just expressed, we would not have hesitated
to reverse the judgment if the court had failed to instruct the jury substan-
tially in accordance with the ruling in that case, because it was the law, as
expounded by this court, when the accused was tried. But the instruction,
which is contended by counsel should have been given, but refused, is en-
tirely different from and beyond the range of the ruling in that case, and
consequently is not sustained by it. The fundamental error in that instruc-
tion is that without warrant of the Code, express or implied, it gives to the
court what belongs exclusively to the jury,—the power to judge of the weight
and sufliciency of the evidence in establishing a fact; for while it is made
the duty of the court, by section 240, as construed in the Cunningham Case,
to instruct the jury not to convict upon proof of a confession by the defend-
ant, without other evidence conducing to prove his guilt, and by section 241
that a conviction cannot be had, upon the testimony of an accomplice, unless
corroborated, it is a question of fact, and not of law, and therctore for the
jury, and not the court, to determine whether other evidence introduced does
or does not conduce to prove the guilt or to corroborate. It seems to us it
would be a palpable usurpation of the power given to the jury for the court
to assume authority to direct them what weight is to be given to any partic-
ular evidence in determining a question of fact submitted to them, unless in
such case as the law in express and unambiguous terms authorizes and re-
quires. And as the law does not authorize the court to require other and ad-
ditional evidence than the proof of confession to corroborate the testimony
of an accomplice, or other than the testimony of an accomplice to accompany
proof of a confession, we think the court properly refused to give the instrue-
tion referred to. It is not the policy of the law, nor consistent with our form
of government, to enlarge the power of courts, and correspondingly contract
that of juries, in determining issues of fact involving life and liberty, and cer-
tainly cannot be done where it is not expressly provided by statute.

5. One of the witnesses was permitted to state on the trial that he had, on
a certain occasion, said to another person he could discover with his naked
eye a spot of blood on the hat-band of the accused. But, inasmuch as he tes-
tified before the jury to the same fact, we do not see how the accused was
prejudiced.

6. The verdict of the jury is in these words: “We of the jury find the ac-
cused, William Patterson, guilty as charged in the indictment, and fix the
punishment at death.” Counsel contend that verdict dues not conform to the
Code, does not fix the degree of the offense, and ought, therefore, to have
been set aside. Section 262 of the Code provides that, upon an indictment
for an offense consisting of different degrees, the defendant may be found
guilty of any degree not higher than that charged in the indictment, and
may be found guilty of any offense included in that charged in the indict-
ment. And by section 257 it is required that in a general verdict of guilty,
the offense, and the degree of the offense, and the punishment, be fixed. As
the accused is charged in the indictment with murder, and nothing else, we
think the verdict describes that offense with sufficient certainty to meet the

v.5s.w.no.20—49

Pos

Seheaed

Appellant’s contention is that when Rule
mede the appellee the deed referred to in
1841, the bank of Clark’s river was located
at the place where this elm and the other cor-
ner stood, and that since that time the chan-
nel of the river suddenly changed to its pres-
ent location; that the change did not
place by accretions. Appellee controyérts

this alleged change of channel. issue
of fact is the only question to be g6nsidered
upon this appeal. The parties k the dep-

ositions of many witnesses.
residing in the vicinity o
to 75 years. Appellan
to show or support
channel of Clark’
claimed by hipxv
shows that

evidence conduces
8 contention that the
river was changed, as
The evidence of appellee
there ever was a change of
that place it must have occurred
r to the year 1841, the date of his
We are of the opinion that
itAvould be useless to detail the evidence pro-
duced by the parties, it would answer no
beneficial purpose. It is sufficient to say that
the evidence was so nearly equal that we are
unwilling to disturb the finding of the lower
court thereon.
For these reasons, the judgment of the
lower court is affirmed.

(122 Ky. 693)
PALMER v. COMMONWBALTH.
(Court of Appeals of Kentucky. April 27,
1906.)

1. OrFIcERS—UsUBPATION oF OrFice—OsIMI-
NAL RESPONSIBILITY.

One holding the office of a notary public,
who continued to exercise the functions of that
office after he was appointed and qualified as
ponennreess was not guilty of usurpation, with-
n Ky. St. 1903, § 13864, making usurpation of
office a misdemeanor.

2. Same.

One continuing to exercise the functions of
the office of notary public after his appointment
and qualification as a postmaster is not guilty of
violation of Ky. St. 1903, § if a
misdemeanor to hold and
an office after his term
legally expired.
8. Same.

One who contipfes to exercise the functions
of the office of a p6tary public after his appoint-
ment and qualification as a tmaster is not

on of Ky. St. 1903, § 1364, mak-
emeanor to hold and pretend to ex-
ce after his election or appointment
all have been declared by a court of
compgfent jurisdiction {llegal or void, in the
ce of a showing of such an adjudication.

Appeal from Circuit Oourt, Hardin
County.

“To be officially reported.”

A. B. Palmer was convicted of usurpation
of office, and appeals. Reversed and re
manded.

Du Relle & McHenry and W. A. Barry,
for appellant. N. B. Hays, Atty. Gen., Chas.
H. Morris, J. R. Layman, and L. A. Faurest,

constitutionally or

92 SOUTHWESTERN REPORTER.

‘

The appellant, A. B. Palmer,

BARKER, J.

forcing this verdict, he

Section 1364 of the
1903, under which
is as follows:

here on appeal.

entucky Statutes of
indictment was had,
“If/fany person shall usurp
ed by the Constitution or
monwealth, or shall know-

m of office has constitutionally or
expired, he shall be guilty of a mis-
demeanor, and fined in a sum not less than
five hundred nor more than fifteen hundred
dollars.” The facts constitutjng the of-
fense charged against the

ng this office he was
as postmaster of the

accepting office
continued to

der the United States, he
ercise the functions of the

the usurpation of an office; second, know-
ingly holding and pretending to exercise an
office after the election or appointment of
the incumbent has been declared illegal by
a court of competent jurisdiction; and, third,
holding over after the term of the incumbent
has constitutionally or legally expired. The
appellant was not a usurper. At the time he
‘took possession of the office of notary public
he was eligible, and was duly and legally
appointed; and while it is true he became in-
eligible afterwards by the acceptance of and
qualification to the office of postmaster, he
did not thereby become an usurper.) Web
ster defines the word “usurp” as foflows:

“To commit seizure of place, powepy function,
or the like, without right; to
it in possession by force or
to usurp a throne,” etc.
Dictionary, defines “us
who intrudes himself
vacant, and ousts
any color of ti
void in every

to an office which is
e incumbent without
whatever; his acts are
pect.” Anderson gives the
, and derives it from “usu-
seize to one’s own use.” To
office, then, is to seize it by force,
actug/or constructive, without any color of
right or title. Usurpation is entirely differ-
ent from holding an office originally right-
fully possessed, but to which the incumbent
becomes ineligible by the happening of some
extraneous fact or circumstance. This dif-
ference between the offenses provided for by

for the Commonwealth.

section 13864 of the Kentucky Statutes of

EI lO”

y-) PEARSALL v. COMMONWEALTH.

1903 is enunciated in the case of Wayman Vv.
Commonwealth, 14 Bush, 466.

Appellant does not fall within the third
class of offenses provided by the statute, be
cause his term of office did not legally or con-
stitutionally expire. He was appointed for
four years, or until the t session of the
Legislature. It is pretended that his
term of office ha pired. There is a dif-

ference betw the right of incumbency
and the terpr of office. If one who is in
office es ineligible to hold it longer—as
that h oves out of the district—his term

@ does not thereby expire, although his
of incumbency ceases. His successor
elected or appointed to fill out his unex-
pired term.

Appellant, if his case comes within the
language of the statute atall, fallswithin the
second class of offenses; and, in order to con-
vict him under this, it necessary that he
should knowingly ho is office after a judi-
vial declaration vgCating his election or ap-
judicial determination is
in this case. There are but
three offe: punishable under the statute:
en the defendant usurps the office

by fort
sd ority; second, when he holds it know-
gly after adverse adjudicatio his
title to hold it longer; and,
holds it after his term
Legislature, in sectio
and did, provide ishment for each of
these. To consti one a usurper, it is not
necessary to gHége scienter, because, as the
offender no color of right or authority,
be is boprfd to know his act of seizure to be

expired. The
undertook to,

question as to whether
fact or circumstance is le-

ing of th
incumbent ineligible to continue to
its functions. Consequently, asthe statute
is a severe one the Legisla

falling w
provided for by the 8
that the acts comm!

offense under the gfatute at all; and in either
tly entitled, at the close of
Ith’s evidence, to a peremp-

guilty.
The judgment is reversed for proceedings

PEARSA vy. COMMONWEALTH.
(Court of Appeals of Kentucky. April 27, 1906.)

1. CamminaL LAw—CONFESSION—A DMIBSIBIL-
rry—AUTHORITY OF CouRT TO DETERMINE.

It is the province of the court to determine
whether a confession under the facts of a par-
ticular case is admissible.

[Ed. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1219.]

2. SAME.

On the issue whether a confession was vol-
untary, the evidence showed that, as accused
was being conveyed from a depot to a jail, an
officer told him to tell the truth about the affair
and that it would be better for him to do so.
Ruheeqnentiy another officer had a conversation
with accused, in which he confessed. This offi-
cer did not put the accused in fear, or create any
belief that it would be better for him to make a
confession. Several hours elapsed between the
time the first officer talked with accused and the
time the second officer talked with him. Held,
that the court was authorized to find that the
confession was voluntary.

[Ed. Note.—For cases in A ny see vol. 14,
Cent. Dig. Criminal Law, § 1215.)

8 Same— ApPreaL — VerDict or Juny — Con-

CLUSIVENESS.

A verdict in a criminal case, supported by
evidence, is conclusive on appeal.

[Ed. Note.—For cases in point, see vol. 15,
Cent. Dig. Criminal Law, §§ 307: 76.)

4. SaME—PUNISHMENT—DISCEETION OF JUBY
—JNTERFERENCE BY COURT.

fix the punishment for —_ authorized the jury
to fix the punishment by death, the action of the
jury in imposing the death penalty on one found
aulty of rape, could not be interfered with by
the court.

[Ed. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 2107.)

Appeal from Circuit Court, Fayette County.

“Not to be officially reported.”

James Pea nvicted of rape, and
he appeals. .

Shanklin & Worthington, B. T. Southgat
and Geo. C. Webb, for appellant. N. B. Hays
and CG H. Morris, for the Commonwealth.

PAYNTER, J. The appellant was indicted
for the offepge of rape upon the person of
Giizzle Wagner. ) On the night of January 21,

005; Fini proke into the Wagner house in
the city of Lexington, and entered the room
where Mrs. Wagner and her husband slept.
His presence was discovered by Mrs. Wagner,
and she informed her husband. When this
was done, the intruder shot Mr. Wagner, and
then forced Mrs, Wagner into another room,
where he committed the offense with which
appellant is charged. The Wagners did not
recognize their assailant. Several facts and
circumstances were proven which tended to
establish that the appellant was the offender.
Among other facts it was shown that he had
on his person the day after the commission
of the offense a ket knife which was taken
from Wagner at the time the offense was
committed, but we will not here detail all
the incriminating facts and circumstances de-
veloped on the trial. The feeling against
appellant was such that the authorities at

consistent herewith.
Ky.Drc.89-92 8.W.—57

Fayette county thought it best to send him fo

Where the Legislature, within its power t> :

Arp

“906T £9 *Hen f*hy fu0gSUTXeT posueY

x
<

yoetTq ‘sower ‘TT VSUVdd

< Eat nas

DOE & MEANS

Ne Agtior

CRIMEA, . .}§}§=— (| RESO EO Aa fi ———i]s«C OTHER

wrap -
LAE L405

MOTIVE

MAL ous degbtetan tee ates of deste he Ags a CFOUL, Li feat

4h> (oo Arnage
WAT gaat Aa

i ‘ ‘ AY
SANS || ‘ : rh we tit f
& r ACA
mye ; ied tk: ‘ eX
‘ « { f } f i ‘e alicngee
okay bch aay ee i / ‘ ;
OS's 4 Age ane "4 eae sitet p AERA 3
i i ie A dR te en! A tolen’4 -

PENNINGTON, Edward Alonzo, wk

‘PFERENC

Not Take

i This Room ( FT RISTIAN,

YOTIN'T 7-1-1846

KENTUCKY. «-
|
|

sparen wer

od ILLUSTRATED.

F. A. BATTEY PUBLISHING GO,
CHICAGO AND LOUISVILLE.
; 1884.

e
Property of

?
' Ame he a ge go iy Sa Selene tae
Hot STOMA LOV GG ote atts Be ead
Pet ci Pa

Loulsville for safe-keeping, and_ thus protect
him from the probability o
He arrived in Louisville about 8 o'clock, and

was placed in the charge of the authorities
there. About half past 9 o’clock he was tak-
en to the office of Detective Maher, who
intended to talk to him with a view of
ascertaining whether or not he was guilty of
the crime with which he was charged. After
talking to him for some time, and after he
had taken a nap and had time for reflec-
tion, he finally confessed. He was at the
detective’s office from about half past 9 to 12
o’clock before his written statement was
completed. The detective claimed that there
was considerable delay in getting a notary
public.

It was claimed on the trial, and is here
claimed, that the confession was not vol-
untary, and that it was superinduced by fear
or hope of reward. The trial court heard the
testimony of the officers, and also of the
appellant, and determined that the confession
was not improperly obtained, and that it
was admissible as evidence against the appel-
lant. Chief Detective Marshall, of the
Lexington police force, assisted by two other
officers, conveyed the appellant to Louisville.
The evidence tends to show that, as the
appellant was being conveyed from the dejot
to the jail in Louisville, Marshall told him to

tell the truth about the affair, and thatijg

would be better for him to do so, and perhaps
the same advice was given to him before he
reached Louisville. Detective Maher denies
that he put the defendant in fear, or created
any hope in him that it would be better for
him to make a confession. He insists that
all he said to him was that he thought It
would relieve his conscience if he would
make a statement. The appellant testified to
a state of facts, if true, that would have
rendered the confession inadmissible as evi-
dence. Under the repeated adjudications of
this court, it was the province of the court to
determine whether a confession under the
facts of the particular case is admissible as
evidence. Laughlin v. Commonwealth, 87
S. W. 590, 18 Ky. Law Rep. 640; Dugan v.
Commonwealth, 102 Ky. 251, 43 8. W. 418;
Whitney v. Commonwealth, 74 8. W. 257, 24
Ky. Law Rep. 2524. We are of the opinion
that the court did not err in admitting the
confession. It was made several hours after
Detective Marshall had told the appellant
that it would be better for him to make a
truthful statement of the affair. The lower
court found that that statement, or any other
statement made by Detective Marshall to him
of the same character, did not dominate
appellant’s mind, so as to superinduce the
confession. The court also reached the
conclusion that Detective Maher did not
improperly obtain the confession. After
considering the evidence, and the ruling of
this question, we are not disposed to disturb
the finding of the lower court thereon.
Counsel for appellant also discussed the

982 SOUTHWESTERN REPORTER.

testimony of Mrs. Wagner, and claimed that
the cross-examination of her cast a doubt up-
on the correctness of her story as to the rape
etc. Her evidence leaves no doubt upon the
mind of the court that she detailed truth-
fully the facts relating to the crime; besides,
that was a question for the jury to determine,
and its conclusion cannot be disturbed.

The extreme penalty was inflicted by the
jury. 8 , orfeits
his life for the crime. The General Assembly
has allowed the jury to impose that penalty,
and, if we concluded that it was severe under

the facts of the case, we could nor change it;
or Winaking department oO

government was authorized to denounce such
a penalty, and it was the province of the
jury to impose it, if they thought the facts
justified it.

The judgment Is affirmed.

GAY v. STEELE’S ADM’RS.
(Court of Appeals of Kentucky. May 1, 1906.)

New TrraLt—GrounDs—NEWLY DISCOVERED
EvipeNnce—DILIGENCE.

Where alleged newly discovered eyidence
consisted of the testimony of persons 0 lived
in the same neighborhood with the licant and
might have been produced at the original trial
by the exercise of diligence, new trial was
properly denied.

([Ed. Note.—For cai
Cent. Dig. New Tr'

i int, see vol. 87,
in ol t, ’

for a new trial by
the administrators of

reversed, wit
to enter a
See St

of that case she had
which sustained h
r denying the
roof was taken,
hearing the
action, and she appeals

The newly discovered evidence consists of
the testimony of je Baker, Carr Couch,
G. M. Morgan, Naynie Roberts, the wife of
James A. Roberts, J. C. Jones, Wm. Hall,

Ky.)

Wm. Couch, and John Couch. The deposi-
tion of James A. Roberts, the husband of

the witnesses now relied on/either live in
in Hyden or in the neighbérhood. None of
them were strangers Mrs. Gay. They
are Introduced now prove certain state-
ments made to th by Steele; but they
were known to riends of his, and prope
diligence required that evidence of this
acter should
duced on t
know that Hyden is a very 8)
the circumstances show
most, if not all, of this

few trial for newly dis-
ence, especially where the

evidence as was offered in
evidently no diligence wasused to procure
al, litigation would
able. The case which
not commend her to the

be well-nigh inter:
she now makes

clusion.
Judgment affirmed.

CENTRAL PLANING MILL & LUMBER
Co. v. BETZ et al.

(Court of Appeals of Kentucky. May 1, 1906.)

MecuaNics’ LiENS—MATERIALS FOR PaRTICU-
Lak BUILDING.
The contractor, building defendant’s ho

id plaintiff, who furnished lumber fo
ouse and for others that the contra

plaintiff. The evidence
whether plaintiff was
paid him by the co

ant, and as to w er the contractor requested

the money to defendant’s ac-
at it was proper to dismiss the

funty, Chancery Branch, First Division.

“Not to be officially reported.”

Action by the Central Planing Mill & Lum-
ber Company against Mary Betz and oth
From a judgment in favor of defe
plaintiff appeals. Affirmed.

Jos. BE. Conkling and C. eymour, for
appellant. Matt O'Doherty, for appellee.

PHYTHIAN v. RAISON.

HOBSON, C. J. Charles Betz had a house

built on a lot in Louisville belonging to his

mother, Mary Betz, under an arrangement
with her that he might build the house at his
expense and live in it. He made a contract
with a firm of contractors doing business in
the name of Siemens & Hommrich to build
the house for something over $1,000. They
bought the lumber for the house from the
Central Planing Mill & Lumber Company.
Betz paid them for building the house, and

aning mill and lumber company after-
wards instituted this suit to enforce a me-
chanic’s lien on the house for the price of the
lumber which it sold Siemens & Hommrich
and Siemens & Hommrich put into the house.
The proof shows that at the time the con-
tractors were building this house for Betz
they were building several other houses, for
which they got the material from the Cen-
tral Planing Mill & Lumber Company, and
debted to it on other ac-
as they

these checks they paid
lumber company a

t that the company applied
to the debts which Siemens
owed it on other accounts, and
balance due from him to it. The
sum which the company now sues for is really
the balhnce which Siemens & Hommrich owe
it on account of all their dealings with it, and
this balance is asserted as a lien against the
Betz house. There is some conflict in the
evidence as to whether th lumber
company was notifi t the money paid
it by Siemens & mrich came from Betz,
and whether y requested it to apply the
Betz account. The chancellor
the petition, and on all the facts
no reason for disturbing his judgment.

PHYTHIAN v. RAISON.

(Court of Appeals of Kentucky. M . 1906.)
LIBEL—Worps ACTIONABLE—PLEADING.
In an action for libel, w the petition

alleges a publication by defegflant to the effect
that the books kept by the fristees of a hospital,
of whom plaintiff was ogé, did not contain cer-
tain items, nor preseng’proper data from which
to make a proper e6mparative statement, ana
defendant thereby intended
falsified their

ot being capable of a construction
rongdoing on the part of the trustees.
1 from Circuit Court, Campbell Coun-

* ‘

“Not to be officially reported.”

Action by John L. Phythian against ©. L.
Raison, Jr. From a judgment in favor of
defendant, plaintiff appeals. Affirmed.

Hodge & Wolff, for appellant. O. G& Ral-

son, Jr., pro se.

a 188 SOUTHWESTERN REPORTER (Ky.

absence of any other reason constitute error.
Fitzgerald v. Commonwealth, 98 S. W. 319,
80 Ky. Law Rep. 349; White v. Common-
wealth, 120 Ky. 178, 85 S. W. 758, 27 Ky.
Law Rep. 561.

The affidavit for a continuance set out the
date the crime was committed, and the time
of appellant’s arrest, and removal to the
Lebanon jail, and from thence to the Jeffer-
son county jail. And further set out that:
“He has never been given an examining trial
on this charge, and has had no opportunity
of knowing what character of testimony will
be offered against him; that he is innocent
of the charge contained in the indictment;
and that he has had no opportunity until this
morning to confer with counsel, who have
been employed to defend him; and that on
account of his incarceration in jail at Louis-
ville, and on account of the distance from
his home ard his financial condition he has
been unable to properly prepare his case. He
states that his friends and relatives only yes-
terday employed his counsel, and that his
attorneys have not had an opportunity to
prepare his case for trial. He states that if
given until the next regular term of this
court he will be able to establish his inno-
cence of this charge.”

Every person accused of crime, however
guilty he may be, or whatever the nature of
the crime charged against him, is entitled to
a fair opportunity to prepare and present
his defense. It is not the purpose of the
law to deny any person accused of crime of
the high privilege of establishing his inno-
cence. And whenever it has appeared to this
court that the accused was deprived of a
reasonable opportunity to explain away his
guilt, or was forced into trial without rea-
sonable opportunity for preparation, we have
not failed to grant a new trial. Because,
however desirable in the interest of justice a
speedy trial may be, it is of much greater
importance that the law of the land should
be administered in an orderly and deliberate
way, so that every person arraigned for
crime may have in truth a fair trial. And
in this case, although the appellant has been
found guilty of committing a horrible and
brutal crime, we would nevertheless grant
him a new trial if the record before us dis-
closed that in any particular his substantial
rights were prejudiced by the failure to
grant a continuance. He was notified on
September 15th that his case would be in-
quired into by the grand jury on September
28th. And so he had the time between these
two dates to consider the nature of the
charge against him and make at least some
preparation for his defense. But neither
the motion for a continuance, nor other part
of the record discloses any fact that would
even tend to show he was not as well pre-
pared for trial at this term as he would
have been at a subsequent term. Nowhere
do we find the name of any witness that was
needed in his defense, or mention of evidence

that was not introduced in his behalf. His
counsel are lawyers of ability and expe
rience, and we feel safe in saying that if
there was any reason why appellant was not
ready for trial at the special term, or if he
could have introduced in his behalf any wit-
nesses at a succeeding term that could not
be procured at the special term, or if he
could have impeached or discredited or con-
tradicted at a subsequent term the testi-
mony of the witnesses for the common-
wealth, or any of them, or have in any man-
ner shown—other than by his own testimony
—that he was innocent, that these attorneys
who had from September 27th until Septem-
ber 30th to advise and consult with their
client before the trial commenced would
have made it known either in the affidavit
for a continuance or during the trial or in
the motion for a new trial. And the fact
that the record does not furnish any reason
for a continuance, except that stated in the
affidavit, convinces us that no other reason
could be assigned. This being so, we are
well satisfied that the court did not err in
refusing to grant a continuarce. Under cir-
cumstances like those existing in this case,
the sole purpose of granting a continuance
would be to give the accused an opportunity
to present some evidence in his behalf that
he could not obtain or introduce if required
to try at the term the motion for a continu-
ance was made, or to enable him to employ
and advise with counsel needed in his de
fense whose employmeut or advice he could
not secure unless a continuance was granted,
or to give him an opportunity to discredit,
impeach, or contradict the testimony that
might be offered for the prosecution. Ac
cepting these propositions as the test of ap-
pellant’s right to a continuance, he failed in
every particular to show that if a continu-
ance had been granted he could have improv-
ed his situation.

When the motion for a continuance was
overruled, the appellant filed a written mo-
tion asking a change of venue, and it is
earnestly insisted that the court committed
serious error in refusing to grant this appll-
cation. The statute provides in Ky. St. §
1110 (Russell’s St. § 3220), that: “Such ap
plication, if made by the defendant, must be
made by petition in writing, verified by the
defendant; and the applicant must produce
and file the affidavits of at least two other
credible persons, not of kin to nor of coun-
sel for the defendant, stating that they are
acquainted with the state of public opinion
in the county or counties objected to, and
that they verily believe the statements of
the petition for such change of venue are
true. * * *” The aftidavit of appellant is
not accompanied, as provided in the statute,
by the affidavits of “at least two other cred-
ible persons” or any person, but it is stated
by appellant in his affidavit that “because of
the feeling existing against him, he is un

able to procure the affidavits of two credible

A mm.

Ky) ALLEN vy. ALLEN’S TRUSTEE 548

persons.” We might well rest the correct-
ness of the ruling of the trial court in refus-
ing to grant a change of venue upon the
ground that the statutory requirements were
not complied with in the failure to produce
the affidavits of two credible persons. This
question was before the court in Fitzgerald
vy. Commonwealth, 98 8. W. 319, 30 Ky. Law
Rep. 349, and it was there said: “It appears
that appellant filed his petition, which con-
tained all the statements and facts necessary
to authorize the change, but it was unsup-
ported by the affidavits of at least two, or
any, credible persons of the county in which
the prosecution was pending. The affidavits,
which, in order to avail the appellant, should
have been signed by two credible persons,
were in blank; no one, it seems, was willing
to sign them; and the renson given therefor
is that the residents of the county were
afraid to do so. From the opinion of the
trial judge, rendered upon this motion, it is
evident that he was impressed with the
truth of this statement, but decided that he
was powerless to grant the change without
the required affidavits. In this he was cor-
rect. The requirement that these affidavits
must accompany such a petition is statu-
tory. The only power the court has to grant
a change of venue is conferred by the stat-
ute, and as the appellant failed to comply
with the provisions of section 1110 (1096),
which prescribe the form of the affidavits
which must accompany the petition, the court
correctly overruled his application for the
change. This resulted in a hardship to the
appellant, but the court was without discre-
tion in the matter, the Legislature having
enacted the form of procedure to be fol-
lowed.”

But, waiving the fatal insufficiency of the
application for a change of venue, we are
satisfied that the substantial rights of the
accused were not prejudiced by the failure
to grant it, and that the court did not err
or abuse a sound discretion in overruling
the motion. Two witnesses only were intro-
duced on the hearing of the motion, and
they were introduced by the appellant. Both
of them testified that they believed the ap-
Pellant could have a fair and impartial trial
in Lincoln county. There is nothing in the
record to indicate that be could not, except
his unsupported attidavit. In view of this,
we cannot with any sort of propriety say
that the court should have granted his mo-
tion. We have held in Fish v. Benton, Judge,
138 Ky. 644, 128 S. W. 1067, Hargis v. Com-
monwealth, 135 Ky. 578, 123 S. W. 239, and
Fletcher v. Commonwealth, 123 Ky. 571, 96
8. W. 855, 29 Ky. Law Rep. 955, that the
granting of a change of venue is entirely
Within the sound discretion of the court, and
that unless it appears that this discretion
was abused to the substantial prejudice of
the accused it will not constitute reversible

error. The appellant was tried by a jury
from Boyle county, and there is no fact or
circumstance in the record from which we
can reasonably infer that this jury was un-
duly influenced by any feeling of hostility
that may have existed towards the accused
in Lincoln county.

It is further suggested that the court er-
red in failing to discharge the jury, because
three persons who had been summoned as
jurors, when being examined for the purpose
of testing their qualifications to sit in the
case, expressed the opinion that the accused
was guilty. Of course, this improper remark
of these veniremen furnished no reason why
the court should discharge the jurors who
had been selected and were acceptable to
both parties.

Complaint is also made that the court fall-
ed to instruct the jury to disregard the
statements made by W. ©. McCarty, a wit-
ness for the commonwealth, and whose tes-
timony was excluded by consent of the attor-
ney for the commonwealth. After reading
the examination of this witness, we are un-
able to perceive the ground upon which this
objection is rested. McCarty was asked only
one question by the commonwealth, and did
not answer that. The only questions that he
did answer were those asked by counsel for
appellant, and his answers to those questions
were not objectionable, but they were ex-
cluded by consent.

Influenced by the fact that the extreme pen-
alty of the law was inflicted upon the appel-
lant, and that there is no other tribunal to
which he may take his case for review, we
have given to this record an exceptionally
careful consideration. After thus consider-
ing it, we are unable to discover any error
committed by the lower court to his prej-
udice. This being so, there is nothing for us
‘to do but affirm the judgment, and it is se
ordered.

—o=ss
(141 Ky. 689.)

ALLEN v. ALLEN’S TRUSTED.
(Court of Appeals of Kentucky. Jan. 20, 1911.)
Trusts (§ 61*)—TERMINATION OF TESTAMEN-

TaRY TRUST—POSSIBILITY OF ISSUE.

A testamentary trust to pay the dividends
and income of the corpus to a married woman,
55 years of age, for life, and at her death to
deliver the corpus to her children, will not be
terminated on her acquiring the interest of her
living children, who are adults; and the court
cannot authorize the delivery to her of the
corpus of the estate, on the ground that she
is the sole owner, because of the ibility of
her having other children entitled to share in
the estate under the will.

[Ed. Note.—For other cases, see Trusts, Cent.
Dig. § 83; Dec. Dig. § 61.*]

Appeal from Circuit Court, Bourbon Coun-
ty.
Action by Sallie Barnett allen against Sal-
lie Barnett Allen’s Trustee for the construc.
tion of the will of A. W. Wright, deceased.

* *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

PEER I RR EE A

caliente ee

540 © 138 SOUTHWESTERN REPORTER (Ky."°

to come off, and that five feet would be tak-
en off for this purpose. But there is no evi-
dence that anything else was excepted. The
remainder of the lot, after cutting off this
five feet, is the “lot with blacksmith shop
thereon,” which Cabell sold the trustees.
The circuit court should so have adjudged,
and should have entered a judgment direct-
ing the trustees to pay into court in a reason-
able time the purchase money, and when the
money was paid, he should have directed a
deed made to them by Cabell for the prop-
erty.

If, on the return of the case, the plain-
tiffs do not pay the purchase money into
court in a reasonable time, and Cabell
amends his answer, asking this relief, a
judgment may be entered enforcing Cabell’s
lien on the property for the balance of his
purchase money. As Cabell bought at the
judicial sale, under the judgment which 1s
now reversed, the circult court will set aside
that sale, as he cannot be permitted to ob-
tain an advantage by the erroneous judg-
ment which he obtained. Hess Vv. Deppen,
125 Ky. 424, 101 8. W. 862, 81 Ky. Law

Rep. 15.
Judgment reversed, and cause remanded
for a judgment and further proceedings con-

sistent herewith.
—

(141 Ky. 660.)
PHNMAN ¥. COMMONWEALTH. !
(Court of Appeals of Kentucky. Jan. 20, 1911.)

1. Rare (§ 59*)—INsTRUCTIONS—EVIDENCE.

Where, on a trial for — of a child under
the age of 12 years, the evidence for the com-
monwealth showed that accused committed the
offense, and accused denied that he assaulted
the child, it was not necessary for the court to
charge on the subject of an attempt to assault,
or on any other degree of the crime.

Ed. Note.—For other cases, see Rape, Cent.

gz. § 99; Dec. Dig. § 59.*]

2. CrmuinaL Law (§ 575*)—Trrus—SPEcIAL

Trerus—PowER TO APPOINT.

Under the statute authorizing the court to
call a special term when necessary to trans-
act business, the court may summon @& grand

ry at a special term to investigate the charge
against an individual under arrest for crime,
and may try him on an indictment returned by
the grand jury, and the fact that there is no
prosecution pending when the special term is
called does not deprive the court of such au-
thority.

{Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. §§ 1294-1296 ; Dec. Dig. § 575.*)
8. CaruinaL Law (8 575*)—TERMS—SPECIAL

TERMS—VOWER TO APPOINT.

The rpose of the statute requiring the
court, calling a special term, to designate in
the notice the business to be disposed of is to
inform persons having cases pending in court,
that they will be taken up and disposed of at the
special term, but the provision does not limit the
court to the trial of pending prosecutions, and,
while it is proper for the court to give notice
to one under arrest for crime, that a special
term will be called to take up his case, a failure
to give the notice is not error.

4. Cerra Law (§ 590*)—ConTINUANCE~

GRouNDS.

‘Accused, arrested for rape on September
3d, was notified on September 15th, while in
jail, that a special term to consider his case
would be convened on the 28th. The grand
jury convened, and returned on that date an
indictment against the accused, who was placed
on trial two days later. He sought a continu-
ance on the ground that he had had no opportu-
nity to confer with his counsel, and that coun-
sel had not had an opportunity to prepare his
case, but there was nothing to show that he
was not as well prepared for trial then as he
would be at a subsequent term, nor anything to
show that he could procure evidence in his
behalf if a continuance was granted, either to
impeach the testimony of witnesses for the
state or to corroborate his own testimony that
he was innocent. Held, that a denial of his ap-
plication was not erroneous.

(Ed. _Note.—For other “4, see Criminal
aa Dig. §§ 1316, 1317; Dec. Dig. 4
5. ORIMINAL Law (§ 134*)—CHANGE OF VEN-
UVE—STATUTORY REQUIREMENTS.

Under Ky. St. § 1110 (Russell's St. § 3220)
providing that an ny ogee for a change of
yenue must be made by petition verified by de-
fendant, supported by the affidavits of at least
two credible persons, an application for change
of venue unaccompanied by. the affidavit of any
credible person, is properly denied on the
ground that it does not conform to the statutory
requirements. .

[Ed. Note.—For other. cases, see Criminal
Law, Cent. Dig. § 251;. Dec. Dig. § 134.*)

6. CriuinaL Law (§ 137*)}—CHANGE OF VEN-
UE—CROUNDS.

Where, on the hearing of an application
for a change of venue for prejudice of the
people against accused, two witnesses testified
that ee believed that accused could have a
fair trial in the county, and they were intro-
duced by accused, the denial of a change of
venue was within the court’s discretion.

[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 253; Dec. Dig. § 137.*]

7. Crminat Law (8 1150*) — APPEAL — Re-
VIEW—DISCBETION OF OoURT—CHANGE OF
VENUE.

The granting of a change of venue is with-
in the sound discretion of the court, and in
the absence of any abuse of discretion to the
substantial prejudice of accused, the ruling of
the court will not be disturbed on appeal.

[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 3044; Dec. Dig. § 1150.*]
8. Jury (§ 149*)— DiscHARGE OF JuBRORS—

MIsconDUCT OF VENIREMEN.

That three persons who had been summon-
ed as jurors, stated, on their examination, that
in their opinion accused was ilty, furnished
no ground for the discharge © jurors who ha
been selected and were acceptable to both sides.

[Ed. Note.—Kor other cases, see Jury, Cent
Dig. § 6386; Dec. Dig. § 149.*]

Appeal from Circuit Court, Lincoln County.

Shay Penman was convicted of crime, and
he appeals. Affirmed.

R. Li. Tomlinson and J. 8. Owsley, Jr., for
appellant. James Breathitt, Atty. Gen., and
Tom B. McGregor, Asst. Atty. Gen., for the
Commonwealth.

CARROLL, J. A jury found the appellant,
a man about 35 years of age, guilty of the

{Ed. Note.—For other cases, see. Criminal
Law, Cent. Dig. $8 1294-1206; Dec. Dig. § 575.*)

crime of rape committed upon a child under

—<————

Wor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rey’r Indexes

} Rehearing denied.

- ty on September 15th.

an,

Ky) PENMAN v. COMMONWEALTH 541

the age of 12 years, and fixed his punishment
at death. From the judgment upon this ver-
dict he prosecutes this appeal, and assigns as
the chief grounds for a reversal the failure
of the court to grant a continuance and a
change of venue, but also insisting that the
call for the special term and the trial were
irregular. It is not necessary to the proper
understanding of the grounds relied upon for
reversal that we should relate the revolting
details of the crime. It is enough to say that
the evidence was sufficient to justify the
verdict. The appellant was guilty of the
crime charged against him and for which he
was convicted, or he was innocent of it and
all of its degrees. There was really no place
in the case for an instruction upon the subject
of an attempt to commit a rape or other de-
grees of the crime, although the trial judge
yn an abundance of caution and in order that
the accused might have the benefit of any
possible doubt as to his guilt of the crime of
rape, instructed the jury that they might fina
him guilty of an attempt to commit a rape,
the punishment for which is confinement in
the penitentiary for not less than 5 nor more
than 20 years. As the appellant, the only
witness in his behalf, denied absolutely that
he assaulted the prosecuting witness in any
manner whatever, and the evidence for the
commonwealth showed that he had commit-
ted the crime charged, it Is manifest that the
trial court need not have instructed the jury
upon the subject of an attempt to commit a
rape, and could not with propriety have giv-
en an instruction upon any other degree of
the crime. The crime was committed on the
morning of September 8, 1910, and on that
day and within a few hours the appellant
who was then and had for many years been
a resident of Lincoln county, Ky., was ar-
rested and placed in the Stanford jail, where
he remained until the afternoon of that day,
when he was taken to Lebanon, Ky., some 30
miles distant and lodged in the jail at that
place. On the 5th of September he was tak-
en from the Lebanon jail to the city of
Louisville and there placed in jail, where he
remained until September 27th, when he was
brought back to Stanford for trial. On Sep-
tember 15th the circuit judge of the district
in the manner provided by law called a spe-
cial term of the Lincoln circuit court for Sep-
tember 28th, for the purpose of investigating
through the grand jury the crime charged
against the appellant, and for the purpose of
trying him under any indictment that might
be returned against him, and a copy of the
notice calling the special term was delivered
to appellant by the jailer of Jefferson coun-
When the special
term convened on September 28th, a grand
jury was impaneled, and on the same day re-
turned the indictment under which the ap-
pellant was tried, but his trial was not com-
menced until September 30th, nor concluded
until October Ist. When the indictment was

teturned on September 28th, the appellant

was brought into court, and after entering a
plea of not guilty, moved the court to quash
the indictment upon the ground that the call
for the special term of court to indict and
try the appellant “was irregular and not
according to law.” Counsel for appellant in
their brief say: “Our contention was and is
that said call was irregular and not accord-
ing to law, for the reason that it expressly
shows a predetermination on the part of the
court to try appellant at said term, he never
having been indicted, regardless of the fact
that he might have legal grounds for a con-
tinuance.” But a careful reading of the no-
tice calling the special term fails to show
any purpose upon the part of the court to
force the appellant into trial at the special
term if he presented sufficient reasous to
justify the court in continuing the prosecu-
tion. Nor was the call in any respect irregu-
lar. The statute provides that “whenever it
is necessary to transact the business, a spe-
cial term may be held in any county,” and
also imposes upon the judge calling a special
term the duty of specifying in the notice or
order “the style of each case to be tried or
in which any motion, order, or Judgment may
be made or entered.” It also confers upon
the judge authority to summon a grand jury
at a special term to inquire into any viola-
tions of the criminal or penal laws. And 80,
the judge of the district had ample authori-
ty to impanel a grand jury to investigate the
charge against the appellant, and to try him
for the crime charged in the indictment. It
is true that when this special term was
called, there was no prosecution pending
against the appellant. But the fact that
there is no prosecution pending when the
special term is called does not deprive the
judge of the authority to call a special term
and impanel a grand jury at such term, or to
try thereat any person that the grand jury
may indict. The requirement that the notice
calling the special term shall designate the
business to be disposed of was incorporated
only for the purpose of informing persons
having cases pending in court that they
would be taken up and disposed of at the
special term. Except for this notice, litigants
and attorneys might not be prepared to go
into the trial of cases at the special term.
But this provision does not limit the court to
the trial of pending prosecutions. Any crim-
inal case that can be heard and disposed of
at a regular term can be heard and disposed
of at a special term. The court has the same
power and authority at a special term to im-
panel a grand jury and dispose of indict-
ments returned by it, as it has to impanel a
grand jury at a regular term and dispose of
the indictments returned by it at such term.
It was, however, eminently proper for the
court to give notice of this special term to
appellant, and the fact that his case would
be then taken up, so that he might have op-
portunity to prepare a defense, although the
failure to give such notice would not in the

Pup PY

. Cc nanSnu f .
TT6T °S 4snsny (UuTOOUTT) "Ay *oeTe foe *HOBTQ SApues ‘NYWNHd

“4

72 HISTORY OF CHRISTIAN COUNTY.

to call it, rendered them an easy prey to selfish and unprincipled specu-
lators. There are many still living in Christian County who remember
the trouble and ill-feeling caused by these defective land-titles.

Crime and Lawlessness.—As the rough and turbulent spirits of the
pioneer period drifted away before the benign influence of civilization,
society improved materially in the county. It is quite true that it was
never worse here than it is in all new countries. But the history of our
republic, from its earliest colonization, has shown bad men mingled among
the first comers to a particular section, and that, as law and order are
established, these characters are weeded out. So it was here. Shortly
after the county was formed, and the different branches of the courts were
organized and put in operation, Christian became as law-abiding a com-
munity as any in the State. And with the great mass of the population
this has ever been the case.

But there was a period, dating back perhaps to 1835-40, when not
only this, but some of the surrounding counties were afflicted with a spe-
cies of lawlessness, that to the better class of citizens was extremely annoy-
ing. Horse-stealing became rather common, likewise barn-burning, and
occasionally burglarious attacks, of an alarming nature, varied the monot-
ony of the times, and led to the general belief that there was an organ-
ized band of men who made robbery their chief occupation. The whole

Mississippi Valley seemed to be troubled in pretty much the same way.
Depredations were committed in rapid succession at points widely sepa-
rated, and yet with such characteristic skill as to create the belief that
they were done by the same inspiration, if not by the same persons. Such
a conclusion involved a belief in a wide-spread conspiracy, which so cov-
ered the territory with abettors and sympathizers that the ordinary offi-
cials felt powerless to thwart its plans, or arrest the offenders against the
law. At first this was worse in other counties than it was here, but it
gradually became too common in this county to be longer borne, without
efforts being made to check the evil. The achievements of this confeder-
ated band of outlaws culminated, in 1845, in the murder of a man named
Simon Davis, of which more will be said hereafter.

The Pennington Family.—In the north part of the county lived 4
family named Pennington, who were quite early settlers. The father,
Col. Francis P. Pennington, was a man of considerable wealth, and intelli-
gent beyond the majority of his neighbors. He owned a large farm, and
some fifteen or twenty slaves; was long a Justice of the Peace, and 98
such under the old Constitution of the State, succeeded in regular rotation
to the office of High Sheriff of the county, in 1829. In this capacity, 5°
far as is now known, he discharged his duties well and faithfully. In
those days he was looked upon as aman of undoubted integrity, and of une

HISTORY OF CHRISTIAN COUNTY.

sullied honor. No shadow of suspicion touched him, until in later years,
when the denouement which sent his son to the gallows directed attention
to facts hitherto deemed of no significance, but now magnified into mat-
ters of serious consequence. There was nothing absolutely wrong known
of him, or traceable to him, yet when troubles came upon his house, then
it was that many little things were remembered against him; how stran-
gers often came through the country, mounted on fine horses, and inquired
for Col. Pennington, sought out his home, remained no one knew how
long, and left no one knew when, as they traveled over by-paths, little
used by anybody else, and held no communications with others in the
neighborhood. These semi-occasional visits of unknown men excited dis-
trust of Pennington, and aroused suspicions, and caused threats to be
indulged in against him, but no violence was ever offered, and the old
man was allowed to die in peace.

Col. Pennington had two sons, Alonzo and Morton, and possessing
considerable wealth, as he did, he gave them good educations for that
early day. They grew to manhood respected throughout the neighbor-
hood, and were considered fine young men. ‘‘ Lonz,’’ as he was famil-
iarly called, was the younger of the two boys, and in many respects a
very remarkable man. He was intelligent, shrewd, of fine appearance,
well educated, and with his natural faculties trained almost to the perfec-
tion of the scent of the Siberian bloodhound. He wasa good judge of men,
aad chergetic enough to carry out any undertaking with money at the end
wt ST ape tate been directed into the right channel, and his qual-

1plishments turned to the accomplishment of good, he
might have become an ornament to society and a benefactor to his race,

thatead of a victim to the insulted -Yaws of his country. Many crimes

Bere attributec fy: t ehiw . =
tributed to him of whica he was, perhaps, innocent, while no doubt ,

he committed many the public generally knew nothing of. But his nefa-
flees acts were found out, and his crimes brought home to him with
feb geance., %
7 Alonzo Pennington married when quite a young man, and settled
ig age in the northeastern part of the county, in what is now
recinct. He was a great lover of horses, passionately fond of
Gack a peehae cy a large dealer in fast horses; he constructed a
al Q als larm, which became a general headquarters for that kind
% . # a “at of men whose morals were not of the highest or-
ssl would make frequent trips, sometimes remaining absent
2 brie, under the pretext of buying horses, and as he al-
ene 2 number, no one doubted the honesty of his trans-
Managed to get hold of many tine racers, and, as they
ted on his hands. he drove them § ‘ : 3
) 1em South, where they were sold to

Pat ech

Bi can MH at

1 Fb beet NN neh apie inn 4 pte

Van eet ie itt

i=
=

“eposition duly taken and authenticated. To those who mistrusted Pen-
nington already it was evident that Black was a myth, and that it was
but another of Pennington’s sharp practices, which were now becoming
Notorious. The transactions of Lonz and his gang were getting bolder
and more frequent, and every day the people getting their eyes opened
more and more to the true state of affairs in the community. Mysterious
whispers as to the organization of a new court, a court hitherto unknown
to the legal luminaries of the county, were heard, and Judge Lynch was
momentarily expected to take his seat upon the bench, and mete out to
these offenders stern justice.

Pennington's Last Game.—But we vill give the remainder of Pen-
nington’s career in the words of Hon. James F. Buckner, now of Louis-
ville, but long a resident of Hopkinsville, and the attorney who defended
Pennington when tried for his life. His description of the crime, the
trial and execution, was detailed to a reporter of the Courier-Journal, who
wrote and published it in that paper January 13,1884. No one should
be more familiar with the circumstances than Col. Buckner, and his ver-
sion of the affair, or the greater part of it, is vouched for, in all of its
essential features, by old citizens of the county. It is as follows:

There was a man living in the upper part of the county named Simon
Davis, a stonemason of good character. He married a young lady who
was one of three orphans raised by a Baptist Minister in the neighbor-
hood. She inherited a farm and five negroes. Davis stocked the farm,
and was just getting started in life, when she died, leaving no children.
Of course her inheritance returned to the other two children, leaving
Davis none of his wife's property. Pennington saw the situation ata
glance, and resolyed to play a bold hand. He told Davis that his wife's
word would not permit him to keep the farm and negroes, because by law
they belonged to the other children, but if he could turn the negroes into
money and sell him the farm he would undertake to law the old minister
out of it. He said he was not afraid of lawsuits, and could beat them
every time, but he did not like to see a man compelled to give up property
that had rightfully belonged to him because his wife died. His plausible
érgument had its effect on Davis, and he agreed to take the friendly
advice. He sold four of the negroes, and collected the money for them,
$1,500, at the May muster at Fruit Hillin 1845. It was under the old
constitution that the regimental musters were held, and I was Muster
Colonel. I had been Pennington's lawyer in a few cases, and he had
deen to seo me several times Just before the muster to inquire about the
Writing. and acknowledgment of a deed. I supposed he was making a
trade in another vuunty, and told him how the document should be drawn
up, signed and acknowledged, or witnessed. After the muster was over,

Davis was seen leaving the grounds with Pennington to go to the latter's
father’s to get the money to pay for the farm. A partof the programme
was for Davis to leave the county as soon as the trade was made, so as to
be out of the way in case suit was brought against Pennington to recover
the farm, and that he must tell some of his friends that be was going
away. Davis was never seen alive after he left the muster grounds with
Pennington. They started to take a near cut through the country, and
the first thing the neighbors knew Pennnigton was working the Davis
farm and Davis was gone. Everybody was anxious to know what became
of him, and the suspicions of the entire county were aroused, and in a
few weeks some one mustered courage enough to ask Pennington where
Davis was. He replied that Davis was in Illinois building a saw-mill, and
that he saw him the last trip he made after horses. His explanation
lulled suspicion for a while, but there was a strong belief prevalent that
there had been foul play. Pennington bought al! of Davis’ stock except
a bald-faced horse with a glass-eye, which he said Davis took with him.

At this point in the affair, the best authenticated accounts in the
county disagree with the statement of Col. Buckner, though in no very
important particulars. In several conversations held with those who
participated in all the proceedings, in fact, who belonged to the regulators,
organized for the purpose of ridding the county of the robber gang, and
who should be thoroughly conversant with the matter, it appears that the
* bald-faced, glass-eyed horse’’ of Davis’ was never found at all, instead of
being discovered in a pen in Fruit Hill, as Col. Buckner gives it, but
that he was “heard of,” or a horse suiting his description, at the house of
one Sheffield, some twenty miles or more distant from Fruit Hill, and in
Muhlenburg County. “~

The depredations of the lawless gang had become so frequent, that
‘he people were at last aroused to action. Regulators had already been
organized in some of the adjoining counties, and expelled from their midst
‘any suspected characters. After the disappearance of Davis, a suspl-
cion took deep root in the minds of many that he had been murdered, and
anding Pennington’s assertion that he was in Ilinois “ duilding
» Saw-mill,”’ some of the best men in the county, under the jeader-
ship of Col. James Robinson, one of the most respected citizens in the
horth part of the county, had formed themselves into a band of Rezulators
for the purpose of searching for the body of Davis. whom they did not
doubt had been foully murdered by Pennington or some of his tools, and
of Punishing the perpetrators of the deed. When they heard of the horse
kaa a up in Mublenburg County, two of their number were dis-
m0 the place to see if it was Davis’ horse. A man named
wO0eDa, a! tool of Pennington’s, was already in the hands of the

< ’
hotwithnst

dl
“

74 HISTORY OF CHRISTIAN COUNTY.

planters and traders. He would then make another trip over into
Illinois for a fresh supply, and thus he kept the business up for several
years. But eventually rumors began to arise of questionable transactions
in which “*Lonz” Pennington bore a prominent part. He often hada
number of strange men about him, shrewd and unscrupulous as he him-
self proved to be, who looked after his horses and took them South for
him. None knew who they were or whence they came, for they held
aloof from the people. It was not unfrequently the case that about the
time a drove of horses was taken South, a few likely negro boys would be
missed from different sections of the country, and who were never heard
of afterward. Southern Illinois was known to be infested with the most
lawless characters, with a rendezvous about Cave-in-Rock, who operated
in defiance of the Government and the courts to dislodge them. They
counterfeited, stole horses, robbed and murdered with impunity, and the
whole Western frontier was flooded with their spurious gold and silver
coins and bank bills, until it became known far and wide as ‘* Cave-in-
Rock money.” It was soon noticeable that every time Pennington
returned from Illinois with horses, a shower of counterfeit money fol-
lowed. Though suspicion was rife, it was not easy to find a man sufh-
ciently reckless to publish his convictions, and Pennington was shrewd
enough to cover his trail. He was very quiet, a man of much dignity,
held no communication publicly with the men in his employ, and acted
as though he scarcely knew them. He was a great trader, and borrowed
money largely from the farmers, who regarded him asa safe speculator
and thriving business man, but who were not smart enough to discover
any irregularity in his transactions. He was often involved in litigation,
but his keen ability and knowledge of the law, in furnishing the “right
kind of evidence,” usually won him an easy victory. It was his ques-
tionable dealings, and his numerous entanglements in the courts, that
attracted the attention of those already on the alert. Then, too, there
was the palpable fact that with every drove of horses from beyond the
Ohio, counterfeit money ‘nereased, and that as the horses went South,
negroes mysteriously disappeared. Of these negro disappearances the
following incident 1s related: There was a man named Brown living in
Hopkins County, three or four miles from Madisonville, who lost a negro
man, and whom he supposed had ‘‘run away.” Some time after the
negro had disappeared, Brown was told by a man, suspected of being ®
tool of Pennington’s, that for $100 he would show him his negro, but
that he (Brown) would have to take him, as he could only show him
where he was to be seen. Brown consented, and one night was conducted
by the fellow to a certain place, a shrill whistle was given, and presently
some one was heard approaching. A few moments, and the negro ap-

HISTORY OF CHRISTIAN COUNTY. TS

peared sure enough, but when he saw them he leaped back exc.....u.ing
“Massa Brown!” At the same time Brown discovered three men with
guns in their hands, and, divining his danger, sprang away into the
darkness and made his escape. He believed, and no doubt he was cor-
rect, that he had been lured there for the purpose of being murdered.
The man claimed the $100, on the ground that he had performed his part
of the contract in showing him the negro, and Brown paid it. Not very
long afterward, his tobacco barn was burned, and still a little later he
was assassinated on his own premises, by the gang, as was supposed.
These negroes that mysteriously disappeared were lured away from their
masters under the promise of being sent across the Ohio to freedom, but
were kept concealed by the gang until a drove of horses was ready for
market, when , they, too, were taken South and sold on the cotton. and
sugar plantations; a fate looked upon by the negroes here with as much
horror as the Russian criminal contemplates the mines of Siberia.
Sharp Practices.—To illustrate Lonz Pennington’s crooked transac-
tions, the following incident is related as one out of many of which he
was said to have been guilty: An old farmer, Williams by name, one day
thoughtlessly, in the presence of Lonz, or one of his satellites, iadsioned
the fact of having a thousand dollars in money, and Lonz determined he
would have it. So he went to his brother-in-law (named Oates), gave him
a note which he had drawn, payable to Williams, bearing i per cent
interest, and signed by Oates, who was worth nothing: ahd himself as
ree fe note Oates was instructed to take to Williams and get the
iii shen es “ ae of Lonz Pennington on the note,
hesita o ts Vha
became due, Oates had aie 3 ae a i Willi . ss . o
aington, who coolly informed + 6! h h F ned bi senre
a ek rain : im that he ha warned him long before
ited a ac a og ee becoming bankrupt, and he had
Me otk on ee Sh, — Lis debt; if he had not done so it was
A an 2 a ee a enied ever having been notified to make
a rought suit against Pennington. The latter

notified Williams’
d Williams’ lawyer that on a certain day he would take the deposi-

tion of one p q = ? A
. Black at a town in Illinois. Williams and his attorney

Were ;
on hand at the time and place, but Black could not be found, and

Pennin
Pton saic
a és me he had moved to Tennessee, and as soon as he could find
k the esi e would give notice again. Soon they were notified that
ition would be taken at a certain town in Tennessee, but when

the
. feiss aie was not there. Williams was worn out in the fruitless
-_ Me ee to let the deposition be taken before a Com-
was just ee ack was found, whether he was present or not.
Pennington wanted, and shortly after he filed Black’s

Regulators. : i was captured, but the horse was gone, and
from descriptid® received of it, they became convinced it was the
horse they were in search of. Neither Cessna nor Sheffield was
whipped by the Regulators, but every preparation had been made
for such a performance; the rope had been produced, the hickories
cut and trimmed and brought forward, when Cessna, who had not been
tied, but was closely guarded, stepped back a pace, opened his shirt front,
and without the tremor of a muscle exclaimed, ‘Shoot me, but for God’s
sake don’t disgrace my back by whipping.’’ Col. Robinson told him that
nothing but a full confession would save him from that disgrace, that they
were satisfied Davis had been murdered and that he (Cessna) knew it, and
knew where the body was concealed, and if he would lead them to it, they
would then put him into the hands of the law, otherwise they would whip
him until he did tell. He called a parley with three or four of them—
there were some two hundred present—and agreed to take them to the
spot. He saw none but determined faces about him, and decided that he
had no alternative but to tell the whole story or take the threatened pun-
ishment. We now resume the statement of Col. Buckner as published in
the Courter-Journal :

He (Cessna) said that Pennington had killed Davis and thrown his
body into asink-hole. He was told to conduct them to the sink-hole, and
they started. He led them through the woods to a long hill-side in heavy
timber, where was a deep cavern almost, or apparently, bottomless, as a
rock dropped into it could not be heard to strike any impediment. The
bottom could not be seen, but one of the Regulators went down, and sure
enough there lay Davis’ body, where it had lodged on a shelf of rock.
Had it missed that, it would have gone no telling where. Cessna said
that Pennington and Davis had stopped by the opening and sat down on
a log to talk about the deed, and that they had a dispute and Pennington
hit Davis on the side of the head with a hickory club, killing him, and

ad thrown the body where it was found. Cessna was taken to jail and
the excitement spread over the whole country. Pennington’s house was
visited, but he was not there. His wife said he had gone to Paducah to
get some horses and a party started after him, but they missed him. He
came back by way of Princeton and Hopkinsville and thus avoided them.
As he was riding along the road before reaching Hopkinsville, he met a
man he was acquainted with who was more communicative than wise.
Pennington asked him the news and he replied: ‘‘ Haven’t you heard it?
they have found Davis’ body and they say you killed him, and they are
hunting for you.”” This was a tip for Pennington and he rode on avoid-
ing the town and thence home. He told me afterward that he would not
have gone home av all, had it not been that the animal he was riding was

AAAOLUNL Ur UbNIONiLAN COUNTY. {3

jaded and he wanted a fresh horse. He said he had a blooded rg:
home named ‘“‘ Walnut Cracker,” and he wanted to get on him to get
away. It was in the night when he got home, and he discovered that
there were some horses hitched to the fence, and he made up his mind not
to goin. He was thirsty, and started to the spring to get a drink of
water, and just before he reached it. he heard some one talking and hid
himself to listen. Three men passed him with guns and he knew there
was no time to lose. Old Walnut Cracker was in the pasture and he
went back and got on his horse and rode around the barn to the pasture.
He soon found his favorite horse, and after transferring the saddle and
bridle to him, mounted and left the country. The search for him was
kept up several days, but as no trace of him could be found it was finally
abandoned.

The deed from Davis to Pennington had been lodged for record in
the County Court, duly drawn, signed and witnessed, in one of Penning-
ton’s peculiarly disguised styles of handwriting. He had robbed Davis
of the $1,500 the latter received for the four negroes, killed him and
forged his signature to the deed and made Sheffield and Cessna witness it
under assumed names. Old man Williams forced his suit to a trial about
that time, and as he had no trouble in throwing out the deposition of T.
Black, he collected his money. ‘This wasin June, 1845, and during the
following winter, Col. James Bowland, who had removed from Christian
County to Texas several years before, returned home. He had been a
candidate for the Texas Congress and was defeated Just before his return,
and one day he mentioned to his srother, Dr. Reece Bowland, that dur-
ing his canvass he spoke at a little town in Texas, and during his speech
ke noticed in the crowd a familiar face. He studied it closely, and then
recognized the man as Lonz Penpington, whom he had known in Ken-
tucky, After he got through speaking, he hunted the man up, and, call-
ing him by name, extended his hand, but the man declined it and told him
he wes entirely mistaken in the man. Lhe Colonel was greatly sur-

prised, but apologized for his mistake and he was forgiven. He had not

heard of Pennington’s work in Kentucky, and when his brother narrated
the circumstances to him, he was satisfied that he was not raistaken in the
man he offered to shake hands with in Texas. A large reward had been of-
fered by Christian County for Pennington, and after the brothers talked the
matter over, Col. Bowland said Pennington was still in Texas and could
be caught without any trouble, and they determined to undertake his
Capture. They started the next day on horseback, but when they reached
a ee was not there, but had gone up into the Indian Ter-

“Y followed him and found him playing the fiddle at a camp

dance, 6 ; 4
He was captured and brought back to Kentucky, just a year

~ £0

2 SUH

ibe aantak eben ugh oo Mtoe soc oe ek ee

flo had

213 SOUTH WESTERN REPORTER, 2d SERIES

? g

financial interest, in the final outcome of se par ation settlement, lookin, towat d the
p began that very day and

this case. separation which

then culminated in divorce action 19 days
latert She particularly points out Murphy s
own admission on cross-examination to the
effect that he was then “corresponding with
her. (the other woman) on the bus—talking

Murphy contends that the formal transfer
of this real estate from himself to Mrs.
Murphy; which occurred 19 days before
their divorce action, was without any con-

é re ; judgment . lh : a

pear ae Se ie ae ew in to her on the bus” at an ae of Oe
ave been re : ny also p

ie ae suit for a half interest, or its fer. And Mrs. Murphy

’ i departure for Detroit on
equivalent, in the controversial property; ee tie’ water And she alse -
‘ ceHor’s j nt in favor of "le ; i r
= aa agit Ee ee points out his letter when nina ‘tn
Mrs. urphy, rende 7 ttorne saying he ha “nothin

: tos aring of attorney : :

ob EES a an rica ed for” in the divorce action. These ae
St it: if on cross-examin- furnished ample evidence, es ding ‘iat
ne peng oa a because there was S@YS, to support the rae . neat a
ation, must be reve : f s based on an ade =

’ «as the transfer wa

: rt an adjudication to : : ement
no evidence to suppo Pus eaeties was sideration, viz., that of a mutual _ rv
the effect pe ome Le sideratiod of separation immediately preceding
based on adequate . .

: ion itself.
This property was bought in 1943 with S¢Paratio ies
the joint funds of both these parties and was [1-3] It is certainly true that we have
placed in their joint names after arrange- hejq that a separation agreement mac 7 ;
ments had been completed for satisfactory contemplation of a separation ae eas af =
financing of the unpaid balance of purchase a separation is a valid agreement oie
price. Both parties thereafter contributed fair on its face. Sec Middleton v Mile
to monthly payments on the unpaid balance ton, 207 Ky. 508, 269 S.W. 552; Leos
maturing under the finance plan. But on prockins, 201 Ky. 208, 256 SW. 15 aie
January 25, 1946, after Mrsy Murphy had | Edleson, 179 Ky. 300, 200 S. . a 2
“made threats” of a divorce suit, the title to A 1R 689. In recognizing the va ia y ot
this property was, with apparent satisfac- such agreements, we have undou te y cote
tion to all concerned, voluntarily transfer- sidered that the mutual desire oft € es *
red to Mrs. Murphy's individual ener: On for their future celibacy — a Me :
that same day, Murphy left his Louisville... sideration for a contract of t at me
employment and also Mrs. Murphy and We can readily understand that paseo a
went off to Detroit where he began employ- a cheap price, in some instances t ous i
_ment with Chrysler Corporation. On Feb- necessarily so in this particular one, or oe
ruary 13, 1946, she began suit for divorce. spouse to give up a half interest a a
On March 2, 1946, Murphy, writing from great Cullinan diamond ethno Sink cee

Detroit to the warning order attorney aP- dure life with a hellicat spouse ae

pointed in the divorce suit for notification breakfast table. There should not oe hs

purpose, said “push the suit” and also said thing as a hellicat spouse, and marr nf “
he had “nothing to fight for” in the case. pabitation should be both enjoyable a ae
On June 24, 1946, a divorce judgment, which during. But where a heilicat pate a
also provided for general restoration of 5. the family circle, then two roofs may be
property not disposed of at the beginning of better than one. And 50, it appears that ny
the divorce action, was granted in Mrs. separation settlement based oa er is
Murphy’s uncontested case. On July 19, separate existence - always st pport Li
1946, he married another. On September eseciedl consideration. The chance a
20, 1946, she did the same. On October 22, in this case, we believe, sufficient evide

1946, the present restoration suit was filed. to justify his finding that this was a separ

Mrs. Murphy tells us that Murphy had tion settlement.
become infatuated with another woman at
the time of the property transfer and that iain
ly was not a separ
accordingly such transfer was purely a

[4,5] -Murphy himself tells us that this
ition settlement. Tle ex

POOL v. COMMONWEALTH Ky.
Cite as 213 8.W.2d 603

plains the property transfer in this man- 2. Removal of causes €>70
ner:

603

A defendant who was present at time
“I told her I was going to leave so she 2d place of killing and who was drinking
asked me to sign this place over to her in heavily on day of killing and who orally
case something happened to me. If I got confessed before his arrest was not entitled
in an accident or trouble the law could not © bail, and hence holding him without bail
take it away from both of us.” was not denial of right warranting removal
Our interpretation of Murphy’s explana- to federal wet Jud.Code, § 31, 28 nem
tion is that this transfer was made to cir- CA. $74; Const. § 16.
cumvent the possibilities of the law in the 3, Removal of causes <=>70
event of some unforeseen misfortune. If A
our interpretation, based upon Murphy’s quest
explanation as quoted above, is a correct
one, then his restoration claim in a court

defendant not requesting sanity in-
and not making defense of mental ir-
responsibility at either of two trials was not
entitled to removal to federal court on
of equity is too weak to generate a judg- ground of lack of mental capacity at time

ment in his favor. Where property has of killing. Jud.Code, § 31, 28 U.S.C.A. §
been conveyed for the agreed purpose of 74,

avoiding future legal liabilities, the chan-
cellor is justified in leaving the parties right « oe nig thie ti P
<n efendant filing no motion for
seal as a as eae a — change of venue and making no sort of
Jagoe, 194 Ky. 101, 238 S.W. 185. affirmative showing to support his conten-
And so, on the basis of Mrs. Murphy’s tion that he was victim of racial prejudice
: Eda was not entitled to removal of murder pros-
theory of the case, viz., that this Property ecution to federal court on such ground.
transfer was in reality a separation agree- Jud.Code, § 31, 28 U.S.C.A. § 74
ment, or on the basis of Murphy’s theory : : : fees 3

of the case, viz., that such transfer was- 5. Courts ©=394(22)

made to guard against legal possibilities in Where overruling of defendant’s peti-
the event of an accident, it would seem that tion for removal to federal court on ground
the chancellor was correct in leaving this that he was victim of racial prejudice was
transfer of January 25, 1946, voluntarily affirmed, defendant could petition United
made and entered by these parties with States Supreme Court for review on writ
all four eyes open, right in the very spot of certiorari. Jud.Code, § 31, 28 U.S.C.A.
where the contract was found. § 74.

The judgment is affirmed, 6. Jury ©=33(1)

A Negro has no right to jury of Ne-
groes or to jury with population percent-
KEY NUMBER SYSTEM, age of Negroes thereon, but Negro has
right to jury from which Negroes have not
been systematically excluded or arbitrarily
barred for racial reasons.

aums

7. Indictment and Information ¢=137(2)

A murder indictment returned against
Negro defendant by white grand jury
would not be quashed on ground that Ne-
groes were arbitrarily and systematically
excluded from jury service in county hay-
ing 30 per cent. Negro population, where
{. Bail €=43 jury commissioners had been regularly in-

A person is not entitled to bail in case structed not to exclude Negroes from jury
involving capital offense where proof is evi- service because of race, and names of Ne-
dent or presumption great as to ultimate grocs had been drawn from jury wheel for
guilt. Const, § 16. jury service with fair degree of regularity

POOL v. COMMONWEALTH.

Court of Appcals of Kentucky,
Jan. 13, 1948.

Rehearing Denied Oct. 19, 1948

4 Meas

Aim ne
+>

bee |

ae:

tao.

et Sie at

Fi
cm)

Spiele

a
ee

“4

ae: ah, he
epee sgh Sek eae

fi.
co

i Rl Se:
igen»
Pian Lea

be A
pa re

ae gee

pat

492 Ky.

“Q. Where was she? A. In the hall
of the stable. She asked me to throw down
some hay. I asked was she going ahead
of me.

“Q. Where was the hay? A. In the
loft.

“Q. Then what happened? A. She hit
me with the stick.

“Q. Was that piece three inches wide,
three feet long and an inch thick? A.
Yes, sir.

“Q. Was that the same piece you hit
her with? A. Yes, sir.

“Q. Why did you hit her? A. She
hit me, I hit her before I knew it.

“Q. What effect did it have on you
when she struck at you with that piece of
timber? A. It made me mad before I
knew it.

“Q. You grabbed it, and struck her?
A. Yes, sir,

“Q. How many times did you hit her?
A. Four or five times.

“Q. Where was she during the time you
struck her? A. In the hall of the stable.

“Q. Was she up or down? A, She was
up.

“Q. She was up during the time you
struck her those four or five licks? A.
Yes, sir.

“Q. You never knocked her down? A.
No sir.

“Q. When did she fall? A. After she
left the stable.

“Q. She left the stable after you hit
her? A. Yes, sir.

“QO. And fell outside the stable? A.
Yes, sir.

“Q. Then what happened? A. I let the
mules out. The mules got out. I didn’t
know the little girl was in the hall of the
stable. The mule got out and run over the
girl.

“CQ. What became of Mrs. Harris after
she fell? What did you do with her? A.
I took her by the arm and took her out-
side away from where the mules were.

“Q. Then what did you doP A. I
came on home,

“Q,. Did you tell anybody anything about
this? A. Not then.

“Q. When did you tell them about it?
A. About six o'clock.

“Q. Whom did youtell? A. Boyd.

“Q. Boyd Harris? A. Yes, sir.

192 SOUTH WESTERN REPORTER, 2d SERIES

“Q. Did you tell him what happened?
A. I told him she was hurt.

“Q. There was a statement read while
ago before the jury. Did. that statement
contain all you said on this occasion ‘to
those people at the penitentiary? A. They
read it. I didn’t understand it.

“Q. Did you tell them about her ask-
ing you to go up in the loft and get some
hay? A... Yes, sir.”

George Harris, the person for whom the
appellant worked, testified that the appel-
lant’s reputation had always been good.

[1] While it does not appear from the
record, it seems to be conceded in the
briefs that the appellant is a person of low
mentality, and it may be assumed that he
did not know the effect of the plea which
he entered. From the beginning he told
the truth about what happened, and it seems
clear from his confession and from his tes-
timony at the trial that an instruction on
voluntary manslaughter should have been
given. Failure to do this was error.

In Am.Jur. Vol. 14, Section 270, Page
951, it is said: “A plea of guilty should
be entirely voluntary, by one competent
to know the consequences, and should not
be induced by fear, misapprehension, per-
suasion, promises, inadvertence, or ignor-
ance. Accordingly, it will not bind the de-
fendant where it is entered through in-
timidation, however slight; and a judg-
ment is not properly entered on it where
the court does not satisfy itself of the
voluntary character of the plea. It has
sometimes been held that it must be made
a matter of record that the plea was vol-
untary and uninfluenced by fear.”

[2] It is quite apparent from the tes-
timony quoted that the appellant was at-
tempting to explain that he was guilty of
manslaughter but not of murder, and it
was the duty of the trial judge to change
his plea when he had heard this evidence.
In the footnotes on page 398 of Vol. 16,
Corpus Juris, Section 730, we find the fol-
lowing: “When, upon arraignment, an
accused person enters a plea of ‘guilty’ and
at the same time makes a statement which
discloses that the entry of this formal
plea is not in fact a plea of ‘guilty’ of the
offense as charged in the complaint or 1n-
formation, but merely an admission of the
truth of certain facts sect forth therein, or
when the statement thus made contains ad-
ditional allegations of fact which if true
would preclude a finding of ‘guilty’ of the

GOODWIN’S EX’R v. GOODWIN Ky. 493
Cite as 192 S.W.2d 493

offense charged, the trial judge, before pro-
ceeding with the trial, should order the
substitution of a plea of ‘not guilty’ for
that of ‘guilty’ as entered by accused.”
See also 22 C.J.S., Criminal Law, § 422.

[3] In criminal actions the trial judge
must give the whole law of the case, and
the defendant is not required to request
this. When the court failed to give the
voluntary manslaughter instruction he
failed to give the whole law of the case
because the evidence justified such an in-
struction.

Wherefore, the case is reversed for pro-
ceedings consistent with the views herein

set forth,

301 Ky. 526
GOODWIN’S EX’R et al. v. GOODWIN et al.

Court of Appeals of Kentucky.
Feb. 5, 1946.

!. Executors and administrators €>314(13)
The fee of attorney for testator’s
widow for services in litigation culminating
in agreed orders, fixing executor’s, devisees’
and widow’s rights, and directing payment
to her of cash sum representing her dower
interest in testator’s estate, was chargeable
to funds brought into executor’s hands
from accrued rentals due estate through
such attorney’s efforts, though balance in
executor’s hands would be very small, if

claimed fee were paid. KRS 30.200, 412.-
070.

2. Executors and administrators >314(13)
The chancellor is vested with broad
discretion as to not only amount, but al-
location, of fee allowed for services of
attorney for testator’s widow in procuring
accounting and final settlement of estate.

3. Executors and administrators €=314(13)

_ The chancellor’s conclusion that serv-
ces rendered by attorney primarily for
benefit of testator’s widow in procuring ac-
counting and final settlement of estate re-
dounded to benefit of other parties in
interest, so as to require allocation of at-
torney’s fee between widow and executor,
Was not abuse of discretion. KRS 30.200,
412.070.

Ky.DEc.190-192 S.W.2d—29

Appeal from Circuit Court, Fayette Coun-
ty; Chester D. Adams, Judge.

Action by the executor and trustee under
the will of George E. Goodwin, deceased,
and others for allotment of dower to Anne
McDowell Goodwin, deceased’s widow, who
filed a counterclaim and cross-petition for
rentals due the estate, sale of properties
thereof and allotment of her distributable
share. From a judgment allowing King
Swope an attorney’s fee payable partly by
defendant and the balance by plaintiff exe-
cutor and trustee out of funds due the bene-
ficiaries under the will after the widow’s
receipt of her dower share, plaintiffs appeal.

Affirmed.

Stoll, Muir, Townsend, Park & Mohney,
of Lexington, for appellants.

King Swope, of Lexington, for appellees.

MORRIS, Commissioner.

This appeal by the executor and trustee
under the will of George E. Goodwin,
against the widow and her counsel, involves
the question of allocation of a portion of
a fee allowed by the court. At the con-
clusion of a long drawn out litigation the
chancellor adjudged that counsel be allowed
a fee of $750, Mrs. Goodwin to pay $250,
the balance to be paid by the fiduciary. out
of funds due the beneficiaries after the
widow has received her dower share.

Appellants are not complaining that the
fee is unreasonable, or that services were
not rendered, but that such “were primarily
for the benefit of his client, Mrs. Goodwin,
resulting in incidental advantage, if any,
to the George Goodwin Estate.” It also
argued that even if the legal services
rendered benefited others interested, the
estate could not be taxed further than to
the extent of and in proportion to funds
recovered before distribution, citing (as
relied upon by appellee) KRS 30.200 and
412.070, and for appellant, Gernert v. Lib-
erty Nat. Bank & Trust Co., 284 Ky. 575,
145 S.W.2d 522, We shall first take up the
last contention,

The first section does not seem to have
application to the case at hand, since it
provides for a lien in favor of an attorney
for money or property recovered in an ac-
tion. There is no lien involved here, and
the only application would be as to reason-
ableness of the fee, which is not to be
judged alone by the amount recovered.
The other section in substance provides,
that in actions for settlement of estates, or

li Bl Mc ek Nina Saber aancekea

sender

Ky. 213 SOUTH WESTERN REPORTER, 2d SERIES
604 . ,

p y p d tin
d t t fe c » € en t ug a g
ur ing he ast w years, and one or more im lied th refrom V ho h emanati

i ief preliminary thoughts, may
y for petit only from brief pre "
ee tee ae of ps suffice to constitute willful murder, especial-

he grand ly where actually committed wrong springs
from an original idea of committing some
entirely different wrong, even though the
latter wrong is never consummated.

jury service from the same lo
wheel names which produced t

jury.

8. Criminal law €=665(1), 1153(5) ate

i ri t tria

The separation of witnesses at

sts in trial court’s discretion, exercise of 16, Homicide €—308(3), 3094) ‘a <a
+i h will not be disturbed except for Evidence warranted submission of
: . . . in

: 1c buse to positive detriment of com- to jury on proper instructions age J

sad t the whole law of the case, including theo

Reinet iL ‘ ries of murder and manslaughter.

9. Criminal law €=665(1) :

The practice of separating witnesses is
approved as tending to elicit truth and pro- |
ater are | Appeal from Circuit Court, Christian

| 10. Criminal law €=665(1) County; Ira D. Smith, Judge. .

The refusal to separate witnesses was Charley Pool was convicted with death
not abuse of discretion, where nee penalty for murder, and he appeals.
had not been meer by an abi Aseined.

hich a general and comm ; An
7 Suga ca to established facts of Zeb Stewart, of eeunigys ei sie
Riis a known prosecuting witnesses con- P, McHenry, of sore’ speek =
isted largely of persons not subject by law Eldon S. Dummit, Atty. a so 2
to trial separation, and court room was Spear, Asst. Atty. Gen., for app
crowded and separation facilities were lim-
ited. SILER, Justice. aos
iminal law ©1180 Charley Pool, the appellant, for the s
11. Criminal law .

——_—~>——-

POOL v. COMMONWEALTH Ky. 605
Cite as 213 S.W.2d 603

According to the Commonwealth, Pool respect to appellant’s immediately follow-
has now given four different versions of ing contention, he has further recourse to
this tragedy, viz., that the decedent was the U. S. Supreme Court by petition for a
killed by mules; that she was killed by this review on writ of certiorari.
appellant himself, as shown by his written
confession, which he now repudiates; that [6,7] 2. The trial court having over-
she was killed by a colored man named Ttled a motion to quash the indictment, ap-
Hopson; that she was killed by a white pellant says that this was an error. It is
man named Goodman, this being appellant’s necessary to say specifically that appellant
version as given by him on the second trial, is a Negro. He based his contention for
quashing on his assertion that the grand
[1-5] 1. The trial court having over- jury which indicted him was not made up
ruled a petition for removal of this case to of representative citizens of the county,
a United States court for trial, appellant that is, both white and colored, and that
says that this was an error.. He cites no colored persons had been arbitrarily and
authority in support of this contention ex- systematically excluded from jury service
cept the provision contained in 28 U.S.C.A. in the county solely because of their race.
§74. That code provision sets out a method The record shows that the trial court went
of removal of a criminal prosecution against into this question rather carefully and by
a citizen if he is denied any right secured to separate hearing. Such hearing indicated
him by law. In his petition for removal, ap- that the jury commissioners of the county,
pellant attempted to specify three grounds which has a colored population amounting
as justification for the requested removal, to about 30% of the total, had been regular-
viz., (a) that he was held without right of ly instructed not to exclude colored persons
bail and (b) that he was without mental ca- from jury service on a racial basis; that
Pacity at the time of this crime and (c) that names of colored persons had been drawn
he was a victim of racial prejudice. As we from the jury wheel for jury service with
understand the law, a person is not entitled a fair degree of regularity during the past

to bail in a case involving capital offense few years; that at least one or possibly
where the proof is evident or the presump-

et eee ee Ee Bee

ty =

€ 3

tat

“abn tga

more names of colored persons had been
ton great as to ultimate guilt. Sec. 16, Ky. drawn for petit jury service from that

ay ; ¢ eek:
The law of case precluded considera- ond time stands convicted with death pe reat 3
he law Constitution. And since appellant was same lot of jury wheel names which pro-

10 oO 10 of admis- V i i Harris.
tion on second appeal f questi n ty for the murder of Mrs. irgimla

ibility of defe d nts i te Cc He no brings us this secon PP .
Ss . nda written onfession Ww d a eal

See epee REA Te 2 TT eee

Present at the very time and place when and

i ini i duplications among
i out at full length in opinion Leaving out any
oie a ae ° them, appellant’s present contentions appeat
whet ae to consist of five projected grounds for a
versal. He says the trial court (1) shou .
have removed the case to the proper se
States District Court for a hearing, (2)
should have quashed the indictment —
tematically
lored persons have been sys a
iminal law €=519(1) : co Deen wi
* pin admission of defendant’s written excluded from jury service in the pon
i i separ
i here defendant this trial, (3) should have t t
confession was not error w i deg er
i i i d tnesses during the course i
y ith questions or threatened witn *
babes -_ 7 a 110 (4) should have excluded appellant's wr d
cea _ ten confession because of its illegality b
issi i “ ave dl-
14. Homicide C=253(1) wus : admissible evidence, (5) nia aie
Evidence warranted conviction for will- rected a verdict in his behalf at the co

ful murder. sion of evidence.

12. Criminal law C=517(1)

A confession voluntarily made and
without fear of harm or hope of reward
constitutes legal evidence. KRS 422.110.

dst arieni i : Siiminas ig is case in broad
© ie time clement between perpetrator’s inal testimony, and this case 1 i

ivinal design and his execution of that eral outline are all set forth ie wre
ong 4 ° t necessarily be of long dura- opinion upon the former appea 2 ah, 301
oa Cadet willful murder, and the first trial. Sce es ee rs
veeultiag a itself, together with the evil Ky. 531, = S.W.2d 490.

eiaaienie

gen-

4 . : =
Appellant’s written confession, his orig

duced the very grand jury of appellant’s
indictment. This county has one colored
magistrate and he himself testified on this
hearing to the effect that he had personally
done grand jury service within the past few
years and that numerous colored persons of
the county had done jury service, especially
on petit juries, in the last few years. It is
not the rule that a colored citizen has a
right to a jury of his own race or even with
the population percentage of his own race
thereon. But the rule is that he has a right
to a jury from which his own race has not
been systematically excluded or arbitrarily
barred for racial reasons. Even though a
county might have a 50% colored popula-
; tion, yet it still might conceivably have only
Motion for any change of venue. Neither a 1% colored population eligible by law for
did he make any sort of affirmative showing jury service. See Hale v. Commonwealth
in support of this contention. We think of Ky., 303 U.S. 613, 58 S.Ct, 753, 82 L.Ed.
the trial court made no error in overruling 1050. It is the duty of courts to protect a
appellant’s petition for removal, but if we minority group such as that of a colored
Ourselves are in error in this respect or in minority group, regardless of the unpopu-

where decedent was killed and was drinking
heavily throughout most of that day and
since he orally confessed the crime, accord-
ing to one witness, even before he was ar-
Tested, we cannot see that he was ever en-
titled to bail in a case of this kind. As to
his mental responsibility, he has never made
Motion for a sanity inquest, and in point of
fact he defended his case at the second
trial on the sole ground that the crime had
been committed by another person. No
Tight of making an insanity defense has
been denied because he made no motion for
any such inquiry and he never made any
such defense at either trial. “As to the
question of racial prejudice, he made no

DR se

Hoes

aay

i iver

Piguaees
Sie!
ipa tiated

i dae
Poh

a Kies a ied ies A aan TR
ee ,

are

606 = Ky.

larity frequently encountered in doing so.
And we find ourselves with an earnest and
sincere desire to follow such a course in
this case and in all similar cases. But we
do not believe that any minority right has
been violated under the proven circumstanc-
es of this particular case. On the basis of
the evidence produced on the separate hear-
ing as to this jury question, we do not be-
lieve that the trial court committed error in

* overruling appellant’s motion to quash the

indictment.

[8-10] 3. The trial court having over-
ruled a motion to separate the witnesses of
this case, appellant ‘says that this was an
error. The motion was overruled because
there had been a previous trial at which no
similar motion had been made and from
which previous trial a general and common
knowledge prevailed as to the established
facts of this case, also because the known
-prosecuting witnesses consisted largely of
persons not subject by law to trial separa-
tion, also because the court was crowded
and the facilities for separation limited.
The question of separating or not separat-
ing the witnesses upon a trial is one for the
discretion of the trial court, and this court
has declined to interfere with that discre-
tion unless it appears to have been clearly
abused. to the positive detriment of the
complaining party. Robertson v. Common-
wealth, 275 Ky. 8, 120 S.W.2d 680; Moore
vy. Commonwealth, 223 Ky. 128, 3 S.W.2d

213 SOUTH WESTERN REPORTER, 2d SERIES

413, 9-S.W.2d 53.” Nevertheless, we have
sought to look at the basic merits of appel-
lant’s contention in this respect. On the
occgsion of this confession, there were
present, in addition to appellant, three per-
sons, viz., a deputy sheriff, the county attor-
ney, the landlord of appellant. One of
these three testified that Pool was told that
he did not have to make a statement and
that any statement he made could be used
against him, No one refuted that testimo-.
ny. Pool himself related that the confes-
sion was obtained after the following man-
ner:

“Q. And when you got in the room
(where he made the confession) what hap-
pened? A. They said they wanted to talk
to me secretly, and so then the guard he
went on out and shut the door and the
three of them just sit there and looked at
one another, they just sit and looked, be-
fore they said anything to me, and then
finally Mr. George he said, ‘Charley you
know when I set out to find out anything I
usually find out everything I wants to know,
now go ahead and tell us about it, I know
you done it.’

“Q, Goon, A. Then Mr. Major was
sitting: there and he said, ‘Yes, that is what
we is here for, to help you. Then I told
them exactly like Mr. Goodman done it but
I said that I did it.”

[12}:13}.-4 confession voluntarily made
and without fear of harm or hope of re-

190; Mink v. Commonwealth, 228 Ky. 674, ; :
15 $.W.2d 463. The practice of separating ward constitutes legal evidence. See Seb-
witnesses is a good one, because it tends'to "ee Jta ¥ Commonwealth, 200 Ky. 534, 299
elicit the truth and promote the ends of jus- S.W. 142. We cannot see that appellant s
tice, as we have declared in previous deci- own story as to this confession incident
sions, but since it does not appear that there would lead to the conclusion that he was,
was an abuse of discretion in this particu- contrary to the terms of KRS 422.110, plied
lar case, we do not believe that the trial with questions or threatened with harm.
court made an error in overruling appel- Therefore, we do not believe that any error
lant’s motion on the subject. was committed in the admission of appel-

lant’s written confession as probative evi
[11] 4. Appellant further contends that gence against him.on his trial.

an error was committed in the admission of
his written confession as legal evidence [14] 5. The trial court having over
against himself on this trial. Under what ruled a motion for directed verdict in his
is known as “the law of the case” rule, this favor, appellant says that this was an error.
written confession, just as it was set out at This contention would seem to be predicat-
full length in our opinion on the first ap-

ed on the legal soundness of the immediate’
peal, would not now be a proper subject of

ly preceding contention. But since we have
sound legal attack upon this second appeal.

already ruled that the immediately preced-
See Johnson v. Commonwealth, 225 Ky. ing contention is unsound and that the writ

POQUET v. BORDERLAND C
. A ASMA D °,
Cite as 213 et ey ae ~

a oo) of Pool does constitute legal
and probative evidence agai i
Commonwealth must seo sie ee pe hea cera nicer
duced sufficient evidence of murder guilt in ets
this case to make the question of appel-
lant’s liability one for the jury’s determina-
tion. His established responsibility arose
from his own confession as well as from
ie eicee value of his deliberate 1. Workmen’s compensation =904
esiene pest Scat it on his first trial. Compensation claimant, after accept-
— e ommonwealth proved i78 merchandise and other commodities
so hepesa me evil or malice neces- "ecessary to his and his family’s mainte-
ae vite ~ mie in the category ance in employer’s store for over seven
lang Miler regard as-one of eds was estopped from. complaining of
siete ‘ ae t e general public @llowance thereof in amount of claimant’s
egard as one of “cold-blooded” na- award, notwithstanding that method of

Ky. 607

Court of Appeals of Kentucky.
June 22, 1948,

Rehearing Denied Oct. 15, 1948.

ture.
payment adopted by employer was not in

[15,26]. “Tn the law's modern conception accordance with statute. KRS 342.040
of what may be wilful murder, the time cle- 2+ Workmen’s compensation C>1419 .
Piaghosbiypeher perpetrator’s original de- Where compensation claimant contend-
nenteinctl ry aes of that design is not ed that it was error to allow employer
nas ay ~~ duration. But the re: credit on amount of award for supplies
oe drasrh srti aogethee with the evil im- fonmies claimant from employer’s store
only from a brief ee — though emanating = least to that part of it shown to be in
suffice to peer hae rng thought, et: ee of what like purchases would have
ora ute wilful murder in some ©°St claimant at other stores, claimant’s
ara: ironed true:"where the meer iat he could have purchased
Riaind was aes wrong sprang from an like supplies at 10 to 20 per cent less at
ph ned cde Pitney sce some entirely competitive stores amounted to no more
are pre though the’ latter was than a conclusion of witness and was not
AM summated. See Turner v. sufficient to substantiate his claim. KRS
~ sncarsekh, 969 Ky. 365, 180 S.W. 768, 342.040.
was cammitsiitidt : Siig Seapine: 6 aj otal ee ee
ioe to. the jury upon proper oe ae ee Wotkmers C ene required under
containing to ick ae ae oe Be sy ompensation Act to furnish
cluding theories of murder and raninatan ‘: nae — employee light work in a job
ter. And this appears to have been doi di table to his capacity and physical con-
Sa BEd eee one dition after his injury. KRS 342.040,
Pip nts Charley Pool is a poor, illiter-

, obscure, colored man without influence,

4. Workmen’s compensation ©=883
sg peas
Foot” within Workmen's Compensa-
dit les : tion Act, is that par
oe ave tried to examine his case, as to. ankle soe KRS 342 oe
e fairness of his trial, with the same de Saison pal neon
: ’ Sd - S y *hrasas
— of care as if he were a wealthy, edu- ip Aig te uke okie ck
we prominent white man of great power “Poot”, eee nae ate A
ye mus i
he — now say that we feel that his sec- 5. Work ,
kone fair puting and free from ag cman ses
seats dnkoan Ss eg”, within Work 4
carstaliy exctthcas a , Charley, having wiastiun tock Fae orkmen’s Com-
Sustain you ; case, we will not member a de ay - a lage
FA ae r one but we will say to scteort§ Ss rie “ it of its function as
at v b aid i i i :
ter ve nave said in previous and sim- a 43 nd pe gs ore dual Binal
ec»
ace,“ “Maxy Cad have imercy on vie KRS 342.105, 342.110.
See Words and Phrases, Permanent

your soul.”
Edition, for all other definitions of

The judgment is affirmed. “L f Le
oss of Leg”,

POTS cee i

UE NERO ih i Me

-the side of the house, a threat to,

{
|
a

|know your voice,” she said.:

jraised his

climbed upon: the house,
ningle and stuck a burning pined;and prisoner both into the bushes. }

SOT Ty

Ter: ha Bae a e TA PEE Sg a see SS

* Th oy
acy

jof. Mate Creek,
face ‘and began

Jim Vance tried to fire the house
by flinging -a match into coiton)
hanging on the outside of the house. |
He failed. Tom Chambers ..then

tore
Lore

held. a gun in his
to- put. the hand.
,cuffg on, From somewhere ceme
rifle shots. One. struck Gibson ‘in
loose } the leg. Cunningham pulled comrade
Mow

hrouch the hole. Calvin Mc
three fingers off. and

led off the house and

The next day Mounts was lodged in}
‘the Pike county jail,

Mounts confessed his misdeeds “al

, Pike county ati orney Lee Ferguson, |

implicated all of the Hatfield cl lan}

that had participated in the murders

f Tolbert, P: and young Ran-!}

I in the feud, He]

at Blackberry |

his accomplices, |

Mounts end’

in crime, was held at

file in August, 1889, Judes John

ice presiding. Moun was j

need to die by haigihe. It

kitchen | wa ‘said that the highly emotional

testimony of ‘Sarah .McCoy had a

astatine effect on Mount’s de-

nse, In the meantime, Sheriff: W. Be

Maynard . assembled three | =

“hacks,” surrounded: them with 25}

, mounted. guards and started ee |

Lexington with all of the cony icted |

prisoners: except Mounts. Maynar rdj

was rot taking any chances that

Chambers ro
ran, i ae
The burning piece:of pine fell at‘

its

its destruction. Calvin called to his; 9
sister Allifair ta pour water on it.|
Coening the door, she emptied a}
ket of water in the direction of
fire but in her. excitement the
inaccurate, There is no}

more water,
mit. wo
14 the
fair opened the

stared “at th 1e masked ;

This, too,
house eae

and
“Cap Hatfield, you’re out there. I!
Some cne shouted, “Damn her, |
kill that girl.” “Cotton Top” Mounts
rifle, shot her dead in the
doorway. Her sisters, Josephine and
Addie, dragged her body inside.

i into .the ttle villege.

anibushed Mounts on the head }

Sarr did
(cowl was
Some .szid{ blonde h White face,
there. were as many. as eight} Then, suddenly, the silence was
thousand people. there: They had/ dispelled by Mounts, Saying, “The
been coming for. two. days: end] Hatfields made me do it, the Hat-
many, finding the few Hotels fill-f fields made me do it.”
ed, wrapped themselves ii blankets The crowd saw’’a ‘risine
and slept.in their wagons. Maynard} clutching a hatchet.
took a special interest in the jail; quickly, the trap door
the Ie st few days, inspected the\- severod end Méecunts
guard every few hours, He had many i eternity.
Gecisions to make; one of Shia
denial. of Mounts’ strange se poe It Was the see whe “
to the scaffold. Officers saig} #nd. in the
{ft wos a ruse to get out so the > Hate jscores fainted
fields could reséue him, peat a pocpin saneried le
Frans Phillips, hating the Hat- {the pen ple eee
fields and loving whiskey, decided | scream:
to celebrate on hanging day. Eacly: said itavas ag
he was parading and staggering up The'seaffold wes left stand ing for
and cown the muddy streets, swag- several years as 2 warning to cvil-
Sering wilt two revolvers, Let “hl! | ders’ na: for‘use if it :was' needed
cerouse \M bie,’ Maynard itold hist: 5 oi! poxer pavers. bezan’ to seek
deputies and the Pikeville militis ‘the site and here in this senctuary
that- was. on guard, Louder and} opare no Pikévillian not inclined. to
j louder grew the intoxicated man's drink’ or mischief would veniure at
talk. Louder end louder he brag ged | nicht, . drunten “carousals weré
about the Hatfields he had arrested. | regularly -held.. One nicht . pare

not
pt

ane

led

section “of Kentucky they Postar own over

rope

dronped

them

etre
tr3
sca Stra

ei.

emotion cf
in ‘a

but I

fr
a

ing
ing

At a cry that Allifair- was. killed,
‘Saran McCoy, ‘wife- of the McCoy
leader, ran’ from the house, Jim
Vance knocked her,.down with his
rifle butt, Johnse, Bpcing she’ was

Sara

desks
stu

not dead,

a-foray led by Hatfields would’re-| !

lease their kinsmen,

Maynard. got to Sheahan
late in the evening, The day had
been rough, rain had fallen in tor-
rential sheets and the mud-spate

tle eke over the head, tered guards welcomed an opportun-

with a revolver. She lay there) ity to stop and rest.. They dismount.

“Things began to get serious when ' ticularly ~ viclous. fight took place
he threatened people, swore that he;;under the awesome. structure, and
had the Hatfields.on the run and: the authorities had jt torn a lowny |
now he’d run any man out ‘of Pike-: ee ih eT
a ‘who. just looks cross-eyed at}

” Maynard heard about his dep-j
ete drunken ‘threats and went. out |

to calm him down.

' Having no success in quieting the
man, Maynard took a few deputies}

awhile, but finally. began to crawl| ed and a crowd ‘of the curious
away while the’ Hatfields: were! assembled. Some one .took Maynard

ecking to kill Calvin and Rando! hh, 2Side, told him that he had heard é

bey they’ fled'the house, 27 ¥ _Cap- Hatfield was in. Knox county | eside and whispered for them’ to!:

uganda lig trying ta raise a gang to take his; close in slowly.. They did, got |"

Randolph made it’ tothe woods vad -y Phillips and began. to Jead him:

her jprisoners before he got to Richard 4 i

but Calvin didn’t. A fussillade Ot the railway terminal, Maynard | Way. Sheriff Maynard vas knocked
| shots broucht. him dcwn near the],

Heo tae “4 neg hast ily put his caravan back on the pore kicked a few times, He ley ins’:
Corner, The two shee Sie OO ad. Merk: Phillips accompanied the muddy streets, yelling for the’

succeeded in rmaking thelr’ escape, | Militia. They. came on.a-nin and,
: the. group-.to Richardson, but Te-) :
and, watching from the woods, they | "| turned OS pucithe. from there...‘ {under the threat of drawn bayonets.
caw the. Hatticids: ride away. They!" ovenor Simon B. Buckner, after; the disturbance’ ceased. Maynard;
returned to the house and dragged many, court delays, finally allowed)! interceded for his deputy and Bud
Allifair’s hody ‘Ont. .of joe Ra i | | Mounts to’ go to the scaffold. Feb; McCoy. Don’t put them in fail, he
horse. * ., Soh Mh 1g 1290, was set as the day of Said. They wanted to, see the hang-
everal. hours Jater old. Randolph! /Tetribution, Mounts moaned to the |!s- The rest of the day the sheriff}
Mecoy, shivering with cold and the| newspapers‘ at the. jail, chewed! Walked with a imp, clutched at his
egony of great tragedy, stumbled! constantly on long, black cigars, ‘back. Somebody .had kicked « him}
dovn a path toward the charred re-| -However, his Hatfield. friends fiercely and he had.an. idea it was!
jmains of his ‘house, He: found: the’ nadn't.deserted: him. At the .start. Bud. McCoy... Ris.
i bodies of Cain and Allifair, He of their plans they decided to put,’ @!aynard went. to the fail, served! .
saw they were cead. He searched on “7 thetr eggs in one basket.” They: ‘fhe death warrant. The condemned”,
‘for others, heard a moan and moved|y, ould: forget about court appeals, ‘™an.was -red-cyed from loss of sleep
carefully through the moonlight.tror they recognized’ the condemned, @N@ the chain .smoking cf black):
His wife was. lying: in a welteroffman didn’t have a chance :in court,; cisars. Rev, Glover, who was also a
blocd, ner hair matted- with it and; . They ‘would ’ take. him out -of the! doctor, held, prayer, Mounts’ wasf 5
frozen to the ground. He picked her Pikeville ‘jail, Just how, they didn't} marched out to - Waiting wagon!:-
up in his. arms,‘ saw.she was- still} know, But if. they didn’t. get him: between guards: consisting of the
Uvinz, Ha carried -her up the ¢t trail | oy it of there they would, as @ last militia, sheriff’s deputies and
; tovvard a neighbor’s house. iresort,. either take him on hanging, specially deputized townsmen. ‘May-
he Hatfields:rode back to West|cay orshoot him dead to keep the |RaTd was re ewe: ee See
irginia, cursing..their Iuck. The|McCoys from: getting ‘the satis, {held a box in-which lay « cheap
> to end a war had been ‘un-jfaction of seeing him: die. «| casket.. Mounts Was told to sit on. it.
tal, cl te Randolph had escap-| To further their plans, spics wera {_ ‘French, Hollow \ ai wal bas
ther murders would be;sent to Pikeville, ‘the jafl was thor-. |humanity bala the wagon org
to "(hee ‘Frank Phillips} oughly inspected, ‘but counter-spies {#4 officers shoved peeps, acegantig
come riding again. jfound it out. Sheriff Maynard {Te curious — aes and Mien
a }
‘rank Phillips did ride aeain, but! < doubled the jail guard, making it with pera a ef a hg tet
3 l especially heavy at nicht, 1lup on the valley sides and up higher |
6-40 ‘catats,. Sing ot. oe a | into a’ graveyard overlooking the
for @ long time. They wére’ S0on, as February 18 drew near, int Waa ee SB
scat
7, and several fled. Charles Gi 1 tae sound of hammering came from, f8'! ; count aot
spi3 went over into Virginia where|Zrench Hollow at the north end of «dhe 25-year-old Mounts betrayed
a town where the scaffold was being little’ ‘emotion, “now and then
-er nabbed him for the :* ne. we ye e
e ftey smoothed back His thick, blonde
month before ner cted. Day after day passed and i
Mounts-chewed on the black cigars, hair. He gazed at the scaffcld with
didn’t go. to Phillips, | evidencing little interest in the at-. disinterest, walked with firm step.
a | Deputy Sheriff Harry Weddington
"h he had made several sud- tempts of Rev, J: W. Glover to get Cae a : |
. ‘asked him if he had anything to|
*$ into the Tug country him to’pray. People began to say he :
say before he died. Mounts replied;
1e8 had led sorties to WAS crazy, He must be, for who, in 59
+ + simply that he was prepared to die
iewaters of the Guyandotte, his right senses, would remain 50)! pa ees vist
ron : - stubborn atin: imploring his Master #24 that he hoped his friends, would
aed ft Cetectives, Treve Gib- | when: the scaffold awaited? He. 2!l meet him in heaven, Rev. Glover
4nd Dan Cuntiirighalim: were out : he €c i BIER ¢ iS evied. “Amen.” :
* sone of the reward money, ydinally confided ta Glover on the cin RRS
4 day of execution that he was ready
ito die, ‘

trl
iPa

ale
Cx
Od

. Tt was

“Cot

honor

on Top” Mounts,

PG Agee ecnee
ey:

ale ferk of the rope shut: off his words,
‘phe screamed, again and again; “The

' Pope. had choked out. the last. criss

OU cranes

fe be

onleo

mF CO)

ee:

¥.

i
li

FE ©
ioe

=' Pee

st
e: E
aoe k
an
er.
z »
oe
| an
a

és

2: Elliso
yy Where he was hanged, Feb
“!: Mounts,
é S..We. Grover ‘praying for

De is Sansa te iy TG td
\ Many ‘men’ have. gone to’ their
deaths by hanging with a hymn or
& prayer on their lips; Others, tight-
lipped and benumbec by the horror
of approaching death, | have died

with few words,” :. igs a da
Ellison “Cotton-'Top?: Mounts did
neither. As the black cowl was being

adjusted over his face and until the

ere

ah ptys%.

Hatfields made mé do ft". f34F
{y Crowds, too, react differently, The
people sang and ‘prayed with -Bad
Tont Smith; of ’Breathitt county,
who was hanged at Jackson in 1895,
‘The people, stood mute and unmov-
ing as’Bad ‘Talt Hall. died at.Wise,
Virginia, ..three: “years .earlier.. At
Pikeville, however, when the hempen

3 tics Ke Ca ER ge
‘3 n Mounts, second man ‘from

af Cotton Top: Mounts the people
reamed , in. unison. ‘Scores, men
and ‘women, ‘fainted’ "The: screams
persisted, died only when, the doctor
stopped the spinning body to sed if
ld henchman was dead, >.

AS SUR ES lagt MOREE Hes
TA WBE EP eo atts : + <P

edad Pry Pat Yl sey ad
4 pas

et:

Rees. {)

or ambush- a. nt
Mounts noticed, tao; that when they,
wanted him and called him kinsman

they -usually had’ thelr’ hands oni,

McCoy . adherent. 4

_[ Mostly fie staye

{}for. Frank Phillips, the. Pike county.

‘across the Tyg into. West. Virginia
| with’ qosse of’ officers:-at.-mpre~
_Itwas said that Mounts “atan’t !
‘know much,” that he was illiterate f
and a@ pawn"in the ‘hands of the 4
Hatfields,’ The’, blonde, .. bumbling
yokel. was q relative ‘of ‘Devil ‘Anse é

ES atta MN

home, “piqdled_and pyttered’t. about
‘the’ place. Herd the .Hatfields al-
ways found him when he was. need-

red and it was from‘here he watched

‘deputy sheriff. who‘ was’ “making
‘life miserable for the Hatfield clan,
; “Phillips had: a: habit’ of. dashing

‘dictable, times, seizing and. carrying
‘away: Hatfield adherents wanted’ at
Pikeville. “Late -in-, 1887". the Pike
officer: went after, of'-all/people, a
McCoy. .' Selkirk,: McCoy, had. at
first been. aligned on’ the’, side: of
this’ acthemen but, having married a
Hatfield girl, he changed sides. He
had rendered: service to. his, people
‘at court.when the two clang foucht
Over ‘the ownership’ of a hog but,
married ‘he dropped, his’ allegiance

sinkhole on the .Kentucky ‘side - of
Tug. "For this* participation in this
he was indicted, Phillips went after
. It is said that the Hatfields feared
Lonly ‘two. men—Jim. “McCoy. ; and
[Frank Phillips. Devil Ansé ‘himself,
spoke admiringly'of the “nerve” of
Jim McCoy:and@ saved him :from

aly i ‘
PP Whe) bis :

PPE Ee ne <a ey
% ee TE, Gd} Soe
‘ad ‘ 76.
< 2

-4ed. ‘the
_| Phillips-led possé...'.. | eH, Se ass |
“|. The capture of Selkirk McCoy ‘put - 4)

of the struggle, with Phillips
4fing them un one by one
j{TRids~across the border. Out of}
4{ their thinking evolved murder: and!

. . .Say that you had to co bac : to the
<a ~ 4g annals -of “savage life’ to find Bf.
;, fcounterpart in crim3. ~ Raat iad

., Devil Anse ‘and his henchman de-| +:
’teided to.kill Randolph McCoy and |} 4
all his famiiy: To da this the
<2 calling of the clan. Johnse Hat-)
<field,

round up their kinsmen.: One- of *
{those enlisted ‘Was: Cotton . ‘Top’:
Ay Mounts». ait See ee, . A

the

that there was, a reward

and‘was with: the Hatflelds when; oundingy: thé? cabin: -eaen 1:
three MéCoys ‘were ‘murdered’ at ag ' Surrounding}: the?” cabin,“ each

} louder than words. Unless the Hat-°

-f fields were traveling: in a body or!
.| SUrreptitiously. alone in the woods!
the Kentucky:
armed guards watch. §,'

they steered clear of
side, At home

mountain -‘trails for a:

tae. Hatfields. to’ thinking, Unless ;
they ended the’ vendetta hy. elirf-}

‘;nating Randolph McCoy and his}

family there would be 4 continuance }

in sudden |

fire, of a kind that shocked a nation |
and caused a cistinzuished judge {

. | of the Kentucky Court of Appeals to}

—

son of the chieftain, and Tom.
Guerrilla” Chambers went out to?:

They found Mounts at home oni ig,
Guyandotte *’ Riyer,: : putting’.

hingles on the, house,’ At first hess

-. demurred to: joining ‘the: Proposed’. 4] |

enture but. Johnse ‘reminded him:

of. $500:on

nt as eS,

gy his head and Phillips could get him!
v& {| mext. Mounts ‘succumbed ‘to the’?
“farguments and went. along. At. Devil -#

; Anse’s heme _.on Island Oreck where.

Pe Syl
ad near his mother's’: he’ met his comrades in crime. ‘To 4
|wo out: that night and murder the |!
McCoys .the: Hatfield. leader named }:'
jhis sons, Cap, Johnse and Bob.. To |i
Participate also. were Elliott. Hat- |»
field, Chambers, Mounts, ~ Charles i
Gillespie: and French: Ellisy- Anse a
Pleaded illness as anexcuse not to}.
go.but.: put Jim. Vance’ in charge. 3

Vance -< gave “his ‘men. a “briefing, |

threatened he. “would kill any man’
that. went back’ on. hin ‘that “night;

if: powder. would. burn.” »

midnight. ‘Approaching the. home sof;
| Randolph; McCoy, they » put!) oh |
masks. ‘Vance ‘again’ gave x pep"

family: was ‘wiped ‘out’ no. witnesses }

that, @:ledder with. a. will. to wcarry. *
on: for, the: McCoys ,would. be dead.

assumed a’ strategic ‘place to watch ‘
doors. Jim Vance stayed out in front ey
of the thouse'and: called loudly’ for |
surrender,~\\ Johnsé » fired - at «the
frontdoor.He ,was answered by thers
gun:.of ‘Calvin “MeCoy. from. an- up- i's
stairs , window. Jolinse -yelled < with ‘+
pain, a bullet ‘iil his shoulder, The:
batile, -planned by.' the, Hatfields “told

hours? 629;
Minn na a aren

end’'a. war, “lasted “perhaps: half. an!*
Me ee Sainte at Biv nti in aa

5 Pe eee

Frank ‘Phillips their’ &ctions spunc.>

+.
pick- |

Te eS ow ak

re.wast vy;

é
emerged,on Blackberry Creek. ear [4

talk, ‘rentinded ‘them. that if..the [3

~er

Sep aes

a
4

‘would .rémain ‘6f:former deeds, and: pis a ys
eal

MOUNTS, Ellison, white, hanged Pikeville, Ky., Feb. 18, 1890,

"A special from Bramwell, Mercer county, West Virginia, says: Ellison
Mounts, one of the hatfield crowd, was arrested by members of the Eureka
Detective Agency last Tuesday on the head of Mote's creek, Logan Co.,

W. Va., and Mitchell, alias Chambers, was shot. It appears from what
can be learned that Detective Dan'l. Cunningham, Treve Brown and a man
known as 'Wild Billt hed gone to the place named and were lying in ambush
for Mounts and Mitchell, andas they came along one of the detectives
struck Mounts across tie foreflead with a Winchester rifle, and before he
could recover handcuffed him, During thés struggle, Mitchell and 'Wild
Bill' become engated in a fight which resulted ih Mitchell being shot
through the right hand and 'Wild Bill' in the right arm. Mitchell made
good his escape with another of the Hatfield crowd who was present.
Mounts was taken to Pikeville by detectives where he is now in jail,"
GAZETTE, Alexendria, Virginia, November 3, 1889.

STRESS. fi ome bad ual

THERE WAS NO OUTCRY.

YOU COULD NOT TELL WHEN HE PASSED

TO DEATH.’

KENTUCKY’S

LAST

EXECUTION

RR a a

In 1957 a persistent felon named Kelly
Moss was released from the Kentucky
State Prison in Eddyville. Six weeks
later in his hometown of Henderson, he
visited fearful violence on his 74-year-
old stepfather, Charles Abbitt. A power-
_ ful man; Moss was 30 years younger
| than his stepfather; he probably could
have killed Abbitt with his bare hands.
Instead, he used a pipe to bash his skull.

Moss pleaded self-defense, claiming
the old man had a gun. Jurors were

unimpressed. Upon conviction, Moss
was sentenced to die in the electric
chair.

He was hardly unique: Since christen-
ing its electric chair in 1911, Kentucky
had electrocuted people at the rate of
one eyery 100 days or so.

Less than a year before Moss killed
his stepfather, three Louisvillians were
executed on. the same. night. That

threatened the state record of
seven, set on July 13, 1928.

‘thing about Moss was unusual —
dun He would be the last
person> to. die in Kentucky’s electric
chair for at least 30 years.

In July 1959 Moss. created a disturb-
amice on death row, rattling the bars so

didn’t forestall his execution, but pan “ executed. . . . He said, “I wouldn’t be
lawsuit did. Kentucky simply ere ‘if it weren’t for you bring-

ak eee Scones, ee a ep ees inser ” — he used a

suit against: ot more epithe

ultimately lost in a: rd eo » _We had to: take Mrs. Abbitt back up-

| wast Clear fox ete Cirata teams a

_ January, . Bert Coane call on her. We left the minister in the

warrant onfleting Moss/to be. cell with him to try and calm him down

‘ “But in all candor, e minister seemed so

ruled

Peet PLE ER LE CS LAST L EASA P TESS LIAISE IIS |

Kentucky’s landmark school-reform
case. He is now acting director of Ken-
tucky’s Department of Public Advocacy,
charged with keeping death row prison-
ers from execution. But on March 1,
1962, he was an unknown state function-
ary, visiting Eddyville to witness the
electrocution of 48-year-old Kelly Moss,
scheduled for a few minutes past mid-
night.

This is an edited version of Corns’
recollections, as told to the writer:

As I recall, somewhere arourid 6:30 or

7, we were sitting inthe warden’s office, 5

and a guard advised the warden that
Kelly’s mother had arrived and. was in-
sisting she see him. She had brought

some minister with her. by Bo nll

Mrs. Abbitt was in her usual fit of pi
yelling, sho oe

kind, gracious, soft-
He said, “It’s just five hours before we
execute her son. Even though the- rules
say she should have made her final visit
24 hours ago; F'm-just going to-have to
let her go see him.”
eS son worked so hard to get
2 down. He’s in a good state

ag circumstances, in my opinion.
Well, Mrs. Abbitt no sooner gets down
~ there (to Kelly’s cell), and this minister
*. is with her. Kelly has got his plate on his
fap. as sun adhe ates his mother e
throws the plate up against the ceiling.
Fe sad, ~~ are “ doing here, you

old ee

Now, he said this to his mother — less
thiems ake hours before he was going to be

coop at < oc s eigen tareraty
Abbitt: She didn’t want to leave. Warden

As good as you could be in:

Thomas said, “Let’s make it as easy for
her as we can.” She hadn’t had anything
to eat, so we sent out somewhere; I
think Warden Thomas provided the
money out of his own pocket to buy her
a meal. He unplugged the clock in the
room where he asked the lady — or two
ladies — to try to keep Mrs. Abbitt
company.

An hour or two later Mrs. Abbitt sud-
denly realized the clock had been un-

_plugged. And she really went into an-

other verbal and physical tirade and
stomped or hit one of the ladies on the
foot with something so hard she broke
her foot, or her toe, and we had to get
her taken care of.

Then we went to the cellblock, oh, five
or 10 minutes before the execution. They
had an observation chamber ‘there; the
glass goes almost all the way to the
floor. So you stand within 20 feet, per-
haps less, of the electric chair.

Kelly came in wearing pajamas. and
house slippers. The guards had to make
the electrical attachments on the feet
and the arms. They had sponge rubber
attached to the electrodes. Apparently
they had been washed with some sort of
solution. When they clamped those on, a
little water dripped in one of Kelly’s
house slippers, and he just cursed every-
body out good for getting water in his
house slippers.

They ° were very businesslike, “yet they
. You

vindictiveness, or anything like that.
Even when he cursed over getting water
in his shoe, no one fussed at him.

He. was sitting down in the electric
chair. They put an electrode on his head;
his‘ head had been shaved, just. a little:

made the connection on the arms

right there at the door, and took him
away. I would say 300’ seconds, five
minutes from the time the prayer started
until he was gone. ,
In defense of Kelly, he took it,’ I
thought, very stoically, after that’ one
outburst about the water in his shoe.

I thought him to be very intelligent. I
would just characterize him as a very
mean person, physically abusive. He
never indicated any remorse at ail, or .
any change of heart. I would have
thought that by the time of the execu-
tion, you wouldn’t be so aggravated that
you’d curse out your mother, throw your
plate against the ceiling, or if you got
water in your house shoe, it would be a
big issue. People might say, “Well, he
was not competent mentally.” But he
was talking just as rationally as you and
I are now. He just seemed to be a very
mean person.

letters; back in those days for 24 cents,

you could send a heck of a letter.

She’d write on toilet tissue, and she’d
always conclude by saying, Rico, «
your chimney is stopped up tonight. I
hope so.’

Male: death row inmates are housed in
this area at the Kentucky State

Penitentiary at Eddyville.

ge MG es
ed
oy

Ree |
,

WADIAD *e

ONT Se cturday, Fab. 29, ‘992 / SCENE PageS-

—

cn hotelier ie a2 See unit a ola toe 0

242 Racial Violence in Kentucky, 1865-1940

the thousands of people desiring to witness Turner’s execution would
be allowed to do so. Therefore, many people asked the jailer if they
could visit with Turner in his cell. In a story headlined “Turner's Last
Sunday,” the paper applauded the jailer for ignoring the ban on Sunday
visitors and for allowing all who wanted to come and see Turner, to
observe “how he passed the last Sunday he would ever see in this
world.” es

Deciding that he wanted a large funeral and hoping that his white
visitors would pay for it, Turner posted two large placards over the
windows of his cell. One said “May God have mercy upon me for my
crime”; the other one, “Ladies and Gentlemen: Please Donate Some-
thing to help bury me, July 1, 1887.” On that final Sunday, 1,538
whites entered his cell. Many of them brought along cameras, and for
twenty-five cents they were allowed to have a photograph made of
themselves and Turner. The doomed man raised more than $50 in
this manner. More than 2,500 whites came through his cell the day
before the execution—only one-third of those seeking admission.
A majority of these people were women. The newspaper tried to put
the best light on the desire of these white females to rub shoulders
with the black murderer: “The women were not all, as might be sup-
posed, of the lower elements of society ... but were in some in-
stances ladies who are sometimes seen in their carriages on Fourth
avenue and among the gay assemblages of higher social life, while
many were from the middle walks. Let it be said, however, for Louis-
ville womanhood that those of the better classes who came felt keenly
the horror of the picture presented, which did not prevent them from
being very much ashamed of the step they had been led to take.” Ac-
cording to the Courier-Journal, which, of course, thoroughly enjoyed
keeping the public informed of every minute detail of the doomed
man’s existence, Turner raised far more than the $75 needed for his
funeral. In addition to paying for his funeral expenses, Turner was
able to have meals from Louisville’s best restaurants brought to him
and two friends in jail, to purchase cigars, jelly cakes, and water-
melons, and to hire messenger boys to run errands for him. He also
left $130 to be divided between his sister and his niece!

Proclaiming that he had made his peace with death and that he
wanted to get right to meet God, Turner made a statement at the scaf-
fold. He explained that Stephen Morrill, the black man who had
recently been sent to prison for the robbery of a streetcar, was inno-

“Sacrifice Upon the Altar of the Law” 243

cent because he, Turner, had committed the crime. Then he added,
“Gentlemen, I want all of you to hear what I have got to say. Iam
going to die with an honest heart and bring no one to the gallows.
I am going to die alone. Free the man Patterson. The man was not
with me. That is all I have got to say. 1am willing to die now.” Turner’s
confession had a positive effect for Morrill, who received an immedi-
ate pardon from the governor.

Turner’s statement about Patterson, however, was rejected. He
died on the same gallows used for Turner but noticeably without the
fanfare that surrounded Turner’s hanging. The story of Patterson’s
execution was buried on page six of the Courier-Journal. While Turner
had entertained only white visitors, a number of prominent black
ministers came to see Patterson. Also unlike Turner, Patterson con-
fessed a belief in Jesus Christ and joined the church. Some Louisville
whites found justice in the suffering that Patterson endured before
dying: He did not die from the fall but slowly suffocated. He spoke
from that position for five minutes. The black minister who preached
Patterson’s funeral reached a different interpretation. “Did you ever
hear in the history of creation of a man that God allowed, with a rope
around his neck after the drop fell, hanging by the neck, to have
breath enough to say: ‘Lord receive my soul’? .. . I believe Brother
Patterson is sitting around in heaven enjoying himself.” *’

Because of the drama involved in executions and the public’s fas-
cination with the gory details surrounding the condemned man’s
crime and death, legal executions received widescale publicity in
Kentucky and elsewhere. But in reality, the form of legal lynching
that sent blacks to jail on sham charges had a far greater impact
on the state’s black citizens. That Afro-Americans accounted for a
greater number of the people arrested seemed natural to whites, since
they viewed blacks as inferior and prone to committing petty crimes.
A cursory reading of the police reports printed in newspapers for any
period from the end of the Civil War to the Great Depression reveals
that most of the people who were in jail on minor offenses or awaiting
trials or who were sent to local workhouses were Afro-Americans.
This was true even in Louisville, the most enlightened city in Ken-
tucky and a place where blacks participated in political activities to a
degree not found elsewhere in the state. Almost two decades after the

37. Louisville Courier-Journal, June 22, 23, July 9, 1888.

240 Racial Violence in Kentucky, 1865-1940

mankind, the Courier-Journal now urged the people to avoid a lynch-
ing at all cost, saying that they must “stand by the law.” Nothing
should be done, the paper emphasized, that would ruin Louisville's
good name. Turner and Patterson should be made to pay for their
crimes, but only within the law. The strong show of force by local and
state officials prevented the black men from being lynched, and after
several evenings, the mobs completely disappeared. os

Newspapers throughout the country applauded Louisville’s stand
against mob rule. The New York Times said a lynching would have
been a disgrace to the name of Louisville. On the other hand, the New
York Freeman, a black newspaper, said that the Courier-Journal was
largely to blame for the actions of the mob: “Think of a great news-
paper like the Courier-Journal lending itself to the excitation of mob
violence! Surely a man of Mr. Watterson’s National reputation cannot
afford to have his name coupled to such an infamous business. When
the great papers of the South insist . . . that the law shall be allowed
to take its course mob violence and infamy will be forced to hide their
dirty head.” *

On May 9, after being unconscious for most of two weeks, Jennie
Bowman died. Even before her death, the young woman had become a
heroic figure in the eyes of the Louisville media, one who had suffered
in ways that no other human being had before: “No pen can portray,
no mind can imagine, the agony she endured so long. In her delirium
she passed again and again through the awful ordeal of the struggle
with the fiends who beat her into insensibility; and during her lucid
intervals she was racked with excruciating physical pain, scarcely
less horrible than the mental anguish. Only in the unconscious stu-
por of opium did she find even a poor relief from the terrible torture.”
In another of its many editorials on Bowman, the Courier-Journal
said that “in a sense, it may be said that she dies that Justice may live.
There can now be no escape for her assailants from the full penalty of
their crime.”

The trials of Turner and Patterson were held within days of Bow-
man’s death. Because of Turner’s confession of guilt, his trial, the de-
liberation of the jury, and the sentencing took one hour and five

35. A reprint of editorials from other cities can be found in the Louisville Courier-

Journal, May 3, 1887; New York Times, May 1, 2, 1887; New York Freeman, May 7,
1887.

—s

“Sacrifice Upon the Altar of the Law” 241

minutes. He was sentenced to die on July 1. Patterson pleaded not
guilty and was defended by Nathaniel R. Harper, Kentucky’s first
black attorney and a man of more than fifteen years of legal experi-
ence. Patterson denied knowing Turner. Interestingly, Turner refused
to testify in court against Patterson, but his statements proved
damaging nevertheless. When naming Patterson as his accomplice,
Turner said that the blood from the victim could be found on Patter-
son’s undergarments, which the police found. Several whites testified
that they saw the two men together on the street the morning of the
crime. Patterson’s trial lasted three days. The jury, however, deliber-
ated only twelve minutes before finding him guilty and handing down
the death sentence. Harper filed for an appeal, which carried an auto-
matic delay until the September term of the court. On November 23,
the Kentucky Court of Appeals made known its ruling in Patterson’s
case. After acknowledging that no testimony had been entered in
court that placed Patterson directly at the scene of the crime and that
witnesses had said Patterson was with them when the crime oc-
curred, the court said, “We have carefully examined the record in this
case, and perceiving no error of law occurring at the trial to the preju-
dice of the substantial rights of the accused, the judgment must be
affirmed.’’**

The weeks leading to Turner's execution witnessed a bizarre spec-
tacle on the part of Louisville whites toward the condemned black
man. They seemed to be horrified by, yet attracted to, Turner and his
crime against a white woman. Maybe they believed his story that
though he had taken part in the incident, he had not administered the
repeated blows that killed Bowman and that he had prevented Patter-
son from raping the woman. That Turner admitted his guilt and
seemed willing to accept the punishment due him led to admiration
from some Louisvillians. In mid-June, the Courier-Journal started
counting down the number of days he had left to live. Reporters went
on a regular basis to interview Turner. “A talk with this brute is one
of the most depressing things that a sensitive person could subject
himself to.” In the view of this reporter, Turner contradicted every
optimistic theory about mankind. “Without being-an idiot, without
any mental derangement whatever, he is absolutely impervious to a
moral idea.” It soon became apparent that only a small percentage of

36. Patterson v. Commonwealth, 86 Kentucky Reports, 31 3-26 (1887).

Ky.

nar-
his
and
sers,

lars 37

and
”

Any
new
ting
‘sted
t tu
irec-
shall

PAT?

FRSON, William, hanged Louisville, Ky., on 6-22-1888.

Sik

Ky.J PATTERSON v. COMMONWEALTH. 387

between claimants to the benefit, if the order has seen fit to waive it. We
think not. Its object, beyond doubt, was to prevent the appellee from becom-
ing involved in litigation with outside claimants. Upon this idea it was held
in the case of Aid Soc. v. Lupold, 101 Pa. St. 111, that where the certificate
provided, “This certificate may be assigned and transferred only by and with
the consent of the association indorsed thereon,” and it was done without such
approval, that it was a part of the contract, and that the society had aright
to insist upon the protection which it was intended to afford. The direction
by the insured to change the benefit was in the case now under consideration
given through the proper channel. The subordinate lodge referred it to the
proper authority, and it saw fit to waive the regulations intended for its ben-
efit, and comply with the direction, although made in an informal manner and
without the payment of the fee. The intention of the assured was to change
the benefit. He so directed in writing; and now, because he did not do so in
the formal manner prescribed by the law for the benefit of the order, it is
asked by a third party, whose interest in the insurance was liable to end at
any time at the will of the assured, that his intention shall be defeated, al-
though the party for whose benefit the form was prescribed has seen proper
to waive it. Such a rule would sacrifice substantial justice to mere form; it
would tend to defeat the benevolent aim and purpose of the organization, and
the desire and intention of the assured.

Members of the order may be remote from their lodge; they may not have
their certificates with them, and therefore be unable to make the indorsement
thereon as directed, or to have it attested by the recorder of their lodge, or its
seal attached thereto. If the appellee chooses to waive these formalities, it
does not lie in the mouth of a third party to complain. The order is entitled
to know who is entitled to the benefit fund; and the formal mode of changing
its direction is for its benefit; while, upon the other hand, the right of the
beneficiary rests in the mere will of the assured. It has been repeatedly held
that a transfer of the stock of a corporation is valid, as to the parties to the
transfer, although not made upon the books of the corporation, as required by
its charter or by-laws, provided it be done in any mode known to the law for
the transfer of like personal property. ae

In our opinion, the letter of June 5, 1879, operated to change the direction
of the benefit, inasmuch as the appellee saw fit to waive its informality; and,
as the assured had therefore done all that was needed on his part, the fact
that the appellee issued the new certificate after his death does not affect the
right of the parties. If the appellee were in court with the fund, asking that
the conflicting rights of claimants to it be determined, and was silent as to
the informality of the direction to change the benefit, it seems to us that the
widow ought to prevail. Judgment affirmed. a

(86 Ky. 313)
PATTERSON v. COMMONWEALTH.

(Court of Appeals of Kentucky. October 6, 1887.)

1. Howrcrpr—InpicrMENT—INDORSEMENT OF TRUE BILy.”
On the trial of an indictment for murder, the statement in the record that ‘the
foreman of the grand jury, in the presence of the grand jury, reported an indictment,
a true bill,” against defendant, shows sufficient compliance with the provisions cf
Crim. Code Ky. 22 119, 121, that an indictment must be indorsed ‘“‘a true bill,” and
must be presented by the foreman.
2. Same—Evipence—Co-DeFrEeNDANT CoMPETENT WITNESS FOR STATE.
On the trial of an indictment for murder, a co-defendant who has been tried and
convicted on a plea of guilty is a competent witness against defendant.
3. SamME—EVIDENCE OF AcCCOMPLICE—CONFESSIONS.
Under Crim. Code Ky. ? 241, requiring the testimony of an accomplice to be cor-
roborated by other evidence tending to connect defendant with the commission of
the crime, and declaring that corroboration merely showing the commission of ths

Ne ee

peeeenrameanunmstin=siey-mtontanletne ines: slits NAAT AAO

secre ete OT Ae A ALTA

i ie a i

ied

Pham Sawer

388 SOUTHWESTERN REPORTER, (Ky:

offense and the clreumstances 1s insufficient, evidence of confessions of defendant
may be received in corroboration of the testimony of the accomplice, where the
commission of the offense has been established.}

4, Bawe—Evinence—Extrasupician Conrrsstons—Cornrus Denier. :
Under Crim. Code Ky. % 240, providing that an extrajudicial confessfon will not

warrant a conviction unless accompanied by proof of the commission of the of--

fense, itis not necessary to instruct the jury that evidence of a confession should he
corroborated by other evidence tending to connect defendant with the commission
of the offense; and, where the commission of the offense is established beyond
question, it is unnecessary to charge that evidence of such confession, unaccom-
panied by proof of the commission of the offense, will not warrant a conviction.?

6. Same—Instructions—REASONABLE Dover.

The refusal of the court to charge that “the jury cannot convict the accused ona
mere preponderance of the testimony, but the law presumes his innocence until he
is proven guilty to the exclusion of a reasonable doubt,” is not error where the court
has fully charged that the innocence of the accused is presumed, and it is the duty
of the jury, if they can reasonably do so, to reconcile all the facts and circumstances
with that presumption ; and if, upon the wholecase, the jury entertain a reasonable
doubt of the guilt of the accused, or of any material fact necessary to the proof of
his guilt, they should find him not guilty.

6. Same—VeErpvict—Conviction ror Lower DEGREE.

Under an indictment for murder containing a charge of former convictions, which
the jury were instructed to disregard, a verdict of ‘‘ guilty as charged in the indict.
ment” is good, although Crim. Code Ky. 2 262, allows a conviction for any lower
degree of the crime charged in the indictment.

7. Same—Remarks or CounseL—FaiLure To Onsecr.
The court will not reverse a judgment of conviction for any alleged misconduct of
the commonwealth’s attorney in ‘his argument which does not appear in the bill
of exceptions to have been objected to at the time,

8. Samz—ApreaL—By-Sranper’s Brut or Exceptions. :

Civil Code Ky. 2 337, providing that ‘‘a party objecting to the judge’s correction
of an exception, which purports to state the evidence, may, within tive days after
the bill is signed, file the exceptions as written by hin, if its truth be attested by
the affidavits of two by-standers,” does not authorize the court to consider a by-
stander’s bill of exceptions purporting to show that certain statements were im-
properly made, to the prejudice of defendant, by the attorney for the common-
wealth in his argument, which, though objected to at the time, the court failed to
exclude from the consideration of the jury or to pass upon.

9, Same—Review or Evipence on AppeAL—Ernoxs or Law.

Under Crim. Code Ky. 2 340, providing that a judgment of conviction shall be re-
versed for any error of law prejudicial to the substantial rights of the defendant,
the court has no power to reverse a judgment of conviction upon the ground that
the evidence is not suflicient to support the verdict.

Appeal from circuit court, Jefferson county.
Matt. O'Doherty, Thos. L. Martin, and N. R. Harper, for appellant.
P. W. Hardin and Aaron Kohn, for appellee.

1Concerning the necessity of corroborating the testimony of an accomplice in order '

to sustain a conviction, and the extent of such corroboration, see People y. Elliott, (N.
Y.) 12 N. E. Rep. 602, and note; People v. Kunz, (Cal.) 14 Pac. Rep. 836.

? That the simple confession or admission of the accused, without other proof of the
corpus delicti, will not justify a conviction, and concerning the sufficiency of such cor-
roborating testimony, see McClain v, Com., (Pa.) 1 Atl. Rep. 45, and note; People v.
Jaebne, (N. Y.) 8 N. E. Rep. 374, and note; U.S. v. Bassett, (Utah,) 13 Pac. Rep. 237,
and note; State v. Penny, (Iowa,) 30 N. W. Rep. 561, and note; Floyd v. State, (Ala.)
28outh: Rep. 683, and note,

POM EN

Ky.) - PATTERSON 0, COMMONWEALTII. 889

It has been often decided that this court has no power to rovers a judg:
ment of conviction in a criminal prosecution upon the ground that the evi-
dence is not sufficient to support the verdict. But as provided in section 340,
Crim, Code, “a judgment of conviction shall be reversed for any error of law
appearing in the record when, upon consideration of the whole case, the court
is satisfied the substantial rights of the defendant have been prejudiced.” We
will therefore refer to the evidence in this case no more in detail Uhan is nee
essary to determine whether it tends to establish the guilt of the accused, and
whether he has been tried and convicted according to law.

The crime with which he is charged was exccedingly bold and brutal, hay-
ing been committed between the hours of 9 and 10 o’clock in the forenoon, in
the dwelling-house of A. Y. Johnson, situated in a populous part of the city
of Louisville; and, although the victim was already badly injured while re-
sisting an attempt to rob her employer, the fatal wound seems to have been
given for no other apparent reason than to prevent her informing upon the
perpetrators. Her dying declarations, admitted as evidence without objec-
tion, and other circumstances proved on the trial, make it clear that the deed

yas done by two men. But no one except Albert Turner, who had been
tried for the offense, and, pleading guilty, convicted, testified directly that the
accused was one of them, though there was other evidence, some of which
will be hereinafter referred to, corroborative of his testimony. In behalf of
the accused, several witnesses testified to his presence in another and distant
part of the city at or about the time, as proved by others, the crime was com-
mitted. But of the credibility of these, as well as all other witnesses in the
case, the jury were the exclusive judges; and, giving full credence to their
capacity to recollect, and disposition to truthfully testify, in regard to the pre-
cise time and place they saw him, we cannot say it was wholly impossible for
him to have been at the house of Johnson when the murder was committed.

We will consider the alleged errors of law relied on for reversal.

1. It is contended that the record does not show that the accused was in-
dicted as the law requires, or at all; and the two sections of the Criminal
Code which it is argued were violated are as follows: “Sec. 119. The concur-
rence of twelve jurors is required to find an indictment; when so found, it
must be indorsed ‘a true bill,’ and the indictment signed by the foreman.”
“Sec.121. The indictment must be presented by the foreman, in the presence
of the grand jury, to the court, and tiled with the clerk, and remain in his of-
fice as a public record.” The record on the subject is as follows: “This day
the foreman of the grand jury, in the presence of the grand jury, reported an
indictment, a true bill, against Albert Turner and William Patterson for will-
ful murder and previous convictions, which said indictment is as follows,”
etc.

Not stopping to consider whether the accused, by his failure to either de-
mur to the indictment, or move to set it aside, for the causes now relied on,
both of which steps are in such case authorized by the Code, has waived his
right to object in this court, we think the requirements of the two sections
were substantially complied with; for it does appear that the indictment was
indorsed “A true bill,” and the objection it was “ reported,” instead of being
in the exact language of the Code, “presented,” is a mere play upon words
which are commonly understood, when used in that connection, to practically
mean the same thing.

2. In the case of Com. v. McGuire, 7 Ky. Law Rep, 814, it was decided by
this court that all persons are now qualified to give evidence as witnesses in
judicial proceedings, except those specially excluded by section 8, art. 8, c. 29,
ven, St.; and, as Albert Turner does not appear to belong to the class ex-
cluded, the lower court did not err in permitting him to testify in this case.

3. It is contended that the court erred “in failing to instruct the jury that
evidence of extrajudicial confession of guilt was not such evidence as the law

and pronounced dead in four minutes,"

LOUISVILLE COURIER-JOURNAL, Louisville, Ky, 2-6-1892, Woodeut likeness on page one,

e
\

in)

WILLIAM PUCKETT) Hanged West Irvine, Kentucky, 2-5-1892

"The crime for which William Puckett paid the extreme penalty of the law was committed on Nov, hl,
1890, It was election day. During the morning Puckett and his two sons, Tobe and Ambrose, had a
quarrel with Dillard Adams, Constable M, H, Hawkins summoned Spice Jordan, Henry Hall and others
to help him keep the peace, Three pokket knives were taken away from the Pucketts and it was
thought the trouble was over,

"They came up again, however, with clubs, and in the afternoon Ambrose Pubkett asked Hall to give
him back his knife, Hall replied that he did not have it, Ambrose struck at Hall with a club,
Hall knocked his assailant down with his fist, but Ambrose arose and beat Hall about the head with
his club, William Puckett ran up with a club and knocked Hall to his knees, The Shree Pucketts
jumped on the prostrate man, who managed to get up. The Pucketts followed him, unsing their
clubs freely.

"They were made to leave Hall alone and a physician was called to dress his wounds, While the
physician was wrking with Hall all three of the Pucketts, with clubs in their hands, came up,
and with an oath, William Puckett sprang at the wounded man, saying that he would ‘finish him ,'
A crowd interfered and the Pucketts left, Hall was carried to his home, where he died the next
daye

"Warrants for the arrest of the Pucketts was issued by County Judge Tharp, and in spite of the
efforts of the authorities they eluded arrest. At the March term of the Estill Circuit Court
indictments were found against them and rewards offered by the Governor but they succeeded in
escaping from the State. After the authorities had given up hopes of catching then, S. T. Weeks,
Town Marshal of Irvine, went to work an the case. After two months of hard and patient labor he
located them in Brown County, Ind,, near Peter Cooper postoffice, Calling to his assistance Mr,
J. B Park, a merchant, they went to Frankfort, secured the necessary papers, and proceeded to
Indianapolis, The patrs were made out and takent to the room of Gov, Hovey and signed by him at
mindnight.

"Leaving Indianapolis, they went to Columbus and took the shage for Nashville, the county town of
Brown County, arriving there about noon, Securing the assistance of the Sheriff and two men (one
a relative of the Pucketis who for $2 betrayed them), they proceeded am horseback about 15 miles
through a wild and lonely section to the neighborhood where they expected to find their man,
Awaiting until 10 o'clock, they surrounded the cabins and arrested the fugitives one at a time
with little risbtance,

"The old man, William, was living in an old, abandoned cabin, and the boys in huts they had built
of poles, They were on the verge of starvation and in rags, the boys having no shoes, The
Sheriff gave each a pair of trousers and to one of the boys a pair of old shoes, The other was
barefoot when he was brought to Irvine, All had their wives with them, One had a three months'
old and one a three weeks' old child, They were left in Indiana, but dn a few weeks made their
way back to Estill,

"At the September term of court, 1891, the Pucketts were arraigned and demanded separate trials,
William Puckett was put on trial first. The jury, after a few hours' consultation, brought in

a verdict of guilty, fixing his punishment at death. His case was appealed to the Court of
Appeals and affirmed (17 Southwestern 335).The Governor then fixed Feb, 5, 1891, as the day for
the sentence tobe carried out, A petititon asking Gov, Brown to commute his sentence to im-
prisonment for life was circulated in Estill and Madison Counties and numkerously signed. After
reviewing the case the Governor refused to intervene, His two sons, Tobe and Ambrose, were tried
at the same term of court and each sentenced to the penitentiary for life.

"The grand jury at the Sept. term of court indicted Leroy and Elihu Puckett as being accessories
to the mrder of Hall, They were arrested and released on borid of Jf $5,000 each, Their trial
is set for the March term, 1892, Leroy Pickett, generally known as 'Lee’, is a half-brother of
William and is a wealthy man for his section, being worth $20,900, Elihu Puckett is a nephew of
Leroy and half nephew of William,

")\,000 witnesses to execution , piple coming from mountains and valleys, Began coming into town
at dawn, The place selected for execution was in a bottom surrounded by high hills, Puckett

had been sent to Richmond for safe keeping and on nite of Feb, 3, the Sheriff of Estill Gounty,
fearing an attempt at rescue by friends, went in buggy to Richmond and brought Puckett @oi/West
Irvine on mixed train on Thursday morning, Puckett had joined the Methodist Episcopal Church,
South, and had been baptized the preceding week, On arrival in Irvine, a strong guard placed on
him, March from jail to scaffold began at 12:10 o'clock, Thousands were in front and following
but a guard of 16 picked men kept road clear, Arriving at gallows, prayer was offered by Rev.

J. P, Strother and hymns sang. At 12:3 handcuffs removed from Puckett's, wrists and Sheriff and
diets assisted him in putting on glovese At 12:6, hands bound ana black cap Grawn over £e.a0

i j sno nervous and repeatedly sayings "Lord, have mercy
Displayed weaknees then for first time, becoming ne e: hay wes felt wt cor hoak cea

r - >» ®

“3
“ , = 4 ; Ky.
256 SOUTHWESTERN REPORTER, VOL. 1/. (Ky y+) BROCK ». COMMONWEALTH. 931
er but once, and then unoffici
jection, which is that more than one | court than it is without; for the sheriif no briel cially. There | such cases
Offense is charged against appellant, and | may and must perform it like ane other the Bad ii: ge Sete pct tig From | the law, ena pid eee notice of
that consequently the court erred in re- official act required of vigil ho ey Rt he appears to have claimed th . + Aaa heel merely to give greater ron notice is
fusing to require the common wealth’s at- | perceive no error of law in this case to the is unconstitutional, becaus oy he law | right to hold the electio < city. The
torney to elect for which one he would prejudice of appellant’s substantial rights, takes away his propert e Ad in effect | comes from the statute 2 Pay such a case
have appellant tried. This court has in | nor is any other than those pear process of law. It provi reg Reid bout due | notice to be given by th aoa = from the
Taerapeos ‘ beoopet Begone ( Ky.) he me suggested by counsel. Judgment affirmed. for a deprivation, but a lenuiec is of 2 Const. Lim. side p. 603; ec ieee
ep lecided teanily indicted for murder ' be poh hg ae exercise of the Kan. ool. Where th gener Gridley, : 20
be charged in one count of the indictment CoMMONWEALTH V. BABRETT. comfort and interest meet reat vee vacancy in office Bacar Spe is to filla
with inflicting the mortal wound, and in | (Court of Appeals of Kentucky. Oct. 27, 1891.) public welfare. The us yield to the | in harmony upon rities are not
another or other counts with aiding and b e of property may | ca p the subject. Som
if Fences—ConstituT1ionaL Law—NOorick OF eso regulated as to insure public safet ses make a difference between 1
abetting, there is really but one O — ELECTION. Every owner takes his property subje t ds and special elections to office n general
charged; of bye all may ‘. . Ea deri 1. Act Ky. May. 12, 1890, which declares that this condition. It is true, we are pee re ged the requirement as to. aia t=
and punished alike as principa’s, ough | after the end of that year it shall be unlawful to well may be, proud of the fact that eld to be merely directory, and i the
put one be proved to have committed the | nave any kind of wire save that which is smooth constitution guaranties thesecurit our | latter mandatory, and es oe
act. It thus results that the lower court | and round in any fence along the public roads liberty, and property, and th i y of life, | validity of the election. M spa to the
did not err in overruling the motion. of Carroll county, is not. unconstitutional, as sesaor cannot be nopeteca x ron the pos- | 11 Cal. 49; Foster v Sca ee v. Weller,
3. The judgment rendered in this case is, taking private property without due process of the judgment of his peer em save by | The reason for holdin ray ,15 Ohio St. 532,
in substance, that appellant be taken to law, but ae ee exercise of jor aang! power the land; but, nadie - or the law of | tion, the time and : at a general elec-
the jail of Estill county, and there safely race greg She oe of property so as to avol cretion must have pce AD way iP been fixed by law, BR — Faye Rll dage have
kept until December 4, 1891, on which day, ® The act further provides, that its becom- 60 regulating the use of propert ude A valid because an officer has failed bis in-
between sunrise and sunset, the sheriff of | ing effective shall be conditioned on its approval avoid injuries to the public. If nF eso oO | notice of it as directed, is that th oO give
Estill county shall take him to the point by a majority of the voters of the county at an may be required by the iegialnt railroads | will should not be defeated b e popular
on the lands of W. H. Lilly nearly east of | election to be held on a designated date, and their tracks, why may not ure to fence | tion or misconduct. In 3 y his non-ac-
the Estill Springs, and near the mouth of | also provides that the sheriff shall give notice of hold their property subject Fg ear who | like the one now present a ease, however,
the still Springs, Ae Tevine & Winchester | the election 2 Wire orcs the public of the Lo- casdiion that iaball not bo as ued as'| cl the loreeires tan i uaeet Gee
road, up Sweet Lick branch, and hang | jotice not signed by the sheriff, and not giving the ki yo py ge wig , be required “if ‘t cn apeee po Ses be raga by the —
er ely to doso, not to etermine when it should be-

him until he is dead.” By an act ap- | Gate of the enactment of the law, was not & com- e
ome operative. Others besides the vot-

expose it, and thus prevent injury to otb-

proves aa =e green plat pliance with “ act, - it was ogee for poy talg pai
, Cc. av, -ot., the voters to tell whether or not the notice was : ndou m t .
“the death penalty shall hereafter be in- | official; and, as others besides the voters would exists. It SG eet on oor i cg grr gis, “tall Beit nie therefore 2) shin pr tek cpint
flicted in some inclosure convenient to the | be affected by the result of the election, the power, vital to all co = se of the police | in an official way sh opine that notice
prison, where the defendant is confined, failure to give the proper notice could not be re- this rule that permits the lente ities. It is | county official of the tin be given by &@
in the presence of not exceeding 50 per- ee as a mere irregularity, but was a fatal lation of the sale of egislative regu- | cy would act me when this agen-
efect, invalidating the election. gun a e of liquor, the keeping of | acti , and of the purpose of its
powder in large quantities in a center on. The act shows that a notice in

sons, 10 of whom may be designated by
the court rendering the judgment, and the | Appeal from circuit court, Carroll coun- of population, the sale of addition to th
: , poisono at given by th
or unwholesome provisions, -— orune was contemplated. It seems ria ta

raha be os me ne Pe paeac oF cor % Not to be official ted.” individ legis]
ee shall be charge n son or per- “Not to be officially reported. ndividual right a egislature inte
sons that are permitted to witness such T. M. Barrett was indicted for maintain- likely to aha dk ine pone. go Reig ways | this additional Pee ta et of
execution.” By section 293, Crim. Code, it | ing an unlawful fence. He was acquitted, the property may be pesey eR re pee of | sary condition to any ac orate b e a neces-
is provided that no other warrant or au- | and the commonwealth appeals. Af- but yet the use may be so oro ed agency; that it was not La wah pa
thority to execute a judgment of death is | firmed. to avoid injury to the public aan the be merely directory to him ee “yg to
necessary than a certified copy of such P. W. Hardin and W. J. Hendrick, for owner may be compelled by sate e | given, to be regarded merely ¢ , if not
judgment furnished to the sheriff. And | the Commonwealth. J. A. Donaldson, conform to the legislative sei a to | larity, not affecting the validity irregu-
by section 294 it is _gtbignwe cue nen for appellee. ae act in question dues no aeuen then agency’s action; and that it — the
— be executed by the sheriff on he day 8, and applies equally to all perso n | able, and conducive to fairness and son-

esignated iu the judgment, between sun- Hout, C.J. May 12, 1890, an act was acertain locality. It was, h ms of } to so hold in a case like thi safety,
rise and sunset, by hanging the defendant | passed by the legislature, declaring that islation of an exceptional or owever, leg- | opinion, the non-compli sone. In our
by the neck until heis dead. The precise after the end of that year it should be un- ter; and therefore soubtien — charac- rovisions of the act ane ig bbe
time of day, between sunrise and sunset, lawful to have any kind of wire save that ture not only submitted itt goa legisla- | in tone, requires us re h ag are positive
at which the sheriff shall execute such which is smooth and round in any fence the county for their acce ta e voters of | became effective, and th bor shat 35 seer
judgment, is properly and purposely left | along the public roads of Carroll county. tion, but also directed ethene or rejec- | could be imposed. Jud erefore no penalty
to discretion of that Officer, and no other A penalty was provided for its violation; fixed the time when the eee whet . gment affirmed.

ffective was conditioned be held Seemann
Babes , that the sheriff of the county (92 Ky. 183)

restriction is put by the bi referred to | but sag gprs e . <eret oper
upon the sheriff as to the place than that | upon its approva ya majority 0 e should give publ
execution of such judgment shall be at | voters of the county at the August elec- of it, and its “deisel, This aieetio way | J. v. COMMONWEALTH.
d the time for hold- a case of this character, should cck Boe ourt ppeals of Kentucky. Oct. 27, 1891.)

some place convenient to the prison where | tion, 1890. The act fixe
ing the election, and also provided that strictly followed. It was vital to th HomicipeE—Dyine@ DEcLARATIONS IN Favor OF
e DEFENDANT.

the defendant is reap one aplimet > con- ing the jtot th AsO DO in three wait
venient place may depen upon circum- e sheriff 0 e county should, in re y of the el
stances, of which the trial court mustinex- | consecutive issues of the local newspaper, plication the acces AY g poorenene im- eceet a trial for homicide, the testimon
ercise of a sound discretion determine. | give notice of it, and its object. It also ficial. The act provided chat the ann Of- | the a0 Baal defendant shot deceased just after
There is nothing to show, nor does coun- required the result to be published at ieast should give it. Thismeant that h e sheriff | on a third pre nie an unwarranted assault
sel suggest, the place designated in the twice in the same paper. There were oth- sign it. It could not be k e should | showed, just as ae baer * defendant’s evidence
judgment is not, in meaning of the stat- | er requirements relative to the election, reading the publication that he wa from | ing a pistol on delentact i the act of draw-
ute, convenient. The law does not require but, as they were complied with, it is un- hected with it in any way; e bye con- | tions made by deceased just main aoy Secure:
the court to order the sheriff to erect an necessary to mention them. No notice date was given, as it did A Nope Bia care after the shooting, that he had ty eath, two
inclosure where the execution is to take | signed by the sheriff was ever published. when the law was enacted, it even show es difficulty himself, and that he was pe to
place, nor is it indispensable it should do He caused a substantially correct copy © sible for the voter to know f sige Ba planar daten a ane as dying declarations in
so. Consequently the failure of the court | the act to be published in three successive lication that it was official rom the pub- 8 Tavor.
in this case to make such order or direc- | issues of the newspaper indicated, but his election would be held It reg tes hen the Appeal from circuit court
tion does not invalidate the judgment. | name did not appear in connection with where the time and place f . hold that “To be officially report a county.
The law imposes the duty upon the sheriff | it, nor did the date of the enactment of the cai election for office are y Siow gone Bo Cale Brock was indicted for killi

t is the general rule that want a chael Saylor. He was convicted of «ak

to erect an inclosure at the place indicat- law. The publication was altogether un-
official, so far as shown upon its face. notice by the designated officer does not slaughter, and appeals. Reversed
i ; oO : ;

ft eRe > - aye eipe or nocigres gee Th It, which ble to the affect th D
, which duty, in our opinion, could no e result, which was favorable Oo te validit . I. Lyttl
be made more obligatory by an order of | law, was never published in the newspe 17 S.W.—22 y of the election. In | drick, lor ang ill pains ee a eee

a a

e
pellants allege in their answer that th

: (Ky.
SOUTHWESTERN REPORTER, Vou. 17.

334

ave bond for the
became the purchaser, and g e recert of Wie
purchase moneys onfirmation of it, or other
rded or lodged for | 2516 to the court, no ¢ nay payment of the
wiht eahey. ‘at the time the at. steps taken Dogg . was shown by the
d tha H tgage was urchase money, intiffs could not recover
the mortg ith Pp d. Held, that plainti ‘vg of F
e land, W record. | : d from the heirs of F.
brought, were living on stead, and the possession of te for such FOOTE Oe E,
pe ae wacth as muc aa $1,000. made by plaintiffs’ ances amily ved ou the
¥ 8 ‘ is , iy e 6
The court, not, Seem, tg gale Ofte | Bh a is a ee ae
Tigra’ fo wadinly the mortgage len Or | the es taint
land to 8 11 settled by this ¢ on be
waserror. Itis we family may in hancery court, Harrison
ptor with a ea eal from chan
ooea a more on the land, and mak App

i home- | county. rted.”
hereby acquire a d- | “Not to be officially repo
home of it, and t ding his indebte No
ithstanding
gtead in it, notw

i seoh M. Penn and others
is moving on Action by Josep ee oe dean:
ness was avaied Pee indebtedness was aguinst C. KF haptmaster and other tele:
monty | ae the purchase O e | men

re p
Sotho. ine erection “a, doe mr nortgage te Tr Simon, for appellants. Forman &
Seat ed question ts! right that re- | Cason, for appellees.
defeat e

Bennett, J. The appellants, 98 od,
: i hall be valid unless the | dren and heirs of William :
such exemption 8

ledged f a small tract of
ife, and acknow the possession o
fendant and his wile, manner as cOn- | recover
he same
and recorded in t

from
veyances of ne ene ances of bir bn ours Lemony:
language ™ d wife; an - tiohtmaster . :
the husband an , etc., to | that C. Fightm : William Penn;
sary hat thence oe roan of | ead Hal ae ater te cnverene
i nv icient to | that no ‘ ter’s cre
right, must be eather inter- | was — LS ie ee eouveyanes
rtgage | ors on to them; tha
; and, if the mo it fraudulent as to to the
interest, was A being a party
ient to convey her home- | court, William Penn
onvey the © : the conv
is also inaufficien husband. In the lat- | action, anjecgee os set it t's
ooage ones mortgage, etc., is —_ pr wet de ot the land; that be —
respec M in general, ere i : ke the sale,
the conveyance of rene a the general es- | commissioner Secame the purchaser, an
becanse tne comeient ‘to convey the hus- | William Penn
tate may be sulle

ife:
band’s title, but not that of the wile

th hus- | no paymen of shows.
invalid, for sagt arpOse, Oe tion I, is the | as that record or other pro
oO

the or-

cue ears from the record that ater 7.

marie muni’ “oben tas abe | ea a tae bon, ie on a

vey the homesteas. St., provides that @ ore ad, ye mations axood ia sta a

— that time 1or N ad

tngmti coda ch ra |S GNU iy a

qoastet othe por ety plans ag ‘tenanth of William Penn.

er office. As has Oa to make the deed | gaid place as the tone eee Ee.
ooaety al a inet & married woman, to | There is 2

effectu

temen res-
ed for rec- | ord. The stabet xn made in the p
have the same recorded oF lothe that she | regard, not pe ee parti pag
ord in the proper ~ the same before the | ence of any of Ne deabe.
pete aon eens requisite not wintelyad not comp rat he cout
er O ° was F the a
been complied with, the ror the appel- a mortgage ogy re that he was ae
effectual to pong right. ‘The judgment is $1,200, condeve’ 2% tog” ‘he judgmen
lante homestead ded with directions | the or ro)
roveraed 20 Segoings cousatent with afied.

- %\RNETT v. MINNIX et <p" Po
t al (Court of Appeals of Kentucky. Oct.
. FIGHTMASTER 60 ai. - caster.

Penn et al. v Kentucky. Oct. 27, 1891.) Eszoricext —EVIDENOR. as

: ‘sae x — 1. In terme p it is not necess' :

SaLEes—RIGHTS OF PURCHASER ence ie Same persons nasa

JupI DENCE. to plaintiffs’ an- plaintiff to show such pe! Ota

1. A deed of a a by ne aa of Tne grantor s monweal B coatals plaintift a ase aid
costit was th land was ordered to be sola. 2.

creditors, and the

365 e B., aa
: stor | from his futher, in 1865, to on 5
aintiffs’ unccs~
At the commissioncr’s sule plaintiffs’ a

MOR A eR. WEI emrne>

: € plaintiff pleaded non est fuctu

Ky.) PUCKETT

from B to plaintiff, in 1867, for a valid cons

l the land in dispute. On this branch of
eration. Held, that defendant, claiming under

a deed executed by plaintiff’s father after his
deed to B. and the latter’s deed to plaintiff,

could not defend on the ground that the deed to and that the bond exhibited did not cover '

B. was in fraud of creditors of the grantor w

without consideration, it not having been shown

that plaintiff was a party to the fraud.

Appeal from circuit court, Breathi
county.

“Not to be officially reported.”

Action of ejectment by R. W. Barnett
against C. W. Minnix and others. Judg-

ment for defendants,
Reversed.

J B. Marcum, Ed C. O’Rear, R. Reid
Rogers, and W. J. Hendrick, for appel-
lant. &. W. Riddell and W. W. McGuire,

for appellees.

gards the parties and the offense charged. ‘e
Pryor, J. This was an action of eject-
ment, transferred by consent to equity,

and a judgment for the defendant. Th
appellant (plaintiff below) claims titl

4 i t on ele bee
through his father, George W. Barnett, there is really but one offense charged, of which
under a deed made by him, and recorded, | cipals; and hence the commonwealth nee
to one Elias Bradley, in October, 1865, and | elect on which count it seeks a conviction.
by BradJey to the plaintiff, in November,

1867; the deed lodged for ay ae
month, and recorded on the a une, Ky. § 294, requires the sheriff to execute the sen- ©
1868. It is alleged in the petition that the he = 4 ;

original vendor, George W. Barnett, held rence by banging the prisoner on the day desig
possession of the land continuously and
as hisown for more than 15 years prior
to the sale to Bradley, and this is not de-
nied. The title, therefore, in the plaintiff,

was perfect, unless there is some proof the judgment direct the sheriff to erect an in-

showing asuperior title in the defendants,
or some act that would estop the plaintiff
from recovering the land. It is said in
appellant’s brief the judgment below was
rendered on the idea that no title had
been made out from the commonwealth.
This was not necessary, as both of the
parties claimed to have derived title from
George Barnett; and the deed from Bar-
nett to Bradley is assailed on the grouad
that it was made without any considera-
tion, and for the purpose of defrauding
creditors. This defense will not avail, if
true, because Bradley sold to the plaintiff
in November, 1867, and received a consid-
eration of $1,000. This sale took place be-
fore the alleged sale made by George Bar-
nett to Combs, and there is no pretense
that the plaintiff wasa party to thefraud,
and in fact nothing in the record show-
ing a fraudulent purpose in making the
deed to Bradley is shown. These deeds
were of record, and notice to the defend-
ants of title in the plaintiff. The adverse
possession by Combs, under whom the
appellees claim is not sustained by any
testimony, and in fact the pleadings and
proof show that no stututory bar exist-
ed. The testimony shows that the plain-
tif was in possession in the spring of 1872.
The action was filed in May, 1886, anda
summons issued on June 8, 1886; so, with-
out discussing the sufficiency of the plea of
limitation, it is apparent from the testi-
mony that time had not run against the
recovery. The defendants also relied on
4 bond for title that had been assigned by
te plaintiff to Richard Combs. To this

m, .
esides, and

Plaintiff appeals.

COMMON WEALTH. 835

id-

the case the testimony shows that no
such bond was assigned by the plaintiff,

nd | the land in dispute.

We see no reason for

denying a judgment to the plaintiff. The S

judgment dismissing the petition is re-
versed, and cause remanded, with direc- ‘a
tt | tions to enter a judgment for the plain- ty
tiff, ri
ae

we
PuckETT v. COMMONWEALTR. =
(Court of Appeals of Kentucky. Oct. 27, 1891.) *
MurpveR—INDICTMENT—SENTENCE. i

1. An indictment wherein the grand jury
“accuse W. P., A. P

., and T. P. of the crime of **
murder” fully complies with Crim. Code Ky. § 124, ©
which requires indictments to be certain as re-

2. Though each of two or more persons joint-

ly indicted for murder be charged in one count =
* of the indictment with inflicting the mortal wound,

. and in another count with aiding or abettin a

all may be convicted and punished alike as prin- ct
not @
8. Act Ky. March 80, 1880, provides that the “

death penalty shall be inflicted in some inclos-
ure convenient to the prison; and Crim. Code —

nated in the judgment, between sunrise and sun-
set. Held, that a judgment sentencing a pris- O
over to death need not name the hour on which
the execution is to take place, as this is purpose- a
ly left to the discretion of the sheriff; nor need

William Puckett was jointly indicted
with two others for the murder of Henry ‘3
Hall. Ona separate trial he was convict- <
ed, and he now appeals. Affirmed. =

J. B. White, for appellant. W.J. Hen- (3
drick, for the Commonwealth.

Lewis, J. Appellant, having been joint-
ly with two others indicted for murder
of Henry Hall, was, upon a separate trial,
found guilty, and a judgment was ren-
dered in pursuance of the verdict.

1. The indictment comes fully up to re-
quirement of section 124, Crim. Code.1 It
would be impossible to use language more
direct and certain than is done in the fol-
lowing, as to the parties charged and the
offense charged: “The grand jury of Es-
till county, in the name and by the au-
thority of the commonwealth of Ken-
tucky, accuse William Puckett, Ambrose te
Puckett, and Tobe Puckett of the crime of
murder.” Estill is, in the body uf the in-
dictment, in terms. stated to have been the
county in which the offense was commit-
ted; and the particular circumstances of
the offense charged are stated with equal
directness and certainty.

2. And this brings us to the second ob-

dendqeg **ky foe

*Z6QT ‘S

1Crim. Code Ky. § 124, provides: “The indict-
ment must be direct and certain as regards (1)
the party charged; (2) the offense charged; (8)
the county in which the offense was committed;
(4) the particular circumstances of the offense

that the bond did rot embrace

charged, if they be necessary to constitute a com.
plete offense.”

Sa Ep

atic in-

plained.
anicky;
Cardos’s
e bright
went up
change
) sO No-
hich,
appened
in time.
villages
the uni-
i couple
ive Car-
to their
iser.”

efore in
have a
of hard
Chat old
y’s fool.
her and
er so far
a crim-
‘ed. She
iat Dr,
r medi-
vn. To-

dAawv

ipe
1d slow-
ska no-
ind:that
jumpy.
ta little
Frieska
lly.
threw
‘ed rap-
wearily,
I don’t
afe un-
of the
get the
feeling

| to un-

ist your

devel-
of Nag-

ved. on
t from
seen to
of Susi
\ Lipka
to her
mained

orney
‘ed by
‘olnok
3. Kare
rey |

ne-

tis
ge 69)

\TT

MOU

NTS, Ellison, white, hanged at Pikeville, KY, on February 18_ 1890

a thane. ‘ nc raion a
‘

and acts of this
Hatfield-McCoy
feudist as he

waited for PORTER

the death ; - om eR Mimi activities was abso-

lutely unknown in
those mountains.
Life and property
were, perhaps, as

frap to

° ? secure there as in
spring: any part of the
world—except—

OW does a when some _inci-

feudist face dent, usually trivial,

death on fanned the fires of

the scaf- the age-old feud be-

fold? What tween the Hatfield

clan that resided just
east of the Tug River
in West Virginia and
their adversaries, the

McCoys, on the west
bank in Kentucky.

The outrages that occurred
in these bloody outbursts
were not condoned by the
masses on either side. The im-

mediate members of these two
fighting forces and their relations
and intimate friends supported their
partisans. That was the code of the
mountains; an intense loyalty that, to

are his reactions dur-
ing the last night on
earth when all hope of
rescue by his fighting
clan has vanished? |
know, for I spent a part
of the final hours of life
with Ellison Hatfield in his
death cell and read to him
on the gibbet the next day the
‘warrant of Governer Buckner of
Kentucky for his execution.

i knew many of the men connected
directly and remotely with feud activi-
ties in the mountains of Kentucky and

abt Scene at the hanging of Ellison Hat- Fi Laity f
West Virginia. I had found them law- field. Figure (1) the condemned man; _ this day, obtains in that section of the

abiding and just about the average (2) the minister; (3) the author of this world, and in the period of. which |

i : story. The slit in the film above : viction as deep as their
mountain folk—except when passions Figite. (2) sris made by.a:kenife thrust write, was a convictio p

were aroused by a sporadic outburst of in an attempt on the author’s life Teligious faith.
the feud-flame. There were many dark on the night following the hanging But there was little that those out-
deeds in those fearsome hours, commit- side the immediate clan circle could do,
ted by one side or the other, crimes that even the blood- even if they had been so inclined, when clan hatred flamed
lust and fury of .feud spirit could not condone. Though and the grim riders were abroad in the night. They re-
they may be cowardly in the extreme, I never knew one of ~sented the stain these .activities left on the good name of
these men to display the slightest fear when he had a gun their state, yet the machinery of the law was powerless to
in his hand, even when facing odds that left no doubt in his maintain peace and order. Seldom was there any witness
mind that death was inevitable in a very few minutes. But except.among the participants. If the fight occurred on the
that was when guns were blazing and the zest of combat Kentucky side of the river, the surviving Hatfields imme-
obliterated all other impulses. diately retired to West Virginia. If the McCoys were on
At other times these feudists were the most -raw-abiding West Virginia soil, they came home hurriedly after such an
people. They were, in truth, like all mountaineers, deeply engagement.
religious. There was not a cross-roads hamlet that did not Court action required that witnesses had to be brought
support several churches, primitive buildings to be sure, and from another state, almost invariably, and this was some-
the average family in those mountains attended service.en times an obstacle. If it was a single combat, as did fre-
masse each Sunday. Their ministers in those days were quently occur, one or both of the duellists died. The sur-
seldom paid for their work.- Usually they were mountain vivor, if there was one, could plead self-defense but ‘when
men who worked their small farms six days a week. And _ two men begin to use their guns it is difficult, even with the
they were learned in Biblical lore if they were not of best of intentions, for observers to agree as to which one
scholarly attainments. They preached a real “brimstone- reached. for his weapon. first or who was the aggressor. It
hell-fire” for the sinner, and their people believed as they was this condition that protected the feudists on both sides
were taught. of the line from the legal consequences of their desperate
Crime in the sense of theft and the modern underworld acts—until——

ale —

_— LL. 2
Ltigtive *7 7] AGILE

50 The Master Detective

In the Fall of 1889 I was publishing a small weekly paper
at Catletsburg, Kentucky, where the Big Sandy River
empties its muddy flood into the Ohio. By the Big Sandy
waters, which at that time provided the only highway into
the mountain fastness of Pike County, to Pikeville, the
county seat, it was more than two hundred miles. Small
side-wheel steamers wended their way up and down this
stream in season when the waters were in flood. It took a
matter of two or three days to make the journey.

There had been a particularly savage outbreak of the
feud that year. A band of horsemen, commonly supposed
to be composed of Hatfields and their intimates, had crossed
into Kentucky, surrounded the mountain home of old
Randall McCoy, recognized as the head of the numerous

family of that name, and committed many outrages, so>

brutal as to shock the people of both states.

In the night the McCoy log home was fired. The brave
young daughter, Miss Alaphari, rushed out with a bucket
of milk to throw on the flames. A man stepped from behind
a tree at the edge of the clearing where the cabin nestled,
called to the girl that he would shoot her if she extinguished
the flames and as she ignored his warning, killed ber.

THROUGH a chink in the cabin wall, ‘the father, saw hig:

daughter’s danger and fired at her assailant at the mo-
ment when the murderer’s bullet pierced the girl’s body.
Randall McCoy knew, he told me later, that he had
wounded his daughter’s slayer because he saw the man sway
and drop his rifle as he crawled back under cover.

Then the forest flamed with gun flashes, the hidden men
shooting into the house and the old man and his eighteen-
year-old son returning the shots while a six-year-old grand-
son bravely reloaded the pistols and. rifles.

“And we would have beat ’em off,” the brave old man
told me in describing the unequal conflict, “if-the flames ;

had not driven us out.” a ots
At last they could stand the heat no longer and the three
rushed out, firing as they ran for the cover of the woods.
The grandson and the young man’ dropped, ‘riddled with
bullets, but the elder McCoy reached the darkness beyond
the glow of his burning home. His assailants did not dare
to follow as the brave old man was a dead shot.
He reached the village of Pikeville the next day, attired
only in a bloody night-shirt. His story aroused the authori-
ties to vigorous action. The Hatfields denied that any of
their clan had taken part in the outrage, but a few weeks
later when one of the best-known members of the West
Virginia feudists, Ellison Mounts Hatfield, was taken after
a desperate gun fight, the red scar of Randall McCoy’s
bullet, fired at the slayer of his daughter that dreadful night,
was precisely where the father said it would be—in his arm
or shoulder. The missile bad ripped up the arm and cut
through the elbow. ,
Excitement at this stage reached heights never before
known in the annals of the feud. First: this was the only
occasion where a woman had been a victim of the internecine
strife; and second: the Hatfields always claimed that the
member of their clan arrested Itad been taken on the West
Virginia side of the river without the ceremony’of a war-
rant, and removed to Kentucky without any form’ of
requisition being sought. ne gids:
But the important fact was, that the man identified as the
night-rider who had slain Miss McCoy was in jail at Pike-
ville. Out of the conflicting reports, it was difficult to de-
termine which story was true, but nothing mattered to the

infuriated Kentuckians except that the alleged murderer of .-

a-woman was in custody.

After a fair trial, conviction and. the death sentence fol-

lowed. The circumstances surrounding the, shocking affair —

were later blazed forth in literature by the. late John Fox,
Junior, in his thrilling mountain: story, The Trail of the

Lonesome Pine. .Of course the Tollivers and their foes who »

made up the bloody chapters of the: Lonesome Pine’s dark
trail were fictitious names applied to real ‘personalities of the

different feud forces in eastern Kentucky and West Virginia.

I knew the author well and he later sent me some of the
proofs of his interesting book before publication; and we
had much correspondence concerning different phases of
this picture of mountain life in that section.

It was at the stage when the feudist’s execution was ap-
proaching that-the then managing editor of the Cincinnati
Enquirer, and Chester A. Lord, of Dana’s old New York
Sun, commissioned me to go up the river to Pikeville and
write a story of the final scenes in the life of Ellison Hatfield.

Earlier in my newspaper experience at Wichita, Kansas,
and in what was then the Indian territory, now Oklahoma,
I had seenegunmen die on the scaffold with a smile or a
sneer, indifferent and unafraid. But here was a different
type. Those killers of the Southwest were not of the kind,
as a rule, that hunted in packs. Usually they killed or were
killed in single combat with others of their type or by
Deputy United States Marshals.

But here I was to see a man hanged by the neck for the
foulest of crimes—a man who had fought not for any indi-

- vidual like or dislike but with his clan and for his clan.

So I approached the jail in Pikeville the day before the
date of the execution with more than the usual reportorial
curiosity. Already the village was filling up with mountain
folk; for not-only was this the first time a feudist had ever
been legally executed, but he was to be hanged in public.

A gorge a mile from the village had been selected and a
box-like scaffold erected. The sides of the mountains were
like tiers of opera seats, so that everyone would have a
good view:of the doomed man as he dropped through the
trap to oblivion. Only the lower part of the gibbet was

concealed. This complied with the law, it was claimed, in .

that the hanging of the criminal could not be witnessed. To

that extent the execution was to be in private.

AS I approached the primitive jail that morning, guards
+ with rifles were everywhere. It had been rumored from
the day of the murderer’s arrest that friends from east of
the river would rescue him, so the authorities were deter-
mined: not to be taken by surprise. I was told that the
prisoner appeared to expect something of this nature until

the last few days before he met his doom.

When I was permitted ‘to go into the death cell that after-

“noon I saw a tall goung mountaineer of rather pleasing

appearance. He talked quite frankly. His manner was
that. of a man absolutely resigned to his fate. The only
evidence of fear I saw exhibited that day and night was
when the old backwoods preacher was present and Hatfield
asked him: “Will it hurt much when I drop? Will it hurt
worse than being shot up?”

But the murderer was a human document in spite of the
guilt which he did not deny. He told me he had never
stood up in a schoolroom. He had always lived in “them
mountains,” never having been farther away than the ad-
joining county. There were but few words at his command
and he misused even those. He had been to church, but
frankly said he did not think he understood what it was
all about. His manner was that of a man bewildered. The
preacher, he said, had told him he would not go to hell if
he honestly repented his sins. .

He said that he was sorry, and | believe that was the
extent of the reactions in his uncultivated mind about the
vague meaning of repentance. But all the time, during the

~several hours I was in his cell, Ellison Mounts Hatfield’s

manner was that of a caged animal. He walked back and
forth in the narrow cell constantly. If he sat down it was
for but a moment and then he resumed his restless walk.

-He ate little during the night and repeatedly asked . the
time of those of us who stayed in the large room adjoining.
He had been told he would die “just after sunrise.” Again
and again. observed the criminal glancing at the barred
window wistfully.” It gave an Eastern view and through it

— he could see the dim outlines of the mountains over in West

Virginia, where he had spent his life and where he knew

geet: 1
: ee
\

memb
}
}
eri 11
knew
of ar
neces:
effort
Ou
a pin
On t!
Othe
few «
priso
mou!
Ha
proce
time.
suffic
the |
our
surré
and

°$¢6] Was There’. 51

members of his clan lurked, ready to extend help if they
saw the slightest chance to do so.

Just when the suggestion of a flush illuminated the east-
ern horizon the sheriff came in. “Well, Hatfield!” We all
knew what that meant. He was not shackled. With scores
of armed men surrounding him this precaution was un-
necessary. Every one understood that at the first organized
effort at rescue, the murderer would be shot.

Outside was a wagon drawn by two mules. It contained
a pine box that was to be Hatfield’s coffin in a few minutes.
On this the prisoner sat with two or three of’ the officers.
Others of the escort walked on each side. There were but
few of the curious around to see the murderer leave the
prison for the last time. They were all assembled in the
mountain pocket at the edge of the town. |

Hatfield glanced around him curiously as the procession
proceeded down the middle of the village street. By the
time. we had reached the broken country the gray dawn was
sufficient to outline figures and objects. As we passed over
the brow of the hill, the place of execution broke grimly on
our vision. It was a drab scene. The ugly gibbet was
surrounded on three sides by a dense mass of men, women
and some children.

N the condemned man’s face there was displayed much

interest in the surroundings. He looked a long min-
ute at the scaffold, then slowly inspected ‘the crowd. The
spectators were on three sides of the death scene. The fourth
side was toward the West Virginia mountains. The rea-
son that particular side was shunned by
because there was good reason to believe that riflemen
were concealed just beyond the river in those trees and
might open fire across the stream before the execution was
completed. So there was a possibility that if any of the
daring feudists did cross to give battle, that side of the
grounds would be swept by gun fire.

As the prisoner and the preacher were mounting the
gibbet in advance, closely followed by the sheriff, an alter-
cation broke out on the steps of the death machine. A
young clansman who was not among the “guests” invited
to the scaffold attempted to walk up. The sheriff stopped
him. The mountaineer shouted: “This man killed my
daddy; I’m going to watch him drop through that hole.
1 want to see him squirm.” The intruder grappled with
the sheriff. Guards rushed up. A desperate struggle en-
sued while the condemned man looked on with evident
interest. I glanced at him and believe from the way his
face lit up that he was thinking this disturbance was the
beginning of a plan to rescue him. The protesting clansman
was a powerful fellow and it took all the guards that could
get hold of him to drag him away. Then the sheriff was
found to have been injured. He could not mount the
scaffold, so he passed the death warrant to a deputy.

When I climbed to the scaffold platform, a hurried con-
sultation was under way as to who would read the docu-
ment to the doomed man. The law provided, apparently,
that this ceremony take place after the condemned was on
the gibbet. It was a tense moment. The prisoner had the
death cap on his head, a black velvet toque made for the
occasion, that would be rolled down to conceal his face at
the final moment. ”

Hatfield sat down but still displayed a lively interest in
the crowd. The tall preacher began to recite the prayers
for the dying. The prisoner did not rise. Everyone else
was standing but Hatfield sat, quite composed, glancing
restlessly over the crowd and again looking longingly
toward the mountains where his friends would have to
appear at that moment if they were ever to help him.

For half an hour, which seemed an age, the devout old
minister prayed. The deputy edged over toward me, thrust
an envelope in my hands and whispered: “When he stops
praying you read this death warrant.”

I had no chance to refuse. I was appalled at such a
prospect, but even then | did not grasp the real significance

-They would not soon forget.

e crowd was .

of the gesture. Mountain men do not forget easily. They
would remember the man who read that warrant of death!
Living two hundred miles
away, outside the feud country, | would not be easily
accessible to their vengeance. The horror of the whole
sordid drama gripped me. :

‘I don’t believe I- knew when the minister stopped praying
but I saw him sit down. I was still silent.

“Now then, you go on, read it!” | heard the grim words
as if in a dream. I glanced at the prisoner. He was look-
ing curiously at me as was every other person on the plat-
form. I began to mumble,the words of the dread order.
I was infuriated but incapable of action. I had the strong
urge, almost overwhelming impulse, to throw the document
to the floog and run. But I did neither. It was the most
agonizing incident of my entire newspaper career. How my
senses were paralyzed can be imagined from the fact that
when I climbed down from that place of execution, |
carried the death writ in my hand. It was an hour later
before I realized I had the hideous document still tight in
my grasp.

As the official symbol of the execution it should have
been returned to the sheriff, but I dropped it as a thing ac-
cursed and saw it trampled in the mud under the feet of
the crowd. What a relief to be rid of it!

While I was reading the warrant, the guard was placing
the manacles on the prisoner’s feet and hands. I was con-
scious of his eyes on me up to the very moment when the
black skull cap was unrolled. He was: lifted over on the
trap. The noose was adjusted. From beneath the folds of
the head covering came words, The prisoner was saying
something, or at least trying to. Probably it was to pro-
test about the tightness of the rope. But through all the
frightful experience on the gibbet and the parade to the
place of execution, there was not the tremor of a muscle
or the flutter of an eye-lid to indicate that Ellison Hatfield
was afraid of death.

THE guards stepped from the trap. It was too late for
the Hatfield clan to save the murderer now. If an
ambush had been sprung at that stage the body of the tall

- slayer would have dropped through the trap at the first

shot. But nothing happened. Slowly the preacher began
to pray. “Our Father Who art in Heaven.” The nerves
of the deputy in charge had reached their limit. Usually
the condemned man is not dropped through the trap until
the last of the prayer is reached. But Hatfield was sent to
his doom before that.

A curious sequel to the execution is presented by the tear
in the scaffold picture which obliterated the features of the
tall preacher.

] was warned after | had read the death warrant to Hat-
field that his friends would never forget nor would they
ever forgive my action, especially since I was not an officer
and it was no part of my duty to perform that service. To
them it would be accepted as a gratuitous insult. I did not
think of the incident much in the excitement, but the next
night I was on the crowded little river side-wheeler going
back to Catletsburg. This picture on page 49 in which the
slit appears was in my inside coat pocket with other papers,
forming a thick packet. Passing a dark spot on the upper

_ deck the figure of a man brushed past me and | felt a blow

just over my right side. It staggered me but | did not fall.
The figure passed on into the darkness. I thought at the
time he had merely fallen against me with the swing of the
little craft. Not until the next day did I observe that
my coat was cut by a large knife. The thrust had been so
vicious that it penetrated my heavy coat and pierced deep
into the packet, cutting through the picture of the hanging.
Had it not protected my vitals it would have been my jour-
ney’s end. I have often wondered if that was the ven-
geance of the Hatfields. If so, I never knowingly suffered
further for my indiscretion in reading the death warrant of
the only Hatfield-McCoy feudist ever legally executed.

Sas a ames en eh anee ant Rt,
° 28 eas iy ; pot «a egies te alk Bitlet act th, Bik on mn even eS : yt :
MURPHY, Filip Taylor, white, hanged Campbellsville, Kentucky, October 10, 1852.
git “iy Same ay nee RS SEP
is HISTORY OF FAYLOR COUNTY. o.
elt omen eve nee
ded by J. Gaddie in August 1886, who seryed yow lives, and was the only le-
1 Parana ei years, and ve oot R. fu hoe gal hanging ever in Taylor
1 an ers was again elected, and serve is : : ae ;
odiawngnold until 1895, when John 8. Wright, our Conn _ Itw as written by John
alasted’ ta present Coroner, was installed in the H. Carroll, Jailer of the county.
and qual- office of Coroner of Taylor county.. We publish the full aeeount of
: of that of- ontare Jitiwus. the trial, hanging and confes-
: Deni H: Caceitheran theticme Jailer OM which will be of interest
of Taylor county. “e was appointed to many of our readers

iwards was in March 1848, and ‘afterward in May HIS is the life and death of
for Taylor 1851 was elected and served until 1854, Phillip Taylor Murphy: Now,
eer of. when John Sourling was elected. Whatever may be the opinion of
| P. Raffetv Spurling was re-elected in 1858, and the world, with regard to the duty of a
The next was succeeded by Al Matthews, who criminal in making a confession to the
who was was elected in 1862, and resigned in public, T now do say, in the presence
was suc- July 1864, and in August of the same o¢ the Jailer and others, that what. |
._ who was year L. MeClelland waselected but re- ai aceused with is the truth. This |
i the rec- fused to qualify, and N.L. Price was confess to on this day, it being the Yth
tate in No- appointed and served until December gay of September, ISd1. for | did) do
a ok of the same year when he resigned. the most awful deed of killing and
ited to fill and in February 1865, George W. Je- burning my poor wife ina logheap. |
in August ter was appointed and served until jow will tell you all something about
yeers In March of the same year, when he re- ny birth. J was born in’ the eounty
mM was signed. ‘The office of Jailer seems to of Green, in the year 1829, on August
um ved have been vacant fromthe last named the 24th, which will make me tweuty-
. resigned. date uutil August 1866, when Joe B. two years of age the 24th of August,
-beter was Murrell was elected. He was suceeed- 1951. In my sixteenth year I married
ed by Wil- ed by John H. Carroll, who was eleet- a Miss Franees Underwood, and we
«lected in ed in August 1868, and re-elected in’ jived together until she was the moth-
‘eusion was August 1870, and died in November of er of five children, but we lived very
ted’ in Au- the nares Feet and Arehie Madva was disagreeably. Now, when we were
‘ceeded by appointed to fill the unexpired term. first married, we lived in) the house
nted in Oc- T. A. Crouch was elected in 1873, was with my father, but my. wife and J
ind served re-elected in 1874, and a ain re-elected could vot agree. so We eoneluded to
‘A. H. in 1878, and served until 1882, when part, this being ina short time after
T. Mar- Al Matthews was again elected. Mat- we were married. Now we. stayed
elected in thews was elected in 1#86, and agvin apart some months, and being separa-
uary 1877, re-elected in 1890, and was succeeded ted from each other that long, we eon-
&. Sanders by J. T. Newton who was elected in eluded to live with each other gain,
onexpired November 2894, and re-elected in No- so we went to housekeeping, but did
elected jin vember 1898, and isour present Jailer. not stay long before we parted again.
in Novem- é ‘ ‘ but before we parted this time I went
¥. 0. Rob- The following is the life, con- and built me a house on Brush Creek.
‘he vacan- fession trial, and hanging of about one mile from her father’s, for
itt Angnst Phillip Taylor Murphy, who before I moved down on Brush Creek
lected and was hanged in Campbellsville I lived there some short time,
. time ap- ‘ -, [| then moved to my house that I
nd R. PD. Ae Friday, October 10, 1852. did build, but my wife and I did not
aspeople’s This was on the Lebanon pike, live together long before we parted

by J. fF

ROL Se IIE 0 NE 8 9

near where Mr. H. 8S. Robinson

again. But it seemed that we eould

“2 REDNESS TEST Segara eS.

82 » HISTORY OF CHRISTIAN COUNTY.

the country piome of his known followers, the county was troubled no
more with the species of lawlessness that had for years prevailed to a
greater or lesser extent. Counterfeit money passed out of circulation,
likely young negroes ceased to disappear with systematic regularity, horses
were seldom stolen and society generally changed for the better. This
was not wholly due to the Regulators, but no one can deny that they con-
tributed their mite toward it, and, together with the law, accomplished
the grand result. There are a great many persons who still believe that
Pennington and his gang had conceived the bold project of robbing the
bank in Hopkinsville, and of murdering Mr. Rowland, the Cashier.
Others scout the idea, and believe it to have originated through the fears
and timidity of some of the more weak-kneed citizens. There is a tradi-
tion that some one to whom the Regulators administered a liberal dose of
“hickory oil’ had ‘confessed’ that there was a move on foot to rob the
bank ; how it was to be accomplished, and when, and where some of the
tools with which the deed was to be performed might be found. The tradi-
tion goes on tosay, that.search was made, and the implements found accord-
ing to the man’s story. The skeptical, however, deny the whole matter,
and say the man’s confession was made merely to save his back from fur-
ther torture.

Morton Pennington, who escaped from the county when the “hue and
cry ’’ was raised against Alonzo, returned some years after the latter's exe-
cution. The Regulators told him he might visit his father’s family, and
stay for a reasonable length of time, but he would not be permitted to
remain permanently. But he loitered around the neighborhood, princi-
pally at the house of Alonzo’s widow, until ut last she went to the Reg-
ulators and requested them to drive him from the country, asshe did not
want his influence upon her children. They arrested him and tried him
according to their rules and regulations, sentenced him to be whipped,
executed the sentence, and ordered him to leave the country and never
return, an order he promptly obeyed.—Perrin.

HISTORY OF CHRISTIAN COUNTY. dod
eo

CHAPTER IV.

x EARLY COURT AND BAR—NINIAN EpWARDS—REZIN DAVIDGE—WILL-
1AM B. BLACKBURN—J UDGES WALLACE AND SHACKELFORD—CHARLES 8§.
MORESEAD—JOSEPH B. CROCKETT—J AMES BREATHITT—FIDELIO SHARP
—DANIEL §8. Hays—Epwarp RumMsEY—THE PATTONS—ROBERT COLE-
MAN—THE Henrys—McLARNING, GREY, Ewi1ne, DozieR AND OTHERS
—PoLiTICAL HistoRY—* WILD CAT” BANKS AND WORTHLESS MONEY—
“ RELIEF” AND “ANTI-RELIEF”—ExcitiIneg TImES—DANIEL MaykEs—
Younc EWING—ORGANIZING PARTIES—WHIGS AND DEMOCRATS—THE
REPUBLICAN PARTY—CouNTY PATRONAGE—WINSTON J. DAVIE—BEN-
JAMIN H. BRISTOW—SENATORS AND REPRESENTATIVES—GEN,. JOHN M.
PALMER-—-JOSEPH DUNCAN—JEFFERSON DAVIS, ETC., ETC.

AS the time of the organization of the county there were no resident
lawyers here. The legal machinery had all been put in working
order and fully set in motion, before even the legal “circuit riders” came
to gladden the hearts of the people with their plug hats and sfore clothes.
But courts were a necessary evil, justice had to be administered, quarrels
adjudicated, rows settled, men punished for swearing “ by God” (as the
quaint old records have it), and many other little things that could only
be performed by this august body, and the judiciary, therefore, was an
early institution. The first branch of the court organized was the Coun-
ty Court, held by the Justices‘of the Peace, instead of bya County Judge
as tow. As noted in a preceding chapter, the first term was held in
March, 1797, and we have no record of any other than this county, or
Justices of the Peace’s Coyrt-until in February, 1801, when was organ-
ized the Court of Quarter Sessions. It was held by Hon. Samuel Hardin
and Adam Lynn, Justices presiding. Two years later, by legislative en-
actment, 2 Circuit Court was formed which superseded the Court of
Quarter Sessions, and March 28, 1808, the first Circuit Court convened
in Christian County, Samue! Hardin and James Wilson presiding Justices
present. At this term of the court, Samuel Caldwell, Rezin Davidge,
James H. McLaughlan, Matthew Lodge, John A. Cape, Robert Coleman
and James H. Russell,* appear as attorneys, and Rezin Davidge is ap-
pointed attorney for the commonwealth. At the second term of the Cir-
cuit Court which was held in June, 1803, the Hon. Ninian Edwards was
present as Judge. and Samuel Hardin and James Wilson, Assistant
Jadges.

ye os . P a >
Ninian Edwards.—The eminent character of this gentleman requires

tee

* The larger number of these attorneys were from abroad.
Ss

80 HISTORY OF CHRISTIAN COUNTY.

after the murder of Davis, and his return in the hands of the law officers
was a great surprise to the people, who never expected to hear of him
again. When the news came that the Bowlands had him at a point on
the Cumberland River and wanted a guard to escort him to Hopkins-
ville, nearly every man in the county volunteered for the service. It
was the intention to re-organize the Regulators, and, after escorting Lonz
to Hopkinsville, take him to the place where Davis was killed and hang
him. This plan did not meet with general approval, however, and the
law was given full scope. I was attending court at Cadiz when they
passed through, and everybody made a rush to see the prisoner. The
escort stopped, and as I was standing on the court house steps, Penning-
ton beckoned me to him. I responded, and he asked me to defend him,
and I accepted the offer and told him I would call at the jail to see him
when I reached home. When I got home, his wife was waiting for me,
and I started with her to the jail. The greatest excitement prevailed,
and the town was full of armed men who were really anxious for an oppor-
tunity to take Pennington out and hang him, but their wrath was divided
against me for offering to defend him. They had boldly announced that
no lawyer should take his case, but that the testimony should be given in
brief, so the jury could return a verdict in order that the form of law
might be carried out. As I walked down the street with Pennington’s
wife, who was a lady above reproach and knew nothing of her husband’s
free-booting proclivities, I was halted on every side and warned to keep
out of the case. I paid no attention to the warning, but proceeded to
the jail, where I found an excited crowd, who boldly informed me that if
I had anything to do with Pennington’s defense, they would take both of
us out and hang us. My family and relatives were frightened, and be-
seeched me to keep out of it, but I felt that I could not stand to be ter-
rorized in that way, and turned my attention to the mad crowd. [ told
them that any criminal was entitled to a trial, and if Pennington did not
employ counsel, the court would appoint some one to defend him, and
that I was not going to ask the public for permission to defend a man in
a court of justice. I saw in a few moments that I had adopted the only
plan to sustain myself, and in a short time Uncle Jimmy Robinson, who
had made the first move in all this work, came to: me and said: “I
reckon we are wrong; it is best to let the law take its course, but we
can’t have any acquittal or hung jury in this case. If the evidence is not
strong enough for a jury, the Regulators will administer justice.’ After 4
great deal of persuasion he got the men to consent, and I went into the
jail and had a conference with Pennington. [ told him to tell me the

truth, andI believe he did in many points, but when he would get to the
ye yolk. Ml aattanah Devia. Treached the con-

HISTORY OF CHRISTIAN COUNTY. Bt

clusion that he made Cessna or Sheffield do the killing and hiding, and
that he took the money and gave them some of it. I demanded a con-
tinuance of a few days when the case was called, which aroused the
people again, and I was accused of trying to give Pennington a chance to
escape. I was warned that I need not expect any support in my next
race for the Legislature, but I told them that I owed a duty to my client,
and was going to perform it. Of course there was no defense to be made,
and the jury were not long in deciding to inflict the death penalty, and
in May, 1846, Edward Alonzo Pennington, the successor of the robber
chief, John A. Murrell, was hanged before the largest gathering of people
ever seen in Southwestern Kentucky. Cessna had made his escape be-
fore the arrest of Pennington, and a great many men left that section of
country quietly but permanently.

The Regulators.—lIt is still believed by many people of the county,
that Cessna was taken from the jail by the Regulators and hanged. But
from all information collected concerning the affair, it does not seem at
all probable that he was. From the nature of his escape, he was no
doubt assisted from without by friends. This, however, has been con-
strued into arguments to show that it was the work of the Regulators ;
that they purposely left such signs to divert suspicion from them, and
make it appear that his friends had assisted him to escape. The truth,
pure and unadulterated, may never be known, but there seems really no
just grounds to charge his execution to the Regulators. The man Shef-

field, though held for several days, was not imprisoned, nor was he whipped,
but was finally liberated on condition that he Jeave the State and never
return. He was glad to escape and the county was troubled with him no
more. The Regulators, thotigh not a lawful organization, did the county
good, and succeeded in doing what the law had failed to accomplish—the
breaking up of a desperate band of outlaws, and banishing them from the
country. They submitted to the depredations of the gang until “‘ forbear-
ance had ceased to be a virtue,” and the law had failed to protect them;
Rea : into their own hands and protected themselves. Mob
ing Giecs 2 Reece and it is condemned by all good law-abid-
"heli : ut t ere are cases where it may be exercised with beneficial
sed: ras reat rack The Regulators of Christian County, who com-

# panish ee t nnd best citizens, did nothing rashly, nor did they
head CI cat ie out a trial ; though it may have been but a drum-
Sabon ial. Sometimes they whipped a man, but that was as a
if they fa Rare characters were warned to leave the country, and
ithey had to oe when sufficient evidence was accumulated against them,

mit to their fate.

After
the execution of Alonzo Pennington, and the expulsion from

\
AZ SihChte yaad Met Sees
' HO pre ? ANG, pt TEE TE Gade exalt, 77 ACs & 4, “
APPaaLS
3 LAST WOROS- >
EXECUTION
aca fer aeg Pe Pome iteny caret )
owl SOURCE
4 cute, Gs aaa Sd (fae 1s
4 \
: | BY gs) eae (+|
fag ested
rena si aniaeY me > Box de Sie _—, ef i

PHILLIPS, Henry, black, Why elec. KY SP (Jefterson)* "7226-19104 ou

: MOTIVE

a te < 7 c : ai

‘ ~
> BS
. pt ‘
: . ” .
-
3 -

NAME eatin re - SP OR COUNTY

Bo Rip Oo.

OOE & MEANS

age ena

heads,

GEN

DOB OR AGE RACE 7a ccuPATION

x Yas [040

Mancha | SUSI

~ 4e | BL Shaserbaian

SYNOPSIS

Y Ken- ©
rele)

¢ of

‘member Thursc

“a new
when

0 0 WEE. ER a D @ Cw «hee 2 SF - NW eS

“Ge

sHeieall

pote

Calis like this one hotise condemned inmates in the Jast days before an execution.

way influences behavior — that might be
relevant to a jury deciding whether that
person lives or dies.”
“ Monahan and Lewis decided to ex-
the brain-injury possibility late in

5) alee

— should have
ae Monahan say fies,
~~ “T think if I were Gall,” he says,

EE RSG i RS etcetera ui en pt a

encourages delay, but rewards it?
“Everybody. knows that, for the de-

: fense, the name of the game is delay,”

says Assistant Attorney General Smith.
In that regard, Gall is no different
from. anyone else on death row. All
death-row cases move at a glacial pace.
Stephens, the chief justice of Ken-

$ tri-:tucky’s Supreme Court, explains why:

‘!“The Supreme Court of the United
States has said, ‘Death is different.’ We
are mandated to follow that admonition,
It simply means that because of the

ences — the taking of a

possit
person’s life — it has to be done very —
carefu

CORES ae CCR E NF er eee Coase : i

nitude usually mean a headline-grabbing
reversal by the state Supreme Court.
Such reversals tend to convince folks
that the justices are eager to embrace
and countenance killers.

“Basically, the public does not under-
stand what we do, or why we do it,”
Stephens says. “They read a story: ‘Su-
preme Court Reverses Conviction of Par-
ramore Lee Sanborn.’ Well, they think
we're a bunch of wide-eyed, knee-jerk
liberals and that we’re adding to the
crime rate. I understand that.... But
when you sit-here, you have to do your
job.”

Sanborn was found guilty of stabbing
to death 43-year-old Barbara Heilman, a
former Miss Henry County, in 1983. But
the Kentucky Supreme Court voted 6-1
to overturn the conviction. (The lone
dissenter was Justice Donald Winter-
sheimer, the justice elected from the
area that includes Henry County.)

The court voted to overturn the case
not because the defendant was innocent
but because the justices found so many.
substantive errors by the judge and the
prosecutor.

In. his 1991 retrial, although Sanborn
was again convicted and sentenced to
death, he essentially remained a resident
of death row, as before.

Such retrials are rare. Since Ken-
tucky’s new death-penalty statute took
hold, there have been 14 reversals in
state court and one in federal court.
Only two of those cases generated a
retrial that ended with a death sentence.
(The. other case involved Brian
Moore, who murdered an ice-cream par-
lor owner in.1979.) a
- Usually the defendant pleads guil

’ and accepts a. life sentence.

Continued on Page 8

ERE
“ONCE WE HAVE
THAT FIRST OR
SECOND EXECUTION,
WE'RE GOING

TO SEE A LOT MORE
WITHIN THE NEXT
COUPLE OF YEARS.’

of a gas station. ’

was aiso sodomized.

Clawvern Jacobs, 44

The time: 2 years, 6 moriths

The crime: September 1986 abduction, at-
tempted rape and slaying (by rocks to the head)
of 18-year-old Judy Howard, a student at Alice
Lloyd College in Pippa Passes.

Hugh Marlowe, 30

The time: 9 years, 7 months

The crime: November 1981 shooting and
bludgeoning of 78-year-old Henry Hamblin of
Dartmont, in Harlan County, during a robbery.

David Matthews, 43

The time: 9 years, 4 months

The crime: June 29, 1981, shooting deaths of
his estranged wife, Mary Marlene, and her moth-
er, Magdalene Cruse, in Louisville.

Harold McQueen, 39

The time: 10 years, 11 months

The crime: Shooting death of 22-year-old
Rebecca O’Hearn, a convenience-store clerk in
Richmond on Jan. 17, 1980.

Brian Moore, 34
The time: 11 years, 11 months

The crime: August 1979 kidnapping, robbery
and fatal shooting of 77-year-old Virgil Harris.
owner of a Louisville ice-cream parlor.

Parramore Sanborn, 46,
The time: 8 years

The crime: 1983 stabbing death of Barbara
Heilman, a former Miss Henry County.

David Sanders, 31

The time: 4 years, 9 months

The crime: January 1987 slaying of Madison
County store owner Jim Brandenburg and cus-
tomer “Bud” Hatch during a robbery.

Beoria Simmons, 37

The time: 7 years
The crime: 1981-83 rape-murders. of .Robin
Barnes, 15, Shannon, House, 29,. and Nancy
Battman, 39, whose bodies were dumped in
Louisville's Iroquois. Park. 3 ;

David Skaggs, 41

The time: 9 years, 9 months 4

The crime: Fatal shooting of an elderly cou-
ple, Herman and Mae Matthews, during the
robbery of their Glasgow home on May 6, 1981.

* James Slaughter, 35

The time: 4 years, 4 months

The crime: Stabbing death of store owner
Esther H. Stewart, 56, during a 1983 robbery in
Louisville.

David Smith, 43

The time: 8 years, 9 months

The crime: 1980 murder of his girlfriend, 18-
year-old. Rebecca Church; her 18-month-old
daughter, Amanda; his girlfriend’s sister Betty
Maynard and mother, Mary Thompson, in Pike
County.

Robert Smith, 35

The time: 1 year, 2 months

The crime: Setting a Paducah house fire that
killed 28-year-old Pam Wren in July. 1986,

Kevin Stanford, 28

The time: 9 years, 6 months

The crime: January 1981 rape, sddomy and
murder of Baerbel Poore, 20, during the robbery

Victor Taylor, 31 OP
The time: 5 years, 10 months K
a4 crime: September 1984 murder Gf two

~year-old Trinity School nts, Scott
Nelson and Richard St 5 ond of whom
; . Continued on Page 8
** Saturday, Feb. 29, 1992 / SCENE Page 7

-
Smee oe cea

A DEATH SENTENCE

ISN’T REALLY THE END.

IT’S ONLY THE BEGINNING.

Ti NE BY C. RAY HALL, starr writer

Five days ago the U.S. Supreme Court
refused to hear an appeal from Victor
Dewayne Taylor, convicted of brutally
killing two 17-year-old Trinity High
School students in 1984.

Struck by the sober finality of the
words “Supreme Court,” casual observ-

_ers might have presumed that was the

end of things for this particular convict-
ed murderer.

Actually, it was the end of only one

ing: the beginning.

It has been 30 years, almost to the
day, since the state of Kentucky execut-
ed anyone. And no one expects it to start
soon, or with Taylor.

In 198] the U.S. Supreme Court simi-
larly refused to hear an appeal from
Eugene Gall, who had kidnapped a 12-
year-old Cincinnati girl, raped and mur-
dered her in Kentucky, then shot a state

trooper,

At the. time, then-Kentucky Supreme
Court Justice
that Gall’s ex

At ens a He pers at
Eddyville, the long-idle e ic.
had been overhauled and was ready.
ca eee Tees nee nk wae. 06 the
same stage court process as
Victor Taylor is now — one-third of the
way a nine-round battle.

In 1986 Gall seemed to edge closer to
the electric chair. A spokesman for Ken-

Goy. Martha Layne Collins said,
“The, governor feels like this case has

3.” She signed a death warrant

fearsome finality. did not so reso-
nate for Gall’s public defenders, Ed
Monahan. and Ernie Lewis. The lawyers
knew their client still had many options
in the courts. 1a

Neither did the words so resonate for

Aug. 8,” he said, “nor am I pushing for

one.” Lewis suggested that Armstrong
was playing the death-penalty issue in a
bid to look tough on crime during his
expected bid for lieutenant governor. .

The point is not whether Armstrong,
or anybody else, used the death penalty
to score political points.’ De: ing

on the death penalty goes on from all
sides, and gamesmanship-is practiced at
every level of the justice system. The
point, ultimately, is that no one in the
system expected the death warrant to be
carried out.

It was a hollow threat, a procedural
prod.

Small wonder that Ernest Jasmin, the
commonwealth’s attorney who prosecut-

- ed Victor Taylor six years ago, ponders

whether Taylor will ever be executed
and ‘says: “I wouldn’t take it to the
bank.”

- Of defendants in death-penalty cases,
, Jpé says, with frustration evident in his
call“ “Woice: “They just get so many bites at
the apple. ... You get whipped up at the ~

Supreme Court. You come back down,
and you look for another issue to take
up. And it goes back up again.”

Robert Stephens, chief justice of Ken-
tucky’s Supreme Court, explains why
defense attorneys are bound to try to get
as many bites at the apple as they can:

“They raise. — as they should, being .

good lawyers — every possible defense,

every possible thing that might even
remotely be wrong.
Continued on Page 6

The switches,
facing page, that
send current:
through Ken-
tucky’s electric
chair were last
tripped for real in
1962. The voltage
meter, above,
measures the cur-
rent flowing
through the con-
demned.

STAFF PHOTOS
BY GARY S. CHAPMAN

THE NINE LIVES OF A DEATH
ROW INMATE IN KENTUCKY

STE ye The defendant is tried before a circuit judge.

(Small Kentucky counties share a circuit judge
with other counties. Large counties have several such judges: Jefferson has 16,
Fayette’ six.) Often this trial is held a year or more after the crime. It simply takes
longer to prepare for a capital cose. Prosecutors must find ways to prove
“aggravating factors” that allow them to ask for the death penalty. Defense
lawyers look for “mitigating factors” that explain their client’s behavior; such
factors, including the defendant’s mental state ot the time of the crime, are used
fo argue against conviction, and against a death sentence. “Aggravating fac-
tors” are few and are prescribed by law. Practically anything that weighs in
favor of empathy for the defendant — including events from childhood — can
be considered a “mitigating factor.”

STE sd] 2 Direct appeal to the Kentucky Supreme Court.
After the initial verdict, it often takes three

years for cases to reach the state Supreme Court (which consists of seven jus-
tices, chosen in regional public elections). That’s quicker than it used to be,
when there was an intervening appeal to the state Court of Appeals. Now, cap-
ital-case appeals go directly to the state Supreme Court. Much of the delay has
been charged to the time spent in preparing trial transcripts, which can take a
year fo type. (For example, the case resulting from the 1984 murder of two
Trinity High School students produced a 14,000-page transcript.) Lately

Kentucky courts have been videotaping, rather than typing, transcripts of capital
cases. The jury is out on whether that’s really a time-saver.

STE pp So-called “writ of certiorari” to the U.S.

Supreme Court. The defendant asks the
nation’s highest court to consider constitutional issues. Very few cases — less
than 1 percent — are heard on this initial appeal to the court.

. STE P 4 Return to the original trial court to argue
-issues not raised in the trial, os

such as the incompetence of counsel, or the failure to produce relevant
witnesses and evidence. One of the things people don't like about this step is
that it occurs so long after the original trial (five years or more). A

law proposed by Rep. Steve Riggs of Louisville would move this proceeding to
Step 2 in the process, when the issues would still be fresh. Assistant attorney
general David Smith estimates the proposal would cut by a third the time it
takes fo resolve capital cases. Under Riggs’ proposals, a defendant's trips to the
Kentucky Supreme Court would be cut Pom two to one; appeals to the U.S,
Supreme Court would be cut from three to two.

STE 5 Second appeal to the Kentucky Supreme
Court, which hears arguments on issues
raised the second time through the original trial court.
STE Pp Second appeal fo the U.S. Supreme Court,
again, on constitutional issues.
STE P y A Appeal fo U.S. District Court. (There are two
in Kentucky, one for the east and one for the
west.) This is a so-called “habeas corpus” proceeding. Literally, it means “you
shall have the body,” harking back tp the days when the English crown said to
the jailer: You have the prisoner; show us he is legally imprisoned. Effectively, it

is the U.S, goverment saying the same thing to the state: Prove this prisoner is
not being restrained in violation of federal law.

STEP Bere TS oes

originating in Kentucky, Tennessee, Ohio and Michigan. This step is the farthest

~ any Kentucky inmate's case has gone since the state enacted its new death-

penolty statute in 1974.

STE Pp 9 Final appeal to the U.S. Supreme Court.

Even this isn’t necessarily “final.” A third
rebuke by the U.S. Supreme Court may result in an oppeal for executive
clemency. (Ohio Gov. Richard Celeste, for example, commuted eight death sen-
tences.) There may be other remedies to forestall, or prevent, execution.

David Smith, Kentucky assistant atlomey general, notes; “We anticipate that
even after all the rounds sprbey eye bralahrs aki temalll
emergency last-minute appeals, defendant Orgue, for example,
that he became insane while awaiting execution. And under a recent U.S.
Supreme Court decision, he is allowed to make that claim.”

son
fopal tere since ine, (9 recuse. He has been in
legal since ‘9. Supreme Court contin-
ued his case indefinitely in 1964.

. Gall, 45 |

CONTINUED

i |
‘I TALK TO SOME. -

OF MY NEIGHBORS,
AND THEY SAY x ‘ ce
NOBODY IS EVER. .
GOING TO BE. ag
EXECUTEDIN.
KENTUCKY.
| THINK PEOPLE
REALLY DON’T TAKE
»THE DEATH PENALTY

"|. VERY SERIOUSLY,’

ME _ The keys {o the cells.near.the électric chair and the room that houses the chair -

“I know some people don’t like that,
but that’s what

= Since Kentucky's new death-penal

Yaw passed pan be muster 2»

4 6, “ab *) it” 30 percent of: the state’s
ath-penalty cases (14 of 47) have_re-

ted in overturns or set-asides by the

“of ‘stat rt overturns is

Ohio, 12 . Federal courts, gener-
aoe x

ally: tend to gran relief in about. 40

percent of the death-penalty cases they

hear.)

Says state public defender Monahan:
“If I was an angry citizen, I would say,
‘Why..is it’ that people. who do these
horrible things. get: 40 percent relief; at
the end of the line?’ And if I could get
past my anger at the facts, I would say,

‘Is it because. there are these liberally -
appointed judges in federal courts: of fm,

appeals who have an agenda ...; that
they're against capital punishment?”
‘ “That’s not the case ‘anymore. Our
federal courts are a product of Nixon
and Reagan, and now Bush. The 6th
Circuit Court of Appeals, you may as
well just put pictures of Ronald

up there — that’s whio’s on it. These are
white, male, Republican ultraconserva-
tives: Why are they at 40 percent relief?
Because it’s being done wrong (in lower
courts). Because there are bad mistakes
made. Because there are unconstitution-
al processes. It’s not because: there are

' federal courts, a person sentenced to

‘injuréd brain — and that injury in some

any bleeding-heart liberals up there.”
With a 30 percent chance of relief in

state courts and a 40 percent chance in

death-in Kentucky theoretically has a 3-2
chance of seeing that sentence over-
turned by.some court.

But what are the odds that the 2 in 5
whose death sentences remain intact
will ever be executed in Kentucky? >

Randy Wheeler, a public defender who i
directs the Capital Litigation Center in :
Frankfort, says: “I talk to some of my
néighbors, and they say nobody is ever

to be executed in Kentucky, 1

people really don’t take the death
penalty very seriously.”
But, Wheeler says, “It will happen.”
David Smith, an assistant attorney.
general who has worked several death-
alty cases, agrees. “I think at least
twice in this administration, the gover-
nor’s office is going to be called on to
give the OK for an execution. . . . I think

But Gall has lived longer on death row
than his victim, 12-year-old Lisa Jansen,
* Arid“éven ‘though Gall’s case is far
along, there may be a surprise in store.
banc ‘one of his public defenders,

S! e had him looked over bya

ager ever found him brain-injured
~ right frontal temporal lobe, the part-of
the brain that controls behavior... .

~ “f-would: think that if one has an

per Lanes eB aS laa

c ree
|

yy. +s

RRR OPA ELIOT OID Cig tpt ip ALLE OAAR EAN ALS

eS oe

Alfred Thomas, 40

The time: 3 years, 11 months

The crime: Slashing death of 74-year-old
Grace Back of Knott County in February 1987.

William Eugene Thompson, 40

The time: 5 years, 5 months

The crime: May 1986 slaying of Fred Cash,
dairy-barmn isor at the West Kentucky (pris-
on) Farm Center near Eddyville. Cash was killed
by hammer blows to the head.

Gene “Karu” White, 33

The time: 12 years

The crime: February 1979 slaying of Breathitt
County storekeeper Charley Gross, 75, his wife,
Lulu, 74, and her brother, Sam Chaney, 79.

Mitchell Willoughby, 33

(See the entry on Leif Halvorsen, his accom-
Plice.)

Gregory Wilson, 35

The time: 3 years, 5 months

The crime: May 1987 kidnapping, rape and
murder of Deborah Pooley, 36, assistant restau-
rant manager in Newport; her body was dumped
in an Indiana field.

P ‘a .' «

CONTINUED

“It’s very difficult for us to reverse a
conviction and remand it for a new
trial when we know that the defendant
committed the crime,” the chief justice
says. “But we have an obligation to
follow the constitutional protec-
tions.... Essentially what they say
boils down to one phrase: that every-
body has to have a fair trial.”

Fairness was at the heart of the U.S.
Supreme Court decision that over-
turned every death-penalty statute in
the country 20 years ago.

In Furman vs. Georgia, the court
declared that, in the absence of stan-
dards, the death penalty was being
applied “freakishly.” State legislators
set about rewriting their laws to con-
form to the court’s idea of standards.
In 1974 the Kentucky legislature re-
wrote its law based on the Georgia
model, which was declared constitu-
tional in 1976.

(Essentially, the law made murder a
capital offense when committed inten-
tionally for profit or hire; in connection
with first-degree arson, rape, burglary
or robbery; or through a “destructive
device” such as a bomb. And in other
instances, including the death or seri-
ous injury of a kidnap victim, the mur-
der of a law officer on duty or the
killing of a prison employee by a pris-
oner.)

When the U.S. Supreme Court invali-

dated “death-penalty statutés ‘all over
the country in 1972, 24 people were on
Kentucky’s death row. Twenty-three of
them pleaded guilty and received life
sentences. Only one death row inmate
refused to take advantage of the ulti-
mate once-in-a-lifetime offer.

The recalcitrant inmate was Henry
Anderson, who had shot the doctor
who diagnosed his schizophrenia. An-
derson’s first two trials produced hung
juries; his third produced a death sen-
tence. Anderson refused treatment for
his mental illness. In 1964 the U.S.
Supreme Court continued his case in-
definitely, and so it stands today, with
Anderson in what has been called “le-
gal limbo.”

(Not only a legal and medical land-
mark, Anderson poses a statistical
quandary: The state corrections depart-
ment includes him in its death row
census of 30; the state Department of
Public Advocacy does not count him in
its tally of 29. Not only does the state
not intend to kill him, it paid for by-
pass surgery to keep him alive.)

“In a capital case, it appears as if
there is just no finality to it,” Jasmin
laments. “Any punishment — and this
is regardless of whether you believe in
it or not — in order to be effective, has
to have some degree of finality. If not
ever carried out, what effect does it
have? Certainly none.”

It could be argued that death row is
one of the priciest neighborhoods in all
of Kentucky. It is a compact patch of

Lyon County real estate occupied by

folks who drain the resources of a poor * 4)

state that not only pays to house them
and care for them, but to prosecute and
to defend them. :

Estimates vary wildly about whether
it makes economic sense to pursue a
death-penalty case all the way to the
electric chair. (One estimate, based on
a Florida case, set the cost of pursuing
the case to its conclusion: $3.2 million.
The cost of housing the prisoner for
life: $700,000.)

After a while such figures become
about as bewildering as the idea of a
death row where nobody ever dies.

Doubtless it fuels public frustration
over a legal system too big, or too
impotent, to carry cases to resolution.
It is the kind of thing that could make
some — perhaps most — Kentuckians
look southward to Georgia, which has
an identical law with 14 executions on
its tally, and work up a case of penalty
envy.

“My feeling is the public has such
anger at these cases that they are com-
pelled to resolution,” says Monahan.
“They have such anger about the facts,
the horrendous facts, that there’s no
getting them past that.”

Monahan evinces faith that somehow
his client, Eugene Gall, the point man
on the march to the electric chair, will
be But not some others.

“T believe that Gene Gall will not be .
killed.... But at some point, much
sooner than later, we’re going to start
killing people, and the majority of peo-
ple are going to say, ‘It feels good.’ ”

PREPARE TO

ve SHAMROCE!

AT FRENCH LICK SPRINGS |||
ST. PATRICK'S SHINDIG = «-—ts—ésdS:

MARCH 13-15, 1992:

@ SPACIOUS GUEST ROOM

TT7
paeal

TTtt1

7
see
TT

a QO * DINNER AND BREAKFAST DAILY || Beet i
399 e SATURDAY NIGHT PARTY UNTIL THE || ere i
DANCE TO MUSIC FROM THE S WEE HOURS WITH DJ JAY BLACK» “2 : ‘ He
PAST TO THE PRESENT cud? @ LOTS OF BLARNEY AND FUN sf: Be:
NEXT DOOR: TO yn @ PRICE IS PER COUPLE, PER NIGHT
@ COME FRIDAY OR SATURDAY -
THE FUN STARTS EARLY! . ; |
e WE'RE ONLY AN HOUR AWAY! r “CHOOSE ANY TWO OF 8. CHOOSE ANY TWO OF
: THE FOLLOWING DINNERS | THE FOLLOWING DINNERS
Zit, French Lick Springs Resort || 1. .:Pekumnyrnessicak yo!
French Lick, Indiana 47432-: - 1 + Ghicken ‘nb meio.
| § Small Fish Dinner t
g * Hundreds of Singles # Hundreds of Singles Hundreds of Singles @ Hundreds of Singles @ Z i o4 Vegetable Plate - |
I) SINGLES DANCE 49 | {2222 sc> | seca
| QP a): Sees ess |S
d Sun. NicHt bance | FRIDAY NIGHT |) | | =e oh. Ha
Holiday inn Fern Valley Road DANCE. © £ % airy Pofolks 1 Sas Dae er
with this ad before Music By Jerry Z gS batter te “grtemm 1009 W. Dixie

en enenGiren esnmcnmngmar ieee

666 74 SOUTHWESTERN REPORTER. Ky.

must be reversed, and cause remanded, with
instructions to sustain plaintiff’s demurrer to
the defendant’s answer, and for other pro-
ceedings consistent with this opinion.

(115 Ky. 608)
O'BRIBN v. COMMONWHALTH.

(Court of Appeals of Kentucky. May 20,
1903.)

CRIMINAL LAW — HOMICIDE — EVIDENCE OF
BURGLARIES — ADMISSIBILITY TO SHOW
MOTIVE—IDENTIFICATION OF PARTIES—IN-
TOXICATION OF COUNSEL—REFUSAL OF NEW
TRIAL,
1.In a prosecution of burglars for murder,

evidence of other burglaries by them, in which
thefts were committed, occurring immediately
before the one in question, is admissible to show
motive; the court instructing that it could not
be considered for any other purpose.

2.In a prosecution of burglars for murder
by a pistol shot, where the confession of one
had disclosed pistols concealed by them after
the crime, evidence of other burglaries by thein,
occurring immediately before the one in ques-
tion, and in which the pistols so found were
stolen, is admissible to identify the guilty par-
ties; Cr. Code, § 241, requiring the corrobora-
tion of an accomplice by evidence tending to
connect the accused with the commission of the
offense.

8. Const. (Bill of Rights) § 11, provides that
iu criminal proceedings the accused has the
right to be heard by himself and counsel. In
a prosecution for murder, it was claimed that
defendant’s counsel was so intoxicated during
the trial as to interfere, in part, with his du-
ties; that, when argument was reached, it had
to be deferred until the next day on this ac-
count; and that after addressing the jury he
immediately left the city, whereupon the court
appointed other counsel. Counsel had been se-
lected by accused’s mother, and no complaint
was made of his legal learning or experience,
and the record showed that his examination of
witnesses was efficient. Held, that the refusal
of a new trial would not be disturbed.

Appeal from Circuit Court, Fayette County.

“To be officially reported.”

Claude O’Brien was convicted of murder,
and appeals. Affirmed.

W. O. G. Hobbs and J. N. Elliott, for ap-
pellant. C. J, Pratt and M. R. Todd, for the
Commonwealth.

SETTLE, J. ‘The appellant, Claude O’Brien,
and one Harl Whitney were jointly indicted
in the Fayette circuit court for the murder
of A. B. Chinn, a citizen of Lexington, Ky.
A separate trial was accorded the appellant
at his request, which resulted in his convic-
tion, and the fixing of his punishment at
death, by the verdict of the jury. His mo-
tion for a new trial was overruled by the
lower court; hence this appeal.

The facts and circumstances leading to and
surrounding the commission of the murder,
as shown by the record, are few and simple.
At 2:30 or 8 o’clock a. m. on October 11, 1902,
under cover of darkness, the dwelling house
of A. B. Chinn was burglariously entered by
the appellant, Claude O'Brien, and his accom-
plice, Earl Whitney. They proceeded at once

to the bedroom of Chinn and wife. The lat.
ter was awakened by the creaking of the
screen door as they entered the room, and
she, in turn, awoke her husband, as the ip.
truders, lighting a match, approached the
bed in which they were lying. O’Brien and
Whitney wore masks, and both raised their
pistols as they neared the husband, who was
on the outer side of the bed, and said, “Your
money or your life.” In reply to the demand
for money, both Chinn and wife informed
them that they had no money, and never
kept any in the house; and the husband
then said to them to go and get or find “what
you want.” At this juncture the son, Asa
Chinn, who occupied an adjoining room, ap-
peared at the bedroom door of his parents
and called,““Mamma.” Upon hearing the voice
of the son, either O’Brien or Whitney im.
mediately fired at the elder Chinn, who was
sitting up in the bed, shooting him through
the body. The pistol firing then became gen.
eral between the intruders and young Chinn,
who was in the hall near the door, and had
dropped upon one knee and commenced shoot-
ing at the intruders after the firing of the first
shot by one of them in the room. Young
Chinn received two wounds himself—one in
the right arm, and the other in the neck—
and fell on the hall floor. O’Brien and Whit-
ney, the latter of whom was wounded in the
leg by young Chinn, then made their escape
from the house, running over his prostrate
body in the hall, followed by the elder Chinn,
who fell in the hall near the bedroom door
and immediately died. He, however, inform.
ed his wife as he got out of the bed when
the firing ceased, that he had been wounded.
The foregoing facts were testified to by Mra.
Chinn, and were sustained in part by the
son, who heard from his room the words.
“Your money or your life,” though he did not
appear upon the scene until just before the
shot which killed his father was fired in the
room by either O’Brien or Whitney. It also
appears from the record that the statements
of Mrs. Chinn and her son are corroborated
by O’Brien and Whitney upon all material
points, though they contradict each other tn
many essential particulars. For instance.
while both admit that, as they approached
the bed of A. B. Chinn and wife, the words.
“Your money or your life,” were spoken, each
testifies that they were uttered by the other.
They both also admit that when these words
were used the speaker was presenting a pis-
tol at A. B. Chinn, but testified that only
one pistol was presented; each claiming that
it was presented by the other. Again, both
admit that, when Asa Chinn appeared in the
hall at the door of his parents’ bedroom.
they heard him call to his mother, and that
the firing then began, in which one of them
shot the elder Chinn, but each lays upon tbe
other the act of shooting. There is no claim
or pretense from any source that the elder
Chinn was killed by an accidental shot, oF

that he was offering any resistance whee

Ky.) O’BRIEN v. COMMONWEALTH. 667

shot. Upon the contrary, the evidence shows
beyond all doubt that Asa Chinn was in a
position from which it was impossible for
bis father to have been shot by a stray ball
from his pistol; and the fact that the father’s
nightshirt was scorched, and his body pow-
der-burned, proves that the one who shot
him was in the room, and close to him. The
occurrences following the murder, and which
led to the subsequent detection and arrest of
the criminals, are also few, and unmistakably
corroborative of what had gone before. Im-
mediately after the murder, the guilty parties
went to the depot yard of the Southern Ralil-
road, and there placed themselves in an
empty freight car, after concealing the pis-
tols with which they had been armed. They
were soon thereafter found and arrested by
the officers who were in search of the mur-
derers of A. B. Chinn. When they were pla-
ced under arrest, O’Brien turned to Whitney
and said, “Pard, he has got us.” In remov-
ing the prisoners from the car, the officers
discovered that their clothing was wet, show-
ing that they had been in the rain of the
previous night. They also discovered that
Whitney was lame, and, in reply to an in-
quiry as to the cause of his lameness, he
sid he had hurt his leg upon or against a
ear; but, when an examination of his leg
disclosed the bullet wound, he then said he
had been shot some days previously by a
negro at Williamstown. It was likewise dis-
covered by the officers that Whitney and
O'Brien had exchanged pants before their ar-
rest, the evident purpose of which was to
conceal the former’s wound, for, in wearing
his own pants, the presence of the bullet hole
in the leg thereof at the point of the wound,
{a connection with his lameness, might have
been expected to lead to the discovery of his
wound. A few days after the arrest, both
O'Brien and Whitney made what purported
to be a full confession of their connection
with the murder of A. B. Chinn, in which,
as already indicated, each tried to place upon
the other the leadership in, and blame for,
that crime. By the confession of Whitney,
the concealment of the pistols with which the
thooting at the Chinn home had been done
by them was made known, and the pistols
Were found by the officers at the place desig-
sated in the confession. They were three in
tumber. One had been brought by Whitney
to Lexington. It was out of repair and prac-
tically useless. One of the other two had
been taken by O’Brien and Whitney just be-
fore the killing of Chinn from the residence
0. L. Slade, and the other from the bed-
foom of M. C. Alford, in the residence of his
‘ister, Mrs. McConathy. The Slade revolver
was a Colt’s, of bluish finish, and that of
Alford was a silyer-mounted double-barreled
derringer, with a pearl stock or handle.
Fach pistol was fully identified by its owner;
Slade knowing his by its color and a small
‘mount of rust upon it, and Alford recog-
Uzing his by its peculiar finish and pattern.

Besides, the Slade pistol was also identified
by a clerk in the store where it had been pur-
chased, by its number, which he had entered
at the time of its sale to Slade in a book
kept for that purpose. Both pistols were
loaded when taken from their respective own-
ers.

Though numerous formal grounds for a
new trial were presented in the lower court,
only two of them are relied on by counsel
for appellant for a reversal. That is to say,
it is contended that the lower court erred
in admitting on the trial evidence of the bur-
glaries committed by O’Brien and Whitney
on entering the houses of Slade and McCon-
athy just before the murder of Chinn, and
in permitting the trial of appellant to pro-
ceed while his then counsel was in an alleged
state of intoxication.

As to the first of these contentions, we are
of the opinion that evidence of the burglaries
was competent, first, as illustrating the mo-
tive with which appellant and bis accomplice
entered the house of A. B. Chinn. They en-
tered the houses of two of his neighbors, com-
mitting a theft in each, only a few minutes
before entering his. Their mission on that
night was theft and robbery, and such, there-
fore, was their motive and purpose in en-
tering the house of Chinn. Second, the evi-
dence was competent as a means of identi-
fying the guilty parties. The identification
was made through the pistols which they had
stolen from the houses of Slade and Mrs.
McConathy; the latter being a sister of Al-
ford, owner of one of the pistols. The pis-
tols were found through the confession of
Whitney, who also told where they had been
stolen by himself and appellant; and proof
of the burglaries was competent, therefore,
to corroborate Whitney’s confession, as well
as the testimony given by him on the trial
of appellant, and to corroborate Slade and
Alford in their identification of the pistols,
which identification, in turn, fastened the
guilt of Chinn’s murder upon the parties
found in possession of the pistols. The trial
court, following section 241 of the Criminal
Code, very properly told the jury that they
“could not convict appellant upon the testi-
mony of Earl Whitney alone, unless such tes-
timony was corroborated by other evidence
tending to connect the appellant with the
commission of the offense charged in the in-
dictment; and the corroboration is not suffi-
cient if it merely shows that the offense char-
ged was committed, and the circumstances
thereof.” In order for the state to make out
its case against appellant, corroboration of
Whitney’s testimony was necessary; and that
corroboration was found in the finding of the
pistols in the place of concealment testified
to by Whitney, and In the identification of
the pistols by Slade and Alford, who told of
the burglaries by way of explaining the man-
ner in which they were deprived of the pos-
session of them, and, In doing so, furnished
evidence of the motive which actuated the

"CO6T Siiz Apne uo *kyonquey

6 werd
NTU 10

ay
wi

pue fepnetT

TAA
iM

Tteq *‘AHNLIN

a]
Es]

€

SuoqsUTXOT Je posuey *soqgTUuM

668 ' 74 SOUTHWESTERN REPORTER. (ky.

guilty parties in breaking into the house of
A. B. Chinn. Bishop’s New Criminal Proce-
dure, vol. 1, § 1126, in discussing the admis-
sibility of such evidence as that under con-
sideration, says: ‘The intent, knowledge, or
motive under which the defendant did the act
charged against him, not generally admitting
of other than circumstantial evidence, may oft-
en be aided in the proofs by showing another
crime, actual or attempted. Then it is per-
missible.” Again, in section 1125, same vol-
ume, we find the following statement: “Whole
Transaction. As explained under the doctrine
of res gests, wherever a part of a transac-
tion appears in evidence the rest is thereby
made admissible. So that the entire trans-
action wherein it is claimed the wrong in
issue was done may be shown, though It in-
cludes, also, other crimes, and even though
each transaction was a continuing one, or
transpiring in parts on different days.” The
same doctrine is recognized in Greenleaf on
Evidence, vol. 1, § 53, wherein it is said:
“In some cases, however, evidence bas been
received of facts which happened before or
efter the principal transaction, and which
had no direct or apparent connection with it;
and therefore their admission might seem,
at first view, to constitute an exception to
this rule. But those will be found to have
been cases in which the knowledge or intent
of the party was a material fact, on which
the evidence, apparently collateral and for-
eign to the main subject, had a direct bear-
ing, and was therefore admitted. * * °%
Again, in volume 8, § 15, we find this further
statement from the same learned author: ‘In
the proof of intention, it is not always nec-
essary that the evidence should apply directly
to the particular act with the commission
of which the party is charged, for the unlaw-
ful intent in the particular case may well be
inferred from a similar intent proved to have
existed in other transactions done before or
after that time. * * °*”’ We find that this
court has in more than one case given its
sanction to the rule announced in the fore-
going authorities. In Tye v. Commonwealth,
3 Ky. Law Rep. 59, it is said: “It was prop-
er to allow the commonwealth to prove the
number of attempts by the defendant to com-
mit the same offense, for the purpose of es-
tablishing the alleged identity of the accused.
* * ** In Thomas v. Com., 1 Ky. Law
Rep. 122, appellant was on trial for effect-
Ing an entrance into a dwelling with the in-
tention of stealing. Previously a store had
been broken into and goods stolen, and the
manner in which the entrance was effected
gave strong evidence that the appellant was
concerned in the prior breaking into the store.
Evidence of the first breaking was admitted
to show the appellant’s intention to steal in
entering the house. Held “that, in admitting
such evidence of the first breaking, the court
did not assume that the appellant was guilty
of that crime; but the evidence was such as
to warrant the court in allowing the facta

to go to the jury, not as evidence that the
appellant broke into the store, for that wag
abundantly proved without, but as evidence
of his intention, and such evidence was prop-
erly admitted for that purpose. © ¢@ oe
We are unable to see that the cases of Mar.
tin v. Com., 93 Ky. 192, 19 S. W. 580, and
Bishop v. Com. (Ky.) 60 8. W. 190, sustain
the position assumed by counsel for appel-
lant. Upon the trial of Martin, for the pur-
pose of showing a motive on his part for tak.
ing the life of one Burk, the fact that Burk
had procured an indictment against him for
robbery was permitted by the trial court to
be shown by the production and reading to
the jury of the indictment and the entire
record, including certain affidavits for a con-
tinuance, and by detailed proof from wit-
nesses as to the facts of the robbery, all with-
out any direction or instruction from the
court telling the jury for what purpose the
evidence might be considered by them. This
action of the lower court was held by this
court to be erroneous and prejudicial to the
appellant, because it, in effect, put him on
trial for two offenses at one and the same
time; but it was also said by the court that
“motive may be shown in certain cases by
a state of facts conducing to make out an-
other and distinct offense from that for which
the accused is being tried,” and, further, that
the showing of such motive would have been
proper in Martin’s case by the introduction
of the indictment with the name of Burk
on it as a witness, to show that it had been
procured by Burk. The case of Bishop bears
a striking resemblance to the one at bar.
Bishop shot and killed an officer who was
trying to arrest him for the murder of an-
other person, whom he had killed but an
hour before. On his trial for the murder of
the officer, testimony was introduced as to
the previous killing. Upon appeal to this
court it was urged that its introduction was
erroneous and greatly prejudicial to him.
But this court, in passing upon the question,
said: “It was competent to establish any
fact which tended to show motive on the
part of the accused, and to make plain
the jury the relations which existed between
the accused and the officer at the time the
homicide was committed. * * * In estab
lishing the fact of the killing, it was impo
sible to avoid proving some of the details.
* © © Of course, it was essential that the
jury be told that the killing at the ‘lagoon’
was not evidence to establish guilt under the
indictment upon which appellant was belng
tried, but was only evidence to show why
the appellant was on the car, and to establish
motive for the homicide. This the trial judge
repeatedly and with exemplary care explalt
ed to the jury. * * * It is, perhaps, u>
fortunate for the appellant that the first bom!
side was so interwoven with the second ss
to furnish a motive. It was for that purpos,
and that purpose only, competent. * *

It appears from the record in the case thet

Ky.) O'BRIEN v. COMMONWEALTH. 669

the trial judge, in apt language and with
great explicitness, explained to the jury that
proof of the burglaries committed by appel-
lant and Whitney previous to the killing of
Chinn furnished no evidence of their guilt
under the indictment for murder upon which
they were being tried, but was only evidence
to show the intent or motive with which
appellant entered the house of Chinn, and
could be considered by them for no other pur-
pose. In view of this action of the court,
and of the authorities in the opinion cited,
we conclude that no error was committed in
permitting the introduction of the evidence
as to the burglaries committed by appellant
and Whitney previous to the killing of Chinn.

We now come to the consideration of the
only remaining question presented in appel-
lant’s behalf, viz., the alleged misconduct of
counsel by whom he was represented upon
the trial In the court below. It appears that
the attorney who conducted the defense in
that court was employed by the appellant’s
mother through the assistance of a priest of
Louisville, Ky. It*is not urged against the
attorney that he is deficient in legal learn-
ing or lacking in experience. It is claimed,
however, that he was so under the influence
of intuxicants during the progress of the trial
as to interfere iu part, at least, with the dis-
charge of his duty to his client, and that
when the case was ready for argument tc the
jury be was not in condition to proceed -vith
the argumer:t, for which reason it wan ( sfer-
ted by the court until the following dar,
when he appeared and addressed the jury
but left the city of Lealagton after the con-
clusion of the argument. These alleged facts
do not appear from the record of the trial,
but altogether from the affidavits of appel-
lant, his brother, and one other person, which
were filed in support of the motion and
strounds for a new trial. So we find that
the alleged misconduct of the appellunt’s
counsel was brought to the attention of the
lower court for the first time in the motion
for a new trial; and by section 281, Cr. Code,
It is provided that such errors as are present-
ed for the first time In the motion for a new
trial are not subject to exception, nor can
they be considered by this court. It would
seem, therefore, that this court is without
Dower to review the action of the lower
court in refusing a new trial upou the ground
bow urged by appellant. Kennedy v. Com.,
14 Bush, 340; Brown v. Com., 14 Bush, 898.
While section 11 (Bill of Rights) Const. Ky.,
Provides that “in all criminal proceedings the
accused has the right to be heard by himself
and counsel, * * *” it is his right to se-
lect his counsel. The court may appoint
counsel for him, and must do so, where a
felony is charged, if he fails to select or em-
Ploy one of his own choosing. But in this
case the appellant had counsel of his own
or of his mother’s selection. The court had

the right to assume, in the absence of com-
plaint from him, that he was satisfied with
his counsel; and it is well-nigh incredible
that he and his elder brother, who was with
him throughout the trial, should have suffered
the alleged misconduct of his counsel, to the
extent set forth in their affidavits, without
complaint to the court, when such complaint
would have resulted in the appointment by
the court of other or assistant counsel to
represent him, as was done after the de-
parture of the counsel who conducted the de-
fense upon the trial before the jury. It does
not appear from the affidavits as to the al-
leged misconduct of appellant’s counsel that
he was unfit to conduct the examination of
appellant’s witnesses, or the cross-examina-
tion of those introduced by the common-
wealth. Upon the contrary, the bill of evi-
dence shows that that work was efficiently
performed by the counsel. If, as stated in
the affidavits—though that fact does not ap-
pear from the court proceedings—the court
was adjourned for a day to enable appellant’s
counsel to get in proper condition to address
the jury, we must take it for granted that,
if at any other time during the trial bis con-
dition bad been such as to convince the trial
judge that he was too much intoxicated to
properly represent his client, he would have
suspended the trial for the time being, to
enable him to become duly sober. The record
manifests the admirable care, ability, and
fairness with which the case was conducted
by the trial judge, and we are unable to find
in it any convincing evidence that he suffered
such misconduct on the part of appellant's
counsel as is complained of.

The instructions to the jury clearly and
fairly presented the whole law applicable to
the case, and the evidence established beyond
all reasonable doubt the syppellant’s guilt. It
is immaterial whether the shot which de-
prived A. B. Chinn of his life was fired by
appellant or Whitney. According to the evi-
dence, they were accomplices in the perpetra-
tion of the crime, and both present when it
was committed; and, if so, they are equally
guilty.

Great stress has been placed by counsel
upon appellant’s youth. Whether he is 15
years of age, as he testified upon the trial,
or 17, as he informed the officers when ar-
rested, it is a matter of profound regret that
one so young should come to such an un-
timely end; but the atrocity of the crime with
which he is charged, and the circumstances
attending its perpetration, left no hope of his
being visited with anything less than capital
punishment at the hands of the jury. And
as, upon the whole case, we find no error
of law by which the substantial rights of the
appellant have, in our opinion, been preju-
diced, it is our painful, though imperative,
duty to sustain the judgment of conviction,
and It is hereby affirmed.

256 74 SOUTHWESTERN REPORTER, (Ry.

100-acre old Pepper farm and the 95-acre
tract, and claimed that he owned half of
them under this alleged partnership—in view
of these facts, we are of opinion that the
circuit court was right in decreeing against
appellant’s claim of partnership.

We are of the opinion that the lower court -

erred to appellees’ prejudice in construing the
will, in this: that Enoch §8. Pepper took un-
der the will the Drenan farm and the 111
acres added to it and purchased after the
date of the will. We recognize the fact that
a will should be construed to speak and take
effect at the death of the testator, unless a
contrary intention shall appear by the will,
and that, if possible, a will shall be so con-
strued as to give to every word and clause
some reasonable meaning. The clause in con-
troversy is as follows: “I will and bequeath
to my brother Enoch 8. Pepper the home
farm on which I now reside, known as the
Drenan farm. Also I will and bequeath to
the said Enoch 8. Pepper all the stock that I
may own at my decease.” Does this clause
of the testator’s will speak from his death,
or “does a contrary intention appear’? As
to the real estate devised, by the express
terms it refers to the date of its execution,
and, as to the personal estate, by direct state-
ment, it refers to the time of testator’s de-
cease, for in the one case he devised the
“home farm upon which I now reside, known
as the Drenan farm,” and in the very next
line he gives the same brother “all the stock
that I may have at my decease.” It is con-
ceded that at the date of the will testator’s
home farm—the Drenan farm—contained 103
acres; and evidently he intended to, and did,
will to his brother this particular plece of
property. In Jarman on Wills, 332, it is said:
“Another question is whether the enactment
which makes the will speak from the death
has the effect of carrying forward to that
period words pointing at the present time.
For instance, supposing the testator to be-
queath ‘all the messuage in which I now
reside,’ and that after making his will he
changed his residence to another home be-
longing to him, which he continues to occupy
until his death, does the act make the word
‘now’ apply to the home occupied by the
testator at his death? It is conceived that
the principle will not be carried such a
length, and that this would be considered as
a case in which ‘a contrary intention appears
by the will,’ for the reference is to a specific
thing then in existence, and the words ‘in
which I now reside’ are the only distinguish-

ing terms of description.” It is not contended
by appellants that any of the lands bought
after the date of the will were ever the prop-
erty of Drenan, or a part of the original
tract, or were ever known as Drenan lands:
but their contention simply is that as accre.
tions to it, and under the statutory rule of
construction referred to, the lands passed un-
der the term “home farm on which I now
reside.” But to so hold, the court must en-
tirely disregard the last descriptive clause
“known as the Drenan farm,” and regard it
as surplusage, and without any meaning at
all. Suppose the testator had been more ex-
act in his description when he wrote his
will, and had said, “I will and bequeath to
my brother Enoch 8, Pepper the home farm
upon which I now reside, and bounded as
follows,” and had then proceeded to give the
metes ana bounds of the 103-acre Drenan
tract; would any one contend that future
acquisitions would pass under this devise, or
that Enoch 8. Pepper could hold under the
will any land outside of the boundary given?
We think not. Yet the descriptive words of
the testator are as clear and strong as though
he had given the metes and bounds. He
knew when he wrote the will, and up to bis
death, what comprised the Drenan farm: and
he described it in such manner as clearly to
define his intention, which this court cannot
disregard.

It appears from the will that the testator
devised to Enoch S. Pepper the real estate
referred to, and all of his Personal estate,
out of which his debts and funeral expenses,
and four special devises, of $100 each, were
to be paid; and it appears from the record
that testator’s estate was bound ag security
on a debt to one Slack for appellee Thomas
Clark, and that Enoch 8. Pepper paid this
judgment. The court is of opinion that what:
ever may be realized on this claim should
be returned to the estate of Enoch 8. Pepper,
for it was paid out of property willed to him.

On the settlement of accounts of Enoch &
Pepper as executor, his estate should not be
credited with that part of the taxes paid on
his {ndividual property for the years 1898,
1899, 1900, 1901. The balance should be
credited on appellant’s account of rents, and
not deducted from the personal estate willed
to Enoch S. Pepper.

For the reasons indicated, the judgment of
the lower court is affirmed on the original
appeal, and reversed on the cross-appeal, and

remanded for further proceedings consistent
with this opinion.

ky) WHITNEY v. COMMONWEALTH. 257

WHITNEY v. COMMONWEALTH.
(Court of Appeals of Kentucky. May 20,
1903.)

HOMICIDE — CONFESSION — CORROBORATION—
EVIDENCE OF OTHER CRIMES—REMARKS OF
PROSECUTING ATTORNEY—PREJUDICE.

1. In the prosecution of one accused of mur-
der, committed while he and another were in
the house of the victim, on a mission of theft
and robbery, it was competent to admit proof
ef the burglaries committed by accused and his
companion just before the homicide, to show
the motive for entering the victim’s house, and
to identify the parties guilty of the previous
burglaries as his slayers.

2. Though a confession made by one accused
ef murder, shortly after his arrest, on a rep-
resentation that it looked as though they had a
strong case against bim, and the truth would
pot hurt him, might be considered as obtained
by improper means, yet, where repeated in sub-
stance by the accused several days later at his
ewn trial, and on the trial of his companion,
who was accused of the same crime, it was
properly admitted in evidence.

8.Though confessions improperly obtained
are inadmissible, any facts brought to light in
consequence of such confessions, and so much
ef the confessions as is corroborated by these
facts, may be received.

4. Defendant in a murder trial was not prej-
ediced by an improper statement made by the
attorney for the commonwealth in his argu-
ment to the jury, the court having admonished
the jury not to consider it.

Appeal from Circuit Court, Fayette County.

“Not to be officially reported.”

Earl Whitney was convicted of murder,

and he appeals. Affirmed.

B. T. Southgate and Chas. Kerr, for appel-
lant. O. J. Pratt and M. R. Todd, for ap-
pellee.

SETTLE, J. The appellant, Earl Whitney,
together with Claude O’Brien, was indicted,
tried, and convicted in the Fayette circuit
court for the murder of A. B. Chinn, a Lex-
ingtun merchant. His trial was separate
from that of his alleged accomplice, O’Brien,
and his plea, like that of the latter, was “Not
mullty”; but by the verdict of the jury his
punishment was fixed, as was that of O’Bri-
en, at death. From the judgment of convic-
tion, and the refusal of the lower court to
grant him a new trial, he prosecutes this
appeal.

It is not deemed necessary to here enter
Upon a recital of the facts and circumstan-
¢es connected with the revolting crime of
which he, as one of the perpetrators, stands
convicted, as they are minutely set forth and
exhaustively discussed in the opinion of this
court in the case against Claude O’Brien (74
8. W. 666), this day handed down, to which
opinion reference is here made. It is suffi-
cient to say that the evidence heard upon
the trial of appellant shows beyond doubt that
4. B. Chinn was foully assassinated in his
bedroom on the morning of October 11, 1902,
While it was yet dark, by a pistol shot re-
celved at the hand of either the appellant,
Earl Whitney, or his accomplice, Claude

14 See Criminal Law, vol. 14, Cent. Dig. § 1698.
143.W.—17

O'Brien, both of whom were present at the
time, armed with pistols; having shortly
theretofore entered the dwelling house of
Chinn upon a mission of theft and robbery.
The only question of doubt in the case is as
to which of the accused fired the shot that
killed Chinn. The only persons able to name
the one by whom the fatal shot was fired
are Whitney and O’Brien, each of whom
claims that it was done by the other. But
be that as it may, both are, under the evi-
dence, guilty, because they were accom-
plices, each aiding and abetting the other in
the assassination, as in the lawless enter-
prise which led to that act. O’Brien, though
introduced by appellant’s counsel in this case,
refused to testify; but proof of a conversa-
tion that occurred between him and appel-
lant after the latter’s confession to the offi-
cers was made in this case, which did not
differ materially from the testimony given by
O'Brien upon his own trial.

It is contended by counsel for appellant
that the judgment of conviction should be re-
versed for the reasons, first, that it was error
to admit upon the trial evidence of the bur-
glary of the houses of Slade and Mrs. Mc-
Conathy; second, to admit as evidence the
confessions of appellant; third, to allow the
commonwealth’s attorney to make certain al-
leged statements in argument which were
not supported by evidence.

The question raised by the first of the fore
going grounds we have already decided in
the case of Claude O’Brien v. Commonwealth.
supra, which decision is against the conten-
tion of appellant’s counsel, and we are still
of opinion that it was competent to admit
proof of the burglaries committed by appel-
lant and O’Brien just previous to the hom!
cide, first, as showing the motive with which
they entered the house of Chinn; and, sec-
ond, for the purpose of identifying the parties
who committed the previous burglaries as the
slayers of Chinn. In this case, as in that of
O’Brien, the trial Judge carefully instructed
the jury that evidence of the burglaries com-
mitted by the appellant and O’Brien before
entering the house of Chinn could be consid-
ered by them only for the purpose of show-
ing the motive with which they entered the
Chinn residence, and should not be consider-
ed for any other purpose.

We are likewise of the opinion that no er-
ror was committed by the lower court in ad-
mitting the confession of appellant. It is
shown by the evidence that one Irvine, a
Nashville detective, who seems to have
known appellant in Nashville, interviewed
him after his arrest, and, among other things,
said to him: “Earl, it looks like they have a
strong case against you. You are in bad.
The truth won’t hurt”—and that, as a result
of these statements, appellant expressed his
willingness to make a confession, which he
did after others had been called in by Ir
vine to hear it.

The confession was made in the presence

258 74 SOUTHWESTERN REPORTER, iy.

of four persons—one a stenographer. It was
reduced to writing and signed by appellant,
and this written confession was read upon
the trial; it being admitted by counsel for
appellant that those who heard the confes-
sion would testify that it was made as con-
tained in the writing.

A confession of the accused out of court
is competent evidence against him, although
it may have been procured by deception, but
is incompetent if procured by promises,
threats, or advice of the prosecutor, or officer
having him in charge, or of one having him
in duress, or having authority over him; and
as said in Roberson’s Kentucky Criminal
Law & Procedure, § 962: “Before the confes-
sions of one charged with the crime are ad-
missible in evidence against him, it must be
shown that such confessions are freely and
voluntarily made. It is the province of the
court to determine whether they were so
made, and as to their admissibility. As the
facts and circumstances attending each con-
fession are different, no rule can be stated
as to just what will render the confession
voluntary.” It appears from the record that
the trial judge, before permitting the intro-
duction of proof of the confession made by
appellant, instituted a critical investigation
of the circumstances attending the making of
the confession, causing those present at the
time to testify with reference thereto, with
the result that it was declared admissible
and was permitted to be proved. Notwith-
standing the great care exercised by the
lower court in inquiring into the circumstan-
ces under which the confession was made
by appellant, we would be inclined to declare
it inadmissible but for the fact that it was,
in substance, repeated by appellant when
introduced as a witness in his own behalf
upon the trial of this case, and also in testi-
fying as a witness upon the trial of O’Brien.
“Although an original confession may have
been obtained by improper means, yet sub-
sequent confessions of the same or like facts
may be admitted if the court believes from
the length of time intervening, or from prop-
er warning of the consequences of confession,
or from other circumstances, that the delu-
sion, hopes, or fears under which the original
confession was obtained were entirely dis-
pelled.” Laughlin v. Com. (Ky.) 87 & W.
590.

It appears that the testimony of appellant
as a witness in this case and that of O’Brien
was given several days after his written con-
fession was made, and, if the confession was
superinduced by improper influences, they
ought to have been, and perhaps were, dis-
pelled by the solemn realities of the trial,
and the sanctity of the oath which the appel-
lant took upon entering the witness box.

But if it were clear to our minds that the
confession resulted from improper influences,
its exclusion as a whole is forbidden in this
case by a well-known rule of law: “Although
confessions improperly obtained are inadmis-

sible, yet any facts which are brought to
light In consequence of such confessions, and
so much of the confession as is corroborated
by these facts, may be received in evidence.”
2 Roberson’s Criminal Law & Procedure, 4
960; Jackson v. Com. (Ky.) 38 §. w. 420,
1091; Jane v. Com., 2 Mete. 31; Rector y¥.
Com., 80 Ky. 468. Applying that rule to the
evidence in this case, we find the following
facts were brought to light by the confession
of appellant: The finding and subsequent
identification of the pistols, with one of which
A. B. Chinn was killed; the consequent
proof of the motive with which Chinn's
house was entered; the identity of the per.
sons who committed the theft of the pistols
with the persons who committed the homi-
cide. The statement in the confessions and
the statement of appellant upon the trial as
to the position of Asa Chinn during the pis-
tol-firing in the Chinn house—that is, that he
was in a stooping or kneeling position—is
corroborated by Chinn. Indeed, practically
the only statement contained in the confes.
sion that is uncorroborated is the one that
O’Brien, and not appellant, fired the shot
that killed A. B. Chinn. Not only is that
statement uncorroborated, but in the evidence
introduced by the commonwealth, upon the
trial, of the conversation between appellant
and O’Brien which occurred shortly before
the trial, we find that each accused the other
of the murder of Chinn. The jury, however,
found from the evidence, as they were au-
thorized to do, that they were accomplices,
aiders, and abettors, and therefore equally
guilty, whether the shot was fired by the one
or the other; and the evidence conduces to
show that both were firing their pistols in the
room where the homicide occurred, and that
each of them had a pistol in addition to the
probably worthless one that appellant car-
ried with him to Lexington. The jury were
doubtless unwilling to accept the statement
of appellant that O’Brien, his junior in age,
and, according to the evidence, also his jun-
for in crime, was the leader and instigator
of the thefts and murder of which both
stood convicted.

It is complained that the commonwealth's
attorney, in argument to the jury, said that
“the defendant was forced to admit upon
cross-examination that on the way from
Louisville to Lexington he was trying his
pistol, to see whether it would work, as a
preparation for what he intended to do, and
what he did do, when he came to Lexing-
ton.” After this statement was made, and
objection entered, the court properly exclud-
ed the statement and admonished the jury
not to consider the remark, whereupon the
commonwealth’s attorney then said to the
jury that he did not mean to make the state-
ment that appellant was trying bis pistol as
a preparation for what he intended to do as
the assertion of a fact, but as an inference
of his own. There was evidence to show
that appellant tried to fire his pistol on the

Ky) FRAZER v. FRAZER, 259

road to Lexington, but fafled. It is hardly
possible that this statement of the attorney
could in any way have been prejudicial to
the appellant, even if the court bad permit-
ted it to stand. It certainly could not have
been so in view of the admonition of the
court. In Handly v. Com. (Ky.) 24 8S. W.
609, this court held: “While certain state-
ments made by the attorney for the common-
wealth on his argument to the jury were im-
proper, because not warranted by the evi-
dence, the appellant was not prejudiced
thereby; the court having admonished the
jury that such statement could not be con-
sidered as evidence in the case.”

A careful examination of the record in this
case fails to disclose any errors whereby the
substantial rights of the appellant have been
prejudiced. The instructions meet our ap-
proval, and the verdict of the jury is, in our
opinion, sustained by the evidence. The
judgment is therefore affirmed.

FRAZER v. FRAZER et al.

(Court of Appeals of Kentucky. May 20,
1903.)
WILLS—CONSTRUCTION—BEQUEST—INCOMB.
1, After a devise to testator's son, W., the
will proceeded: ‘And he is also to have the use
and benefit of the remaining one-fifth part,
which is to be invested as hereinafter provided
until his son J. arrives at the age of 21 years,
at which time the said one-fifth part of my
estate is to be turned over to J. * * * To
my grandson, J., I give and bequeath, when he
arrives at the age of 21, the one-fifth part of
my estate above referred to. I direct my son,
. to invest this one-fifth part of my estate
in good land or Property, the proceeds of which
he is to enjoy until J. is 21 years of age.”
After investing this part as directed, W. died,
leaving a will, by which he gave all his interest
therein to his widow. Held, that W.’s interest
In the income continued until J. was 21 years
of age, and could be sold or disposed of by W.
as any other property owned by him, and vest-

ed in his widow under his will.

Appeal from Circuit Court, Harrison
County.

“Not to be officially reported.”

Action by Jesse Frazer, by his guardian,
and others, against Jane B. Frazer, to con-
strue a will. From a judgment in favor of
plaintiffs, defendant appeals. Reversed.

Wm. A. Byrne, for appellant. W. C. Swin-
ford and O’Neal & O'Neal, for appellees.

BURNAM, ©. J. The will of N. W. Frazer
was probated by the Harrison county court
in 1897, and that of his son, W. D. Frazer,
in January, 1900. When N. W. Frazer’s will
was probated, D. W. Frazer was a widower,
with one child, Jesse W. Frazer. After the
death of his father, W. D. Frazer married
the appellant, Jane B. Frazer, who survived
him. And we are asked upon this appeal to
decide what interest the appellant, Jane B.
Frazer, and the appellee Jesse W. Frazer
took in certain property devised in the fifth
and sixth clauses of the will of N. W. Frazer

and in the will of W. D. Frazer. The claus-
es in the will of N. W. Frazer involved
upon this appeal read as follows:

“5. To my son William Frazer I specifical-
ly bequeath any and all thoroughbred and
trotting stock that I may own, but this does
not include any common stock. I also give
and devise to my son William, one fifth part
of my estate, and he is also to have the use
and benefit of the remaining one fifth part,
which is to be invested as hereinafter pro-
vided until his son Jessie arrives at the age
of twenty one years, at which time the said
one fifth part of my estate is to be turned
over to my grand-son Jessie. Should my
son William die without leaving any child
or children his interest in my estate is to be
equally divided between his sisters, the said
interest to be held by them under the same
conditions and limitations hereinbefore set
forth. Should my son marry again and leave
child or children by said marriage the chil-
dren of that marriage are to receive the one
fifth part of my estate hereinbefore be-
queathed William, but Jessie is to have the
one fifth part absolutely when he reaches
the age of twenty one years.

“6. To my grand-son Jessie Frazer I spe-
cifically bequeath my gold watch and chain,
and also my scholarship in the Midway or-
phans home. I also give and bequeath him
when he arrives at the age of twenty one,
the one fifth part of my estate above refer-
red to. I direct my son William to invest
this one fifth part of my estate in good land
or property, the proceeds of which he is to
enjoy until Jessie is twenty one years of
age.”

The one-fifth interest devised to W. D.
Frazer until Jesse arrived at the age of
21 years was invested in accordance with
the terms of the will. W. D. Frazer be-
queathed all of his interest and rights in the
property devised by N. W. Frazer to Jesse
Frazer to the appellant, Jane B. Frazer.
Jesse W. Frazer, by his statutory guardian,
instituted this suit in the Harrison circuit
court against the appellant, Jane B. Frazer,
setting out these clauses in the will of his
grandfather, and claimed that his father, W.
D. Frazer, took a life estate in the one-fifth
interest devised to him by the will of his
grandfather, and that upon his death he was
entitled to be put in possession of the prop-
erty. The circuit judge decided that upon
tne death of W. D. Frazer all rights which
he had in the lands or estate of Jesse W.
Frazer obtained under the will of N. W.
Frazer ceased, and that the appellant, Jane
B. Frazer, took nothing by virtue of the de-
vise made to her by the will of W. D.
Frazer, and she has appealed.

In our opinion, W. D. Frazer was, under
the will of his father, N. W. Frazer, entitled
to the use of the one-fifth interest in con-
troversy until his son, Jesse, became 21 years
of age; and that he could use and dispose of
this interest in the same way as any other

POWERS, James, ele

wr, vune

Executions

Ky Pot

G ~22- &6 . Ds

Death penalty was not the norm for serious crimes in Northern Kentucky

The issue of capital punishment has been
debated in America for years.

And the topic has been no less of an issue in |

Kentucky than anywhere else.

But it’s interesting to note that in Northern
Kentucky, the death penalty for serious crimes
has not been the norm. Most Northern Ken-
tuckians who were convicted of crimes such as
murder were not executed. Instead they were
given life sentences and most eventually were
granted parole.

And while it is true that Northern Kentucky
had its share of lynchings in the 1800s, they
were almost always racially or class motivated
and in either case, outside the legal system.

Executions recounted in earlier history col-
umns included the last public hanging in the
state and the hanging of two men convicted of
beheading a woman named Pear! Bryan.

Harold Venison was the last man hanged in
the state. That occurred in Covington in 1938,
just one year after 20-year-old John Montjoy
was hanged in Covington. Both men had been
convicted of rape.

In 1897, Alonzo Walling and Scott Jackson
were hanged, side by side, in Newport for Pearl
Bryan’s murder.

The’ following is a look at five other North-
rn Kentucky crimes that resulted in execu-
lon.

John “Major” Hicks — In-December 1880,
three men returning from Cincinnati found
Henry Williams lying on a plank walkway near
the Ludlow ferry landing.

A young machinist with the Cincinnati
Southern Railroad, Williams was known to
cash his paychecks for gold coins. He had been
on his way to Cincinnati that evening to buy
his mother Christmas gifts when he was struck
on the back of the head with a lead Pipe. and
robbed.

Williams was still alive when the men found
him, but he died ween Wenning conscious-
ness.

The investigation turned to a man seen in
the area carrying the lead pipe. A man match-
ing the description also bought a pair of boots

that evening in Ludlow ane gad o ee vith a

a $20 gold piece.

Hicks, an 18-year-old drifter, was phe ar-
rested. |

First, Hicks was identified as the man seen
in the area carrying a lead pipe. Then the
Ludlow storekeeper identified Hicks as the
man who bought the new: boots. The exact
change from that transaction also was found
in Hicks’ room and stains, later identified as
blood, were found on Hicks’ old shoes.

Hicks denied any connection with the crime.

re 5K

He claimed he was “shooting craps” at‘home -
on the night of the killing. Hicks said the blood -

on his old shoes came from a chicken.

The public uproar was tremendous and the
night Hicks was arrested a mob of 300 men

marched from Ludlow to the Covington fail.

Sheriff Legrand Armstrong was tipped off and

the lynch mob faced a collection of 20 to 30

sheriff’s deputies, city police, firemen and oth-
volunteers “armed to the teeth.”

Shots were fired over the mob —_ they dis-'.

After a day of deliberation, : a jury found
Hicks guilty. He was sentenced to die June 10,

but that was later delayed.

ae
. oo woke .e ne va

'="that SP hanticans Aeaititga told of the “worst

ate Re i POU RTAS
Kare eae eee

eu, *5
ye)

4 \ . . ="
ey MURDERER LAUGHLIN,

O MAS BREW TAKEN TO BROOKSVILLE, XY, weERe me PF’
WILL DIE OM THE GALLOWS SATURDAY.

ret

“ed

e+ rye

":The men pictured above all were convicted of

‘:omurder and received the death penalty. Robert

2tLaughlin, top, and John Hicks, above right, were
v “hanged. James r RW ier ant Ib The CRE Aree

crime in the history of Bracken County.”

Laughlin said he was awakened during the
‘night by someone trying to slash him with a
“fenife. He said he ran for help and by the time
they got back, Laughlin’s house was on fire.
The bodies of his wife and teen-age niece were
found in the ashes.

Bloodhounds were put on the trail, but they
found only one set of tracks — Laughlin’s. Af-
ter apertiontng hg the sheriff, Laughlin con-

. fessed.

He said he dirodk ‘and killed his invalid wife.

After his niece &woke and discovered the
crime, he assaulted and killed her. He set the

house on fire to try to cover his crime. :
People in Bracken County were outraged
‘and Laughlin was secretly moved to the
Maysville jail. Later he was taken to the Cov-

‘ington jail to stem talk of a lynching. | -
It was while in the Ne

lin befriended Alonzo W and Scott Jack-

son, who were awaiting execution in the Pearl i

Bryan murder... . \

BIW ce
ort jail that Laugh- -

Garridee went « on trial that fall, and after
less than 90 minutes of deliberation, a jury
found Garrison guilty; he was given the death
sentence. He became the first person in Camp-
bell County sentenced to die in the electric
chair.

The execution was scheduled for Feb. 11,
1916, but later changed to Nov. 17. In the mean-
time, Garrison tried to take his own life by
eating roach poison.

Without the public fanfare of the hangings,
Garrison went to his death almost quietly in
the electric chair at Eddyville State Penitenti-
ary. A story in The Kentucky Post said Garri-
son had confessed to the crime before his
death.

Garrison Jearned to read while in jail and
his last request was that his fourth grade read-
er be given to his family. ‘

Patrick Kearney and Jim Lawler — On the
evening of March 5, 1918, three armed men
stormed into a rear room of J. Douglas Haake’s
saloon at 12th and Russell streets in Covington.
They were after the receipts. of the Ninth Ward
Perpetual Building Association, which was
meeting there.

Whey they asked the man who was sitting
there for the money, he laughed only to discov-
er that they were serious.

The man, who happened to be Covington
Police Commissioner Theodore Kluemper, told
.the gunmen the money was in the next room.
As two of the men left, Kluemper jumped for
his gun. The man still in the room fired at
Kluemper, nicking him on the cheek. Kluem-
per shot back killing the man, later identified
as William “Zeke” Moran.

Meanwhile the gunmen din the next room
shot and killed Andrew Nordmeyer, 67, the as-
sociation president, and John Rehm, 82, the
receiving secretary.

Kearney and Lawler escaped with about
$1,100. Kearney was arrested in Cincinnati a
few hours after the robbery; Lawler was ar-

- rested in Cincinnati a few days later.

Both men claimed no knowledge of the
holdup. Kearney claimed Sincinnat! Police

were framing him... + jf

They were tried separately. It took a jury 12

hours to convict Lawler, but the Kearney jury

took only 90 minutes.

Both were sentenced to die in the electric
chair, but they sawed their way out of a Cov-
ington jail cell. Kearney was captured a few
minutes later, but a manhunt for Lawler took a
week. Covington, county and state officials
each put $500 in.a reward fund.

Police finally tracked Lawler to a house in
the Avondale section of Cincinnati. Police rid-
died the house with bullets, but Lawler refused
to come out. Police finally “gassed” Lawler out.

Another man accused of being the getaway

_ariver for Lawler and Kearney was apparently

allowed to go free after serving as a witness

and volunteering for the Army.
Kearney and Lawler died in the electric

chair at sonia beni wianed Penitentiary on Feb.

: James Powers _ Ite was in the evening of San,
22, 1922, that Morris Lee, the 25-year-old man-
ager of Covington’s Strand: Theater was
stopped in his car by four armed men.

ee ee ee

POWERS, James, whitey 235 elece Kye (Kenton) 6-18-1923.

~ LOUISVILIE,- ke. &
_jBel6-192

Ss Execution of Man Con- ainercs oe

SURAT TR ee Eo Tat eaek hee - Vi St, Juecph, Mich. May 16 (Associ mee
Le 7 victed For Murder. Ste dusephh, Mice eolony sirin | tg Bo esas Ae
“ed? S Site nor tga cg A et pd is he , Pane , <teach n-oride in & recent group Bat egret pte
Nees Clas Dag lal att rea Lae Frankfort, Ky., May 16 (Associated) marr a were aunigeond ati: Te ete Oe ae
Mane Le ume . ‘ress).—James Powers must die in th before o” Sree ury idk F OR ai
ae ee he ee oo ea electric chair at Eddyville on the eae gation | of the House of Dasid. . New ge
Rohe ke ay Me tpg ee tee sth, “a ing of Jute 15 for the part he pluyed Tone upith Rosetta, a tormer ment- Press). a aemees
Ae eee sis rt in the murder of Morris Lee, Coving- ber of the colony also was on the) Govern Tote
ton moving picture show proprictor. stand, rive some of tho testi-|urged | t
Govérnor-Morrow Tuesday issued they Mony dhe gave in the recent dam-| Manufu
AST Bk ge ueath warrant and sent it to Eddyville! $8? sult against the colony, heard) stand OR
ete gea es} ‘ ‘ where Powers is confined. - at Grapd Rapids, and going intoy “Whi
Sip hee RRS POONA teats Powers was tried in the Kenton Cir- events ef colony life which the rules} tion wi
cult Court on charges of killing Lee of evidgnce did not aliow to be pre- piration}

and sentenced to death. The Court sented previously. the six- anita burtaee, sn

; Be i The five girls from the colony} remain ;
Ree, | Of Ap bee care October raggcs, the] Rare, Mayrile Harman, Bully, Marte do fee
; if as ee mala “aklenstein ell, ‘Jorence ‘Hie}or later)”
whole court sitting, and late denied} tiansony Mary Ells Boye Smith | make a

AM Fe Ms Te epg ias og oe TH a petiti

Saran Teese s Pan Ege See te nor Morraw to commute the segtence of them has been calted before and] out wit
Nach Se eR RIE eS sare te life imprisonment. ‘After & their sastimony expected to de- “Hen wie fads
i na AR ee Pd Sk tee uh fae tforough investigation of the case velop rather the present attitude of | may be et eg aS aap
wiiias tiseye aA ees Governor Morrow declined to take the colony toward certain precepts| ply, it eee
eres Fe ota Be action in Powers’ behalf. of Benjamin Purnell’s teachings than] eet ou fata “6.3,
Rey Nie ak Reese eS att ON - Lee was slain January 23, 1928 anything that might be used In an propoai Se OS
ee Bae oe : while seated in an automobile in tront actual case against the cult Jeadcr. mund, sated gh gee
eg eke batty ances A of his home in Covington. He had Balked by a certificate of the] the ne wees
Poh RB i ihe Pe eat returnéd from the picture show with colony physician that EuUdorhpa| have
Bh FR Fees eth Moe ala ; the proceeds of the day tollowed bv Smith was not in candition to take Wt th

SAT ee pcteate fn Vowers, Isaiah McKnight and George the «tand, Judge Wingeman ane Jabor
cate Sila “ite Sanders according to testimony The nounced he would neleot an physician | Cenatu
1 Biateg = Nia opt she S28 tee ° sr had planned to rob him 5 ie do Visit. the colony and make anjsert
pina Aube Ne pete 4 ing to evidence offered at the trial pdajyrtgate <7 AM fe on ws etl pid bead BE :
court wprether @ gir) was abie ta} vat = : ate :

Laughlin said he was

awakened during the night
by someone trying to slash
him with a knife. He said he

ran for help and by the time

they got back, Laughlin’s

‘house was on fire. The

bodies of his wife and
teen-age niece were found in
the ashes.

Meanwhile, two controversies arose while
Hicks was in jail.

. First, he became 11] with smallpox. Some
feared that Hicks would die before they could
hang him, but he recovered. .

The second controversy was related to his
conversion to Catholicism, which came about
after daily visits from two priests and two
nuns. ; : ae

The concern was that the priests were advis-
ing Hicks not to make a public confession and
that they were shielding knowledge of his guilt
behind religious confidentiality.

Finally at 10 a.m., Feb. 24, 1882, Hicks went to
the gallows. Accompanied by his religious advi-
sers, Hicks prayed, but refused to make any
public confession. j “4 : “es

Ideally in a “good” hanging, the force of the
fall through the trap door and jerk of the rope
will snap the prisoner’s neck resulting in a
quick death.

But Hicks was not so fortunate. B8ome 10
minutes after the trap door was sprung, a doc-
tor reported Hicks still had a pulse. Hicks’ body
was left hanging for 30 minutes. a

A funeral Mass was held at the Cathedral

Basilica in Covington and Hicks’ body was
Placed in a vault at St. Mary’s Cemetery in Ft.
Mitchell.

"Robert Laughjin — It was in January of 1896

. Although convicted and sentenced to die by
hanging, there was talk that Laughlin might
escape death by an insanity claim.

.. Jackson was among those who questioned
Laughlin’s sanity. He said Laughlin was “a lit-
tle off” and “it would be an outrage” to hang
someone in that mental state.

Despite that concern, Laughlin was placed
on the gallows on Jan. 9, 1897. He asked that a
50-cent piece, his last Possession, be given to
Walling and predicted that Jackson would
make a last minute confession on the gallows,
clearing Walling.

At their later hanging, Jackson and Walling
were asked to make last comments. The 21-
year-old Walling pleaded his ‘innocence and
turned to Jackson. Witnesses said Jackson, “28,
paused for two minutes with all eyes on him.
Jackson then declared his own innocence, but
made no comment about Walling. Both men
were then hanged. :

Laughlin had received letters from Jackson
and Walling telling him to face his execution
like a man. He did just that. He stood silently
on the gallows, head bowed as a minister read
from a Bible. .

A large crowd, many of whom were drunk,
had gathered early and tore down a fence in-
tended to limit the number of witnesses to
Laughlin’s execution in the Brooksville court-
house square. :

‘Laughlin’s neck snapped as his bedy fell
through the trap door and the rope went taut.
Within.10 minutes he was pronounced dead.

Harry Garrison — The 20-year-old Mason
County man was arrested in Campbell County
in July of 1915, while attempting to rent a boat
to cross the Ohio River.

Garrison was accused of trying to assault

one woman in rural Campbell County and then.

assaulting and robbing a second woman. Iden-
tified by the victim, Garrison was placed under

‘ heavy guard for the trip to the Newport jail,
* but the furor was such that at Ross the police

décided to travel the rest of the way by train.

_. Even there Garrison was not safe and a pas-

senger attempted to grab him. One man
climbed up on the side of the train and tried to
shoot Garrison. .

‘Campbell County Patrolman William Man-
waring eventually had to place Garrison under
-& train seat and stand guard over him with two

(guns. o

arr

~ tee

On the evening of March 5,
1918, three armed men
stormed into a rear room of

_ J. Douglas Haake’s saloon

at 12th and Russell streets in
Covington. They were after
the receipts of the Ninth
Ward Perpetual Building
Association, which was
meeting there.

The attempted robbery failed, but Lee was
shot dead. ;

two of the suspects became witnesses for the
Prosecution, and the man believed to have
been the “trigger man” was sentenced to life in
prison. Only Powers, tried by a different jury,
was given the death penalty.

Powers, a 21-year-old Covington man, was
apparently stngled out for the death penalty
because the jury considered him the leader of
the gang. The gang was connected with a series
of Northern Kentucky robberies.

_The support for Powers was such that a
public meeting was held and a delegation sent

by 6,000 Kenton County residents asking for
" entency. Gov. Morrow refused, .

_ Baying, “I bear no malice toward anyone,”
Powers was executed in the electric chair at

. Eddyville State Penitentiary at 12-28 a.m., June

15, 1923,

The study of Northern Kentucky history is
4N avocation of staff writer Jim Fels, who cov-
ers suburban Kenton County for The Kentucky
Post. :

a Ss

972 Ky.

offered instruction was merely the converse
of the given instruction, and that the phase
of the case attempted to be submitted by the
offered instruction was fully covered by the
concluding words of the given instruction
that “unless they so believed they should find
for the defendants.” Not only is this true,
but the court gave a further instruction to
the effect that, if they believed from the evi-
dence that the overflow or damage to plain-
tiffs’ lands was caused by extraordinary
rains or floods, ete., they should find for the
defendants. Instructions in substantially the
Same language have been approved by the
court without the addition of the words “un-
less they so believe they should find for the
defendants.” Louisville, H. & St. L. R. Co.
v. Roberts, 144 Ky. 820, 139 S. W. 1073;
Louisville & N. R. Co. v. Bennett, 207 Ky.
776, 271 S. W. 71. We therefore conclude
that the given instructions fully covered the
law of the case, and that the court did not
err in refusing the offered instruction.
Appellants rely on numerous errors in the
admission of evidence, all of which we have
carefully examined. In some instances ap-
pellants did not object and except. In other
instances the evidence was admissible to show
_ the bias or interest of the witness, or for
purposes of contradiction. In still other in-
stances the evidence though perhaps inad-
missible, bore so remotely on the issues in-
volved that its admission could not have
prejudiced appellants’ substantial rights.

[4-6] Particular complaint is made of the
fact that some of the witnesses were permit-
ted to fix the market value of the lands before
the embankment was placed there “consider-
ing the drainage tax had virtually been paid,”
and also to state what the land was worth
“now.” As the fact that the drainage tax had
been paid might affect its market value and
play some part in the estimates of the wit-
nesses, we are not inclined to the view that
the reference to the drainage tax was preju-
dicial. But appellants insist that the worst
feature of the admitted evidence was that
the witnesses were permitted to fix the market
value of the land “now.” This is not a case
where the mere presence of the embankment
injured the land. In the very nature of
things there was no liability unless the wa-
ter was negligently diverted and injured the
land, and this could not be determined until
the injury took place. We have held that,
where the nuisance is permanent, the injured
landowner may recover in one action for all
damages past, present, and future, and, while
the measure of damages has been differently
stated, we have approved instructions fixing
the measure of damages, as does the instruc-
tion given by the trial court, as the diminu-
tion in the market value of the land caused
by the diversion of the water. Louisville, H.
& St. L. R. Co. v. Roberts, supra. As this

56 SOUTH WESTERN REPORTER, 2d SERIES

instruction confines the damages to the dimi-
nution in the market value of the land caused
by the diversion of the water, it is not to be
presumed that the jury included in its ver-
dict any diminution due to the prevailing
depression or other causes. As there was
abundant evidence by other witnesses in an-
swer to questions of which no complaint was
made, we are not inclined to order a reversal
because of the admission of the evidence
complained of.

As the verdicts in the several cases are well
within the limits fixed by the witnesses, it
cannot be said that they are flagrantly
against the evidence.

While counsel in arguing the Adkins case
used some expressions that cannot be ap-
proved, we are not persuaded that they were
So improper as to require a reversal of the
judgment.

Judgment affirmed. Whole court sitting.

POPE v. COMMONWEALTH.

Court of Appeals of Kentucky,
Jan. 13, 1933.

Rehearing Denied March 8, 1933.

{. Homicide €=250.
Evidence held sufficient to support con-

viction of defendant for murder of divorced
wife.

2. Criminal law €>438.

In murder prosecution, photographs prop-
erly identified by one taking them showing
wounds on deceased's body held admissible.

3. Criminal law €=942(1).

New trial would not be granted for new-
ly discovered evidence which would tend to
impeach commonwealth’s witness on unim-
portant feature of case.

4. Criminal law €=945(1).

; New trial would not be granted for newly
discovered evidence which would harm rather
than help defendant.

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

Kermit Roosevelt Pope was convicted of
murder, and he appeals.
Affirmed.

Charles A. Comstock, of Louisville, for ap-
pellant.

>For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

: POPE y. COMMONWEALTH Ky. 973
56 S.W. (2d)

Bailey P- Wootton, Atty. Gen., and Francis
M. Burke, Asst. Atty. Gen., for the Common-
wealth.

DRURY, C.

The appellant whom we shall refer to as
the defendant slew his wife in a jealous rage,
he was convicted and his punishment fixed
at death. This homicide occurred near the
southeast corner of the intersection of Gar-
land avenue and 12th street in Louisville,
Ky., about 11 p. m., November 23, 1931.

[1-3] The defendant, aged 81, and the de
ceased, aged 27, had been married about 9
years; they had 5 children; the defendant
was jealous hearted, frequently quarreled
with his wife about fancied attentions of
other men to her, and was cruel to her, as a
result of which they were divorced on Octo-
ber 31, 1931, and the custody of the children
granted to the deceased.

The defendant was endeavoring to induce
her to return to him and was, so he says,
trying to do so just before the shooting and
admits that he was also then quarreling with
her about some man that he insists that he
had seen her with the night before. He had
armed himself on the night before after see-
ing this man and on this night when, accord-
ing to him, she told him she would. not go
back to him he drew his pistol and shot her.
One ball passed through her left kidney and
came out of her body in front; another ball
broke the bone of her right arm, entered her
body and lodged near her left arm pit, a
third ball entered her right side, passed
through her body, and also lodged near her
left arm pit, as a result of which she died
almost immediately and without saying a
word except to scream each time she was shot.

There were seven eyewitnesses to the shoot-
ing, and, according to them, the first shot was
fired by the defendant as his wife was run-
ning away from him and after the first shot
struck her she turned and ran back toward
or past him, whereupon he shot her twice
more and she fell.

The defendant has a puny story of self-de-
fense which consists of a statement that she
was coming at him with a knife and he shot
to save himself from what he regarded as
danger of great bodily harm, but no knife
was found on or about the deceased; the
location of the wounds on her body do not

harmonize with his story of the shooting and
the evidence of the eyewitnesses is in di-
rect conflict with his account. He made a
motion for a new trial based upon twelve al-
leged grounds but really he had but four
grounds as many of these alleged grounds are
repetitions of each other. Those grounds are
that the verdict is not supported by the evi-
dence but there was not enough merit in this
for him to discuss it in his brief and neither
shall we discuss it in the opinion; alleged er-
ror of the court in permitting the common-
wealth to introduce photographs of the de-
ceased showing the wounds upon her body
which the defendant alleges was very prej-
udicial to him which is true but in order to
obtain a reversal it would be necessary for
him to show not only the evidence was prej-
udicial but was erroneously admitted and
these photographs had been properly identi-
fied by the man who took them and the court
did not err in admitting them. See Young v.
Com., 245 Ky. 570, 53 S.W.(2d) 963, and cases
cited in that opinion; alleged misconduct of
the commonwealth’s attorney in his argument
to the jury, but this is not embodied in the
bill of exceptions, but, if it were, it would be
without merit for what was said was within
the range of legitimate argument; and, final-
ly, the defendant has, so he says, discovered
three new witnesses whose affidavits are in
the record and we have examined them. One
of these affidavits contains some evidence
that would tend to impeach Laura Ward, a
witness for the commonwealth, upon one un-
important feature of the case and it is the
rule of this court not to grant a new trial
for evidence of that character except under
exceptional circumstances which do not exist
here; see Bowling v. Com., 230 Ky. 387, 19
S.W.(2d) 1086; Hensley v. Com., 241 Ky. 367,
43 S.W.(2d) 996.

[4] The evidence of the other newly dis-
covered witnesses would harm rather than
help the defendant, hence there is no merit
in his contention so far as newly discovered
evidence is concerned.

The punishment which this judgment will
inflict upon the defendant is very severe, but
his crime was atrocious and he had not the
slightest hesitancy in inflicting a similar pun-
ishment upon the deceased because he fancied
her to be guilty of a far lesser offense. The
judgment is affirmed. The whole court sit-
ting.

ry) |
oT
ori
A
®
8
=
fA.
ct
°
a
®
<
ro)
re
ct
we
2
jes
fp
fe)
bo ad
. .
©
| cmd
©
re)
@
a
-)
£
a
a ©)
oo
C.
®
Hy
ae)
@
P
a
3
=
——Z
lm
§
ed
[=
1
HH
XO
Ww
We
e

Metadata

Containers:: Box 17 (2-Documentation of Executions), Folder 8
Resource Type:: Document
Description:: Willie Moore executed on 1928-07-13 in Kentucky (KY)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: June 30, 2019

Using these materials

Access:: The archives are open to the public and anyone is welcome to visit and view the collections.

Collection restrictions:: Access to this record group is unrestricted.
Collection terms of access:: The researcher assumes full responsibility for conforming with the laws of copyright. Whenever possible, the M.E. Grenander Department of Special Collections and Archives will provide information about copyright owners and other restrictions, but the legal determination ultimately rests with the researcher. Requests for permission to publish material from this collection should be discussed with the Head of Special Collections and Archives.