Allen v. Commonwealth

• Decision Date: 22 June 1917
• Parties: ALLEN v. COMMONWEALTH. [a1]
• Court: Kentucky Court of Appeals

196 S.W. 160

176 Ky. 475

ALLEN v. COMMONWEALTH. ^[a1]

Court of Appeals of Kentucky.

June 22, 1917

Appeal from Circuit Court, Graves County.

G. R Allen was convicted of arson, and appeals. Affirmed.

W. J Webb, Speight & Dean, J. E. Warren, Robbins & Robbins, and B C. Seay, all of Mayfield, and S. H. Crossland, of Paducah, for appellant.

Bunk Gardner, H. J. Moorman, M. B. Holifield, and F. B. Martin, all of Mayfield, Ben Adams, of Bardwell, M. M. Logan, Atty. Gen., and Logan N. Rock, Special Asst. Atty. Gen., for the Commonwealth.

CLARKE J.

On the night of July 22, 1912, at about 11 o'clock the tobacco barn of Gardner & Walker, located in the northeastern part of the city of Mayfield, Ky. was discovered to be on fire. Almost immediately after the city fire department had gone to this fire a fire was discovered in the western part of the city about half a mile distant from the first fire, in what is known as the tobacco district, and this fire proved to be a tobacco barn owned by G. R. Allen and W. A. Usher, in which purchases of tobacco were being handled by B. W. Wright and V. E. Allen, and which will be hereafter referred to as the Wright-Allen barn. Shortly after the discovery of this fire another fire was discovered some distance north which proved to be the residence owned by Lee Perkins. The Wright-Allen barn was in the immediate vicinity of several other tobacco barns, some two or three of which also burned, and whether separately set on fire or ignited from the Wright-Allen barn is not clear from the evidence. A few days later Lee Perkins was arrested charged with burning his house, the Wright-Allen barn, and the Gardner & Walker barn, and a warrant was issued charging B. W. Wright with burning the Wright-Allen barn. Shortly thereafter a warrant was issued charging G. W. Gordon with burning the Wright-Allen barn. Perkins, Wright, and Gordon, upon examining trials, were held to answer the charges, and Perkins made a confession in which he admitted burning his own house, and that the Wright-Allen barn was burned as the result of a conspiracy between him, Gordon, and Wright, and an indictment was returned by the grand jury charging these three persons with conspiring to burn and having burned the Wright-Allen barn, to which indictment Perkins entered a plea of guilty, was convicted, and sent to the penitentiary. Usher and G. R. Allen, the owners of the Wright-Allen barn, carried $500 insurance on it, and B. W. Wright and V. E. Allen, who owned the tobacco contained therein, carried $5,000 insurance on the tobacco. The insurance companies paid the loss of $500 on the tobacco barn, and paid losses on the other barns and tobacco burned, amounting to something over $60,000, but refused to pay to Wright and V. E. Allen the insurance on the tobacco owned by them and burned in the Wright-Allen barn. Wright and Allen then instituted suit against the insurance companies to enforce payment of their policies, aggregating $5,000, upon the trial of which case Perkins testified to a conspiracy between him, Gordon and Wright to burn this barn and collect the insurance on the tobacco contained therein. Gordon and Wright both testified, contradicting Perkins' testimony, as did also S. R. Douthitt, not then, but later, connected with the conspiracy. This trial resulted in a hung jury. Two other trials were had of these civil cases, in both of which Perkins, Wright, Gordon, and Douthitt testified as upon the first trial and both of these trials resulted in a verdict and judgment in favor of plaintiffs, which were reversed by this court. At the June, 1913, term the indictment against Wright was tried, and he was convicted upon the charge of conspiring with Gordon and Perkins to burn the Wright-Allen barn, which judgment was affirmed by this court, in November, 1914, as reported in 155 Ky. 750, 160 S.W. 476. At the March, 1914, term of court Gordon was tried upon the same charge, and the jury failed to agree. Perkins, Gordon, Wright, and Douthitt all testified as in the former trial.

In January or February, 1914, Mr. A. L. Brand, of Mayfield, Ky. became connected with the fire marshal's office as a deputy, and was so engaged until July or August, 1914, when he became connected with the Theile Detective Agency, Chicago, for the purpose, as stated by himself, of ferreting out the origin of these fires. Up until this time neither the appellant, G. R. Allen, nor his son, V. E. Allen, had been accused of being implicated in the burning of any of these barns. Shortly after Brand's employment by the detective agency, Gordon accompanied him to Chicago, and at the next term of the grand jury thereafter gave testimony upon which an indictment was returned against appellant, G. R. Allen, his son, V. E. Allen, Hardy Houseman, and S. R. Douthitt, charging them with having conspired with Perkins, Gordon, and Wright to burn the Wright-Allen barn, and that in pursuance of this conspiracy the barn was burned for the purpose of collecting the insurance upon the barn and its contents. After the return of this indictment, Douthitt made a confession to Brand implicating G. R. and V. E. Allen in the burning of these several barns. Thereafter Douthitt reported his confession to Mr. Usher, who owned a half interest in the Wright-Allen barn, and to an attorney for Mr. Allen, representing to them that he had made this confession for the purpose of trapping Brand and a Mr. Flannagan, who was also connected with the Theile Detective Agency; that Brand had paid to him $500 in cash and agreed to make further payments of large amounts of money. Usher and the attorney advised Douthitt to procure from the representatives of the detective agency a written contract evidencing his agreement with them, and this Douthitt did, and left the contract with the attorney for safe-keeping.

At the November, 1915, term of the court the indictment against Allen was called for trial, and he announced ready, but the commonwealth moved for a continuance, which motion was overruled, whereupon the commonwealth's attorney moved to dismiss the indictment against Allen and resubmit it to the grand jury, which motion was overruled, and thereupon the commonwealth's attorney moved to dismiss the indictment, which motion was sustained, and the indictment was dismissed. Immediately thereafter the grand jury returned another indicment against G. R. Allen, V. E. Allen, and S. R. Douthitt, charging them with having conspired with Wright, Gordon, and Perkins to burn and with having burned the Wright-Allen barn with a felonious intent to collect the insurance upon the barn and its contents. Upon this indictment the appellant, G. R. Allen, upon a separate trial, at the March, 1917, term of the court, was convicted and sentenced to the penitentiary for not less than one nor more than six years, and from that judgment is appealing, relying upon the following grounds for a reversal: First, that the court erred in overruling the motion for a peremptory instruction; second, that the court erred in the admission of evidence; third, that the instructions were erroneous; fourth, that the verdict is palpably against the evidence; and, fifth, misconduct upon the part of the attorney for the commonwealth who made the closing argument.

1. The evidence is overwhelming and conclusive that these fires were of incendiary origin. Upon this trial Wright, Douthitt Gordon, and Perkins all testified that the various tobacco barns that were burned on the night of July 22, 1912, were burned in pursuance of a conspiracy to burn them, in order to collect the insurance, although all of them except Perkins had upon previous trials stoutly denied the existence of a conspiracy or at least their knowledge of or participation in a conspiracy. Douthitt and Gordon both testified positively that the appellant, G. R. Allen, was a party to that conspiracy, although Douthitt had confessed, then repudiated his confession, and on this trial, at first, denied knowledge of appellant's connection therewith, in so far as the Wright-Allen barn was concerned, but later changed his testimony detailing the time and place of a conversation with appellant before the fire in which the whole plan to burn the barns, including the Wright-Allen barn, was discussed. Wright and Perkins testified to the existence of a conspiracy, but denied that appellant had any connection therewith. According to the testimony of all these witnesses, the main purpose of the conspiracy was to burn the storage warehouses known as the Enterprise shed, located some distance from any of the barns that were burned, since in that and adjoining warehouse was stored a very large quantity of low grade tobaccos upon which there was insurance amounting to at least $194,000, but for some reason this warehouse was not burned, which is not satisfactorily explained in the evidence, unless it was because the pitch on the roof would not ignite, as Douthitt testified appellant told him after the fire. The conspiracy, as proven, contemplated that the Gardner & Walker barn should be set on fire first, as it was, and that after time had been allowed for the fire department to reach that place, which was about half a mile distant from the other barns to be burned, that they should be fired, so that with the fire department at work at the Gardner & Walker barn there would be but slight chance to extinguish the fires in either of the two districts where it was hoped to destroy the insured tobacco; that at this time the tobacco market was demoralized, prices were low, and but few sales were being made; that the several conspirators, being largely interested in tobacco stored in the warehouses that were to be burned, were facing financial ruin or great loss, which they believed could be averted by...