Browder v. Commonwealth

• Decision Date: 17 December 1909
• Citation: 136 Ky. 45,123 S.W. 328
• Parties: BROWDER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

123 S.W. 328

136 Ky. 45

BROWDER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 17, 1909

Appeal from Circuit Court, Logan County.

"To be officially reported."

Rufus Browder was convicted of murder, and he appeals. Reversed and remanded.

Sims Du Bose & Rodes, for appellant.

Jas Breathitt, Atty. Gen., and Theo. B. Blakey, Asst. Atty. Gen for appellee.

HOBSON J.

Rufus Browder, a negro, shot and killed James Cunningham, an influential white man, in Logan county on July 13, 1908. At a special term held in August he was indicted for murder. His motion for a change of venue was overruled, and the case coming on for trial in February, 1909, he was found guilty as charged, and his punishment fixed at death.

The first question arising on the appeal is as to the propriety of the ruling of the court refusing the defendant a change of venue. By section 1109, Ky. St. 1909 (Russell's St. § 3219), when it appears that the defendant cannot have a fair trial in the county where the prosecution is pending, the judge shall, upon the application of the defendant, order the trial to be had in some adjacent county to which there is no valid objection; or, if he is satisfied that a fair trial cannot be had in an adjacent county, he may order the trial to be had in the most convenient county in which a fair trial can be had. By section 1110 (Russell's St. § 3220) the defendant's application must be made by petition in writing, sworn to by him, and must be supported by the affidavits of two other credible persons not of kin to him or of counsel for him, stating that they are acquainted with the state of public opinion in the county, and verily believe the statements of the petition to be true. The defendant's application was regularly made, and was supported by the affidavits of two persons as provided by the statute. On the hearing of the application a number of witnesses were introduced both for the defense and the commonwealth. The facts, as shown by the defendant, are, in substance, these The shooting took place on the morning of July 13th about 7 o'clock. The defendant fled after the shooting. The sheriff of the county was telephoned to, and arrived on the scene about 10 o'clock. When he reached there several parties of men armed with guns were out hunting for the defendant. This continued until about 1 o'clock. The father of the defendant was apprehensive that his son would be killed if found, and finally an agreement was reached between him and the sheriff by which the sheriff agreed to protect the defendant from harm at the hands of the searchers and take him to jail, and the father agreed to take the sheriff where his son was. This agreement was had between the father of the defendant and the sheriff after the sheriff consulted with the men who were hunting for him, and was faithfully carried out on all sides. The shooting occurred about 12 miles from Russellville, the county seat. The defendant was placed in jail. The jailer being apprehensive that a mob would come took the defendant out of jail at dusk, and took him over to a burying ground, and there left him in charge of another while he returned to the jail. Not long after his return to the jail the mob arrived. The jailer informed them that the prisoner was not there, and he did not know where he was. They then went to the sheriff thinking that he had him, and the sheriff told them that he did not know where he was. Thinking that the sheriff and the jailer were misleading them, they then went to the jail and made the jailer come with them to the sheriff so as to bring the two face to face. Not learning in this way where the prisoner was, they returned and searched the jail. The night train passed the station soon after this, and thinking that he might be taken off on that train, they repaired to it and searched it. Finally, not being able to find him, later in the night they disappeared. The next morning the prisoner was placed on the train and taken to Bowling Green. It being learned by the authorities there that a raid on the jail was contemplated, he was taken from there to Louisville. This was soon learned in Logan county. In the meantime four negroes, two of whom were witnesses for the defendant, and two members of his lodge, had been arrested for some misdemeanor, and placed in jail at Russellville. These men were from the neighborhood in which the defendant lived, and some of them had been about his father's house when the search was made for the defendant on the day of the homicide. On the night of July 31st another mob appeared at the jail at Russellville. The jailer did not resist them, and they took out of the jail these four men who were in no way connected with the homicide, and against whom no charge had been preferred except such as a breach of the peace or carrying concealed weapons, and immediately hung all four of them in the most cruel manner, putting upon their bodies placards to the effect that the negroes take warning and disband their lodges. On the night of August 3d, after these four men had been killed in the manner pointed out, a rumor about midnight reached Russellville that the negroes had organized and were marching on the town. Fire alarms were rung. The people were aroused. All the men capable of bearing arms rushed to the public square and patrolled the town until morning. But no negroes came. The motion for a change of venue was entered about August 1st. It was heard on August 10th. The two men who had signed the affidavits supporting the defendant's petition for a change of venue were notified in substance by an anonymous writing, "We shall get you next." Unable to employ counsel in Logan county, the defendant went to Bowling Green and employed a firm of lawyers there. They took the employment upon condition that a lawyer at Russellville was to be employed. A lawyer there was employed and was to be paid $200 to assist the Bowling Green lawyers on the trial. The pressure on him there was such that, in a short time, he notified the defendant that he must get out of his...