Burton v. Commonwealth

• Decision Date: 17 January 1913
• Citation: 152 S.W. 545,151 Ky. 587
• Parties: BURTON v. COMMONWEALTH. HARVEY v. SAME.
• Court: Kentucky Court of Appeals

152 S.W. 545

151 Ky. 587

BURTON v. COMMONWEALTH.

HARVEY v. SAME.

Court of Appeals of Kentucky.

January 17, 1913

Appeal from Circuit Court, Floyd County.

Berry Burton and Charles Harvey were convicted of murder, and they appeal. Affirmed as to Burton. Reversed as to Harvey.

A. J May, of Prestonsburg, and Byrd, Nickel & Howard, of Jackson for appellants.

W. H May, of Prestonsburg, Jas. Garnett, Atty. Gen., and M. M Logan, Asst. Atty. Gen., for the Commonwealth.

MILLER J.

On February 6, 1912, the grand jury of Magoffin county returned an indictment against Berry Burton, Charley Harvey, Ben Harvey, Robert Harvey, and Willie Harvey, charging them with the murder of Samuel Pickleseimer. The first count charges that all the defendants did the shooting and killing; while the second count charges that all of the defendants conspired together to kill Pickleseimer, while Burton did the shooting and killing, the other defendants being then and there present, and aiding and abetting therein. Upon the motion of the defendants a change of venue was granted to Floyd county, where the defendants were tried at the July term, 1912. Upon the conclusion of the testimony for the commonwealth, and upon their motion, the court peremptorily instructed the jury to find the defendants Willie Harvey and Robert Harvey not guilty, which was done; but it overruled a similar motion made by the other defendants. At the conclusion of all the testimony the remaining defendants repeated their motion for a peremptory instruction, which was overruled. The jury acquitted Ben Harvey, but found the defendants Berry Burton and Charley Harvey guilty of murder, and fixed their punishment at confinement in the penitentiary for life. They appeal.

Many grounds were relied upon below for a new trial, but the brief for appellants confines the argument for a reversal to three points: (1) That the verdict is against the law and the evidence; (2) that the court erred in admitting incompetent testimony; and (3) the improper conduct of the commonwealth's attorney in the argument of the case. All other grounds for a new trial having been abandoned in the brief for appellants, we will confine this opinion to the points above suggested.

1. The ground that the verdict is against the law, and is not sustained by the evidence, requires a careful examination of the testimony. The record is a voluminous one, and shows the following material facts: Samuel Pickleseimer was 53 years old, and lived on Cow Creek, in Magoffin county, about 2 miles from Berry Burton's residence, and 400 or 500 yards from John Harvey's residence. Henry Harvey's place adjoined that of his brother John. Charley Harvey and Willie Harvey are sons of John Harvey, while Ben Harvey and Robert Harvey are sons of Henry Harvey. Robert Harvey and Willie were mere boys. Ben Harvey was the son-in-law of his uncle John Harvey. On the night before Christmas 1911, Berry Burton had gone to John Harvey's to spend the night, and while there, at about dark, he met Ben Harvey and Charley Harvey. Ben Harvey and his wife had gone to John Harvey's to spend the night and Christmas with their parents. Several days before Wiley Reed had promised Ben Harvey a half bushel of apples for Christmas, and about dark Ben suggested that they go down to Reed's that night and get them. He asked Burton and Charley Harvey if they would go with him, and they consented. They started down the creek to Reed's, Berry Burton having a pint of whisky and a revolver. Ben stopped at the residence of his father, Henry Harvey, and procured a lantern, which they lighted, as the night was dark. About this time the two boys, Willie and Robert Harvey, joined them, and the five proceeded on their way, which led them through or by Pickleseimer's place. Willie Harvey had taken his father's shotgun, evidently for the purpose of having some "Christmas guns." In order to avoid the muddy roads, they went through the fields part of the way; and, as they reached Pickleseimer's place, Bertie Pickleseimer, a daughter of Samuel Pickleseimer, was in the garden through which they passed, and testified that, the appellants having trouble getting through a barbed wire fence, Berry Burton remarked that any man who would build a fence like that ought to have his brains knocked out. Burton denies this; and, although several persons were present at the time, Bertie Pickleseimer is the only one who testified to the declaration. When the party reached Pickleseimer's house, Burton decided that he wanted to talk to his brother, who lived on Half Mountain; and, as Pickleseimer had a telephone in his house, Burton entered the house to see if he could talk to his brother over the telephone. Some of the other boys, including Charley Harvey, went with him into the house. Ben Harvey, who was carrying his lantern, stopped in the garden where Bertie Pickleseimer and Roscoe Gullett and his wife were getting some apples from the ground, where they had been stored. Willie Harvey left his shotgun on the outside of the house, and went in; and by this time they were all in the house. Nothing happened while they were there out of the ordinary. When it was found, however, that Burton's brother lived half a mile or more from the telephone station, Pickleseimer suggested to Burton that it was more than likely he would not be able to get his brother that night, and inquired what he thought about postponing it until next morning, whereupon Burton said that would do just as well, and they made no further attempt to get his brother. Pickleseimer then called the attention of the crowd to the fact that some one was playing the graphophone over on Grape Creek, and it could be heard over the telephone; and as a matter of curiosity, and at Pickleseimer's invitation, all of those present took turns in listening to the graphophone. Some one of the visitors then suggested that it was time for the defendants to leave, when Pickleseimer invited them to stay all night. They told him, however, that they could not stay, and they all left in an apparently good humor, Ben Harvey carrying the lantern. As they went down the creek they called at Patrick Rizner's, but Rizner had retired for the night. He got up, however, and came to the door, whereupon Burton told him he had come for those apples which Rizner had promised him a few days before, but Rizner told him there had been a lot of people there during the day, and that no apples were left. Rizner invited the defendants to come in, and Burton suggested that they go in and have Rizner's girls play for them on the organ; but Rizner said that the girls were not there, that they had all gone down to his son's, Chester Rizner, whereupon the defendants departed. Continuing down the creek in the direction of Wiley Reed's, they next stopped at Minix's store, and got two bottles of "hot drops," and drank them. They then went to Wiley Reed's, where Burton and Ben Harvey went in to see about the apples which Reed had promised Burton, but Reed told them he had sold nearly all of his apples, and had only about a half bushel left, and of these he gave Burton and Ben Harvey about a dozen apples apiece. The defendants then all started back up the creek toward home, and, when they got to Chester Rizner's, they heard some one picking a banjo. They went in and joined in the festivities. Here they found Bernie Pickleseimer, a son of Samuel Pickleseimer, and Corbett Reed, a young nephew of Samuel Pickleseimer. In the October preceding there had been some difficulty between Bernie Pickleseimer and Burton and Charley Harvey about a fence on Samuel Pickleseimer's farm. Bernie Pickleseimer testified that Burton and Charley Harvey had thrown down the fence, and cursed his father, who had remonstrated with them for doing it, and that as they left the place Bernie Pickleseimer fired a shot at them. Burton and Charley Harvey denied this charge, and explained the incident by saying that while they were going along the road, and to get out of the mud, Charley Harvey caught hold of a plank of the fence, which gave way, and that constituted what Bernie Pickleseimer called a tearing down of the fence. Burton and Harvey further said that,

if Bernie Pickleseimer fired at them, they did not know it, and that they had no words with his father on that subject. At any rate, when the defendants arrived at Chester Rizner's and found Bernie Pickleseimer and Corbett Reed there, their entrance seemed to cast a damper upon the conduct of Bernie Pickleseimer and Reed, who were evidently more or less nervous by the appearance of the defendants, who were drinking, and more or less boisterous. Some of those who were at Chester Rizner's say that Burton used profane and ugly language, and insisted upon the girls dancing, but that Mrs. Rizner prohibited it. Burton evidently occupied the chief place in what took place at Chester Rizner's by walking around the room, rolling apples across the floor to the girls, and monopolizing the conversation. His pistol could be seen, and several of the defendants, according to Pickleseimer, would go out of the room every now and then and have a conversation with each other. At one time Burton leaned over and asked Ben Harvey "if he was right," and Ben said, "I am always right;" whereupon Burton said, "If you ain't right, I will get you right." The others did not understand what they meant. Finally, Burton pointed his finger at Bernie, and said, "Why would I want to kill that man for, and he sitting there smoking and doing himself some good?" These disconnected statements...