Carsons v. Commonwealth
| Decision Date | 15 December 1931 |
| Citation | 243 Ky. 1,47 S.W.2d 997 |
| Parties | CARSONS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied April 26, 1932.
Appeal from Circuit Court, Nelson County.
Frank Carsons was convicted of willful murder, and he appeals.
Affirmed.
David Sessmer, of Louisville, for appellant.
J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.
Frank Carsons and Tony Peterson, two young men, claiming Detroit as the place of their residence, left that place "hitch-hiking," ostensibly to find employment. They went to Chicago, where they remained one night, then to Hammond, Ind., to Indianapolis, Ind., and Louisville, Ky where they spent one night in each city. On Monday morning, about 11 o'clock a. m., on the 23d day of February, 1931, they left Louisville, walking, going the Bardstown road. A Mr. Carrithers who was traveling on the highway in a Studebaker car, about 3 o'clock in the afternoon, permitted them to ride with him to Fern Creek, Jefferson county. On arriving there, they got out of his car, and within a few minutes tried to catch a ride on a truck, but missed it. They again started to walk, went a little way, when Mr. C. B. James and his wife came along in their car. The two boys waved to them; they stopped their car; the boys ran to it and asked for a ride, stating they had blistered their feet and were tired. They asked Mr. and Mrs. James how far they were going. They stated they were not going very far. The boys said they were going to Nashville, Tenn., and that a few miles ride would help them. Mrs. James opened the door for them and invited them to enter the car and to occupy the rear seat. The boys after seating themselves stated they were "footsore, tired and had no means."
From the point where they entered the car of Mr. James in Jefferson county to Cox's Creek in Nelson county, no conversation occurred between them and Mr. and Mrs. James. After the car reached just beyond Cox's Creek, Frank Carsons pulled a revolver out of his pocket and put it against the back of Mr. James. Mrs. James, on seeing him do so, said to him, "Is that the way to do us after we have given you a ride?" Carsons said in response, "Nobody is going to be hurt we just want the car." He commanded James to slow down. James did so and the motor of his car "went dead." Just at that time an automobile came by from the direction of Bardstown going toward Louisville. To its occupants Mrs. James signaled with her handkerchief for them to stop. This car passed the James' car, stopped, and then backed up to it. At that time Mr. James got out of his car on the left side; Frank Carsons got out on the same side; Tony Peterson got out on the right side and went around the front of the car towards the driver's seat, and when he reached the front of the car, he stopped, where he remained standing. Mr. James addressing himself to Carsons said, "Buddy, don't pull anything like that." Carsons was standing on the left side of him. Mr. James then walked diagonally across and to the side of, the road, and stopped, facing the car. Carsons was standing in the road about the middle of the car. The two men who had backed their car up to the James car stopped it a little to the north of the James car, about twelve feet from it, when Carsons, with his pistol pointed at them, commanded them to "move on," which they did. When they were about 100 yards away they heard a pistol shot. While James and Carsons were occupying the positions we have described, Peterson got into James' car and started the engine. At the time he did so Mrs. James was seated beside him. Realizing that Carsons and Peterson were going to take the car, she got out of it on the right-hand side. As she got out of it, she looked through the car door, saw the expression on her husband's face "change," and heard the shot. She ran around the rear of the car to where Mr. James was lying in a ditch. He was dead when she reached him. She screamed for help, turned to look toward the car and it was gone; Carsons and Peterson were in it. They traveled the Louisville-Bardstown Highway, passing through Bardstown in the direction of Hodgenville. On their way they stopped at an oil station, called for gas, a young man waited on them, and when he had supplied them with gas, they directed him to charge it. He observed that they had a pistol in their possession and made no response. They continued to travel the highway until they reached Hodgenville. The officers residing at Hodgenville received telephone information of the shooting and the death of James and the direction in which Carsons and Peterson were traveling. They stationed themselves in the street, a short distance north of the courthouse. The street, on reaching the courthouse, divides and lies on both sides of the courthouse, turning both to the right and to the left, passing around it. On the approach of Carsons and Peterson, one of the officers raised his hand, when Carsons and Peterson "ducked." In their endeavor to pass around the courthouse the car ran against one corner of it, wrecking the car, throwing Carsons and Peterson out of it; one on the left and the other on the right, injuring both of them. They were arrested and two pistols were found, one on the running board, and the other on the floor of the car. The officers carried them to the offices of physicians for first aid. Carsons, on being asked at the office of the physician why they killed the man, responded, "Is he dead?" They were then conveyed to the jail at Bardstown. The regular term of court was in session at the time, and on the next day the grand jury indicted them, charging them with the crime of willful murder, committed by the killing of C. B. James. The regular term being about to expire, and the court not having time to complete the business of the docket, extended it from February 28, 1931, to and including March 14, 1931. The trial of Carsons and Peterson was, by order of court, set for February 27, 1931, and they were remanded to jail. On account of its condition, on the 25th day of February, 1931, they were ordered to be confined in the county jail of Jefferson county until further orders of the court. On February 27, 1931, by an order of court, they were returned to Nelson county for trial. On the calling of the prosecution for trial, the defendants presented, but subsequently withdrew, a motion for the regular judge of the court to vacate the bench. Thereupon the case was assigned for trial on the 9th day of March, 1931, and they were again remanded to jail in Jefferson county. On the 9th day of March they were returned by an order of court to the courthouse in Nelson county, and the prosecution was called for trial. The defendants entered a motion for a severance, which was sustained. Thereupon the commonwealth elected to try Frank Carsons. He entered a motion for a change of venue, supported by his own affidavit, and the affidavit of his attorney. The commonwealth offered evidence in resistance of his motion. On the evidence heard the court overruled his motion, to which he saved an exception. A motion for continuance was entered by Carsons, supported by his, Tony Peterson's, and his attorney's affidavits. The court overruled his motion to continue; to this ruling he saved an exception. A jury was summoned and impaneled, and a trial was entered into. After the jury heard the evidence, received the instructions of the court, and heard the arguments of counsel of both the commonwealth and the defendant, it failed to agree, and was discharged. The court again set the prosecution against Carsons for trial. By an agreement between the attorneys of the commonwealth and the attorney of the defendant, the same affidavits for a
change of venue and for a continuance were agreed to be considered and were considered on this call of the case, as if they were then filed for the purpose of a change of venue and a continuance. Both his motions for a change of venue and a continuance again were overruled, to which he excepted. A jury was impaneled and sworn, the evidence heard, the instructions given to it, arguments were made by counsel of the commonwealth and the defendant, and the jury on a consideration of the case returned a verdict, finding Carsons guilty of willful murder, and fixing his punishment at death. A judgment was accordingly entered from which he prosecutes this appeal.
In the recent case of Taylor v. Com., 240 Ky. 450, 42 S.W.(2d) 689, 692, the identical question of change of venue and like affidavits in support of the motion therefor were presented and disposed of by this court in this language:
In the Taylor Case, as here, "no petition was filed as required by the statute," and the supporting affidavits did not undertake to comply with its requirements. On the authority of that case, it is apparent the trial court committed no error when overruling Carsons' motion for a change of venue. Waiving the question of his failure...
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