Chaney v. Commonwealth

• Decision Date: 28 March 1941
• Parties: CHANEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

150 S.W.2d 10

286 Ky. 434

CHANEY v. COMMONWEALTH.

Court of Appeals of Kentucky

March 28, 1941

Rehearing Denied May 9, 1941.

Appeal from Circuit Court, Hopkins County; H. F. S. Bailey, Judge.

Arthur Chaney was convicted of crime of banding for purpose of alarming, disturbing, or injuring other persons, and he appeals.

Affirmed.

Woodward Dawson & Hobson, of Louisville, and Fox & Gordon, of Madisonville, for appellant.

Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellee.

MORRIS Commissioner.

Appellant and thirteen others were charged with violation of K.S. § 1241a-1, banding for the purpose of alarming, disturbing or injuring other persons, eight subjects being named, among them Marvin Wyatt. Upon severance appellant went to trial and a jury returned a verdict of guilty, inflicting the minimum penalty, and on appeal it is contended that the court erred:

(a) In refusing offered instructions which appellant insists constituted his defense;

(b) In allowing commonwealth counsel to make reference in argument to testimony, which it is said had been excluded.

Wyatt a miner of experience in the Hopkins County fields, had worked in the Derby Mine for twelve years. Prior to January, 1939, its operators, due to financial difficulties closed down. They had been operating under a United Mine Workers' contract; Wyatt asserts that he was a member of the organization.

Following the closing Wyatt had been property caretaker. Discussion was had between Wyatt, the miners who had been working, and the owner, as to possibility of beginning operations, which led to a royalty contract under which Wyatt, about January 31, 1939, began cleaning up, and was so engaged on February 2. Wyatt had not contracted with the U. M. W. A., but had employed twenty or more men at $2 per day for cleaning up. They had not begun cutting coal. The majority of the employees claimed to be union members.

Wyatt testified that early on the morning of February 2, he started steam in the boiler, and shortly thereafter observed a number of automobiles coming up the road, stopping near his boiler room, and he walked out to the cars. Chaney stepped out of a car and said to him: "All right you scabbing s. o. b., we have come after you," and, as Wyatt relates, put his hand in his right coat pocket, and said, "Scabbing days in Hopkins County are over; get in there and blow the run-off," a recognized signal for "no work that day." Continuing he said: "They said they were going to shoot me; blow my house up and throw me in the shaft." He did not attribute this language to Chaney, but said he was "close up to the men who were in the crowd." Chaney repeated his order, and "stuck something that felt like a gun in my back; followed me into the boiler room," and Wyatt blew the whistle until Chaney said, "that is enough." Others of the party followed into the room.

Wyatt was ordered to "draw the fire," and reached for the rake, which was so hot that he dropped it; he was then kicked and struck several times, and directed to go home. As he started out, three strangers grabbed him and took him away from the "other men," who had pistols drawn on him. He stated that all this happened in the presence of appellant. No employe of Wyatt's was present at the time. Wyatt named as being present the persons jointly indicted, and says there were many in the crowd he failed to recognize. Wyatt said he knew Chaney because he had seen him at labor meetings during the previous twelve months.

Berry, an employe, had started to the mines and met others leaving the plant, who appeared to have been beaten up. He saw some unknown person in the crowd hit his son; Chaney was present and said he didn't "aim for no more scabbing going on in Hopkins County;" Berry was frightened and did not attempt to work. Other employes present identified appellant.

Willet Berry, also an employe, at some distance from the plant met Chaney with five others; some one in the crowd, other than Chaney, asked where he was going. He said he was not going to work, but "they beat the fire out of me anyhow."

Employe Dawson had reached the plant; he saw men standing around, and recognized Underwood, who said, "It looks like you are trying to get my job," and some other man said to him, "pour your water out and get moving." Witness replied that he had never run before, and Underwood said, "You G. d. s. o. b. you'll run this time," and they proceeded to whip him. He recognized Chaney, Miller, two Underwoods and Downey. He said he then went up the railroad and met other employes, and the crowd "tied into us again." Several witnesses testified that a number of the picketing crowd had pistols.

The foregoing exemplifies the tenor of evidence by commonwealth's witnesses, including that of six or eight others than those named. They estimated the crowd about the mine from 30 to 75 persons, colored and white, placing them between the boiler room and tipple. A number of witnesses recognized Chaney in the crowd at this point, and identified him as being in the crowd at points where others testify they were assaulted.

Appellant testified that he had been a miner, but at the time was organizer for the U. M. W. A. in District No. 23, which included Hopkins County, which had a local unit holding meetings in a hall in Madisonville, where appellant was on January 1, 1940, and attended a meeting that night. Some of those present who had worked at Derby said other men were taking their jobs, and suggested requesting them "not to continue work until a contract was signed up." Davenport was spokesman, followed by Woods and appellant. Suggestion was made to picket three mines on February 2. It was not then agreed which mine would first receive attention.

The theme of discussion was "that the men under the law had a right to peacefully picket, which meant to go and talk peaceful, and ask them not to enter the mines until the contract with the U. A. W. A. had been signed. We had to protect our organization to that extent, but that if they went out with weapons and unlawfully picketed, the U. M. W. A. would let them paddle their own canoes."

Appellant remained in Madisonville, and agreed to meet with the men "back at the hall," where they met about 5:00 a. m., February 2. About 18 showed up, though a greater number had pledged to be present, and agreed to first visit Derby. Appellant in his own car, joined four other cars, occupied by a majority of those indicted. On the way to the plant appellant says he heard a whistle blow in the direction of the Derby. Arriving he and others parked on the road near a bridge 75 to 100 feet from the boiler room, and he says no car or person in the convoy crossed the bridge.

He saw a number of unrecognized persons "scattered between the tipple and the boiler room, and up and down the railroad track." He got out of his car and walked up to the bridge, and was positive that he did not talk to any person, other than his companions, that morning; he never saw Wyatt, or had word with him, and no one of his party went into the boiler room, or assaulted Wyatt. He also says no whistle was blown while they were there; that neither he nor any of his party was armed. He did not go up the railroad; did not address the attributed language to anyone, and was not in speaking distance of any employe. He saw no one coming to work "to talk to, so we left," all going back to Madisonville in a group.

An array of witnesses, among them those indicted, and all who were in the party which left the hall, as a whole corroborated appellant's testimony. Four of the co-defendants said they were near the mine on that morning, but did not leave the hall with appellant's crowd, and had no arrangement to meet there or elsewhere. Stanley Davenport and Miller said they were not at the scene, and are corroborated.

With this statement of the proof, which to say the least is somewhat conflicting, we take up ground (b): Wyatt, and witnesses testifying for him, identified Stanley Davenport (indicted) as being one of the aggressors. Stanley said he was working that morning at the Biven's coal mine. He was corroborated by other witnesses; one was Buchannon, and when on the stand the county attorney said: "I will ask you whether you made this statement to Marvin Wyatt about a month after this occurrence at the time the mines were idle, that Stanley Davenport came to work that day about ten o'clock in the morning, and that he talked to you and wanted you to say that he came to work earlier than that--did you make that statement?" Buchannon answered, "No, sir." Wyatt was brought back and contradicted Buchannon. On motion of appellant the court advised the jury that Wyatt's testimony was to be considered only as bearing on the credibility of Buchannon. In argument to the jury one of counsel for the commonwealth stated: "If Stanley Davenport was not present at the time and place charged in the indictment, why did he go down there and ask Buchannon to say that Davenport was at the Biven's mine at the time of the occurrence?"

Counsel objected and the court overruled the motion to admonish the jury to disregard the statement. It is argued that the remark was highly prejudicial, and in support cites the case of Nolan v. Com., 261 Ky. 384, 87 S.W.2d 946. A reference thereto demonstrates that the remarks therein went far beyond the limits of propriety; not at all a measure for the objection here.

Wyatt was positive that he had recognized Davenport; the contrary evidence went only to credibility, it was not substantive, as counsel correctly says, but it was before the jury, and the prosecuting officer had the right to draw...