Edwards v. Commonwealth

• Decision Date: 01 May 1936
• Parties: EDWARDS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

94 S.W.2d 25

264 Ky. 4

EDWARDS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 1, 1936

Appeal from Circuit Court, Clay County.

Lon Edwards was convicted of murder, and he appeals.

Reversed with directions.

Roy W House, of Manchester, for appellant.

B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen., for the Commonwealth.

THOMAS Justice.

At about 4 p. m. on September 6, 1935, Harvey Edwards was shot from ambush while he was traveling a road supposedly in a wagon, from the effects of which it is surmised he died at some time that night while lying on the porc> of his residence. His son, the appellant, Lon Edwards, who is only fifteen years of age, was later indicted for murdering his father. At his trial he was convicted and punished by life imprisonment, and the court sentenced him to confinement in the school of reform at Greendale, Ky. until he is 21 years of age, and the judgment directs that he then be removed to Frankfort, Ky. to be confined in the penitentiary during the remainder of his life. From the verdict and the judgment pronounced thereon he prosecutes this appeal, relying upon a number of alleged errors as grounds for a reversal, chief among which is: (1) That the evidence is insufficient to support the verdict and that his motion for a peremptory acquittal should have been sustained; but if mistaken therein, then (2) that the verdict is flagrantly against the evidence.

Rarely have we encountered a record in this court so incomplete and so lacking in direct proof of essential facts as is true with reference to this one. There is no proof, except insufficient inferences, that the deceased was shot in Clay county, Ky.; nor is there any proof, except hearsay, as to the place where he was shot; nor any proof by any professional witnesses that he died from the effects of such shooting. It is shown that the weapon used by the assassin, whosoever he was, was a shotgun, and a layman witness described in a most general way the parts of decedent's body that were penetrated by the shots--but, whether they were bird shot or larger ones is nowhere intimated throughout the record, nor were any of the inflicted wounds described. Esquire Howard, a justice of the peace in Clay county and also Colonel May, another witness for the commonwealth, testified as to what they saw at a place by the side of a road upon which the deceased was supposed to have been traveling, and which they stated that they had been told was the one from which the shots were fired. That place was a sort of improvised blind made by sticking broken cucumber limbs in the ground by the side of a rock and behind which was a trampled down place, which, according to the Squire, had the appearance of having been lain upon by the supposed assassin. Strange as it may seem, no witness was introduced who discovered or saw at any time the body of the deceased in its wounded condition at that or any other place, until his body was carried to the home of his sister, Anna Lee Smith, some three hundred yards from the improvised ambuscade. She claims to have heard the report of the gun and testified that it was about 4 o'clock on that afternoon. She did not say, nor does any one else say, how long it was after that until the wounded man was discovered, and after which his body was brought to her house and put upon the porch in front of it. Later it was removed to his home about one mile away and deposited on its porch, where it remained until he died.

Just why the commonwealth introduced no witness who found or saw Harvey Edwards at the place where he is supposed to have been shot and to have described the condition and surroundings thereof is not explained anywhere in the record. The first reference to him in his wounded condition relates to the time after he had been deposited on the porch of his sister's residence and when he was not yet dead, but, as we infer, he was then, and thereafter remained, speechless. Whether or not there had been a mortal wound inflicted upon him is nowhere disclosed, and whether or not any such wounds produced his death rests also in inference alone. The same is true, as we have said, with reference to the venue of the supposed place of wounding, as well as the place where he expired. Having said this much with reference to the paucity of the proof touching the material facts referred to, we will now briefly rehearse the substance of the proof connecting appellant with the death of his father, but before doing so we will state that defendant did not testify at the trial, nor did he introduce any witness in his behalf, contenting himself with offering a peremptory instruction of acquittal at the close of the commonwealth's testimony.

The commonwealth introduced Willie Edwards, a brother of deceased, who stated that he lived in Knox county, Ky. about two miles from his deceased brother; but he nowhere stated that his brother; lived in another county. He testified that appellant came to his house on the supposed day of the killing with a shotgun, arriving there about 1:30 o'clock in the afternoon, and delivered to him a message from his brother (the appellant's father) to the effect that the deceased wanted witness to assist him the next day in harvesting some hay, and that appellant left in about ten or fifteen minutes in the direction of his home. He testified that the gun that appellant was carrying, when originally manufactured, was a 16-gauge one and that it had been bored out so as to make a 12-gauge one. He then detailed some local geography of the neighborhood and stated that he did not see appellant again until he was arrested and in jail.

Squire Howard testified that the next morning he went to the improvised ambuscade, at which some one had told him the shooting occurred, and examined it; that while there he saw a shoe track more than eleven inches long, and correspondingly wide, and which appeared behind the rock supposed to have screened the assassin. He then testified that he and others who were present (but none of whom was introduced) traced those tracks across...