Elmendorf v. Commonwealth

• Decision Date: 11 October 1916
• Citation: 171 Ky. 410
• Parties: Elmendorf v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 410

171 Ky. 410

Elmendorf v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 11, 1916.

Appeal from McCracken Circuit Court.

SAMUEL H. CROSSLAND for appellant.

M. M. LOGAN, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE HURT — Affirming.

The appellant, Ernest Elmendorf, was convicted in the McCracken circuit court, of the crime of wilful murder, and his penalty fixed at imprisonment during his lifetime. The motion made by him for a new trial having been overruled by the circuit court, he has appealed to this court. The evidence heard by the trial court presents many contradictions, and facts, which are unusual. On the night of February 2nd, 1916, Al Redman, Pete Ingram and Dick Iseman were in the saloon owned by Theo. Peters, on Kentucky avenue, in the city of Paducah. The front of the saloon was upon Kentucky avenue, between 10th and 11th streets. There was a side door to the saloon, upon the west side of it, which opened out upon an alley which extended from Kentucky avenue to Broadway. The side door was composed, in part, of glass, which had once been friezed over with a substance which prevented a view through the glass, but at the time in question, this substance had rubbed off to such an extent, that enabled any one to see through the door. To the west of the saloon, a restaurant fronted on Kentucky avenue, and the building in which the restaurant was kept extended in the direction of Broadway. The room next to the restaurant was unoccupied, but the two following rooms in the building were occupied by William Malone, who lived there alone. The door by which Malone entered the rooms occupied by him opened upon the alley, which extended from Kentucky avenue to Broadway, and at a distance of from fifty to seventy-five feet from the side door of the saloon, which opened upon the side of the alley. A fence extended alongside the saloon between it and the alley, but there was an opening in the fence, four feet in width, at the side door of the saloon, which permitted egress from the alley to the side door of the saloon. On the night of February 2nd, at about fifteen to twenty minutes after ten o'clock, Al Redman, who was the bartender in the saloon, was engaged in the rear end of the room in which the saloon was kept, and Pete Ingram and Dick Iseman were sitting, engaged in conversation. Iseman's back was toward the side door of the saloon. Just at this time the side door opened and a man, who appeared to be about five feet and ten inches in height, and about one hundred and thirty-five to one hundred and forty pounds in weight, came into the saloon through the door. The intruder had a toboggan cap, gray in color, with two red bands encircling it, and with holes cut in it to permit his seeing. The cap was drawn over his head so as to obscure his features, except his eyes, which were brown in color. No perforations were made in the cap for his nose or mouth. He had a large pistol, apparently a No. 45 single action Colts, in his hand. He immediately presented the pistol at Redman, with a command for him to throw up his hands and to back up to the register, in which the money in the saloon was kept. When Redman realized the situation, he held up his hands and proceeded to do as directed. The intruder then commanded Ingram and Iseman to throw up their hands, and Ingram instantly obeyed, but Iseman, who had but one arm, started toward his assailant, extending his arm toward him, with the declaration, that he would not throw up his hands to any one. The robber then discharged his pistol at Iseman, giving him a mortal wound, from which he died in a few minutes. The robber then said: "That is what a d__d fool gets for resisting," and warned Redman that if he resisted, he would kill him, too. He then required Redman to hand to him a No. 38 Smith & Wesson hammerless pistol, which was in a drawer, and to place the drawer of the register within his reach, from which the robber took the money it contained, and then immediately departed out of the side door, taking with him the money and the No. 38 Smith & Wesson pistol. The robber was, further, described as being dressed in a brown coat, and having a long, slender hand, with no indications of having been employed in manual labor, and with fingers one-fourth of an inch in length greater than the fingers of Al Redman, and with having a coarse voice, but the sound of it was obstructed by the cap over his face.

Evidence was heard to the effect, that between 10:35 p. m. and 10:40 p. m., the appellant, Elmendorf, came into the front of the saloon, and there appeared to be talking over the telephone, which was there, and inquired of Redman what had happened, and when told that Redman had been robbed and Iseman killed, he did not go back to or make any inquiry in regard to Iseman, although he was an acquaintance, but went immediately out of the saloon. On the morning of the day following, Malone was summoned by the police to the city hall to be interviewed by the chief of police. He went to the city hall, but the chief of police not being there, he returned to the saloon or to his home. He was then arrested upon suspicion of having knowledge of the crime or of some connection with it and confined in jail. Upon the advice of his nephew and his attorney, he then, as he claims, revealed his knowledge of the perpetration of the crime. His statement implicated the appellant as the perpetrator of it, and he was then arrested and indicted for the crime.

The indictment contains four counts. The first count charges that the appellant, together with other persons, whose names are to the grand jury unknown, killed Iseman. The second count charges that the killing was done by a person whose name is to the grand jury unknown, and that the appellant was an accessory before the fact to the crime. The third count charges the actual killing of Iseman to have been done by a person to the grand jury unknown, and that appellant was an aider and abettor of such unknown person in the commission of the crime. The fourth count charges that appellant conspired with another person or persons, whose name or names are to the grand jury unknown, to kill and murder Iseman, and that in pursuance and furtherance of the conspiracy, Iseman was killed by one of said persons. To this indictment the appellant plead not guilty.

The instructions to the jury related to the guilt of the appellant, as charged in the first and third counts of the indictment, only. The instructions, in substance, directed the jury, that if it should believe from the evidence, to the exclusion of a reasonable doubt that the appellant, or he together with another person or persons, whose names were unknown, did feloniously, wilfully, and with malice aforethought kill Iseman by shooting him in the manner described in the indictment, and by reason of which he immediately died; or if it should believe from the evidence, to the exclusion of a reasonable doubt, that a person, whose name was unknown, feloniously, wilfully, and with malice aforethought, shot Iseman, with etc., from which he immediately died, and believe from the evidence, to the exclusion of a reasonable doubt, that the appellant was then and there actually or constructively present, feloniously and with malice aforethought, aiding, abetting, and assisting such other person in the shooting and killing of Iseman, to find him guilty.

It will be observed that the instruction permitted appellant to be convicted, only, in the event that he did the killing either alone or with the assistance of others, or in the event that some other person actually did the killing and appellant was an aider and abettor of such person in so doing.

By the other instructions given, the terms malice aforethought and aforethought, and the terms actually present and constructively present were defined; and an acquittal directed if the jury entertained a reasonable doubt of the appellant having been proven to be guilty.

The grounds upon which a reversal of the judgment is now sought are:

(1) The court erred to the prejudice of appellant in excluding certain things, alleged to be evidence, and in permitting incompetent and irrelevant matters to be given in evidence before the jury.

(2) The court erred to the prejudice of appellant in instructing the jury, and in failing to give certain instructions to the jury.

(3) The court erred to the prejudice of appellant in overruling his motion for a new trial.

For the purpose of determining the soundness of the contentions of appellant it is necessary to set out in detail the statements made by certain witnesses, upon whose testimony depends the rulings sought to be invoked.

The witness, William Malone, in substance, testified that he had a personal acquaintance with the appellant, which began about the month of August, 1915, but had known him by sight for some years theretofore; that Harry Keiley conducted a saloon in the room occupied by Peters as a saloon for some time previous and up to about the first of January, 1916; that he, witness, had a lunch stand in the room while Keiley had the saloon there, and that appellant was about and in and out of the saloon nearly every day while Keiley was engaged in the business there; that about the month of December, 1915, a robbery was committed on Broadway and appellant was arrested on account of it; that appellant thereafter said to him, at his lunch stand, that Al Redman was the cause of his arrest, and that he would get even with him, if it took five years in which to do it; that he was agoing some time to "hold up" Redman, and take his money and make him give up and take his pistol; that after Keiley quit the saloon business, that witness continued to occupy the rooms in the rear of the restaurant, and on the other side of the alley from the saloon; that Peters, with Al Redman as his bartender, opened a saloon in the...