Evans v. Commonwealth

• Decision Date: 31 May 1929
• Citation: 19 S.W.2d 1091,230 Ky. 411
• Parties: EVANS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

19 S.W.2d 1091

230 Ky. 411

EVANS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 31, 1929

As Modified, on Denial of Rehearing, September 27, 1929.

Appeal from Circuit Court, Bell County.

William Evans was convicted of manslaughter, and he appeals. Affirmed.

Davis &amp Harrison, of Pineville, and James M. Gilbert, of Frankfort for appellant.

J. W Cammack, Atty. Gen., and B. B. Golden, J. G. Rollins, and Jas. S. Golden, all of Pineville, for the Commonwealth.

DRURY C.

About 10:30 p. m., on Saturday, October 16, 1926, Robert Woolum, chief of police of Pineville, Ky. was slain. William Evans was charged by indictment with his murder. Upon his trial under that indictment, he was found guilty of manslaughter and sentenced to 21 years in the penitentiary. He appealed his case to this court, and the judgment was reversed. The opinion delivered may be found in 221 Ky. 648, 299 S.W. 553. He was tried again on April 3, 1928, and again found guilty of manslaughter, and his punishment fixed at 21 years in the penitentiary. As the former opinion gives a statement of the facts, we shall not devote much of this opinion to that; but we want to correct one thing in the former opinion. That correction is that it is erroneously stated in that opinion that the pistol with which Chief Woolum was killed was a .44 caliber; at other parts of the opinion it is referred to as a .45 caliber. We have carefully gone through the former record, and we find this should have been .45 caliber, and it is evident that the use of the expression .44 caliber was a mistake.

On the second trial, the commonwealth called five witnesses who had not testified on the former trial, and ten witnesses who had testified on the former trial were not called on this one. The defense called sixteen witnesses who were not called before, and failed to call ten witnesses upon whose evidence he had previously relied. Eighteen witnesses that testified for the commonwealth before testified this time, and sixteen witnesses that were used by the defendant before were used this time. Each side materially strengthened its case.

Chief Woolum was slain near the depot in Pineville. A number of people were in and about the depot at the time; yet the slayer escaped without any one being able to establish his identity. The great weight of the evidence is that the man who slew Woolum was a left-handed man and did this shooting with his left hand. There were three wounds on Woolum's body. One entered his left leg on the inside, just above the ankle, and passed out between the ankle and heel on the outside of his left foot. Another entered his body at the lower right-hand corner of his right vest pocket and passed out the upper edge of his left hip pocket. Another entered his body a little farther around to the right, and passed out at the waistband of his pants, just above his left hip. Woolum died almost instantly, without ever indicating who killed him. The commonwealth's evidence indicates that Woolum's slayer was dressed in a dark blue suit of clothes. There is some dispute in the evidence about what he had on his head.

Evans had recently come into possession of a .45 caliber automatic Colt's pistol No. 376281. Evans came to Pineville between 4 and 5 o'clock that evening and brought his pistol. He stopped at a restaurant operated by one Teasley. He bought from Teasley some candy which he left there, saying he would be back after it. At three different times this evening he bought from Teasley, as Teasley says, a gill of pear extract, a decoction which contains 50 per cent. alcohol by volume. Evans admits taking two drinks of this stuff. Some witnesses thought he was intoxicated; others thought not. He left his pistol with Teasley and went to Pineville, where he got shaved and bought some Peters cartridges for his pistol. Then he and some others came back to Teasley's. Evans got his automatic, unloaded it and reloaded it. These parties then went up on the mountain and gambled for a while. Rain broke up the party, and they came back to Teasley's. There they separated. Two members of the poker party went home, and the other two arranged to meet Evans later, over in Pineville. This was about 8 o'clock. Evans claimed he stayed around there until about 30 minutes after the train came from Harlan. That train passed at 8:30, and Evans claims that he started home about 9 o'clock, and got home between 9 and 10 o'clock. When he got home, he unloaded his pistol and hung it up, then went to see his brother-in-law, aroused him, and talked to him for 15 or 20 minutes in the kitchen. There was no fire in there; his brother-in-law was in his night clothes; he soon got cold; they then went into the other room where there was a fire and talked for some minutes, and, after that, Evans went home and went to bed. He did not keep his engagement with his poker companions as he had promised, and he had also told Teasley that he would come back and spend the night with him, but he did not do that. Neither did he get the candy which he had bought and left at Teasley's.

He was seen at the Louisville & Nashville Depot about 10 o'clock or a little thereafter. He was cursing, displayed this .45 automatic pistol, said his name was Bill Evans, and these witnesses said that he stated he was in trouble and would just as soon kill a man as spit; but this threat was not allowed to go to the jury. In view of the evidence of Goddard, this should have been admitted; it showed Evans' general malice, and this time there was evidence conducing to show that Evans slew Woolum. Evans had on a dark looking suit and a black hat. Evans was seen in Pineville that night between 9:30 and 10 o'clock. He had on a dark suit, black hat, and was drinking. He was going toward the Louisville & Nashville Depot. The witnesses whom he passed said he was muttering to himself and cursing; that he was alone. The porter in the Louisville & Nashville Depot saw him about 10 o'clock. He had on a black or blue suit and a black hat. A witness named Johnson saw Evans in Pineville between 3 and 4 o'clock this afternoon. He had on a blue suit and black hat. This witness saw Woolum about 10 o'clock that evening, and walked with him a short distance down Kentucky avenue to the end of the bridge. This witness saw two men coming over the bridge toward Pineville as Woolum started over the bridge from Pineville to the depot. One of these men had a pistol in his left hand which he was dragging along a wire upon the bridge. Evans is a left-handed man. When Woolum got within 6 or 7 feet of these men, they turned back toward the depot. Another witness met Woolum and another man on this bridge. He recognized Woolum by his uniform, and he said the man with him had on a dark suit of clothes. They were walking fast and talking. They were about the same size. The proof shows Evans and Woolum were about the same size. As Woolum and this man came off the bridge next the depot, they turned to the left, walked about 50 or 60 feet down the river, and then engaged in a struggle in which the fellow in the dark clothes slew Woolum. A bullet was dug out of the earth where this killing occurred. Six shots were fired. Six shells were picked up at the scene of the shooting. This was evidently an automatic pistol, for the shells were ejected as the shots were fired. Two pistols were found on the dead man, neither of which had been taken out of its holster or fired.

This brings us to the evidence of the witness Calvin H. Goddard, and it is to his evidence that the defendant has devoted the larger part of his brief, and it is because this witness and his evidence seem to be the storm center, that we are going to treat it with some degree of elaboration.

In the case of Jack v. Com., 222 Ky. 546, 1 S.W.2d 961, we referred to an article on ballistics written by Major Goddard. The commonwealth acted promptly. Our opinion in this Jack Case was published on March 1, 1928, and on April 4, 1928, Goddard appeared and offered to testify as a witness in this case. The defendant claims that he was taken by surprise by the introduction of this witness, and moved the court to set aside the swearing of the jury and continue the case. He relies on the case of Caldwell v. E. F. Spears & Sons, 186 Ky. 70, 216 S.W. 83. We have read that opinion very carefully, and it practically amounts to this, that a litigant need never be surprised when his adversary proves his case. We affirmed that judgment, and in that opinion we said: "The surprise contemplated by the Code is such as is not reasonably to be anticipated, or perhaps testimony contrary to a prior understanding between the parties or something resulting from actual fraud or deception."

We have examined the record of the first trial of this case, and we find in that trial an effort was then made to identify these shells and bullet picked up at the scene of the killing as having been fired from the pistol that was found in Evans' home, and which he admits was the pistol he had with him on the evening of the killing, so the defendant cannot claim to have been surprised by the efforts of the commonwealth to do this, since the commonwealth made the same effort on the first trial. From his brief and the motions made, it appears his surprise does not consist in the commonwealth's having endeavored to prove this, but consists in the commonwealth's having endeavored to prove this by Goddard. His surprise consists in this, that Goddard went about this in a manner different from the manner he had expected.

Evans contends that, upon the call of this case for trial on March 29, 1928, he requested the attorneys representing the commonwealth to furnish him a list of the witnesses that would be called and introduced by the commonwealth, and that the...