Frashure v. Commonwealth

• Decision Date: 08 June 1917
• Citation: 176 Ky. 244,195 S.W. 409
• Parties: FRASHURE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

195 S.W. 409

176 Ky. 244

FRASHURE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 8, 1917

Appeal from Circuit Court, Lawrence County.

Robert S. Frashure was convicted of homicide, and he appeals. Judgment reversed, and cause remanded.

Calhoun B. Wilhoit, of Grayson, Fred M. Vinson, of Louisa, and C. B Morford, of Flemingsburg, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

HURT J.

This is the second appeal of this case. The opinion of the court upon the former appeal may be found in 169 Ky. 620, 185 S.W. 146, wherein all of the facts of the case are stated, and reference is made to it, now, for the facts in detail. The appellant is accused of having murdered his niece by striking her upon the head with some character of sharp instrument, which rendered her insensible, and from the state of insensibility she never recovered. The attack, which resulted in her death, took place upon a road near Olive Hill, and in the absence of any eyewitness. The appellant and his niece were traveling in a buggy, which did not have a top, from Fleming county to the home of his niece, in Carter county, and had traveled on that day, nearly, if not quite, a distance of 50 miles. The niece had been residing with her uncle, the appellant, in Fleming county, for about 10 months, and at the request of her parents, conveyed by letter, the accused was taking her to her home. The niece was about 17 years of age, and a stout, healthy girl. The accused was a cripple, and could not stand up or walk without a staff to support him. He claimed that suddenly, two men came from beside the road, and one of them seized his horse and demanded whisky, when the girl said, "I know you." One of the assailing party struck the accused with a club and knocked him prostrate. Recovering, he seized his assailant, and was thrown by him against a barbed-wire fence, by which his hand was cut, and was then thrown upon the ground, where his assailant placed his knee upon his stomach and held him thus, while he robbed appellant of his money and a check. When appellant became free from his assailant, the buggy and horse were proceeding away from him along the road, and two men were in the buggy. About half after 8 o'clock, on that evening, the horse, with the buggy attached, was found in the streets of Olive Hill. Appellant claims that he heard two blows, as if given by a heavy stick, which he thinks the girl received from one of their assailants, and he crawled along the road for 30 or 40 yards and found her body in the road. He immediately set up a cry for help, and, in a short time, several people came to his assistance. His clothing was very muddy from contact with the ground, and a large bruise or lump was upon the back of his head. In place of a wound from a club, several wounds, which went to the skull, were found upon the head of the girl, as if made by a sharp instrument, such as a hatchet. Upon examination after death, the girl was found to be in a state of pregnancy. The theory of the commonwealth is that the appellant was the author of the girl's pregnant condition, and that he was, also, her murderer, and that the motive for the murder was to shield himself from the consequences of his crime in debauching her. The case is a most extraordinary one, and the appellant is either an innocent and much ill used man, or else he is a great criminal and deserving of the most condign punishment. The evidence of his guilt is very much assisted by the establishment of a motive for the murder upon his part, and any evidence tending to prove such motive is most material. On the trial, which resulted in the judgment from which the former appeal was taken, Dr. Walker Stumbo, who resided in Floyd county, about 75 miles from the home of appellant, and who was a distant cousin and a boyhood companion of the appellant, was permitted, over the appellant's objection, to testify that a letter came to him signed by the name of a Mr. Frashure, and that his wife opened the letter and read it to him and then destroyed it; that the letter requested him to send him a remedy for a woman friend, whose menses had not occurred for 2 1/2 months, and proffered to pay him for the services. This letter was received about May 1st, and the homicide occurred shortly thereafter, on May 26th. In the former opinion, 169 Ky. 620, 185 S.W. 146, it was said with reference to the introduction of the proof of the contents of the letter:

"Unless the contents of this supposed letter found its way to the jury through the protecting channels of the law for the introduction of testimony, it was highly prejudicial to permit the witness to testify concerning it. That this was not done is plainly manifest. All rules permitting the introduction of writings for the purpose of charging one with admissions therein made, or for other purposes, require that the genuineness of the writing must first be established, or there must be sufficient evidence of it to justify a jury in finding it to be so. * * * The testimony, then, of this witness lacked two vital essentials of measuring up to legal testimony; they being that the letter was not properly authenticated, and the contents of it were given to the jury secondhand, or by a witness who had heard another say what was contained in it. Considering the nature and probable effect of this testimony, it is perfectly clear to us that the court erred to the great prejudice of appellant in permitting it to be introduced in the manner it was."

Following the reversal of that judgment another trial has been had which resulted in a conviction, and the motion for a new trial having been overruled, the appellant...