Graham v. Commonwealth

• Decision Date: 27 April 1915
• Citation: 164 Ky. 317,175 S.W. 981
• Parties: GRAHAM v. COMMONWEALTH. [d1]
• Court: Kentucky Court of Appeals

175 S.W. 981

164 Ky. 317

GRAHAM v. COMMONWEALTH. ^[d1]

Court of Appeals of Kentucky.

April 27, 1915

Appeal from Circuit Court, Hardin County.

Turner Graham, Jr., was convicted of murder, and he appeals. Affirmed.

Irwin &amp Irwin, of Elizabethtown, for appellant.

James Garnett, Atty. Gen., Henry De Haven Moorman, Com. Atty., of Hardinsburg, R. A. Buckles, Co. Atty., and H. L. James, both of Elizabethtown, for the Commonwealth.

NUNN J.

The appellant was tried at a special term of the Hardin circuit court for the murder of Robert T. McMurtry, sheriff of that county. The jury returned a verdict finding him guilty and fixing his punishment at death. On appeal it is insisted that the conviction was erroneous because the lower court was without authority to hold a special term; that the order calling the term was defective; that the court should have granted his motions for change of venue and continuance; that incompetent evidence was admitted, and erroneous instructions given.

A statement of facts is necessary for a proper consideration of the rulings complained of. Some time after dark on December 10, 1914, the town marshal of Upton, in Hardin county, was requested to arrest Turner Graham, Jr., and Grover Chism, on the representation that they were then guilty of some unlawful conduct. The marshal deputized James Wood and others to assist in making the arrest. When the officers reached the railroad station, where they expected to find the guilty parties, there was no sign of disorder. Wood knew Turner Graham, Jr., and, when he spied him, leveled his shotgun on him with the command to hold up his hands. Another of the deputies did the same thing. After this command had been repeated three times, Graham drew his pistol and shot Wood three times, killing him, and shot the town marshal once inflicting a serious, but not fatal wound. Graham at once fled from the scene and remained in the woods that night, the next day, and the next night. About 6 o'clock on the morning of the 12th he reached his father's house several miles from Elizabethtown. Graham admits being at Upton on that night, but says he had nothing to do with Wood's death; in fact, did not know of it until early on the morning of the 12th, when he was making his way along the road to his father's house. He met a stranger, a man he never saw before or since, and this man inquired if he had heard of the trouble at Upton. When Graham said that he had not, the stranger told him that James Wood had been killed, and that a mob was scouring the country looking for Turner Graham, Jr., the man accused of the murder. Graham admits that he was hiding in the woods all the time after he left Upton. Reaching home, he had breakfast, and then went upstairs, armed with a shotgun and pistol. He says he was concealing his presence there in order to escape the mob which the stranger told him about. He remained in the upstairs room until about noon, when he shot McMurtry, who, as sheriff, was attempting to arrest him for the murder of Wood. Graham admits that he shot and killed McMurtry, but at the time believed he was a member of the mob which he feared was coming after him. He admits a personal acquaintance with McMurtry, that is, he would know him at sight and knew that McMurtry was sheriff, but did not know McMurtry was the man he was shooting at. He also admits that there was but one window in the room where he was armed and waiting in apprehension of the mob, and that this window had an outlook for 200 yards on the road which McMurtry and his posse used in approaching the house. Immediately after Wood was killed the county judge issued a warrant for the arrest of Graham on the charge of murder, and placed it in the hands of McMurtry, as sheriff, and from that time until he was shot McMurtry had one or more posses in different parts of the county searching for Graham. There is no dispute about the issual of the warrant and of its coming to McMurtry's hands. News came to McMurtry on the morning of the 12th that Graham was concealing himself at the Graham home. With a posse of five or six men he reached there about noon. McMurtry, with two of the men, approached the place from the road and in view of the upstairs window already referred to. The other members of the posse approached at the same time from opposite directions. McMurtry and his deputy, Fife, left their shotguns leaning against the yard fence, and were met at the front door by Mrs. Graham, stepmother of Turner Graham. McMurtry told her he was looking for Turner Graham, who was wanted on the charge of murder. She replied that Graham was not there, and had not been at her house for several days. McMurtry told her he would have to search the house anyhow, and she told him to go ahead. This conversation occurred just inside the house near the front door, and within three feet of the bottom of a stairway leading to the second floor, where Graham was concealing himself. At the time of the conversation he was near the head of the stairway. This stairway was boxed up with light plank, and there was a plain door across it about three flights from the lower floor, and just in front of a landing on the stairway angle. There is evidence that Turner Graham could hear what was said in an ordinary toned conversation downstairs, and tests afterwards demonstrated the fact. Graham admits hearing the conversation, but says he could not understand what was said, nor could he identify the parties talking. McMurtry and Fife, after making some search on the lower floor, opened the stairway door and started through it together, McMurtry slightly in advance. This put them on the landing at the stairway angle, and, of course, in range of any one at the head of the stairway, and from which point, without a word from any one, Graham fired a shotgun, the whole charge entering McMurtry's face and neck, tearing away his tongue and lower jaw. The other deputies answered Fife's call for assistance, and the wounded man was carried outdoors. Orders were given to shoot into the upstairs room, and others talked of dynamiting or burning the house, but when the first shot passed through the room Graham offered to surrender, and, on assurance of protection, came down and submitted to the officers. He was carried to Elizabethtown at once, and placed in jail. The wounded man was also taken to his home at Elizabethtown, but he died about midnight.

The circuit court was then in session, but it was the last day of the term. On that day, when it became known that the sheriff had been mortally wounded in his attempt to arrest Graham for the murder of Wood, the judge of the circuit court called a special term of court to convene December 17th for the purpose of investigating these crimes and trying any person that might be indicted. Attorneys were appointed to represent him soon after he was placed in jail, and after a consultation he consented to a postponement of his examining trial, and that night he was carried to Louisville and placed in jail, where he was kept until the 17th, the date of the special term. On the 16th these attorneys were regularly employed to represent him, and on the 17th, the first day of the special term, the grand jury indicted him for the murder of McMurtry, and his trial was set for hearing on the 21st. After his indictment on the 17th he was reconveyed to Louisville, and, at his request, was kept there until the day of trial. He then filed a verified petition for change of venue, and at the same time filed an affidavit for continuance. These motions being overruled, Graham was put upon trial, with the result already stated.

The first error assigned is that the court called and held a special term without authority of law, because, as he says, it does not appear that a special term was necessary to transact the business of the court, and the order calling it did not show that an emergency existed; it failed also to give the style of any cause to be tried. The only authority for calling a special term of circuit court is section 964 of the Kentucky Statutes. That part of the section which applies to this question is as follows:

"Whenever it is necessary to transact the business, a special term may be held in any county, either by an order entered of record at the last preceding regular term in the county or by notice signed by the judge and posted at the courthouse door of the county for ten days before the special term is held. The order or notice shall specify the day when the special term is to commence, and shall give the style of each case to be tried, * * * and no other case shall be tried, * * * unless by agreement of parties. Grand juries shall be summoned and criminal and penal cases shall be heard at but three terms in each year in any county, to be fixed by order of court, unless in emergency the court may otherwise direct; and grand or petit juries may be summoned for any special term by direction of the judge."

As we have already pointed out, the special term was called by order entered of record on the day McMurtry was shot, and which was the last day of the regular term. We copy from the order:

"It appearing to the satisfaction of the court that James Wood was killed on the night of December 10, 1914, in Hardin county, Ky. and that warrants have been issued by the Hardin county quarterly court for Turner Graham, Jr., Grover Chism, charging them with murder for said killing, and it further appearing that Robert McMurtry, the sheriff of Hardin county, was this day shot and wounded by Turner Graham, Jr., while said McMurtry was seeking to arrest him upon said charge, and that a warrant has been issued charging said Turner Graham, Jr., with willfully and maliciously shooting said McMurtry with a shotgun, a deadly

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