Hall v. Commonwealth

• Decision Date: 06 February 1925
• Citation: 270 S.W. 5,207 Ky. 718
• Parties: HALL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

270 S.W. 5

207 Ky. 718

HALL v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 6, 1925

Rehearing Denied April 17, 1925.

Appeal from Circuit Court, Bourbon County.

Elmer Hall was convicted of murder, and appeals. Affirmed.

John B O'Neal and Stephen L. Blakely, both of Covington, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

DIETZMAN J.

On June 11, 1924, appellant, Elmer Hall, together with George Farrell, Richard Newhouse, and Robert Mullen left Newport Ky. for Lexington in an automobile they had previously stolen in this latter named city. Hall had been released on April 15, 1924, from a penitentiary in Ohio, where he had served a term for robbing a storehouse. Newhouse had served a term in Greendale and also in the Frankfort penitentiary, and Farrell, on an amended charge of stealing an automobile, had served a term in jail. A few days prior to this June 11th, these men, with the exception of Mullen, had visited in the nighttime the bank at Clintonville in Bourbon county, where they made an attempt to blow the safe for purposes of robbery. In this they were unsuccessful. Returning to Newport, they, after taking into their counsel Mullen, laid plans to hold up this bank in the daytime, and it was on this mission they left Newport on the morning of the 11th. They journeyed first to Lexington, and after procuring oil and gas continued on their way to Clintonville. On arriving at this place they found several automobiles in front of the bank, and so they drove on down the road a piece, turned around, and waited for these machines to depart. After a little time, they saw that the coast was clear, and then they drove back. All four men were heavily armed, most of them with 38's, but Newhouse with a 45. They admit that it had been agreed to shoot, if it became necessary in the course of their holdup, but to shoot to wound only and not to kill, and not even to wound unless, as naively claimed, in order to protect themselves.

When the automobile drew up to the bank, Newhouse, who had in the meantime masked himself, jumped out first, followed closely by Mullen and Hall, the latter of whom was carrying a satchel for the purpose of putting into it the money they hoped to get. Farrell, who had driven the automobile from Newport, remained in the machine at its wheel, ready to drive off the minute the holdup was accomplished. Newhouse, in the lead, rushed into the bank. The lobby of the bank was in the shape of an L. The teller's cage fronted on the long arm, and ran back with the short arm to the director's room. At this time, there were only two people in the bank, Mr. Gibson, its cashier, and Mr. Frank Buchanan, the father-in-law of Mr. Gibson and a stockholder of the bank. They were then seated in the director's room to which Newhouse promptly made his way. When he appeared in the door, he covered the two men with his drawn revolver and ordered them to throw up their hands. Gibson at once complied, but Buchanan, who was unarmed, grappled with him. When Gibson saw Newhouse and Buchanan struggling, he turned to go into the teller's cage to get his revolver, and as he did so he saw Newhouse shoot Buchanan once. Before he could get to his revolver he heard Newhouse fire a second shot, and thereafter he was fully occupied in exchanging shots with Hall and Mullen, who, by this time, had gotten into the lobby. During the fusillade, Hall was wounded in the face, and Newhouse, to whom Buchanan in his death throes clung, retreated through the lobby out into the pike where he shook off Buchanan who fell dead in the road. Hall and Mullen also fled, and the three men made all haste to get back into their machine. As they got in Mullen was wounded in both feet, Hall accidentally shooting him in one foot and Gibson wounding him in the other. As Newhouse jumped in, he said, according to his companions, that he had killed two men. The machine at once drove off. As it disappeared down the road, Gibson fired the last shot he had in his revolver, and hit the rear panel of the car, but wounded no one.

In the late afternoon the four men reached Newport, where the wounded received medical attention. Newhouse and Farrell took the automobile in which the trip had been made to the outskirts of the city, and there set fire to it. Farrell then went back to his companions, but Newhouse fled the country and made his way to Hoboken, N. J., where he was later apprehended. That night Hall, Farrell, and Mullen were arrested, and after due time were, with Newhouse, each indicted for murder. On the separate trials of Hall, Farrell, and Newhouse, each received the death sentence, from which verdict and judgment they have appealed.

But for the solemnity of the sentence imposed upon these men, little need be said of the points upon which they rely for a reversal of the verdict and judgment. The facts detailed above were proven beyond a peradventure of a doubt by noninterested witnesses, and the case was riveted by Mullen, who voluntarily went upon the stand and testified for the commonwealth. Furthermore, the defendants themselves, in testifying, admitted all the facts brought out by the commonwealth and confessed their guilt. We except from this statement Newhouse who, though admitting the other facts, denied he had fired any shot in the mêlêe. Their attorneys, who did all for these men that skillful and honorable counsel and officers of the court could do, frankly state that they had and have no hope of ever acquitting these men, but only of saving their lives, and to this end they rely upon certain alleged errors occurring on the trial in the lower court, which, in deference to the severity of the punishment imposed, we will discuss in detail and at some length.

I. Change of Venue.

Motions for a change of venue were filed in the Hall and Farrell Cases and, by agreement, heard together on the same proof. The trial court overruled these motions, and this is the first error alleged.

In support of their motions, the defendants filed their own affidavits supported by the affidavits, almost formal in their nature, of two residents of Campbell county. Although these affidavits had the effect of requiring the commonwealth to make a showing, they were so incomplete and inconclusive in their nature as to compel but little rebutting testimony to offset them. These affidavits were the only proof offered by the defendants in support of their motion, except such facts as they claim they brought out on cross-examination of the witnesses offered by the commonwealth in opposition to this motion, and on the voir dire of the jurors summoned to try their cases. In opposition to the requested change of venue, the commonwealth introduced 11 witnesses, including the sheriff, a former county judge, a merchant, an insurance man, some farmers and others. It is true, as appears from their testimony, that the crime committed by these men on account of its spectacular nature had been given the widest publicity, not only in the local press of Bourbon county, but also in the metropolitan press of Cincinnati, Lexington, and Louisville, which circulated throughout central Kentucky. It is also true that one paper in Bourbon county, the Paris Democrat, had advocated the lynching of these men, but it is shown that this editorial was condemned by the people of Bourbon county; that not the slightest violence was offered towards any of these defendants, and that the trials, when had, proceeded in an orderly and well-mannered fashion. Indeed, a son of the murdered man himself acted as one of the guards provided for these men by the sheriff out of an abundance of caution, and it is shown in the record that he acted with most touching consideration towards the wounded defendants in assisting them in and out of the courthouse. Bourbon county is surrounded by counties like unto it in wealth and education, and it would have been almost impossible to have found a county to which to send this case on a change of venue where the citizenry did not know as much of the newspaper accounts as did the citizens of Bourbon county itself. Mr. Buchanan was not widely known. Juror after juror summoned for service in these cases testified that they did not know him. Nor were his family connections widespread. Although the case had been much discussed, and many people had formed the opinion that the men arrested were the men who had held up the bank, as indeed they were, yet it is shown that prospective jurors could be and were found who knew nothing of the case, or who had formed no opinion, or who, if they had formed an opinion from newspaper accounts, were willing and could and would lay aside this opinion and try the case on the evidence produced in court. Although we are precluded under section 281 of the Criminal Code of Practice from reviewing the action of the trial court on the matter of selecting the jury, it may be said in passing that the commonwealth was very fair in joining the defendants in challenges for cause where any prejudice was shown on the part of the talesmen, in the endeavor to get a fair and impartial jury to try these cases. The evidence in this case convinces us that the court did not abuse a sound discretion in refusing to grant a change of venue.

As said in the case of Vaughn v. Commonwealth, 204 Ky. 229, 263 S.W. 752:

The matter of change of venue "rests within the sound discretion of the court, and unless that discretion is clearly shown to have been abused, the action of the court will not be disturbed."

An illuminating discussion of the principles involved in this question of a change of venue may be found in Bryant v. Commonwealth, 202 Ky. 427, 259 S.W. 1038, where the court said:

"Upon the hearing of

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