Hendrickson v. Commonwealth

• Decision Date: 31 October 1901
• Citation: 64 S.W. 954
• Parties: HENDRICKSON v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

64 S.W. 954

HENDRICKSON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

October 31, 1901

Appeal from circuit court, Knox county.

"Not to be officially reported."

John Hendrickson was convicted of murder, and he appeals. Reversed.

B. B Golden, for appellant.

Robert J. Breckinridge, for the Commonwealth.

HOBSON J.

Appellant John Hendrickson, was indicted in the Clay circuit court for the murder of Calloway Carnes, at the February term, 1901. By agreement the venue of the action was changed to the Knox circuit, and the case was set for trial on the 7th day of the April term of that court. The papers were not filed by the clerk in the Knox circuit court until April 11th, and the case was then set for trial on the tenth day of the term. The term began April 1st. The defendant had process awarded for his witnesses, and a special bailiff appointed to serve it in Clay county. The process, however, was not executed. The defendant filed his affidavit, and moved the court to continue the case. The court allowed the affidavit to be read as the deposition of the absent witnesses, and refused to continue the case. At the conclusion of the commonwealth's evidence the defendant filed an affidavit alleging surprise at the testimony of the witnesses for the commonwealth, in that they had sworn on the trial to a substantially different version of the facts from that stated by them on the examining trial, and he gave the names of persons in Clay county by whom he could prove this. He again asked a continuance, or time to procure the attendance of these witnesses. His motion was overruled. The jury returned a verdict finding him guilty of murder, and fixing his punishment at confinement in the penitentiary for life.

The deceased, Calloway Carnes, had married the defendant's sister. There had been some trouble between them, and she had left him, taking the baby with her to Clay county. Carnes and the defendant lived in Bell county. During the week before Christmas, 1900, the defendant was at Carnes' house working with him, and, at the request of Carnes, agreed with him to go over to Clay with him to see his baby, as Carnes did not want to go unless the defendant went with him. They started from Carnes' house together, each on horseback; the defendant having Carnes' pistol, and Carnes having none. It was during Christmas time. They had been drinking together before they started, and got more whisky on the way. They traveled along until they got into Clay county, having come alone together for some distance. They finally overtook in the road Jack Asher and Newton Gambrel. All four drank together, and they then went on all friendly, after some rough play, till they came to the head of Lick Fork, where they found Newton Gambrel's wife, Mahaley Furl, Josie Sizemore, and Tom Woods, who had built a fire there, and were waiting for Asher and Gambrel. Here pretty much all the party took a drink again. Mahaley Furl got up behind defendant, Gambrel's wife got up behind him, and the party moved on. They had not gone very far before the deceased, Carnes, called to the defendant to stop, and while they were talking the rest of the party went on. After they had gone same little distance,--perhaps a quarter of a mile,--they were overtaken by the defendant and Mahaley Furl, on foot, who told them that the defendant had shot and killed Carnes. They all went back then, and found Carnes lying by the side of the road, dead. So far there is no conflict in the testimony. The defendant and Mahaley Furl, who were the eyewitnesses to the homicide, stated that, after the others left, Carnes drew a knife, and attacked Hendrickson with it, cutting his clothes two times, and that Hendrickson finally drew the pistol and shot Carnes as he was cutting at him the third time. The proof is conflicting as to what Hendrickson and Mahaley Furl said when they overtook the party in front. Some of them state that Hendrickson said he had killed Carnes, and they must swear him out. He and Mahaley Furl testified that he said that he had killed his best friend; that he was sorry for it, but had to do it to save his life; that Carnes was cutting at him with a knife; and that some of them must go back to Carnes and stay with him, or he would go back and stay himself. This testimony of theirs is confirmed by some of the commonwealth's witnesses on cross-examination and by the circumstances. Mahaley Furl was 18 years of age; Hendrickson, 23. He had taken her upon the mule behind him as an accommodation. It is not reasonable that while thus situated he began a difficulty, and the proof is clear that he was in front, going ahead, when stopped by Carnes. While none of the witnesses say so in express terms, we are satisfied, from the number of times these men had taken a drink, that neither of them was strictly sober. The haste with which the defendant went afoot after the persons in front, leaving his mule behind, also tends to show want of deliberation. If the witnesses named in his affidavit had appeared at the trial and given the testimony set out in the affidavit, it would have not only thrown much light on the case, but might have induced a different verdict. Under the peculiar circumstances, we think it perhaps would have been proper for the court to have given the defendant time to procure his testimony, or granted a continuance. But whether the conviction should be reversed for this we need not determine, as the judgment must be reversed for other reasons.

After the jury were sworn, this occurred: "Thereupon Hon. John L. Isaacs, commonwealth's attorney, read the indictment to the jury, and the indorsements thereon, but did not make any statement of the facts to the jury, further than to say he was not familiar with the facts, but they would be detailed by the witnesses. To this the defendant at the time objected, the court overruled the objection, and the defendant excepted." Sections 219 and 220 of the Criminal Code of Practice are as follows: "The clerk or commonwealth's attorney shall then read to the jury the indictment and state the defendant's plea." "The attorney for the commonwealth may then state to the jury the nature of the charge against the defendant and the law and evidence upon which he relies in support...