Jenkins v. Commonwealth

• Decision Date: 17 December 1915
• Citation: 167 Ky. 544,180 S.W. 961
• Parties: JENKINS v. COMMONWEALTH
• Court: Kentucky Court of Appeals

180 S.W. 961

167 Ky. 544

JENKINS v. COMMONWEALTH

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Warren County.

P. C Jenkins was convicted of crime, and he appeals. Affirmed.

T. W. &amp R. C. P. Thomas, of Bowling Green, W. A. Helm, of Morgantown and W. R. Gardner, of Bowling Green, for appellant.

Jas. Garnett, Atty. Gen., and Robt. T. Caldwell, Asst. Atty. Gen., for the Commonwealth.

TURNER J.

At the February term, 1915, of the Butler circuit court the following indictment was returned, to wit:

"The grand jury of the county of Butler in the name and by the authority of the commonwealth of Kentucky accuse Silas Gardner, J. A. Gardner, Dock Gardner, Bunk Haws, Marion Drake, Andrew Drake, Ben John Penrod, P. C. Jenkins, J. E. Mayhugh, Harry Grubb, Doss Peay, Joseph Drake, and Elzie Pendley of the offense of unlawfully, willfully, and feloniously banding and confederating themselves together for the purpose of intimidating, alarming, disturbing, and injuring another, and did injure and wound said others, to wit, Katherine Webster, Louella Webster, and Estil Webster, and the said defendants herein mentioned, and others whose names are to the grand jury unknown, did go forth in the nighttime with guns and other weapons for the purpose of intimidating, alarming, disturbing and injuring and whipping said Katherine, Louella, and Estil Webster, and did in the nighttime, as aforesaid, go to the house of James Webster and seize and lay hold of said James, Katherine, Louella, and Estil Webster, and did take them from their house and from their beds, and tied them to a tree, and with blindfolds over their eyes and ropes around their necks did beat, bruise, stripe, whelp, and injure, intimidate and scare, said parties, and defendants being armed and having weapons drawn upon said parties at said time."

At the same term of the court the commonwealth's attorney filed his statement, as provided by statute, and entered his motion to change the venue of the action, but before it was acted upon withdrew the same, except as to P. C. Jenkins and Marion Drake. The court, from evidence heard and personal knowledge, as recited in the order, granted a change of venue upon the ground that there was such a state of lawlessness and such a prevalent bias for and against the charge in the indictment in Butler county that a fair and impartial trial could not be had therein, and the case was, as to Jenkins and Drake, removed to the Warren circuit court for trial. The court directed the clerk to copy the indictment, orders, motions, notices, etc., and to make a complete transcript of the record, and directed that the same be delivered to the clerk of the Warren circuit court, all of which was done. At the April term of the Warren circuit court the defendants entered a motion to quash the indictment because the names of the grand jurors drawn from the jury wheel in the Butler circuit court, and which had been furnished by the clerk to the sheriff in a list showing the order in which they were drawn, had not been called by the sheriff in the order their names came on the list, but that the sheriff, instead of so calling the jurors' names, in violation of law selected 12 names out of the said list without regard to their order thereon, and it was done for the purpose of securing a jury that would indict the defendants. This motion was overruled by the court, and the order overruling it shows that the sheriff in calling the names from the list in the manner set out had acted under the direction of the court. Appellant, Jenkins, being put on his separate trial, was found guilty, and the verdict fixed his punishment at confinement in the penitentiary for not less than 4 years nor more than 4 years and 1 day. His motion for a new trial having been overruled, he has appealed.

The evidence for the commonwealth is: That on the 22d of August, 1914, at Union Chapel in Butler county, there was a meeting to which numerous men in the neighborhood had been invited, and at which there appeared a man named Clark, claiming to be the representative of a secret order known as the Amalgamated Workers of the World, and claiming to be the organizer of local lodges of that order. He made a speech to those present, giving the name of the order, but saying they were sometimes called "Possum Hunters." That among other objects of the order was that its members should stand by and help each other, and if any of them got into court they were to aid each other, and that if any of their members got on the jury when a member was being tried, he was to hang the jury or clear him. After this, and possibly other speeches, appellant, Jenkins, assuming to act with authority, directed that a line be drawn on the floor, and all of those who desired to join were to cross on one side of the line, and that after this division was made those who did not join were directed to "go home and hold their tongues." That shortly after this organization of the local lodge at Union Chapel there were certain night raids in various parts of the county, at which persons were whipped, beat, and bruised by bodies of masked men. On the 27th or 28th of October, at some time during the night, a body of masked men went to the home of James Webster, broke the doors open, seized James Webster, Katherine Webster, his wife, a woman of 65 years of age, Louella Webster, and Estil Webster. They took them about 300 yards from the house, and after first tying the aged woman to a tree with her arms around the tree and her face towards it, lifted her clothes above her head, and with a leather strap whipped her unmercifully on her naked body. They then duplicated this proceeding with the younger woman, Louella Webster, and, finally placing a rope around the neck of Estil Webster, drew him up and let him down at least twice, and finally compelled him to falsely state to them that two men named Bradley were the persons who had shot into the raiders, and after that proceeded to give him an unmerciful whipping on his bare body. The masked men had firearms and flashlights, and not only whipped both of the women, as stated, but put ropes around their necks, cursed them, and otherwise terrorized them. While they did not offer personal violence to the old man, he was taken from the house and forced to witness the fiendish punishment administered to his aged wife, his daughter, and his son.

Each of the Websters positively identifies appellant as one of the party, and each of them testified to recognizing at the time different ones who were jointly indicted with Jenkins. They also stated that Jenkins seemed to be the leader of the party and gave all orders; that the members of the party said to the wife of Estil Webster that they were her friends, and that she need not be afraid, and gave as a reason for their treatment of the other Websters that they had been guilty of some mistreatment of Estil Webster's wife, and warned them thereafter to treat her as a lady.

There is also evidence to the effect that about the time these outrages were being perpetrated in Butler county Jenkins, in conversation with at least two persons, while denying that he was a member of the organization known as "Possum Hunters," professed to give what he understood to be their mode of procedure in dealing with persons who had, for any reasons, incurred the displeasure of the order. He stated that he was informed that they would summon a jury and witnesses in the order and try the case, and if the parties needed "attending to," they went and attended to them, and if not, they let them alone. On the trial of this case, however, Jenkins admitted on the witness stand that he was not only a member of the local chapter of this order, but was its president or leader.

Conditions became so bad in the latter part of 1914 that it was generally rumored that an extra session of the grand jury was contemplated for the purpose of investigating these raids, and, as the record discloses, a special term of the court was actually called, but later called off. About that time appellant manifested great interest in the proposed special term of court, and, it may be inferred from circumstances in the record, went to the county seat to find out what he could about the same. Knowing the county court clerk, Moats, he went to see him, and in discussing this proposed special term of the court, among other things, said to Moats, as shown by the latter's testimony:

"He told me that it wouldn't do for it to be called, and said if it was called it might be that 300 or 400 men might come in there and sweep the town off the map, and if the judge and commonwealth's attorney did come, it might make them swim the river backwards home, and he went ahead to tell about the organization, that they had the very best of guns that would shine like electric lights, and was talking about the order; said the Masons and Odd Fellows was nothing to compare with the Possum Hunters, and that the organization was for the good of the community, and before the organization existed he told about how it was around Huntsville, that the boys would stay out in the yard, and after this occurred there was no laughing out in the yard, that even the chickens were afraid to crow, the cows were afraid to low, and the cats were afraid to mew after the sun would go down. Q. Anything else? A. He asked me the question, he said, say they got them up and convicted them, what are they going to do with them? The jails won't hold them and the penitentiaries won't hold them, they are about 80 per cent. strong over the state."

This witness, upon being recalled by the commonwealth and asked if he had omitted in his former testimony anything which Jenkins had said, to state it, answered:

...