Kinder v. Com.
| Decision Date | 11 March 1955 |
| Citation | 279 S.W.2d 782 |
| Parties | George KINDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
H. Clay Kauffman, Cecil C. Sanders, Lancaster, Stuard Wegener, Covington, for appellant.
J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
WADDILL, Commissioner.
The appellant, George Kinder, was jointly indicted with Willard Sprinkles and others by the Pulaski County Grand Jury for the murder of James Jasper. By agreement, there was a change of venue to the Garrard Circuit Court. On his separate trial Kinder was convicted of voluntary manslaughter and sentenced to 14 years in prison. On this appeal Kinder insists the court erred (1) in overruling his motion for a directed verdict of acquittal; (2) in overruling his motion for a subpoena duces tecum; and (3) in giving erroneous and prejudicial instructions to the jury.
As is usual and proper where the proof of the charge rests on circumstantial evidence, the testimony covered a broad range. We summarize it in considering the contention that the evidence was insufficient to take the case to the jury.
On the night of July 3, 1952, James Jasper, the Sheriff of Pulaski County, accompanied by three other officers, drove to the suburbs of Somerset to intercept a delivery of some illicit whiskey. When they arrived at a place known as 'Bogeltown' they parked the car off Highway No. 27 in a lane near James Ingrham's residence. Officers Hatfield and Chumbley stayed at the car while Sheriff Jasper and Officer Todd proceeded to a place nearer the Ingrham residence where they secreted themselves to await the arrival of a 'two-tone' automobile which they had been informed would be used in delivering the bootleg whiskey.
At about 9 o'clock a 'two-toned' Oldsmobile car drove up to a place on 'Bogeltown Road' where it intersects an alley leading to James Ingrham's residence and stopped. A man got out of the car and walked directly to James Ingrham's home where he had a short conversation with Amanda Ingrham, and then immediately returned to his car. At this time, according to Officer Todd, Sheriff Jasper and he had reached the Oldsmobile, and just as Sheriff Jasper started to place his hand on the door of the car, an occupant of the Oldsmobile fired a pistol shot into Sheriff Jasper's body. Officer Todd stated that he then drew his pistol and fired three shots at the departing Oldsmobile. Todd further testified that Sheriff Jasper had not drawn his gun, nor had he, nor Sheriff Jasper, been given a chance to say anything to the occupants of the Oldsmobile.
Officers Hatfield and Chumbley heard the report of the pistol and rushed to the scene of the shooting to see the Oldsmobile drive away and to find Sheriff Jasper lying in the road mortally wounded. Neither of these officers was able to identify any of the occupants of the Oldsmobile.
Willard Sprinkles, who was jointly indicted with Kinder for this crime and who is presently confined in the LaGrange Reformatory, was called to the witness chair by the Commonwealth, but he refused to answer questions on asserted constitutional grounds. However, Sprinkles did state that Kinder drove him to Pulaski County on July 3, 1952, in a 'two-toned' Oldsmobile. Fred Locke, Deputy Bell County Clerk, testified that the records of his officer reflected that on February 28, 1952, Kinder owned an Oldsmobile 88 Coupe which he transferred on August 21, 1952, to Marshall Welsh.
John Vaught, a merchant who lived in East Somerset, testified that on the night of July 3, 1952, at about 6:30 o'clock, Kinder and Sprinkles came to his place in a 'two-toned' Oldsmobile, bought a soft drink and talked with him for about fifteen minutes. Mr. Vaught stated that Kinder and Sprinkles left his store traveling in the direction of Somerset.
W. M. Rogel, who operates a grocery store at Nancy on Highway No. 80, ten miles west of Somerset, testified that Kinder stopped at his place on the night of July 3, 1952, at approximately 9:30 o'clock, and inquired if there was a road that turned off Highway No. 80 that led to Cumberland Falls. Mr. Rogel further stated that Kinder offered to sell him some whiskey, but he declined the offer, and that Kinder left his store in a 'two-tone Olds 88,' but another person was driving the car.
The testimony of Pat Patterson was to the effect that while he was in jail with he heard Kinder offer Marie Johnson some money if she would not recognize him. It was further shown by the testimony of Amenda Ingrham that Willard Sprinkles came to her home in 'Bogeltown' just prior to the time Sheriff Jasper was slain and asked where he husband was, and that she told him he had better leave because 'the law was out there;' that by the time Sprinkles had time to 'get back to the corner,' she heard two or three shots fired and then heard 'a car start out fast.'
Kinder did not testify or introduce any evidence. He relied upon his motion for a directed verdict of not guilty.
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