Kirk v. Commonwealth

• Citation: 192 Ky. 460,233 S.W. 1060
• Parties: KIRK v. COMMONWEALTH
• Decision Date: 11 October 1921
• Court: Court of Appeals of Kentucky

233 S.W. 1060

192 Ky. 460

KIRK v. COMMONWEALTH

Court of Appeals of Kentucky.

October 11, 1921

Appeal from Circuit Court, Edmonson County.

Herman Kirk was convicted of murder, and appeals. Affirmed.

Milton Clark, of Brownsville, for appellant.

Charles I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen and J. H. Gilliam, Commonwealth's Atty., of Scottsville for the Commonwealth.

SETTLE J.

The appellant, Herman Kirk, was tried in the court below under an indictment charging him with the crime of murder. The jury returned a verdict, finding him guilty as charged and fixing his punishment at confinement in the penitentiary for life. He was refused a new trial, and prosecutes an appeal from the judgment of conviction entered upon the verdict.

The victim of the homicide was an old man, apparently of the "hobo" class, wholly unknown to any resident of the community in which he was killed. Although called in the indictment John Doe, it is therein declared that was not his correct name, which was to the grand jury unknown. According to the facts furnished by the bill of evidence, he first appeared Saturday, February 12, 1921, shortly after 12 o'clock noon, at Rocky Hill Station, a village on the Louisville & Nashville Railroad, 18 miles north of Bowling Green, and 5 1/2 miles south of Glasgow Junction, another village on the railroad. He was then walking on the railroad track, or in a path on the railroad right of way beside it in the direction of the latter place. On the afternoon of the following day, Sunday, February 13, his dead body was found behind a log about 100 feet from the railroad track in a flat place or sink filled with bushes, half the distance between Rocky Hill Station and Glasgow Junction. His face was badly mangled and skull crushed to a pulp evidently inflicted by terrific blows with some blunt and deadly instrument or instruments wielded by a powerful and merciless hand with intent to kill, and which produced death almost instantly. The pockets of his clothing were exposed, with the inside of each of them turned outward, and neither purse, money, nor other thing of value found on his person.

He evidently was killed on the railroad track, or in the path beside it, 100 feet from where his body was found. This was demonstrated by the presence of blood stains in the path beside the railroad track at that distance from the body and on the ground toward where it was removed; also by the presence in the soft soil of the path of the tracks of two men, a few of which were made by heavy "hobnail" shoes such as, numerous witnesses testified, were worn by the deceased as he passed through Rocky Hill Station the day of the homicide, and were found on his feet after his death. The greater number of tracks, however, were made by rubber overshoes, such as were worn by appellant when arrested for the crime, and, according to several witnesses, worn by him the day of the homicide. Measurements of the tracks, made upon their discovery, when applied to the shoes on the feet of the deceased and the overshoes of appellant, showed a few of them of such size and character as were or could have been made by the shoes of the deceased; but the greater number of them were of such size and character as were or could have been made by the overshoes of the appellant.

The body of the deceased evidently was dragged by the feet and with his back to the ground from the place of the blood stains in the path beside the railroad track to the sink where it was found. This is demonstrated by the facts, as shown by the evidence, that no tracks were found leading from the blood stains in the path to the point where the body was found that could have been made by the shoes worn by the deceased, but there were tracks leading from the blood stains in the path to where the dead body lay, made by overshoes of the size and character of those worn by appellant, which tracks were made by the backward stepping of the wearer of the overshoes in dragging the body of his victim; the dragging of the body being further shown by the flattened or mashed condition of the grass and weeds on the ground over which it passed, the turning of the clothing the wrong way, and causing it to gather under the upper part of the back and head. When the body was discovered, the face was covered by the overcoat of the deceased, which had been pulled over his head for that purpose. The overcoat was rendered immovable by the placing on it of a large rock, which had been removed from its well-defined bed only a few feet away.

Just off the right of way of the railroad company, and near the blood stains in the path beside the railroad track, were found a heavy sassafras stick and rock, either of sufficient size and weight, if used in inflicting blows, to have produced the wounds causing the deceased's death, and each containing blood stains. The stick had the appearance of having been freshly broken from its parent tree or bush, and by investigation on the part of the several persons a sassafras sapling, found near the railroad track at considerable distance from the body of the deceased, showed the loss of a freshly broken large limb, and upon comparing with the break in the tree the broken end of the sassafras limb or club found at the place of the homicide, it was identified as the limb broken from the tree.

Other than the man slain and his slayer, there were no eyewitnesses of the homicide, but in addition to the facts and circumstances above related, evidencing the killing and that it was murder, the following facts, also furnished by the evidence, were relied on by the commonwealth to connect appellant with the crime and prove its commission by him: These facts, in brief, were that a negro man, later identified by witnesses as the appellant, arrived at Rocky Hill Station Saturday afternoon, February 12, 1921, from the direction of Glasgow Junction on a freight train which got there at 12:30 or 1 o'clock p. m., and immediately after the deceased left Rocky Hill Station walking toward Glasgow Junction. The freight train passed the deceased just before or upon reaching Rocky Hill Station, and without stopping at that place greatly diminished its speed in approaching and passing it. Appellant was seen by the witnesses Bush and son to get off the train at the Bush crossing near the edge of the village, and a little later by Rigsby and Johnson near Hudson's store in the village. He was then dressed, as stated by the witnesses, in yellow or brown overalls, overshoes, and a fur cap. When arrested, he was dressed as thus described, and admitted that the same apparel was worn by him the day the homicide occurred. Upon quitting the train appellant started southward, as if to enter the village of Rocky Hill Station, but in a few minutes returned to the Bush crossing, then proceeded, walking on or beside the railroad track, toward Glasgow Junction, thereby retracing the route over which he had just come by the freight train. At that time the deceased was still in view, walking upon or beside the railroad track toward Glasgow Junction. when he and appellant were last seen by the witnesses near Rocky Hill Station, appellant, who walked faster than the deceased, seemed to have gotten in about 30 yards of him.

Another witness besides those at or near the Bush crossing, Eugene Madison, claimed to have seen both the deceased and appellant after they left the crossing. Madison's home is between Glasgow Junction and Rocky Hill Station, about 1 1/2miles from the latter place, which he visited in the afternoon of Saturday, February 12, 1921, walking from his residence across his farm to the Louisville & Nashville railroad track thence down the track to Rocky Hill Station. According to his testimony he reached the railroad track at a point 300 or 400 yards above the Bush crossing, and before getting upon the railroad track he saw deceased at a distance of 60 or 65 feet, walking on the track, or path beside it, toward Glasgow Junction, but had no conversation with him. His description of him, however, was the same as that given of him by other witnesses. Madison next saw, about 30 yards in the rear of deceased, a negro man then unknown to him, but whom he later identified as the appellant. When the witness got to the negro man the latter was standing with one foot on a rail of the track rolling a cigarette. He requested of the witness a match, which was followed by a brief conversation...