Marcum v. Commonwealth

• Decision Date: 11 January 1924
• Citation: 201 Ky. 527,257 S.W. 714
• Parties: MARCUM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

257 S.W. 714

201 Ky. 527

MARCUM v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 11, 1924

Appeal from Circuit Court, Bullitt County.

Jennie Marcum was convicted of unlawfully, willfully, and feloniously entering into a conspiracy to kill, and appeals. Affirmed.

Huggins & Oldham, of Louisville, and C. P. Bradbury, Fletcher Combs and A. E. Funk, Jr., all of Shepherdsville, for appellant.

T. B McGregor, Atty. Gen., Edward L. Allen, Asst. Atty. Gen., and J. Lewis Williams, of Glasgow, Com. Atty., for the Commonwealth.

ROBINSON J.

On the morning of December 24, 1922, Thomas Goldsmith, accompanied by his son, Sam, left their home in a wagon with the intention of driving down to what was known as the rifle range in Bullitt county to secure some lumber that had been left at their old home, which was sold to the government and included in the army reservation; their present residence being about 2 1/2 miles therefrom. After reaching the range they met Tom Marcum, husband of appellant, and Sol Dennison a man employed by him. The latter two had with them a quart of whisky, from which the four took several drinks, during which time Marcum stated that he had come down there to secure some wire that had been left, and the senior Goldsmith volunteered to take it home for him. This was agreed upon, and while the lumber was being loaded Marcum and Dennison, each having a gun, went further down the range to shoot rabbits, but returned shortly, and it appears that some difficulty arose between the younger Goldsmith and Dennison, in which Marcum and Tom Goldsmith took part. After this was momentarily smoothed over, Goldsmith and his son, having loaded their wagon, started to drive home, and, while the evidence varies somewhat, it appears from the testimony of Sam Goldsmith that Marcum and Dennison mounted their horses and followed, threatening the lives of both the Goldsmiths. He states that they frequently pointed their guns at them, threatening to shoot, and followed them for some distance. Later they turned off the road, and the Goldsmiths drove home. It is shown that, before reaching Marcum's residence, he and Dennison stopped, at which time the latter proceeded to tell him of certain alleged liberties that Tom Goldsmith endeavored to take with Luvenia, his 13 year old daughter, who had spent the night with the Goldsmiths several days prior.

It appears that the Marcums lived about one mile distant from the Goldsmiths, and shortly before this killing Marcum, accompanied by his wife (the appellant), went to Louisville, to spend several days, and their daughter was invited to the home of the Goldsmiths, where she remained, sleeping in a room with the two younger Goldsmith children, and at 7 o'clock the next morning Sol Dennison, the hired man, called for her, as it was his custom, or Marcum's, to take the children of the neighborhood to school. It is not shown that this girl had made any complaint whatever of mistreatment at the hands of Tom Goldsmith, nor had she imparted any knowledge of this to her father or mother, and that neither had heard anything of it until Dennison asked Marcum if his daughter had told him of the affair, and then proceeded to give a detailed account of it as said to have been told him by the girl. After this conversation Marcum and Dennison proceeded home by different routes, and later in the afternoon Marcum and his wife, sitting on the back seat of their automobile, with Dennison driving and Luvenia (their daughter) on the front seat, were seen to leave the Marcum home and drive toward the Goldsmiths, and again the testimony varies largely as to succeeding events.

However, the uncontradicted testimony of Mrs. Goldsmith is that standing in her kitchen she saw the Marcums drive down the hill from their place to the road that passed her house, and a few moments before her husband had gone out to the horse lot and in just a short time she heard the report of a shotgun. She was churning, and kept on with her work until her husband exclaimed, "Oh, I am shot! Jim Marcum shot me!" and upon running to the door she saw him staggering, and he fell in her arms and repeated, "Jim Marcum shot me." In the meantime Goldsmith's son Sam had joined her, and, as he was endeavoring to place his father in a more comfortable position, Marcum called to her, and upon looking around she noticed that he was standing just outside the fence with a shotgun in his hand, and his wife, Jennie Marcum, the appellant, just behind him, within touching distance. She further states that Marcum said to her, "Mrs. Goldsmith, I shot the G_____ d_____ ______, and I hope he dies and goes to hell," and then opened the gate and started towards her. At this time she had one hand on her husband's wound, and, raising the other, asked him to stop, saying, "You are no friend of mine; you have taken my husband away from me and my children and his old mother, and will you please leave here," upon which he turned toward the gate. She further testifies that appellant came into the yard with her husband and stood by his side, and when he turned, with the apparent intention of leaving, the appellant started toward her, rolling up her sleeves, and walking rapidly, but, upon being asked to leave, joined her husband, standing in the county road, and in a moment Dennison and their daughter, who had remained in the machine, drove up and took Marcum and his wife, the appellant, to their home.

The testimony of Sam Goldsmith is substantially the same as that of Mrs. Goldsmith. John Goldsmith, a nephew of the deceased, lived between the homes of the Marcums and the Goldsmiths, and about a quarter of a mile from the former. He testified that upon the day of the killing, while chopping wood, he heard loud voices coming from the Marcum premises, and recognized the voice of Jim Marcum saying, "I am going to get into the machine, and go over there, and put a stop to him damn quick, if it takes everything I have got," and that he further heard other voices, but was unable to determine whether they were those of men or women. This was about 4:30 p. m., and in 10 minutes he heard Marcum leave in his car, and shortly afterwards was notified by phone that his uncle had been killed. Several other witnesses testified, but their evidence was not of an important nature.

A short time after this killing James Marcum was indicted, and upon trial was convicted and sent to the penitentiary for five years, and at the April term of the Bullitt circuit court Sol Dennison and Jennie Marcum were indicted, charged with unlawfully, willfully, and feloniously entering into a conspiracy with each other and James R. Marcum, the purpose of which conspiracy was to kill and murder Tom Goldsmith. At the next term of the court the defendants were tried and found guilty by the jury, which fixed their punishment at two years in the penitentiary, and from this judgment this appeal is taken.

In their motion and grounds for a new trial, which was overruled, attorneys for appellant filed nine grounds upon which they relied for reversal. However, after carefully reviewing them, we find but four with which we think it necessary to deal: (1) The court erred in calling a special venire of jurors from Nelson county before any effort had been made to obtain a jury in the county of Bullitt. (2) Incompetent evidence was admitted that was highly prejudicial to the appellant. (3) The court erred in overruling the motion of appellant to direct the jury to find her not guilty. (4) The court erred in limiting the argument of counsel for appellant to one hour.

In the first ground counsel for appellant contend that the court seriously erred in calling a special venire of jurors from Nelson county before having made a legal effort to satisfy himself that a jury could not be secured in Bullitt county. However, it would appear that the trial of Jim Marcum, husband of appellant, had been held a short time before the one in question, and the court was of the opinion that the jury summoned from Nelson county would be necessary. Counsel for appellant objected to this special venire, and supported their contention by citing section 194 of the Criminal Code, as follows:

"If the judge of the court be satisfied, after having made a fair effort, in good faith, for that purpose, that, from any cause, it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and from those so summoned the jury may be formed."

It will be observed, however, that this provision of the Code fails to specify clearly or outline positively in just what manner or by what procedure the court shall make this "effort" to secure jurors in the county wherein the prosecution is pending, and much depends upon the words "after having made a fair effort in good faith for that purpose." It is very possible that the Legislature contemplated that any investigation or inquiry made by the court, wherein he was of the belief that a proper jury could not be secured in the county wherein the offense had been committed, would be deemed a fair effort, and that his conclusion relative to this inability would be sufficient to warrant his directing the sheriff to summon a jury from some adjoining...