May v. Commonwealth

• Decision Date: 28 March 1913
• Citation: 153 Ky. 141
• Parties: May v. Commonwealth.
• Court: Kentucky Court of Appeals

153 Ky. 141

May v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 28, 1913.

Appeal from Laurel Circuit Court.

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HAZELWOOD & JOHNSON and B. B. GOLDEN for appellant.

JAMES GARNETT, Attorney General, O. S. HOGAN, Assistant Attorney General for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

The appellant, General May, was tried, convicted and given the death penalty, under an indictment jointly charging him and others with the murder of Mrs. Bell Meredith. The homicide having occurred in Clay County, the indictment was found and returned by the grand jury of that county at the April term, 1911, of the Clay Circuit Court, but appellant obtained a change of venue to the Laurel Circuit Court, where he was tried during its February term, 1912. The refusal of the lower court to grant him a new trial resulted in this appeal. There were only three eye-witnesses to the homicide. They were Farmer Freeman, said to be a negro, Lloyd Duff and the appellant. The testimony of Freeman was to the effect that on the day of the killing he, Sherman Meredith, the latter's wife, Bell Meredith, and a little four or five-year-old son of the Merediths, left the Meredith home to visit one Gabe Smith, from whom Sherman Meredith desired to purchase some articles, Smith being about to remove from the county; that in going to the Smith's he and the Merediths passed the home of John Duff, where they saw appellant, who came out of Duff's house as they got near the front gate and invited Meredith and wife to enter the house, but the invitation was declined, the Merediths explaining that they were going to Smith's and did not have time to stop; that passing on he and the Merediths reached Smith's house, where they remained perhaps two hours, and then started on their return to the Meredith home. When they reached and were passing the residence of John Duff, appellant again made his appearance at the yard gate and insisted that Sherman Meredith go into the house, telling him that he had plenty of whiskey, but Meredith again refused the invitation and he and his wife and Freeman proceeded on their way, and had almost reached Duff's barn, forty or fifty yards from the house, when appellant called to Sherman Meredith to come back, saying he wanted to talk with him. Thereupon Meredith went back and his wife with him, Freeman, however, sat down on a log by the side of the road. While appellant was talking with Sherman Meredith, Freeman left his seat on the log and walked back to within ten or fifteen feet of where appellant, Meredith and his wife were standing. Freeman did not know what they were talking about, but when he got near them heard appellant ask Meredith to look at some object across the field, which Meredith did, and as his face was turned from appellant, the latter drew a pistol from his pocket and shot him in the back of the head. That Meredith immediately fell to the ground, and as he did so, his wife caught his body and went down with him; thereupon, appellant pointed his gun over the fence and shot twice in the direction of Mrs. Meredith, one of the shots striking and killing her; that neither Meredith nor his wife had a weapon and Mrs. Meredith had not spoken a word to appellant.

Freeman further testified that following the shooting of Meredith and wife he ran for his life, pursued by appellant, who followed him across the field and shot at him, the pistol ball taking effect in his heel.

Freeman also testified that he was without a weapon and did not attempt to prevent appellant from killing Meredith and wife, believing himself to be in danger from appellant.

Lloyd Duff testified that he was cutting wood fifteen or twenty steps away from the place of the shooting; that he saw Meredith come back from the direction of the barn but heard him say nothing to appellant; saw appellant fire three shots at Meredith and wife and heard Mrs. Meredith say, "Lord, have mercy;" that Mrs. Meredith had no pistol, nor did he see Freeman with a pistol or see him shoot with one.

The appellant testified, in substance, that Sherman Meredith, in returning to his home from Smith's stopped at Duff's gate and called to him to come out, saying he wished to see him; that he went out to the gate and got into a conversation with Meredith, Mrs. Meredith being near her husband, and Freeman a short distance beyond Mrs. Meredith; that Sherman Meredith cursed and abused him and attempted to draw a pistol from his pocket, which he did partially draw, when appellant drew his pistol and got the first shot, the ball taking effect in Meredith's face or head; that Meredith then fell against the paling fence and to the ground, and that at that juncture, he (appellant) was shot at by Freeman, who following the shot, turned and ran; that he shot at Freeman as the latter ran off and jumping the fence followed him for some distance across the field and until Freeman made his escape. Appellant further testified that three shots were fired at Duff's house, one of them he fired at Sherman Meredith and another at Freeman after the latter shot at him; that he did not shoot at or try to shoot Mrs. Meredith, but that, in his opinion, she was shot by Freeman in attempting to shoot him. What we have thus outlined of the evidence are the salient facts of the homicide. It will be observed that Freeman was in many essential particulars corroborated by Lloyd Duff; on the other hand, we have been unable to find any evidence corroborative of appellant's testimony. Moreover, he is contradicted by the numerous admissions of guilt made by him at the time of his arrest, and in repeated subsequent conversations.

To John Wilson, deputy sheriff, by whom appellant was arrested at Winchester, where he had fled after killing Meredith and wife, he said:

"The trouble came up over a board tree Meredith had cut on land of his mother — that he shot at the negro — that he did not want any G__ d__ negro to testify against him — that a dead person could not talk and there was no witness against him; that he tried to kill them all — he did not want witnesses — the woman was shot in the guts — in the stomach."

To Rufus Wilson, jailer of Bell County, he said while confined in the Pineville jail:

That his mother and Sherman Meredith had been disputing over a board tree, and further, "I am alright now; I have got them — I know my fences. I have been in trouble — I have got them on this proposition that no one saw me except the d__n negro; I ran him across a ten acre field and tried to kill him — I shot the s_____ of a b_____ in the heel — I know he will die because I shot him with a copper jacket — if he don't, well the jury won't believe him because they know he is prejudiced against me." The jailer then asked him about the other witness to the killing, Lloyd Duff, and his reply was:

"That is alright, he is with me." To which Wilson replied: "You are alright then;" in answer to which appellant said: "Yes sir, what it takes is proof, I have got the proof. Nobody saw it but the negro and Duff — Duff is with me and they won't believe what the negro swears to. The woman picked up his head and said, `Honey he has killed you,' and she grabbed the man as he fell."

Isaac Hopkins testified that appellant told him he and Meredith had trouble over a board tree and the lines between the farms; that he fired four shots at the negro and would have killed him if he had more cartridges. "That he understood the negro was shot in the heel and that if he was, with an automatic bullet, it would kill him and then there won't be any witnesses to tell of the killing but my friends. * * *" "I killed the woman — she had her hands under her apron — had a pistol." Appellant also said to this witness in the same conversation: "There is nothing in killing a man. The main thing is to work on your proof." Also that he had trouble before with the Lewis' and Merediths and that this led to the killing.

To Joe Page he said:

"He told the woman to cut it out and if she did not he would put it to her — that the woman was hollering; that the negro got away — that he would have killed him but that he got away."

To Speed Bryant, who was confined with appellant in the Pineville jail, he said:

"When Meredith fell the top of his head bounced up." Bryant then said to him: "I understand there was a pair of twins in the woman," to which appellant replied, "Yes, I tried my damndest to shoot her right through both of them."

In view of the convincing character of the evidence, the sex and the helplessness of the person slain, and the wantonness and cruelty manifested by the slayer in committing the crime, it is not apparent that the finding of the jury could have been other than a verdict of guilty, or that any punishment short of that inflicted by the verdict, would have met the ends of justice. The first ground relied on by appellant's counsel for a reversal is that the trial court erred in overruling his demurrer to the indictment. The record furnishes no support for this contention. The indictment contains four counts. In the first count it is alleged in proper language and in the usual technical terms, that appellant, and other persons, whose names were to the grand jury unknown, confederated and conspired together to kill and murder Mrs. Bell Meredith and, in pursuance of such conspiracy, did kill and murder her.

In the second count it is alleged in like terms that appellant and the persons referred to, did kill and murder Mrs. Bell Meredith. In the third, that she was killed and murdered by one or more of the persons, whose names were to the grand jury unknown, and that appellant, being present, did aid, abet, counsel and assist in such murder. In the fourth, that appellant did kill and murder Mrs. Bell Meredith and that the other persons, who were to the grand jury unknown, being present, aided, abbetted and assisted in the commission of the crime.

It is a well known rule of law...