McDaniel v. Commonwealth

• Decision Date: 29 October 1918
• Citation: 181 Ky. 766,205 S.W. 915
• Parties: MCDANIEL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

205 S.W. 915

181 Ky. 766

MCDANIEL v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 29, 1918

Appeal from Circuit Court, Warren County.

Bradley McDaniel was convicted of murder, and he appeals. Reversed with directions.

M. B Harlin, of Bowling Green, for appellant.

Chas H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

Under an indictment charging him with the murder of Dee Spears, Bradley McDaniel, a negro boy 18 years of age, was convicted and his punishment fixed at death by the jury, and from the judgment on the verdict he prosecutes this appeal.

On Monday, April 22d, Bradley McDaniel shot and killed Dee Spears, a white man, in the town of Smith's Grove, in Warren county. He was immediately arrested and conveyed to the jail of Warren county and there kept in confinement until the Thursday following, at which time he was, by an order of the Warren county court, taken to the jail of Jefferson county in Louisville in order to protect him from violence at the hands of a mob. On April 30, 1918, the judge of the Warren circuit court, by a notice written and posted in the manner and form required by the statute, called a special term of the Warren circuit court to convene in Bowling Green on Tuesday, May 14th. On Sunday night, May 12th, McDaniel was brought from the jail in Louisville, Jefferson county, to the jail at Bowling Green, and there remained in custody until his trial. On Tuesday morning, May 14th, the special term of the Warren circuit court was convened pursuant to the notice, and the grand jury, which was at once impaneled, returned on the morning of May 14th the indictment against McDaniel under which he was tried. On the afternoon of the same day, when the case was called for trial, the attorney for McDaniel entered a motion to quash the indictment, which was overruled, and also filed a general demurrer to the indictment, which was also overruled, and then filed a motion supported by written grounds for a continuance of the case, which motion was also overruled. When these several motions had been overruled, a jury was impaneled, and in the early afternoon of May 14th the trial was commenced and concluded on the following day, when the jury returned the verdict heretofore set forth.

Before proceeding to state the grounds relied on for reversal, it will be convenient here to make a brief statement of the facts. A few days before Dee Spears was shot and killed, his son, a boy about 11 years old, threw some potatoes or rocks at McDaniel while he was walking through the streets of Smith's Grove, and thereupon McDaniel slapped the boy several times, not however, inflicting any injury upon him. McDaniel testified that on the following day, which was Saturday, he met the little boy on the street, when the boy said to him that "his daddy was going to beat hell out of me." It further appears that McDaniel did not see or come in contact with Spears at any time after slapping the boy until Monday when the killing occurred. On Monday morning, McDaniel, after putting a pistol in his pocket, went to work for Lester Wright, who lived in Smith's Grove, and on the afternoon of this day Wright had occasion to go to the blacksmith shop conducted by Spears for the purpose of having some harrow teeth repaired. The harrow teeth were put in an automobile, and Wright took McDaniel with him to the shop of Spears to carry the harrow teeth from the machine into the shop. When the machine drove up in front of the shop and 10 or 15 feet from the door, it was stopped, and McDaniel carried into the shop the load of harrow teeth, and upon asking Spears where to put them was told by Spears, who was busy at his anvil welding a piece of iron, to throw them on the floor. McDaniel then went back to the machine after another load of teeth, and, when he brought these in and had thrown them down on the floor, Spears stopped his work at the anvil and said, according to the evidence of McDaniel:

"'Bradley, they tell me you have been beating up that boy of mine.' And I says, 'No, they threw some potatoes at me, and I slapped him,' and he grabbed a piece of plank as I went out the door and threw it at me, and there was a wagon sitting down there, and he grabbed a piece of 2X6 there, and I says: 'Don't hurt me; I haven't done anything to you.' And he says: 'No, God damn you! I am going to break your neck.' And he grabbed the 2X6 up and started onto me, and I shot him. Q. How many times? A. Five. Q. How fast? A. As fast as I could. Q. How close was he when you fired? A. In about 5 feet of me, right close; but I didn't have the car door open, of course. If I had got the door open and got in there, he would have struck me in spite of the world. Q. Were you running when he threw at you with the plank? A. Yes, sir; and it went into the car where Mr. Wright was sitting."

Lester Wright was sitting in his machine, and the only witness other than McDaniel who testified to what was said between McDaniel and Spears said:

"I had gotten in the car and was preparing to start the engine when Bradley came out the shop door, and as he was coming out of the door, or probably when he was on the step, Spears called to him and asked him what he meant by jumping on his boy and beating him up, and he replied that he didn't jump on him and beat him up, but the boys were throwing potatoes at him and he slapped him, and Spears said, 'You started this racket with the boy, and I can prove it,' and Bradley said, 'No, Mr. Dee, I wasn't bothering anybody, and I can prove it,' and Spears called him a son of a bitch, and I started the engine and thought I would take him on away, and Spears laid down his hammer in the shop and throwed a chunk at him, and it lit up in the car, and my next thought then was to stop the engine and get out of the way, and as I was stopping the engine I heard Bradley say, 'Mr. Dee, don't do that,' and in an instant he fired the shots. Q. Could you see Mr. Spears at the time the pistol was firing? A. I was stopping the engine at the time; the emergency brake wouldn't work, and the shots were fired while I was in the act of doing this. Q. In what position was Mr. Spears, whereabouts was he with reference to your car at that time? Was he in the rear, or in front? A. To the side of the car towards the rear. Q. Where was the colored boy at the time the shots were fired? A. Standing at the side of the car near the front door. Q. How fast did that pistol fire from the time he began to shoot until he stopped? How long do you suppose it took for those five shots to be fired? A. As fast as they could be fired, I imagine."

There seems to be no dispute about the facts that, when McDaniel fired the shots, he was standing close by the side of the machine nearest to the shop, and that Spears was out in the street within a few feet of the machine, or about the fact that Spears threw the piece of wood at McDaniel, or about the fact that as McDaniel was leaving the shop Spears followed him for a distance of 20 or 25 feet before he was shot; but there is no corroboration of McDaniel's statement that, after Spears threw the piece of wood at him, he picked up a piece of timber and was about to strike him when McDaniel shot.

Passing now to other matters, there appears no reversible error in the ruling of the trial court in reference to the indictment or the manner in which the jury was selected, and so we will turn to the motion and grounds for a continuance. The affidavit for continuance which was made by McDaniel is as follows:

"The defendant, Bradley McDaniel, comes and moves the court to continue this cause because he is not ready for trial at this time, for the reasons herein set out. He says that the killing of Dee Spears, with which this defendant is now charged, occurred in Smith's Grove on the 22d day of April last, and that he was immediately arrested and brought to Bowling Green, Ky. and lodged in the Warren county jail, where he was held in custody until the Thursday following, April 25th, at which time he was by an order of the Warren county court taken by the jailer of Warren county to the jail of Jefferson county for safe-keeping in order to protect him from violence at the hands of a mob. He says that he has been confined in said jail of Louisville, Ky. since said time, until the 12th day of May (last Sunday night about 7:30), when he was pursuant to the order of the court brought back to Warren county for trial.

He says that on the day that he was carried to Louisville, by the jailer of Warren county, and the sheriff thereof, there came to the city of Bowling Green a large body of men who lived in Warren county, and as affiant is informed at least 100 in number, for the purpose of doing this defendant violence; that they were armed, and were banded together for the purpose of securing this affiant by taking him by force from the officers, and taking his life.

He says that they presented a petition to the county attorney of Warren county demanding that this defendant be placed upon trial immediately, and that unless he was tried by a special term of this court, and was given the death sentence that they would take the law into their own hands and see that he was executed; and he says that members of the said mob stated openly that the widow of the deceased Spears had told the members of the said band or mob, when they left Smith's Grove, to 'bring that negro back with you and hang him in front of my window, so that I can witness his death.'

He further says that said band of men composing said mob attempted to bribe the jailer of Warren county openly, on the street, to give over the possession of the keys to the jail of Warren county, wherein this defendant was confined, in order...