Newberry v. Commonwealth

• Decision Date: 17 January 1928
• Citation: 222 Ky. 630,1 S.W.2d 1045
• Parties: NEWBERRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W.2d 1045

222 Ky. 630

NEWBERRY v. COMMONWEALTH.

Court of Appeals of Kentucky

January 17, 1928

Appeal from Circuit Court, Perry County.

Joe Newberry was convicted of murder, and he appeals. Affirmed.

J. K P. Turner, of Hazard, for appellant.

Frank E. Daugherty, Atty. Gen., and G. D. Litsey, Asst. Atty. Gen for the Commonwealth.

LOGAN J.

The appellant, Joe Newberry, was indicted in the Perry circuit court jointly with John Combs and Dill Asher, charged with murder of Lou Banks. A separate trial was demanded, and the appellant was first tried. He was convicted and given a life sentence, but upon his motion for a new trial the verdict of the jury was set aside and he was given another trial. On the second trial he was again convicted and his punishment fixed at life imprisonment, and from that judgment he appeals.

The killing took place at a small village by the name of Karlas which is a station on the Louisville & Nashville Railroad not far from Hazard. Karlas is situated opposite the mouth of Buffalo creek. The coal camp of the John P. Gorman Coal Company is situated on this creek, while just above the mouth of the creek is the camp of the Diamond Block Coal Company.

The tragedy took place on the 5th day of July, 1926. The appellant is a boy 18 years of age. His companion at the time of the killing, who had been with him for some hours before the tragedy, was Johnny Combs, a boy about the same age. The proof shows that four boys lived in Leslie county and went over in Letcher county to spend the Fourth of July. It was necessary for them to leave the train at Karlas, and they had returned to Karlas on the 5th of July for the purpose of boarding the train on their return trip home. Lou Banks was one of the boys, and Fred Banks, a distant cousin, was another. The other two boys were Charley Bailey and Burley Bailey. The appellant and his companion, Johnny Combs, did not know either of the other four boys, and neither of the other four boys knew either of them. So far as this record shows Lou Banks, the 17 year old boy who was killed, did not know there was any such boy as Joe Newberry until within a few minutes before he was killed. Neither did Joe Newberry know that there was any such boy as Lou Banks until a few minutes prior to the time that he killed him.

The appellant and Johnny Combs were on the railroad track when Lou Banks and one of the Bailey boys came up with them. There was some cursing and loud talk. The commonwealth established by three witnesses that the Leslie county boys started away and were called back by appellant. When Lou Banks returned to where appellant was, the appellant drew a bottle from under the bib of his overalls and struck Charley Bailey over the head, knocking him down, and rendering him unconscious. When he started to get up Johnny Combs struck him, and he crawled over the embankment out of the sight of the witnesses. There appears to have been a scuffle between Newberry and Lou Banks, but three of the eyewitnesses testified that Banks had turned his back on Newberry and was going away from him when Newberry shot him in the back of the head, the ball coming out in front over his left eye. Just what induced appellant to shoot Banks is not very clearly shown by the testimony of any witness, but that he did shoot him in the back of the head, the wound resulting in his death within less than an hour, is positively testified to by three disinterested witnesses. Fred Banks, who testified for the commonwealth, stated that when Newberry struck the Bailey boy with the bottle, and when Johnny Combs later struck the Bailey boy, he, himself, was struck by some one and that he drew a pistol. About that time Dill Asher, who had not been about before, appeared on the scene and drew his pistol, pointed it at Fred Banks, and told him to drop the pistol which he had. Fred dropped the pistol on the ground. Lou Banks had no pistol and said nothing to any one. When Fred Banks dropped the pistol, he started away, and upon looking back he saw two or three persons reaching for the pistol which he had dropped on the ground. The Bailey boys fully corroborate Fred Banks in his statement that he had the pistol, and that Lou Banks had no pistol.

The appellant testified that he and Johnny Combs had been together during the morning and had been in swimming. They concluded that they would go over to the home of Dill Asher as they understood he had some new records for his victrola. When they were still on the railroad Lou Banks and one of the Bailey boys came up and inquired of him whether he had any whisky. There was some controversy between them, but it amounted to no more than the use of vile language towards each other. Johnny Combs left them on the railroad and went over to the home of Dill Asher. Asher was not at home and he returned to the boys on the railroad, and just at the time he came up to them the appellant struck Charley Bailey with the bottle. Appellant testified that Charley gave him the bottle and said to him at the time that he was going to make him get some whisky, and that...