Newman v. Com.

• Decision Date: 28 September 1905
• Citation: 88 S.W. 1089
• Parties: NEWMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

88 S.W. 1089

NEWMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 28, 1905

Appeal from Circuit Court, Laurel County.

"Not to be officially reported."

George Newman was convicted of murder, and appeals. Reversed.

James Sparks, for appellant.

N. B Hays and C. H. Morris, for the Commonwealth.

HOBSON C.J.

In May 1904, a street fair was in progress in the town of Corbin which is situated in Whitley county, near the Laurel line. Lynn Camp creek is the dividing line between the two counties. There is a railroad bridge across the creek; and near the Laurel county end of this bridge on Saturday evening, May 27th, at about 9 o'clock, the body of Paschal Bryant was found lying between the rails of the railroad track, with his head near one rail, his hat on his breast, and a large bullet hole entering his head behind the lower part of his left ear and making its exit at the right eye. The body was warm when found, but life was extinct. The corpse was found by a man who lived not far off and was walking along the railroad on his way to Corbin. This man heard the shot some time before he left home. While he was standing near the body, which was about a quarter of a mile from the station at Corbin, there came through the wire fence a man and a woman, from the east side of the railroad track, who came up on the railroad and looked at the corpse. The woman broke down and cried a little, and said she could not stand to look at him. Then they passed on. The man's name was Henry Carr. The woman's name was Laura Newcomb. They have since been married. That night they and the defendant, George Newman, were arrested charged with the murder of Bryant. Carr and the woman were discharged subsequently, but Newman was held over, and, having been indicted, was convicted, and his punishment fixed at confinement in the penitentiary for life.

On the trial Carr and wife were introduced as witnesses for the commonwealth, and it was insisted for Newman that Carr had killed Bryant and had married the woman to keep her from being a witness against him. There was a merry-go-round at the fair, and there was a considerable crowd in town, especially about the merry-go-round. George Newman was 22 years old, and about two months before had married Maria Hood. They lived six or seven miles from Corbin. On the preceding Tuesday, while he was out at work, she had left home, and when he came home in the evening she was not there, and he could not learn where she was. The next morning, Wednesday, he borrowed a Winchester rifle and, as he says, went turkey hunting with it, but finally, conceiving that his wife might be at Corbin, went on with the rifle to Corbin, arriving there about dark. He left the rifle with a friend, and, finding his wife on the merry-go-round, took her home. There seems to have been no trouble between them then. She claimed that she had simply wanted to go to the fair, and, fearing that her husband would not be willing for her to go, had left home without letting him know that she was going. On Thursday evening the defendant was seen in earnest conversation with Paschal Bryant, who lived about a mile from him. The whole conversation was not heard by any of the witnesses, but the defendant was heard to ask Bryant. "Before God and Heaven did you take Maria off?" Bryant said, "No." The defendant then asked him, "Where were you when it rained Tuesday evening?" Bryant answered, "At the Laurel River bridge." This bridge was between their homes and Corbin. The defendant then said, with an oath, "That is where she said she was." The rest of the conversation was not overheard. On Saturday morning Newman and his wife went to Corbin. He took with him a large .44-caliber Colt pistol, and when they got there they went to the house of a friend, and he hung the pistol up over the washstand. They then went on to the fair. That afternoon Paschal Bryant and the defendant were seen drinking together at a saloon. The defendant was a small man, and wore a white hat. Late in the afternoon, and about dusk, Paschal Bryant went to an eating stand between the merry-go-round and the railroad bridge, and there bought some apples. He came there in company with two other men, who waited for him on the street. Neither of these men were recognized there, but one was a small man with a white hat, and the other was a larger man. The three then left and went on down toward the railroad. Between the railroad depot and the creek there is a cut. Before they had passed through this cut they were seen by two men, with their wives, who were passing along in the opposite direction, and after they passed through the cut they passed a woman named Belle Polly, who came along with two men going up toward the station. She testifies to recognizing Paschal Bryant, and also George Newman, the small man with the white hat; and one of the other witnesses, who did not know Newman, but saw him the next morning, said that from his hat, size, and face he thought he was the same man. The witness Polly had only gone a short distance, when she heard the report of a large gun down about the railroad bridge, in the direction which the three men had gone. This report was also heard by the other witnesses who passed them. The railroad maintains a pumping station at the bridge. The man who runs the pump was at the pumping house, and testifies to seeing the three men come over the bridge, the smaller man with the white hat being behind, and when they got to the far end of the bridge they got in a bunch and the pistol went off. He saw the flash of the pistol, but saw no more of any of the parties, and did not know that any one was killed until afterwards. Two witnesses testify to seeing tracks of two men leading down from the railroad embankment towards the creek. There was a dam just below on which they could have crossed and gone back to Corbin. The defendant, when arrested soon afterwards, had no weapons upon him; but the lady at whose house he had left the pistol, when she returned home, found the pistol gone. He says that he did not return to the house, and does not know how the pistol got away. It was a private house, and only some ladies seem to have known that the pistol had been left there by him. The pistol has not been seen since, and the theory of the commonwealth is that it was thrown into the creek after the shooting.

The proof leaves no doubt that Bryant was killed by a shot from a weapon carrying a ball similar to the defendant's pistol, and that he was killed by one of the two men who were seen walking out the railroad with him and across the bridge just before the shooting took place. The proof is entirely lacking as to who the third man of this party was. There was no proof of intimacy between Bryant and Mrs. Newman. It was shown where she staid while away from home. There was no proof of any attentions by Bryant to Laura Newcomb, and the proof was that she and Carr had gone down there into the woods before dark with three pints of whisky, and after the shooting they came up out of the woods together. Carr was evidently quite drunk, and there is no evidence that he had any weapon, or that he left the woman after he went down there with her. While he is about the size of the defendant, it is not shown that he wore a white hat, nor is he in any way identified as one of the three men going down the railroad. The woman Belle Polly and the woman Laura Newcomb were both of loose morals. While the defendant's evidence is in many respects impressive, it is unsatisfactory as to the interview between him and Paschal Bryant, in which he was asking Bryant about his wife. He claims to have been with his wife at the merry-go-round the whole evening, but the other witnesses do not substantiate this statement. There was a large crowd there. One or two witnesses speak of seeing him there, but there was no proof showing that he was missed from there, or that he was there continuously.

It is insisted for the commonwealth that he was jealous of his wife, and that his jealousy was pointed at Paschal Bryant. The only real issue in the case was whether the defendant was the small man wearing the white hat, who was seen by the witnesses going down the railroad with Paschal Bryant in company with a third man just before he was shot. There is some uncertainty about the case, and it is possible that the witnesses are mistaken who identify the defendant with the small man wearing the white hat. It was usual for persons to shoot over there beyond the bridge. At least it was not uncommon, and it is possible that Paschal Bryant and...