Pool v. Com.
| Decision Date | 13 January 1948 |
| Citation | 213 S.W.2d 603,308 Ky. 107 |
| Parties | POOL v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Oct. 19, 1948.
Appeal from Circuit Court, Christian County; Ira D. Smith, Judge.
Charley Pool was convicted with death penalty for murder, and he appeals.
Affirmed.
Zeb Stewart, of Owensboro, and Louis P. McHenry, of Hopkinsville, for appellant.
Eldon S. Dummit, Atty. Gen., and H. K. Spear, Asst. Atty. Gen., for appellee.
Charley Pool, the appellant, for the second time stands convicted with death penalty for the murder of Mrs. Virginia Harris. He now brings us this second appeal.
Leaving out any duplications among them, appellant's present contentions appear to consist of five projected grounds for reversal. He says the trial court (1) should have removed the case to the proper United States District Court for a hearing, (2) should have quashed the indictment because colored persons have been systematically excluded from jury service in the county of this trial, (3) should have separated the witnesses during the course of this trial, (4) should have excluded appellant's written confession because of its illegality as admissible evidence, (5) should have directed a verdict in his behalf at the conclusion of evidence.
Appellant's written confession, his original testimony, and this case in broad, general outline are all set forth in this court's opinion upon the former appeal after the first trial. See Pool v. Commonwealth, 301 Ky. 531, 192 S.W.2d 490.
According to the Commonwealth, Pool has now given four different versions of this tragedy, viz., that the decedent was killed by mules; that she was killed by this appellant himself, as shown by his written confession, which he now repudiates that she was killed by a colored man named Hopson; that she was killed by a white man named Goodman, this being appellant's version as given by him on the second trial.
1. The trial court having overruled a petition for removal of this case to a United States court for trial, appellant says that this was an error. He cites no authority in support of this contention except the provision contained in 28 U.S.C.A. § 74. That code provision sets out a method of removal of a criminal prosecution against a citizen if he is denied any right secured to him by law. In his petition for removal appellant attempted to specify three grounds as justification for the requested removal, viz., (a) that he was held without right of bail and (b) that he was without mental capacity at the time of this crime and (c) that he was a victim of racial prejudice. As we understand the law, a person is not entitled to bail in a case involving capital offense where the proof is evident or the presumption great as to ultimate guilt. Sec. 16, Ky. Constitution. And since appellant was present at the very time and place when and where decedent was killed and was drinking heavily throughout most of that day and since he orally confessed the crime, according to one witness, even before he was arrested, we cannot see that he was ever entitled to bail in a case of this kind. As to his mental responsibility, he has never made motion for a sanity inquest, and in point of fact he defended his case at the second trial on the sole ground that the crime had been committed by another person. No right of making an insanity defense has been denied because he made no motion for any such inquiry and he never made any such defense at either trial. As to the question of racial prejudice, he made no motion for any change of venue. Neither did he make any sort of affirmative showing in support of this contention. We think the trial court made no error in overruling appellant's petition for removal, but if we ourselves are in error in this respect or in respect to appellant's immediately following contention, he has further recourse to the U.S. Supreme Court by petition for a review on writ of certiorari.
2. The trial court having overruled a motion to quash the indictment, appellant says that this was an error. It is necessary to say specifically that appellant is a Negro. He based his contention for quashing on his assertion that the grand jury which indicted him was not made up of representative citizens of the county, that is, both white and colored, and that colored persons had been arbitrarily and systematically excluded from jury service in the county solely because of their race. The record shows that the trial court went into this question rather carefully and by separate hearing. Such hearing indicated that the jury commissioners of the county, which has a colored population amounting to about 30% of the total, had been regularly instructed not to exclude colored persons from jury service on a racial basis; that names of colored persons had been drawn from the jury wheel for jury service with a fair degree of regularity during the past few years; that at least one or possibly more names of colored persons had been drawn for petit jury service from that same lot of jury wheel names which produced the very grand jury of appellant's indictment. This county has one colored magistrate and he himself testified on this hearing to the effect that he had personally done grand jury service within the past few years and that numerous colored persons of the county had done jury service, especially on petit juries, in the last few years. It is not the rule that a colored citizen has a right to a jury of his own race or even with the population percentage of his own race thereon. But the rule is that he has a right to a jury from which his own race has not been systematically excluded or arbitrarily barred for racial reasons. Even though a county might have a 50% colored population, yet it still might conceivably have only a 1% colored population eligible by law for jury service. See Hale v Commonwealth of Ky., 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050. It is the duty of courts to protect a minority group such as that of a colored minority group, regardless of the unpopularity frequently encountered in doing so. And we find ourselves with an earnest and sincere desire to follow such a course in this case and in all similar cases. But we do not believe that any minority right has been violated under the proven circumstances of this particular case. On the basis of the evidence produced on the separate hearing as to this jury question, we do not believe...
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...220, 99 L.Ed. 706 (1953), Smith v. Com., Ky., 366 S.W.2d 902 (1962) and Carson v. Com., Ky., 382 S.W.2d 85 (1964). In Pool v. Com., 308 Ky. 107, 213 S.W.2d 603 (1948), we stated: 'We cannot see that appellant * * * was * * * plied with questions or threatened with harm. Therefore, we do not......
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