Powers v. Commonwealth

Citation70 S.W. 644,114 Ky. 237
PartiesPOWERS v. COMMONWEALTH. [*]
Decision Date03 December 1902
CourtCourt of Appeals of Kentucky

Appeal from circuit court, Scott county.

"To be officially reported."

Caleb Powers was convicted of being an accessory before the fact of murder, and he appeals. Reversed.

J. R Morton, J. C. Sims, and Finnell & Son, for appellant.

T. C Campbell, Robt. B. Franklin, T. B. Seebree, John K. Hendrick B. G. Williams, Victor Bradley, L. W. Arnett, T. Earl Ashbrook, and Denis Dundon, for the Commonwealth.

O'REAR J.

Appellant, Caleb Powers, was indicted by the grand jury of Franklin county, charged with being an accessory before the fact to the murder of William Goebel. On a change of venue to Scott county, he has been twice tried and convicted. On this appeal, numerous questions of law are presented, some of which were considered by the court on the former appeal. 61 S.W. 735, 53 L. R. A. 245. Others now presented do not appear to have been then raised, or at least not passed upon by the court. We do not feel that it would be profitable, or even possible, within reasonable range, to set forth all the facts proven by each side upon the trial. To allow an intelligent understanding of the propositions herein decided, we give a general statement, only, of the facts of the case, and the contentions of the prosecution and of the defense.

The murdered man, William Goebel, was at the time of his death a senator of this commonwealth, and had lately been engaged in a canvass, as the nominee of his party, for the high office of governor of the commonwealth. His opponent at the general election held November, 1899, was William S. Taylor, then attorney general of Kentucky. Senator Goebel had attained a commanding eminence and influence in his party,--being a leader of great ability, with attributes of most positive and forceful character. These qualities enlist a devoted following. After one of the most exciting, intense campaigns, the returns of the election showed Taylor's election, and that of all the other state officers on the ticket with him. The legislature elected at the same time, however, was of the same political faith as Mr. Goebel; a majority of each house being in political accord with him and his supporters. Under the then law, it was provided that a central board of election commissioners should try all contests over state offices, except those of governor and lieutenant governor, which were to be tried by the legislature. Certificates of election were awarded the Republican candidates. Notices of contest were directly served on all of them. The legislature, which was to try the contest over the offices of governor and lieutenant governor, met 1st of January, 1900. The grounds of contest attacked the validity of the election as held in a number of counties that had given large Republican majorities, based mainly upon an allegation that the official ballots used were thinner than they should have been. The bitterness engendered by the campaign, aggravated by grave charges and countercharges, was thus kept up, and, indeed, apparently augmented. True, appeals were also being made to what was thought to be better reason and patriotism. It appeared that some thought the emergency so grave as to make necessary the consideration of revolution. Whether grounds actually existed for all this is not now so material, as whether they appeared to, and were in fact by many actually believed to, exist. The capital was the center of attention, and the events transpiring were the subject of earnest thought. Naturally and necessarily, many witnesses for each of the contestants were called there. Incidentally many people came, also, whether out of curiosity or interest, or sympathy with one side or the other of the litigants. Appellant contends that it came to his ears, and to the attention of the other state officials, that their opponents and their adherents intended summarily taking possession of the offices upon a favorable decision by the boards and bodies having these cases in hand, without process of law or the judgment of the courts. Whether in fact such a purpose had been formed was not shown at the trial. Of the many expedients resorted to by those in office to influence the action of the triors of these cases, appellant contends that it was determined by him and his colleagues, or at least some of them, to have large bodies of citizens from various sections of the state meet at Frankfort, petition the legislature as to their rights, and remonstrate against reversing the will of the apparent majority, as expressed by the official returns; thus exhibiting their interest, feeling, and wishes, in the hope that it would exert a moral influence upon the conduct of those bodies. One notably large body of citizens was brought to Frankfort on January 25, 1900, through the efforts of appellant and some of those jointly indicted with him in this case. For the prosecution it is claimed that this crowd of people were brought to the capital armed, to threaten, intimidate, and coerce the action of the legislature, and, if necessary to accomplish that end, to kill some of the Democratic members, and especially Senator Goebel. The fact of the coming of this crowd, variously estimated at from 500 to 1,200 people, and its conduct, and its purpose in coming to Frankfort, form one of the storm centers of this case. Some days after this crowd, or the great majority of them, had returned to their homes, and before the hearing of any of the contests had been completed by the committees having them in hand, Senator Goebel was shot from ambush, on January 30, 1900, as he was passing through the statehouse square on his way to the capitol building, where the senate was in session, or was shortly to convene. From this wound he died on February 3d following. It is reasonably certain from the proof in the record that the fatal shot came either from the executive building, or from its immediate vicinity. That building was occupied by the officers of governor, secretary of state, auditor, treasurer, superintendent of public instruction, and bureaus of some of these offices. Appellant had been upon the Republican ticket as the nominee of that party for the office of secretary of state. He had received the certificate of election, and had been commissioned, and was in office. This office was one of those being contested, not before the legislature, but before the state board of election commissioners. It was the effort of the prosecution to prove, and there was a volume of testimony introduced to the effect, that this fatal shot, and three others that accompanied it, came from the office of the secretary of state, and that, although appellant was not at the time in Frankfort, yet that he knew of and was a party to the plot to assassinate Senator Goebel. Within a few minutes after the shooting (whether 5 or 10, or as much as 30, there is great conflict of testimony) a company of the state guard appeared upon the scene, and were so stationed as to have under their protection the buildings upon the capitol square, and especially the executive building. Also within a few minutes telegrams were sent to the commanding officers of the state guard, calling them to Frankfort. During that day and the following as many as 1,000 of the state militia were under arms in Frankfort. Immediately after the shooting, Gov. Taylor issued a proclamation calling out the state guard. Great excitement prevailed in the city of Frankfort, and fears of a riot were entertained by the officials on the statehouse square, and others, it is claimed. Taylor is indicted jointly with appellant and others for the murder. Other facts bearing on the case, and some elaboration of those outlined above, may be necessary further along, in disposing of the legal questions presented for our decision by this appeal.

The Indictment.

On the former appeal of this case the sufficiency of the indictment was carefully considered by the court, and we were then of the opinion, and are now, that it is sufficient in form and substance. A further discussion of that point is not deemed necessary. See Powers v. Com., 61 S.W. 735, 53 L. R. A. 245.

Affidavit to Require the Circuit Judge to Vacate the Bench.

Upon the noting of record in the circuit court of the filing of the mandate of this court, on the former appeal, appellant filed an affidavit to require the circuit judge to vacate the bench, and entered his motion to that effect, which was overruled. The judge presided at the trial. The sufficiency of that affidavit is now a question on this appeal.

While at the common law the judge was not disqualified from sitting in any case, only when he was personally interested in the subject-matter or result of a litigation, or was related to those so interested, by statute in this state a materially different rule has been adopted. The present statute on this subject (section 968, Ky. St.) provides: "When, from any cause, the judge of the circuit court fails to attend, or being in attendance, can not properly preside in an action proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may select one of the attorneys of the court to preside on the trial, or hear the application, or hold the court for the occasion; and on their failure to agree upon an attorney, the attorneys of the court who are present and not interested, nor employed in the cause, shall elect an attorney of the court then in attendance, having the qualifications of a circuit judge, to hold the court for the occasion, who shall...

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