Powers v. Commonwealth

• Citation: 110 Ky. 386,61 S.W. 735
• Parties: POWERS v. COMMONWEALTH. [1]
• Decision Date: 28 March 1901
• Court: Court of Appeals of Kentucky

61 S.W. 735

110 Ky. 386

POWERS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 28, 1901

Appeal from circuit court, Scott county.

"To be officially reported."

Caleb Powers was convicted of murder, and appeals. Reversed.

John Young Brown, W. C. Owens, R. C. Kinkead, Jas. C. Sims, Geo Denny, and J. B. Finnell, for appellant.

Robt. J. Breckinridge, R. B. Franklin, T. C. Campbell, and Jos. L Meyer, for the Commonwealth.

DU RELLE, J.

This appeal is from a judgment of conviction in the Scott circuit court, to which the case was transferred by change of venue from Franklin county, upon an indictment charging appellant as accessory before the fact to the murder of William Goebel. The indictment charges the murder to have been the result of conspiracy between appellant and others, and is as follows "The grand jury of the county of Franklin, in the name and by the authority of the commonwealth of Kentucky, accuse Caleb Powers of the crime of being accessory before the fact to the willful murder of William Goebel, committed as follows, viz.: The said Caleb Powers, in the said county of Franklin, on the 30th day of January, A. D. 1900, and before the finding of this indictment, unlawfully, willfully feloniously, and of his malice aforethought, and with intent to bring about the death and procure the murder of William Goebel, did conspire with W. H. Culton, F. W. Golden, Green Golden, John L. Powers, John Davis, Charles Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and others to this grand jury unknown, and did counsel, advise, encourage, aid, and procure Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and other persons to this grand jury unknown, unlawfully, willfully, feloniously, and of their malice aforethought, to kill and murder William Goebel, which one of the last five above-named persons, or another person acting with them, but who is to this grand jury unknown, so as aforesaid then and there, thereunto by the said Caleb Powers before the fact counseled, advised, encouraged, aided, and procured, did, by shooting and wounding the said Goebel with a gun or pistol loaded with powder and other explosives and leaden and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the third (3d) day of February, 1900, but which of said last above-mentioned persons, so as aforesaid, actually fired the shot that killed the said Goebel is to this grand jury unknown; against the peace and dignity of the commonwealth of Kentucky."

In the discussion of the questions involved, we shall state such facts only as are necessary to a correct understanding of the questions considered and decided, and those facts will be stated in connection with the questions to which they relate.

On the trial a pardon was produced, purporting to have been issued by W. S. Taylor, as governor of Kentucky, dated March 10, 1900. The production of this paper was accompanied by filing what is termed in the record a "plea of pardon." As we understand the law, no plea was necessary. The simple production of a valid pardon of the offense whereof appellant was charged would put an end to the proceedings, and render void any proceeding thereafter taken in the trial.

In order to decide the validity of the paper produced as a pardon, we must consider the situation at the time it was issued. This court takes judicial notice of the official signature of any officer of this state (Ky. St. § 1625), and is presumed to know judicially who is the executive of the state at any time the fact is called in question (Dewees v. Colorado Co., 32 Tex. 570). See, also, 12 Am. & Eng. Enc. Law, p. 152, and notes. It is conceded by counsel upon both sides that the court can take judicial cognizance of the facts necessary to the decision of this question.

On January 30, 1900, William Goebel, a member of the Kentucky senate, was shot by an assassin in the state-house yard, in front of the capitol building, at Frankfort, and died some days later. This occurred during a period of political excitement and bitterness perhaps unexampled in the history of the commonwealth. William Goebel, William S. Taylor, and John Young Brown had been candidates for the office of governor of Kentucky at the preceding November election. The state board of election commissioners, elected under the act of March 11, 1898, examined and canvassed the returns of election, and issued a certificate of election to W. S. Taylor. This gave a prima facie title to the office to Taylor, who accordingly was duly inaugurated as governor, took the oath of office, and took possession of the state building, and the archives and records appertaining to the office. This did not give him an absolute, indefeasible title to the office of governor, but his title was subject to be defeated by the determination of a contest for the office. State v. Superior Court of Snohomish Co., 17 Wash. 12, 48 P. 741, 61 Am.St.Rep. 893. Until the certificate was set aside in some appropriate proceeding, he was entitled to retain possession and perform the duties of the office without interference. If the time should pass within which such proceeding might be instituted, that title became absolute and indefeasible. A contest was instituted by Goebel before the legislature, and was pending at the time of the murder, as were also contests before the state board of contest for the minor state offices, certificates of election to which had been issued to the candidates upon the same ticket with Taylor. After the shooting, the militia was called out by Taylor, and the legislature prevented from meeting in the state capitol, and at certain other places at which they attempted to hold meetings. The records of the legislature show, however, that a meeting was held, at which it was determined by the legislature that William Goebel, and not William S. Taylor, had been elected governor of Kentucky, and that J. C. W. Beckham, and not John Marshall, had been elected lieutenant governor. After Goebel's death, Taylor retained possession of the executive building, archives, and records, and continued to act as governor. Beckham opened an office in the Capital Hotel, a few blocks away from the capitol, which was called the "Governor's Office," and he also acted as governor. There were thus two persons present at the seat of government, each claiming to be governor de jure, and each assuming to perform the duties of the office. Only one of them could, by any possibility, be governor de jure, and only one of them could be governor de facto. State v. Blossom, 19 Nev. 312, 10 P. 430. The legal doctrine as to de facto officers rests upon the principle of protection to the interests of the public and third parties, and not upon the rights of rival claimants. The law validates the acts of de facto officers as to the public and third persons upon the ground that, though not officers de jure, they are in fact officers whose acts public policy requires should be considered valid. Oliver v. City of Jersey City (N. J. Err. & App.) 44 A. 709, 48 L.R.A. 412. So, when both are acting officially, that one who has the title de jure is both de jure and de facto officer. Especially must this be so when the act whose validity is questioned is not an act affecting the rights of third parties, but is an act of the commonwealth's grace asserted against the commonwealth. So the question is narrowed to an inquiry as to who was de jure governor on March 10, 1900. The legislative record shows that the general assembly determined the contest. By the Goebel election law of March 11, 1898 (Ky. St. § 1596a, subsec. 11), that decision was a judgment determining the title to the office. It was a self-executing judgment: "When a new election is ordered or the incumbent adjudged not to be entitled, his powers shall immediately cease, and if the office is not adjudged to another it shall be deemed to be vacant." If this judgment of the legislature was valid and final, it settles the question. In an opinion of this court, from which the writer of this opinion dissented emphatically, and in the views of which dissent Judge O'Rear concurs, in the case of Taylor v. Beckham (Ky.) 56 S.W. 177, 49 L.R.A. 258, it was said that the judgment of the legislature was final and conclusive. That decision settled the question finally, and the pardon must be adjudged invalid. The authorities upon this question are collated more fully in the opinion of Judge WHITE, who concurs upon this question.

The next question in logical order is as to the sufficiency of the indictment. It has been set out in full. It is objected that the acts constituting the offense are not stated in "ordinary and concise language," so as to enable one of "common understanding to know what is intended." We think the objection is not well taken. The indictment notifies the defendant that he is charged with conspiring to procure the murder of Goebel, that he procured the murder, and that the murder was done by some one who was by the defendant counseled and procured to do the act. In attempting to parse this indictment, there is at first blush some difficulty. The use of the word "which" in the clause, "which one of the last five above-named persons," etc., is somewhat ambiguous; but, on careful examination, it seems to be used as a relative pronoun, whose antecedent is found in the clause, "to kill and murder William Goebel." There is, however, no trouble as to the meaning, nor do we think a person of ordinary intelligence could be misled as to the nature of the charge. As said by the Massachusetts court in Com. v. Call, 21 Pick 515: "The grammatical and critical objections, however ingenious and acute they may...