Shelton v. Commonwealth

• Decision Date: 08 December 1939
• Citation: 280 Ky. 733,134 S.W.2d 653
• Parties: SHELTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

134 S.W.2d 653

280 Ky. 733

SHELTON v. COMMONWEALTH.

Court of Appeals of Kentucky

December 8, 1939

Appeal from Circuit Court, Clark County; W. J. Baxter, Judge.

Andy Shelton was convicted of willful murder, and he appeals.

Reversed.

Marcus C. Redwine, of Winchester, and Moss Noble, of Jackson, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

SIMS Commissioner.

The appellant, Andy Shelton, who will be referred to hereinafter as the defendant, was indicted by the grand jury of Clark County for the wilful murder of Isaac Shelton. His trial resulted in a conviction; the jury fixed his punishment at death and he seeks a reversal of the judgment entered on the verdict on the following grounds: (1) The court erred in refusing to grant his petition for a change of venue; (2) the court erred in overruling his motion for a continuance; (3) five officers testified against him and the court refused to put them under the rule; (4) incompetent evidence was introduced against appellant and competent evidence was excluded; (5) improper opening statement and improper concluding argument made by attorney representing commonwealth.

Andy Shelton, who was 18 years of age at the time he was indicted occupied an humble station in life. His parents were poor and his education was limited to the fifth grade of the common schools. Shortly before he came to Clark County he had been a member of a CCC camp in Montana. He first came to Clark County in the late summer of 1937 to work as a tobacco cutter, and after that work was finished he returned to his home in Breathitt County. In the fall of 1937 he returned to Clark County during the tobacco stripping season, and around January 1, 1938, entered into a contract with DeGrand Epperson, a brother-in-law of deceased, to raise a small crop of tobacco on the Epperson farm and to work for Mr. Epperson as a farm hand when not engaged in his tobacco crop.

Isaac Shelton was not related to Andy Shelton but they were quite friendly and visited each other often. On the evening of Saturday, June 25, 1938, Andy inquired of Isaac's wife on the street in Winchester the whereabouts of her husband saying he wanted Isaac to drive him seven or eight miles out to Andy's home at the Epperson farm to get a watch. Around 8 o'clock that evening Isaac and Andy left Winchester on Highway 60 in Isaac's truck to go for the watch. Shortly thereafter Isaac's truck was found about a mile from Winchester on the wrong side of the highway against the fence with its lights burning. Andy was picked up from the highway, very bloody and in a semi-conscious condition. He was taken to the Winchester hospital where he made the statement to DeGrand Epperson that Isaac and he were in the truck going 65 or 70 miles per hour and that they had a wreck. Later Andy contradicted this statement by saying his injuries resulted from being struck by a hitch-hiker. Isaac was not found that night, but early Sunday morning, some 1500 yards from where his truck had stopped, his body was discovered in a slight swag, partly concealed by a bush, with his face against the fence. His low-cut shoes, both of which were laced and tied, were found some 7 feet from the body. The back of Isaac's head had been beaten with some blunt instrument until his brains oozed out, which with blood and some particles of skull were discernible upon the ground near the body. Andy's injuries were superficial, consisting of abrasions on his face and hands, a knot on his head with the skin unbroken, dry blood on the edge of his nostrils and some blood on his teeth.

Omer Booth, jailer of Clark County, found a rough stone of irregular shape, comparable to a brick in size and weight, directly over the fence from where Isaac's body was lying and 26 feet from the edge of the road. He testified, without objection, that this stone had blood on it; that he put his handkerchief over the stone so as not to leave finger prints and delivered it along with the shoes to H. G. Coffey of Winchester, who claims to be a finger-print expert. Andy was charged with the murder of Isaac and after being removed on Sunday from the hospital to the jail, he stated to several persons that he and Isaac met a hitch-hiker on the outskirts of Winchester; that Isaac, over his objections, stopped the truck and directed Andy to get out so the hitch-hiker could be seated between them; that after driving a short distance this hitch-hiker struck him (Andy) on the head, knocking him unconscious and when he came to he was in the hospital.

On his examining trial held in July, Andy was represented by Hon. M. C. Redwine, who together with Hon. Moss Noble defended him in circuit court. It appears from defendant's affidavit filed in support of his motion for a continuance that H. G. Coffey testified on the examining trial as a finger-print expert that the stone and both shoes contained Andy's finger prints. The examining court held Andy to the grand jury which returned an indictment on September 14th, charging him with the murder of Isaac. On the day the indictment was returned the record shows the defendant was formally arraigned without an attorney and his case was set for trial on September 21st. The record does not show an attorney was appointed to defend Andy and the affidavit filed for continuance states he was a pauper; that his father was unable to give him material financial assistance; and that it was only on the day before the trial that he was able to retain counsel to represent him, when he employed Mr. Redwine and Mr. Noble.

On September 21st, the day the case was called for trial, defendant filed his verified petition for a change of venue, supporting it with the affidavits of two persons as required by section 1110, Kentucky Statutes. This section provides that reasonable notice in writing shall be given the attorney for the commonwealth, or in his absence from the county, to the county attorney, that an application will be made for a change of venue. In this instance no notice was given the commonwealth attorney, or the county attorney, and for this reason the commonwealth's objection to the hearing of the petition for a change of venue was sustained by the court. Defendant argues that he was unable to employ counsel until the day before his case was to be tried, hence his attorneys had no opportunity to give notice of the filing of the petition for a change of venue. He also argues the petition itself should be treated as a notice, since the commonwealth attorney was in court the morning it was filed and the court could very readily have passed the hearing to a time sufficient to enable the commonwealth to prepare to meet the issue. This same argument was made in Bishop v. Com., 109 Ky. 558, 60 S.W. 190, 191, wherein a petition for a change of venue was filed without notice, and we there said: "Without notice, or a waiver of it, the commonwealth was not required to pay any attention to the application; and while the affidavits would, if properly presented to the court, make a prima facie case for a change of venue, *** it was not presented in such form as to be available." This Bishop case was followed in Sullivan v. Com., 169 Ky. 797, 185 S.W. 134, wherein the court said that where defendant's petition and affidavits are properly filed they make out a prima facie case for a change of venue and if no witnesses are introduced by either party, the trial court has no discretion in the matter and must grant a change of venue. Higgins v. Com., 94 Ky. 54, 21 S.W. 231; Greer v. Com., 111 Ky. 93, 63 S.W. 443. It is very necessary that the commonwealth have reasonable notice of the application for a change of venue, because if it is not able to combat the prima facie case made out by the defendant through his verified petition and formal affidavits required by the statutes, the court must grant a change of venue. There was no error committed by the trial judge in refusing defendant a change of venue.

Defendant's affidavit asks for a continuance so that he might investigate Coffey's qualifications as a finger-print expert and take proof concerning same. It states that on his examining trial, Coffey testified that he had studied finger-printing in Detroit, and in Chicago in 1923-1925 at Cook & Evans University, Sunshine Avenue; that after his work in school he had been associated with Earl Stevens, Superintendent of the Identification Bureau in Detroit; that while in Detroit, he worked for H. Fuller, whose address is now Free Press Building, Chicago, Illinois; and that he had been on the payroll of the Michigan Secret Service Police, Bovine Avenue, Detroit. In an attempt to check up on Coffey after hearing him give his training and experience which qualified him as a finger-print expert, Mr. Redwine wrote letters to Earl Stevens, Cook & Evans University, the Michigan Secret Service Police Department and H. Fuller, at the addresses above given. All of his letters were returned unclaimed, except the one addressed to Stevens, who replied to Redwine's letter, stating Coffey was a total stranger to him and no one by that name had ever been employed in the Scientific Laboratories of the Police Department, nor did Coffey's name appear among the special officers employed by private detective agencies of that city, who are required by city ordinance to be registered with the Detroit Police Department. Stevens advised Redwine how he might check on Coffey and signed himself: "E. O. Stevens, (Lt. Earl O. Stevens), Supt. Scientific Laboratories, Police Department, Detroit, Michigan".

Coffey's testimony was of the utmost importance in this case. He testified his expert examination of the stone and of the shoes of deceased showed the finger prints of defendant upon each...