Smith v. Commonwealth

• Decision Date: 26 April 1912
• Citation: 146 S.W. 4,148 Ky. 60
• Parties: SMITH et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

146 S.W. 4

148 Ky. 60

SMITH et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 26, 1912

Appeal from Circuit Court, Mason County.

James Smith and another were convicted of murder, and they appeal. Affirmed.

Frank P. O. Donnell, of Maysville, and Henry L. Woods, of Olive Hill, for appellants.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

WINN J.

The appellants, standing under a sentence of death imposed by a jury verdict and judgment in the Mason circuit court, appeal here. On Sunday, July, 9, 1911, the dead body of a negro man was found on the side of the sloping bank of a cut on the Louisville & Nashville Railroad track adjacent to the city limits of Maysville, Ky. The negro was a stranger in the community. No one in Maysville seems to have known him, and so far as the record discloses, no one there seems ever to have seen him prior to Friday, the 7th of July, immediately preceding the Sunday upon which his dead body was found. His identity was still not fixed at the time of the trial of the appellants, who were indicted for his murder.

The negro, sometimes spoken of in the record as "Ed," a name given him by the appellants, is, so far as the record discloses, first seen in Maysville on Friday afternoon, the 7th of July. A poolroom attendant testified that between 5 and 6 o'clock, on Friday, the appellants and a third negro, a stranger in town, came into the poolroom and played a game of pool. M. J. Donovan, a saloon keeper, testified that something after 8 o'clock on Friday evening, the two Smiths and an unknown negro man came into his place of business; that the strange negro bought a case of Wiedeman beer, for which he paid $2.25; that he had some bills in his hand that Charles Smith said they were going up the railroad a piece, and that he would return the beer case, but that he did not do so; that James Smith bought a dime's worth of ice; that his clerk waited on them in his presence; that they left, Charles Smith taking the case of beer on his shoulder and James Smith taking the ice; that he saw the dead body after it was found, and that it was the body of the man who was in his place with the appellants. Riley Ishmael, the clerk, testified as to the purchase of the case of beer by the stranger; the purchase of the ice by James Smith; and that he, the clerk, wrapped the ice in an Enquirer. John Archdeacon testified that he was at the Louisville &amp Nashville station on Friday night and saw the Smiths and another man go up the Louisville & Nashville track past the station; that the tall Smith boy had the beer case on his shoulder. John Russell testified that he saw Charles Smith going up the Louisville & Nashville track with a case of beer on his shoulder. Ed Gordon and Wat Whaley testified that they saw the Smiths and a stranger go by the L. & N. station on Friday night; that Charles had the case of beer, and that the strange negro was with James Smith. Henry Mockabee testified that he lived near the railroad, out beyond the station; that he saw the Smiths pass his house on the railroad on Friday night; that they seemed to be carrying something; that there were a man and woman with them. Charles Cooper testified that he saw the Smiths on Friday night on Williams drug store corner; that with them were a stranger and a woman named Hattie Dempsey; that two other woman, Nannie Cooper and Essie Price, were with the party on the drug store corner, and that they all talked there; that he saw the body of the dead man on Sunday, and that it was the same man that he had seen in the party at the drug store corner on Friday night. John Wright testified that he saw the Smiths and the strange negro come out of Donovan's saloon on Friday night; that Charles Smith had a case of beer; that the three of them went toward the L. & N. station; that he saw the dead man and thought it was the same man that he had seen with the Smiths. Walter Stockden and Elzie Edwards testified that they were taking a walk up toward the railroad on Sunday morning and found the dead body; that they called to Dr. Page, who was near, telling him of the finding of the body. Stockden testified that the weeds were mashed down where the body had been dragged from the top of the cut down the slope of the bank; that he saw the stick which was exhibited on the trial and a blue handkerchief lying on the ground and three or four broken beer bottles and a beer case. Edwards testified that he saw the big club, some broken beer bottles, and the beer case. Dr. Page testified that Stockden called to him about the finding of the boy, and that he telephoned to Higgins, the undertaker, to get Slack, the coroner, and come out to the place; that the weeds were mashed down where the body had been dragged; that the club and handkerchief and an empty purse were found; that there was blood on the club and a bloody spot on the ground 20 feet from where the body was found. Charles Slack, the coroner, testified about going out to the body on Sunday; that there was blood on the side of the dead man's face; that the weeds were mashed down; that 20 feet up the slope from the body he found the club with blood on it; that the handkerchief was found between the club and the beer bottles; that the bottles were near the club; that there was a little dark or blood spot on the ground; that he found the beer case some 50 feet from the club; that there was considerable blood on the grass and weeds, and an old empty purse lying by the dead body; that there were gashed places on the right side of the dead man's head, and that on the left the skull was "crushed completely in." Thomas Higgins, the undertaker, testified that he went out with the coroner; that he found the club, the broken beer bottles, the handkerchief, the beer case, and the empty purse; that the beer case was a Wiedeman case. Mike Brown, a deputy sheriff, testified that he found an Enquirer on the ground at the place. Dr. A. R. Quigley testified that he examined the dead body, and found a wound on the right side of the face, and a depressed fracture of the skull on the left side, which latter wound was necessarily fatal unless it should receive attention.

Indicted with the Smiths were the three women above named, Nannie Cooper, Essie Price, and Hattie Dempsey, dissolute negro women of the town. Inasmuch as some question is made in the record about corroboration, we have detailed at length the testimony of the foregoing witnesses, all independent of any testimony by the women. We now proceed to give their version of the matter.

Nannie Cooper testified: That she, the Price woman, and the two Smiths were berrying on Reservoir Hill on Friday morning. That she and the Price woman went down the street on Friday night, and saw the Smiths and the man Ed at Williams drug store corner. That Hattie Dempsey came up. That Charles Smith ""hunched" the witness, and called Hattie "Belle"; that he called the witness ""Luella" and the Price woman "Sarah Ella." That it was there arranged that they should all go out for a good time. That the men left and got the case of beer, and that the men and women reconvened on the Louisville & Nashville out beyond the station. That they went on out the Louisville & Nashville track, and finally stopped at the place where the killing was done. That there they sat around drinking and singing for a time, when the man Ed and Hattie went away together for some 20 minutes. That Charles remarked that "this son of a bitch has $35 on him. *** God damn it, we are going to have it if we have to knock him in the head," and that, if, they got the money, they would take the women up into Virginia. That she, the witness, remonstrated with Charles. That Charles said that he had the club ready, and that, if the women made any disturbance when he hit the son of a bitch, he would murder them. That Jim Smith said that he was going to do the hitting himself. That Ed and Hattie returned, when Ed sat down upon the case of beer beside Jim at Jim's invitation. That Charles Smith raised up behind Ed with the club, and struck him on the side of the head. That Ed fell, when Charles said: "Hit the son of a bitch. He ain't dead," and that Jim struck him again on the head. That the witness then fainted. That the women went further up on the bank and Charles brought the beer case up next to them. That the remainder of the beer was divided out between them. That they said that they were going to put the dead man out of the way where he wouldn't be found for a day or two. That Charles added that there were but five of them there. That he would murder the first one who told it if it took a hundred years. That Charles said that "that son of a bitch didn't have but $1.30 in his pocket," and that the party then left. She identified the club exhibited upon the trial and the handkerchief found upon the ground as one which she had given to Charles Smith.

Essie Price corroborates the witness Nannie Cooper as to the berrying on the hill on Friday morning, the meeting at the drug store corner on Friday night, the giving of the assumed names, the presence of the strange negro, the separation, the purchase of the beer, the trip out the railroad track, the drinking of the beer there, the separation of the stranger and the woman Hattie from the rest of the party, the remark by Charles Smith as to the man's having $35 on him, and his purpose to get it. She then says that she remonstrated and that Jim Smith said to her to shut up, and that, if she told about it, he would kill her as he was going to kill the stranger; that, upon Ed's return, he sat down on the beer case with Jim; that Jim leaned forward, and that Charles struck him with the club, which the witness identified; that the man fell forward...