Sprouse v. Commonwealth

• Citation: 116 S.W. 344,132 Ky. 269
• Parties: SPROUSE v. COMMONWEALTH.
• Decision Date: 26 February 1909
• Court: Court of Appeals of Kentucky

116 S.W. 344

132 Ky. 269

SPROUSE v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 26, 1909

Appeal from Circuit Court, Carter County.

"To be officially reported."

John Sprouse was convicted of the murder of a little girl by burning a dwelling house in which she lived, and appeals. Reversed and remanded.

W. D O'Neal, Jr., Frank Prater, and M. D. Perkins, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE C.J.

The appellant John Sprouse and Alonzo Kelly were jointly indicted in the Lawrence circuit court for the murder of Dovie Cooper by maliciously and feloniously burning a dwelling house in which she lived, thereby consuming her body and causing her death. Upon appellant's application a change of venue was granted him by the Lawrence circuit court and the case transferred to Carter county. He was given a separate trial in the circuit court of that county, and the jury returned a verdict finding him guilty as charged, and fixing his punishment at confinement in the penitentiary for life. Judgment was entered in conformity to the verdict. Appellant was refused a new trial, and by this appeal seeks a reversal of the judgment of conviction.

The facts furnished by the bill of evidence are as follows: The dwelling house appellant was accused of burning belonged to and was occupied as a residence by Charles Cooper. The house was a one-story frame building, consisting of two front rooms and hall, and an ell of three rooms. The fire occurred on the night of September 14, 1908. Cooper's family consisted at that time of himself, wife, and four children, a maid and man servant. On the night of the fire the family retired at the usual hour. Cooper and his wife slept in one of the front rooms; she occupying a bed with her twin babies 10 months old and Cooper another with his little daughter, Dovie, four years of age. The hired girl and another of the Cooper children, Grace, seven years of age, occupied a bed in the hall between the front rooms, Griffith, the hired man, one in the other front room. The fire was first discovered by Griffith, who testified that, when he woke, the entire room in which he was sleeping seemed to be in a blaze. He at once gave the alarm to the other members of the family, and seizing the child, Grace, escaped with her from the burning building. The hired girl also escaped. When awakened by Griffith, Cooper and his wife sprang from their beds, and Mrs. Cooper opened the door leading from her room into the dining room in the rear of it. When she did this, the flames from the dining room burst into her room with such force as to knock her down. With great difficulty and imminent risk to his own life, Cooper carried his wife and one of the twins from the building in time to save their lives, but two of the children, Dovie, and Mary, one of the twins, he could not save, and notwithstanding every effort on his part to rescue them they were burned to death. Both Cooper and his wife were so burned as to be permanently disfigured, and the former's eyes so injured as to greatly impair his vision. The members of the family were unable to state the origin of the fire. They testified that there was no fire in any room of the house when they retired for the night, or, if so, they were unaware of it, and that there were no matches in the house, except, perhaps, in the room occupied by Cooper and wife. Cooper and Griffith also testified that after their escape from the house Cooper, being afraid the barn would catch fire, turned some mules out of it into a lot, and in going to the barn saw that the outside wall of the dining room next to the barn was burning, from which he inferred that the fire had been started at that place, and on the outside, by an incendiary. But, in view of the fierceness of the fire on the inside of the house and that it had extended to the front rooms and hall, as well as the inside of the dining room when the family were awakened, it is more probable that it started on the inside of the dining room or somewhere on the roof, and had burned through the wall of the dining room from the inside at the point where Cooper discovered it in going to the barn. In other words, in view of the progress made by the fire inside the several rooms mentioned, its progress on the outside of the dining room wall would have been greater where Cooper saw it on the way to the barn, if the fire had in fact commenced at that point. The little girl, Grace, who slept with the hired girl in the hall, testified that when first awakened she smelled coal oil, but no other member of the family detected such an odor, and there was no evidence that the fire by which the house was consumed was started with oil, nor was there a discovery of the presence about the building or on the premises of kindling or other inflammable material which might have been used to fire it. It was shown by several of the Cooper family that there was before and at the time of the fire coal oil in the house for illuminating purposes, and it is not unreasonable to suppose that this had been reached by the fire and ignited thereby causing the odor discovered by Grace. The further fact was disclosed by the evidence that the shingle roof of the Cooper house was old and in many places covered with moss, which during the dry weather prevailing throughout the summer and fall of 1908 could readily have been set afire even by contact with a live spark.

It further appears that at an early hour on the morning after the fire a pair of blood-hounds were brought to the scene of the fire by their owner, Mullen, for the purpose of assisting in ascertaining whether the burning of the Cooper house was the work of an incendiary, and of trailing and apprehending, if possible, such incendiary. The dogs, after some trailing about the premises, principally in the barn lot and on the branch back of it, seemed to strike no scent until they reached a cross-fence, from which they went through the woods some distance, and then into the county road, which they followed, with an occasional run out of it to the right or left, until they reached the residence of Frank Kelly, but without entering the yard went on to where the road forked, and there for a while followed the trail of a woman who had previously passed that way, and then proceeded to the home of appellant, entered the yard through an open gate, trailed through a porch around the house to a door, where they stopped. The door was opened by a sister of appellant, and the party accompanying the dogs with them entered the house and discovered appellant standing near the fireplace. Mullen, the owner of the dogs, then pointed to appellant, and said to a deputy sheriff present, "There is the man who burned Cooper's house." Whereupon appellant declared the dogs had made a mistake; that he was at home all night, and the dogs had tracked the wrong man. When appellant made this declaration, Mullen became angry, cursed him for disputing the work of his dogs, and demanded of the deputy sheriff his gun that he might shoot appellant. Immediately following this scene appellant's sister denied his guilt, declared he had been at home all of the previous night, and also said: "I know who your dogs are tracking. I heard some one go through our porch last night about 10 o'clock, and don't you remember, John, I told you when you came in?" To this statement appellant made no reply. Appellant was then arrested and taken to Louisa under guard, as there were threats of mob violence. On the way he repeatedly asserted his innocence.

It appeared from the evidence that two years or more before the burning of Cooper's house the land upon which it stood was owned by appellant's grandparents, John and Martha Kelly, who deeded it to appellant in consideration of his undertaking to support and care for them. Appellant seems to have failed to comply with his...