Stamp v. Commonwealth

• Decision Date: 22 June 1923
• Citation: 200 Ky. 133
• Parties: Stamp v. Commonwealth.
• Court: Kentucky Court of Appeals

200 Ky. 133

Stamp v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 22, 1923.

Appeal from Jefferson Circuit Court (Criminal Division).

COPYRIGHT MATERIAL OMITTED

HUGGINS & OLDHAM, H. M. DENTON, MERRIT O'NEIL and M. M. LOGAN for appellant.

THOS. B. McGREGOR, Attorney General, LILBURN PHELPS, Assistant Attorney General, JOSEPH LAWTON and FRANK M. DRAKE for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

At twilight on a June evening in 1922, J. Smith Russell, with his wife and infant daughter, was motoring north on Third street boulevard in Jefferson county when appellant, Walter P. Stamp, also in an automobile, approached from the rear, crowded the Russell car to the sidewalk and fired five shots into the Russell car, killing J. Smith Russell instantly and wounding Mrs. Russell in the head so that she lost one eye, and slightly injuring the infant daughter, who was on the rear seat, and then dashed away in his car leaving his victims to their fate.

The indictment in this case accuses appellant Stamp of the willful murder of J. Smith Russell, and this is the charge upon which he was tried and found guilty of manslaughter. This is the second trial, his punishment being fixed at fifteen years' confinement in the state penitentiary. The judgment on the first trial, when he was given a death penalty, was reversed by this court for manifest errors. He appeals again, insisting that the judgment should be reversed because of alleged errors committed against him.

After carefully reading and studying the transcript of evidence presented on this appeal the court quite agrees with appellant Stamp that the judgment should be reversed if error can be found justifying it because the verdict is not the result of a fair and impartial trial, but our reasons for so concluding are very different from those assigned by him. We think the Commonwealth and not Stamp has a right to complain of the result.

The Russells were quietly and peacefully driving along the right side of the avenue at the time of the homicide. It was their custom to be upon this avenue on evenings like that and at about the same hour. This fact appears to have been known to Stamp, who hated them because he conceived, without evidence worth mentioning, that they had kept his wife from returning to him after he had cruelly and unmercifully abused her and left her a second or third time. The deceased, so far as the record discloses, did not know that appellant intended to do him injury and was entirely taken by surprise when Stamp began to fire into the Russell automobile. Certainly Russell had done nothing whatever at the time of the shooting to provoke the deadly shots although Stamp claims self-defense. Stamp could not have been jealous of Mrs. Russell, for she had not taken his wife from him, as he asserts Russell had done, nor did anything but that which was commendable. The innocent little child sitting on the rear seat of the car, at whom he fired one shot, injuring her but slightly, had not seduced his wife.

After stating that it was the custom of the deceased Russell to take his wife and baby for a drive in the afternoon on Third avenue, and that while driving on the afternoon of the homicide, she saw appellant in the twilight driving his car near that of deceased in a hesitating way, Mrs. Russell, wife of the deceased, stated in answer to the question, "Then explain what he (Stamp) did from then up to the time of the tragedy?"

"He drove very slow and he was in front of us and we were driving just at the same rate that we had been and we passed him just about 3816 and I identified him as I passed him and we kept on driving and he was driving so slow, I thought he was going to stop as we passed and we went on and then he came up. It must have been the other side of Dimling's drug store, and he came up just by the side of our car, crowding us, and then he let his car back and then he drove up real fast, just fender to fender, and he said, `You all have broke up my home.' My husband said `no,' and after that he began to shoot. He shot my husband, he shot and wounded me and he shot at my baby and, of course, I don't know what he did. I was not unconscious, I knew everything. I called for help and I said, `Walter P. Stamp is the man who has done the shooting and for the police to get him,' and with that they took me into Mrs. Gatewood's home and then they took me to the Norton Infirmary and I don't know where he went after the shooting." "Q. Where were you shot? A. In the temple and I lost the sight of my eye. Q. What happened to Mr. Russell, when he was shot did he fall over or what did he do? A. He never had a chance to do anything because he was instantly killed and when I looked his head had went back, and, of course, with that I got out of the car with the assistance of someone, I don't know who, and, of course, I never seen Mr. Russell any more. . . . Q. At whom did he aim? A. He aimed to shoot Mr. Russell, myself and baby. Q. At whom did he fire? A. He fired at all of us. Q. About how many shots did he fire? A. Three shots — there were five shots fired."

On the first trial appellant Stamp did not testify but filed his own affidavit, which set forth in detail a complete alibi; he then denied that he fired the shots or knew anything about the commission of the crime. He filed the affidavit of two or three other persons sustaining him in his false alibi. On the last trial, when the Commonwealth had so enmeshed him in evidence showing that he had not only fired the fatal shots but had planned willful murder before doing so, he changed his defense from that of alibi to self-defense and the unwritten law, in the name of which so many atrocious crimes have recently been committed. Appellant testified on the last trial that the deceased, Russell, was reaching for his hip pocket as though to get a pistol with which to shoot appellant, when appellant to save himself fired the fatal shot. The evidence shows beyond question that Russell was not armed. He had no firearms. No pistol was found upon his body or about his automobile. He had none. So this defense is not worthy of consideration. In view of the other false statements which appellant now admits he heretofore made, the most damning defense of all is that in which this vile criminal undertakes, in order to save his neck, to traduce the good name of his wife, the mother of his child, by pretending that he thought the deceased, Russell, and appellant's wife had been guilty of criminal conversation. The evidence shows that while appellant lived with his wife at different times before the homicide he was very abusive to her and frequently wrongfully accused her of intimacy with men. His letters written shortly before the homicide in an endeavor to procure other persons to induce his wife to take him back prove beyond peradventure that he did not believe his wife had been untrue to him or that she was anything less than a virtuous, good woman. One letter dated April 15, 1921, reads:

"Dear Mrs. Russell: Won't you have a talk with Eva, and ask her to reconsider and come back to me, for there is our little boy between us whom I love, and I am telling you frankly that I love Eva better than my own life, and she is the only woman that I feel like that I would ever care to love and if she will come back to me that it will make a new man of me and I will do everything in my power to make her one of the happiest girls in this world. I want to say further that you have been told by some long-tongue people a lot of lies that I never said about you, which has caused you to be mad at me. I say frankly that I have no hard feelings against you or Mr. Russell and my best wishes are for you both. If you will help me out in this matter and get us back together you will find that my friendship can't be broken, it matters not what comes up in the future and that I will make Eva a good husband and that I will stop listening to what people says about her for that is what has been the matter now; there has been too many long-tongue people coming and telling me things about her that was not so. Will close by saying that anything you will do to help us back together will be greatly appreciated. Your friend, Walter Stamp."

Granting, however, that all that appellant testified to concerning his suspicions of his wife and the deceased were true, he was no less a murderer when he fired the fatal shot. We do not believe from the evidence, however, that the wife was guilty of the charges which her wicked husband now makes against her. The over-whelming weight of the evidence is to the contrary.

Appellant relies upon several alleged grounds for reversal of the judgment, and if the court can find merit in any one of them it will not only be its duty but its pleasure in this case to reverse the judgment in order that the state — the people — may have a fair trial and that this vile criminal may pay the penalty of a red-handed murder.

His first ground is stated in brief of counsel as follows: "The court erred in overruling appellant's motion for a change of venue, and his motion for a special venire to be called from another county." This is based upon sections 194 and 207 of the Criminal Code. Section 194 of the Criminal Code reads:

"If the judge of the court be satisfied, after having made a fair effort in good faith, for that purpose, that, from any cause, it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and from those so summoned the jury may be formed."

The matter of granting a change of venue is largely in the discretion of the trial court, and unless it affirmatively appear that this discretion has been abused, its...