Stephens v. Commonwealth

• Decision Date: 23 November 1928
• Citation: Stephens v. Commonwealth, 226 Ky. 437, 11 S.W.2d 111 (Ky. Ct. App. 1928)
• Parties: STEPHENS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W.2d 111

226 Ky. 437

STEPHENS v. COMMONWEALTH.

Court of Appeals of Kentucky

November 23, 1928

Appeal from Circuit Court, Christian County.

Willie Stephens was convicted of murder, and he appeals. Affirmed.

James E. Higgins, of Hopkinsville, for appellant.

J. W Cammack, Atty. Gen., S. H. Brown, Asst. Atty. Gen., and Alvan H. Clark, C. H. Bush, and White & Clark, all of Hopkinsville and John T. King, of Cadis, for the Commonwealth.

DRURY C.

Upon his separate trial under an indictment charging him and three others with the murder of S.W. R. Faulkner, Willie Stephens was found guilty and his punishment fixed at life imprisonment. His motion for a new trial was overruled, he excepted, and has appealed.

He filed ten different grounds upon which he asked a new trial but as the principal ground is that he was entitled to a peremptory instruction and that the verdict is flagrantly against the evidence, we shall discuss that one first, and to do so it becomes necessary to state briefly the proof against him.

Faulkner kept a service station in Hopkinsville, Ky. and on the evening of Sunday, August 17, 1924, he was at his station and in charge thereof. One Monhollern and wife drove up to this station about 10 o'clock to get oil, gas, and water, and Mr. Faulkner waited on them. While he was doing so, the attention of these travelers was attracted by the unusual and suspicious conduct of some men in the neighborhood. They knew none of them. They said one of them was dressed in a blue overall suit and topped off by a large western hat. Another had on a khaki shirt, while a third had on black trousers and white shirt. They said nothing of their suspicions and drove away. Shortly after they left, Faulkner closed his place of business, turned out the lights, and just as he turned around, after locking the door, a man thrust a pistol against his abdomen and ordered him to put up his hands. He did so whereupon the man shot him, then robbed him and ran. The neighborhood was aroused by the shooting, and soon Faulkner's condition was discovered. He was picked up and taken to a hospital, where he was operated on. Before the operation he insisted on talking to his son-in-law, and his son-in-law testifies that this was the substance of the conversation: He said he wanted to talk to me; that he was going to die, and insisted on talking to me before the operation. He said, "I am shot twice and cannot live." He said he had checked up his cash register, locked it, put the money in his pocket, put on his overcoat, and walked out the door, locked it, and when he turned around a man was standing there, who put a pistol against his stomach and told him to put up his hands; that he put them up and asked the man not to shoot him, but he shot him anyway. Whereupon he said, "You have killed me, don't shoot me any more." Thereupon his assailant shot him a second time. That he fell, and the fellow went through his pockets, took from him his money and a pistol that belonged to Tandy McGee. He said that this man had on a khaki shirt, had a red handkerchief over his face, and a light colored hat pulled over his face; that he was about 5 1/2 feet tall and would weigh about 160 pounds. His son-in-law asked him if it could have been a negro, and the old man answered, "If he was, he was as white as a white man." Faulkner was shot about 10:30 in the evening. Faulkner did not recover from the operation, and died about 36 hours after he was shot, without regaining consciousness after that.

A man named Major was at work that night at an ice cream factory not far from the service station. His attention was attracted by a shot. He went out and saw two men struggling with each other in front of the service station. One of them he subsequently learned was Faulkner. The other man had Faulkner by the hand or had hold of something that Faulkner had in his hand. He heard Faulkner ask him, "Please don't shoot me," whereupon the other shot Faulkner again. This witness was unable to give any description of Faulkner's assailant.

Another witness who lived on the corner of Sixth and Liberty streets, diagonally across from the service station, heard the first shot, then heard Faulkner scream that he was shot and was going to die, or something like that. Then he heard a second shot. By that time this witness had got outside his house, and he saw a man in a khaki colored shirt, which the witness described as a brown uniform shirt, running east on Sixth street in the direction of the railroad, and that this man was a slender man, about 5 feet 7 or 8 inches tall.

Another man who lived on the corner of Fifth and Liberty heard a shot. He came out and saw a man running north on Liberty street in the direction of Fourth street, and heard Faulkner cry out. He paid no attention to the man's clothes, and could not tell whether it was a white or colored man, but said he would weigh about 150 or 160 pounds and was running fast.

A woman who lived on Sixth street between Liberty and Clay heard these shots. After the second shot was fired, she went out on her porch, and she saw two men running east on Clay street toward the Louisville & Nashville Railroad. She said that they had on dark clothes. She said they were either white men or very bright mulattoes.

A man who lived on Sixth street heard two pistols shots and he went out. He saw a colored boy riding a bicycle and saw a stooped shouldered man run east on Sixth street. The boy fell off his bicycle and ran up the street. The stooped shouldered man soon passed him, and the boy came back, got on his bicycle and rode away. Shortly after that he heard a Ford car start up. He thought this Ford car was somewhere near Sixth and Clay.

Another witness saw a Ford car with the top back coming south on Campbell street and turn north on Ninth street. This witness said Willie Stephens was driving this car, that he had on a khaki shirt and cap, and that the man on the front seat with him had on a big Texas hat. He was unable to describe the two men in the rear seat. The witness saw this car a few minutes after the shooting.

A Mr Flood, who ran a service station at Springfield, Tenn., testified that about 1 o'clock that night four men, traveling in a Ford car with the top back, stopped at his station and pawned a flashlight to him for $1, that their engine was hot, and that they explained to him they had driven from Hopkinsville in two hours and a half. Out of this dollar they got 80 cents worth of gas and oil and started in the direction of Nashville. It is admitted Willie Stephens, Orville Martin, "Humpie" Ashworth, and Tommy Stephens stopped at Flood's service station that night in Springfield and pawned a flashlight, got some oil and gas, but defendant claims that this occurred about 11 o'clock. They admit that they went to Nashville, and insist that they got to Nashville between 12: 30 and 1 o'clock. They went to the home of one Alex Meadows, a cousin of Willie Stephens, and at that place there was Jodie Stephens, a brother of defendant, and Jodie's wife and the defendant's mother. Some of the women fixed a meal for these fellows, and after eating it they lay down on the floor and went to sleep. The next morning they returned from...