Tarkaney v. Commonwealth
| Decision Date | 30 October 1931 |
| Citation | 240 Ky. 790 |
| Parties | Tarkaney v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Citizens should not be punished on mere suspicion.
3. Criminal Law. — In order to warrant conviction upon circumstantial evidence, evidence must be so strong and so connected with defendant as to exclude every reasonable hypothesis of innocence.
4. Homicide. — Evidence held insufficient to sustain conviction for murder.
The evidence relied on was the disappearance of deceased, and the finding 80 days later of a body in the sand claimed to be deceased's body. The commonwealth attempted to connect defendant with the crime by proof that riding breeches found on body were those of defendant, by proof of bullet holes in plank of wall of codefendant's store building, and blood in path between storehouse and codefendant's residence. The evidence was purely circumstantial, and furnished mere supposition that defendant might have been guilty.
5. Criminal Law. — Circumstantial evidence should be acted upon with great caution, where public anxiety for detention of criminal creates unusual tendency to exaggerate facts and draw rash conclusions.
6. Homicide. — Fact of death from criminal cause must be established by clear and unequivocal proof, by direct testimony, or by cogent and irresistible presumptive evidence.
7. Homicide. — In homicide cases, body when discovered must be satisfactorily identified as that of person whose death is subject of inquiry.
8. Criminal Law. — Circumstantial evidence of identity of defendant as person committing crime charged must be clear and cogent and leave no room for reasonable doubt.
9. Homicide. — In homicide case, evidence must establish identity of person killed and criminal agency of defendant before there is anything to submit to jury.
Appeal from Floyd Circuit Court.
A.J. MAY, A.J. KIRK, EDWARD L. ALLEN, O.C. HALL and OSCAR TABORY for appellant.
J.W. CAMMACK, Attorney General, and GEORGE MITCHELL, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Reversing.
Steve Tarkaney was found guilty under an indictment charging Joseph Schuster, Stanley Bob, Steve Tarkaney, John Proboco, and Jack Emody with the murder of Sam Adams; his punishment was fixed at life imprisonment, his motion for a new trial was overruled, and he has appealed.
Emody, Schuster, and Proboco have also been convicted, and have appealed. These four cases were considered together by part of this court, and considered together by the entire court. The evidence in this case is better developed than in the others, and for that reason this opinion will be more elaborate than the others.
These men are continually referred to in the record as "these foreigners," yet the record shows Schuster was born and raised in Locustdale, Pa.; Emody, near Poncetona in that state; Tarkaney at Pocahontas, W. Va.; and we do not now recall what the record discloses as to the nativity of the others, if indeed it contains anything about it.
In the year 1929, Schuster was part owner of and in charge of the operation of a little mine in Floyd county, on the east bank of the Big Sandy river, near the village of Auxier, which is situated on or near the west bank. The name of Schuster's company was "The Miller's Creek Mining Co.," but by some means this mine had come to be known as the "Monkey-Wrench Mine," and we will so refer to it.
This was a small operation. The camp, beginning at the river and going east, consisted of a storehouse or commissary in which there was a portion next to the river used as a bedroom; about 50 feet from this was a four-room cottage occupied by Schuster and his family; about 50 feet from it was a boarding house, 56 feet long and 26 feet wide; 130 feet from it was the power house, and still further east the tipple, etc. All of these, except the last two named, were of recent construction, and built of secondhand material.
Andy Polita, with his family consisting of his wife and his two stepdaughters, Wanda and Bertha Mazeski, lived in and operated this boarding house. At the time in which we are interested, Stanley Bob, his daughter, Jack Emody, and John Proboco lived and boarded with him, and Steve Tarkaney took his meals and kept and changed his clothes there, but slept with Schuster's son in the back room of this storehouse.
THE COMING OF ADAMS.
The construction of this boarding house and the coming of these men from Pennsylvania and West Virginia caused some dissatisfaction among the men, who had theretofore worked at this mine, and soon rumors became rife that "these foreigners" were to be run away, and soon the rumor was that this was to be done during the Christmas holidays. Schuster recalled that when he had been at work at Jack's creek, Sam Adams, a deputy constable or a deputy sheriff, he is referred to both ways, was employed there as an officer, and he wrote to Adams and offered him $6 per day to come there and guard the mine during the holidays. He and Adams were friends, and he had tried to employ Adams during August, 1929, to guard the mine, and to do odd jobs around the tipple, but Adams, who had a crippled arm declined this work, but accepted the employment offered him later, and came to the mine on Thursday, December 19, 1929.
He met Schuster, but found him very busy as his partner James Dawson was there that day, and he and Dawson were busy going over the books and making some sort of settlement of the business. Schuster went with Adams to see Mrs. Polita, and arranged with her for Adams to get his dinner there, and to board with her. He explained to Adams that he was busy, and that he should make himself at home about the camp until Mr. Dawson left. Adams ate his dinner and his supper at Polita's. Dawson left about 6 p.m., and after supper Adams, Schuster, and perhaps Proboco met in the store where Schuster was posting up the day's work, and they and Adams talked until about 8:30 or 9 p.m. Then Adams started to the boarding house, and Schuster went to his home.
Tarkaney had gone to Schuster's after supper to read the Huntington Herald-Dispatch and to assist Schuster's little daughter, Margaret, with her school work. After Schuster came in, Mrs. Schuster prepared some tea, which the members of the party drank, then Tarkaney and the son of Schuster went to the store to sleep, and the family retired.
DISAPPEARANCE OF ADAMS.
When they left the store, Schuster had asked Adams to come in and have some tea or some lunch, but Adams declined, and said he was not feeling well and went to the boarding house. Adams went into the sitting room of the boarding house and sat before the fire for awhile, then went with Emody, with whom he was going to sleep, into their bedroom to go to bed. Emody undressed and retired, but Adams merely removed his coat, his shoes, and his pants, put his holster and pistol under his pillow, and got in bed. Proboco also retired in the single bed which he occupied. So far as this record discloses, that is the last that was seen of Adams. During the night, Emody became cold and waked up; Adams was not there, and Emody pulled the cover back over him and went to sleep again.
THE FIRST INVESTIGATION.
Soon inquiries began to be made about Adams and Schuster, and the occupants of this boarding house were called before the grand jury, but nothing came of this investigation.
THE BODY FOUND.
On March 7, 1930, a boy was going along the east side of the river and was startled to see a man's feet sticking up out of the sand at the edge of the water near a path that led down to the river. He reported this to Mr. Lee Hall who went there with him, and he says he found a man's feet sticking up out of the sand. This was about one-fourth of a mile from this camp.
Tarkaney had made objections to all evidence relative to the post mortem examination of the body found, and reserved exceptions when it was admitted over his objections.
The lapse of time from death to the holding of the post mortem must affect the weight of the evidence so obtained, and, after sufficient time, even the admissibility of it, but we are making no intimation how much time will be required. It would require less time as to the viscera and soft parts of the body than as to the bones.
One of the leading cases on this subject is Williams v. State of Maryland, 64 Md. 384, 1 A. 887, where a man had died on November 26, and evidence obtained at a post mortem examination of his body, held on December 27, was admitted. Let us say, however, the question upon which that evidence was admitted was whether or not the neck of the deceased had been broken.
We have a domestic case, which, by the way, is a most interesting opinion. Moore's Heirs v. Shepherd, 63 Ky. (2 Duv.) 125, where evidence of a scar on the skull disclosed by a post mortem examination was admitted, though made some years after Moore's death.
Hall summoned the county officers, and the body was exhumed. It had been buried face down in a shallow grave dug in the sand near the water. This body found, so the man who exhumed it says, had about 24 inches of sand on the head and shoulders, and the lower legs from about midway between the knees and ankles were sticking up out of the sand. Apparently water had been over the body, for it and the clothing on it were wet and muddy. The river then was at a very low stage. A pistol was found under the body which Dr. Weems describes as a "Smith and Western .38 or .44," but Mr. Hall says it was a .45 Colt. Some official papers were found in the inside pocket of the dress coat on the body found, and $8.87 in money and some cartridges fitting this pistol were found in the pants pocket. There was one empty chamber, two empty hulls, and three cartridges in the pistol. There is no evidence this is the pistol...
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