Tarkaney v. Commonwealth

• Decision Date: 30 October 1931
• Citation: 43 S.W.2d 34,240 Ky. 790
• Parties: TARKANEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

43 S.W.2d 34

240 Ky. 790

TARKANEY v. COMMONWEALTH.

Court of Appeals of Kentucky

October 30, 1931

Appeal from Circuit Court, Floyd County.

Steve Tarkaney was convicted of murder, and he appeals.

Reversed.

A. J May, of Prestonsburg, A. J. Kirk, of Paintsville, Edward L Allen and O. C. Hall, both of Prestonsburg, and Oscar Tabory of Logan, W. Va., for appellant.

J. W. Cammack, Atty. Gen., and George Mitchell, Asst. Atty. Gen., for the Commonwealth.

DRURY C.

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 objection 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 26th, and evidence obtained at a post mortem examination of his body, held on December 27th, 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 of Sam Adams.

One of these official papers was a warrant for the arrest of Willie Dean issued by F. E. Damron, J. P. Floyd County September 29--29, and the return thereon is "Executed in full, 10--4--29, by Sam Adams," a strange sort of a return on such paper; another was an order of attachment in case of Hopkins vs. Cook, issued by the police judge of Wayland September 10, 1929, and on it the return is "Executed by delivering a copy to the defendant on 10--9--29, by Sam Adams, D. C." There is no evidence this is the handwriting of Sam Adams.

The body found had on it a blue serge suit, the pants were worn without suspenders, but supported by a belt about eight inches too big for this body. There were no socks upon the feet, these with the supporters attached were in the left pocket of these pants. The vest was buttoned, but one of the arms was not through the armhole of the vest, and the garment was drawn up under the arm pit. There is no evidence these were the clothes of Sam Adams. There were some teeth missing; the doctor says he does not remember whether they were loose and he pulled them out or whether they were out and gone when the body was found. These the doctor says were knocked out either after death or shortly before that, as there was no sign of any healing of the gums. The doctor mentions no sign of bleeding about the mouth.

The right ear of the body had been cut off, and the doctor says there was no sign of any bleeding from it. The body found had been scalped, and an area about four inches wide and five inches long from...