Tarrence v. Com.

• Decision Date: 18 December 1953
• Citation: 265 S.W.2d 40
• Parties: TARRENCE v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 40

265 S.W.2d 40

TARRENCE v. COMMONWEALTH.

Court of Appeals of Kentucky.

Dec. 18, 1953.

Rehearing Denied March 19, 1954.

Sandy Paniello, Louisville, for appellant.

J. D. Buckman, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

The appellant, Roy Tarrence, and his son, Leonard Tarrence, upon separate trials were convicted of the murder of Francis J. McCormick and sentenced to death. We first consider the appeal of the father. There is no question of guilt but there are many questions as to the fairness and legality of the trial. Our summary disposition of some of them is in the interest of reasonable brevity and should not be regarded as indicating summary consideration for every question has been given full consideration.

To avoid prosecution for seduction, Leonard Tarrence had married the girl involved and she had obtained an order of court requiring him to pay her $7.50 a week for the support of their child. Tarrence had then joined the army, but in a short while had become absent without leave. Leonard's wife brought him before the court for failure to maintain his child and it seemed that he was about to be returned to the army. Francis J. McCormick, an attorney, represented the girl in all these proceedings. The Commonwealth presented evidence that the father and the son had become angered at the lawyer, and upon two occasions the father, Roy Tarrence, had expressed his animosity in terms which proved to be prophetic. He had said that before he would let the lawyer and the girl send his son overseas to get killed, 'I'll take a club and beat his [the lawyer's] brains out.' Later at the home of a friend on Harrods Creek he said, 'that someone should knock him in the head and throw him in the creek.' He denied any ill-will and the threats.

In the late afternoon of February 28, 1952, while McCormick was walking home through an alley between Fourth Street and Garvin Place near Oak Street carrying groceries, which was according to his custom, the Tarrences pulled up beside him in the father's automobile. Both men got out and apparently without warning or immediate provocation began beating McCormick. They forced him into the car and drove away. This is the evidence for the Commonwealth adduced by several eyewitnesses. One of them noted the license number of the car and this soon led the officers to the Tarrence home.

The Commonwealth deduces from certain evidence that the assault and abduction, if not the murder, had been previously deliberately planned.

The defendant and his son testified they had been working on their automobile at their home near Jeffersontown, southeast of Louisville, during the day and that afternoon went to a junk yard in the city west of the point of assault to obtain a certain article. This was corroborated by the dealer. They testified that on their way home they happened to see Mr. McCormick at the grocery. Leonard walked with him into the alley a short distance to talk with him amicably about getting his trouble settled, when, according to Leonard, McCormick replied that he was going to send him to the penitentiary or back to the army; then Leonard hit him with his fist and in the resistance picked up a stick and struck him. Both the father and son testified that the father did not get out of the car until the affray had started and then he undertook to separate the men. McCormick became unconscious. The Tarrences became frantic and put him in the car and drove around the city for awhile until they could determine what to do. Their testimony is that McCormick died in the car. But when Leonard surrendered to Judge Mix, one of the judges of the criminal branch of the court, a few days later, he told him that he and his father had both assaulted McCormick and that he was killed at the creek while conscious. Their formal confession will be stated in the opinion in Leonard Tarrence's case.

We pass for the moment the intervening developments.

The men took McCormick 12 or 13 miles away to a rather remote place on Harrods Creek; weighted his body and dropped it in a deep hole in the creek.

Demurrer to the indictment. The appellant's attorney recognizes that a demurrer reaches only a defect appearing on the face of an indictment. The indictment was returned March 12, 1952. The appellant points out that under the law the grand jury had been convened on the first Monday in that month, which was March 3, hence, he argues, it must follow that the grand jury had been in session nine days without an order of court extending the period beyond six days as stipulated in the statute. KRS 29.240; see Harrod v. Commonwealth, Ky., 253 S.W.2d 574. The argument is that considering the date of the indictment with judicial knowledge of the calendar, the defect appears on the face of the indictment and the demurrer to it should have been sustained. If we should accept the premise of the argument, the conclusion of invalidity would not follow. Unlike the records in the Harrod habeas corpus proceeding, this record does not show that the grand jury had been in session continuously every day during the first week after being impaneled nor that there was no order extending the period. Regularity in the proceeding is to be presumed. Sizemore v. Commonwealth, Ky., 262 S.W.2d 817 is directly in point. We find no merit in this contention.

Change of venue. Before a severance of trial was ordered, the defendants jointly petitioned for a change of venue. There had been a great deal of newspaper and radio publicity concerning the abduction and homicide and the events of the following two or three weeks. A number of affidavits stated that public opinion was hostile to the defendants and a number filed by the Commonwealth controverted this and expressed the view that the accused men could obtain a fair and impartial trial in Jefferson County. Several of the affiants who had served on juries in the past related their observations and experiences, among which were that many jurors do not read the newspaper accounts or have any knowledge of sensational crimes, several of which were mentioned. An extended oral hearing was had on the motion and many representative witnesses testified in support of the respective contentions. It was shown that the Louisville newspapers and radio newscasts have wide circulation in the adjoining counties and far beyond. The trial court filed an opinion justifying his order overruling the motion for a change of venue and in it stated that if upon examination of the 150 veniremen summoned for the trial it should appear that the defendants could not receive a fair trial he would give further consideration to the motion. In the examination of these veniremen no prejudice or antagonism was developed nor was any unfair influence traceable to the publicity. Many were excused because of conscientious scruples against the death penalty. The defendants did not renew their motion during the course of selecting the jury.

We have carefully considered the voluminous evidence on the motion. It is not shown there was denunciation of the accused or any expressions in the newspapers or on the radio of a prejudicial or inflamatory nature that might tend to turn the readers or listeners from an impartial attitude if they should be chosen for the grave responsibility of jury service. The publicity was of facts and circumstances later presented in the evidence except that of the defendants, which had not been previously revealed.

Every case in respect to a change of venue must be determined on its own state of facts. Jefferson County has a population of around 500,000 and a large reservoir of qualified jurors. This fact differentiates some of our opinions in cases in less populated counties. The evidence presented in these two cases is much like that in Bircham v. Commonwealth, Ky., 238 S.W.2d 1008, which was a homicide in Jefferson County more calculated to inflame the passions of the people than this one. In that opinion and many others we affirmed the decision of the trial court who in his discretion overruled the several motions for changes of venue. Action on a motion for a change of venue is addressed to the sound judicial discretion of the trial judge, and on review it must be shown that it has not been justly and properly exercised under the circumstances. Denial of the motion will not authorize a reversal of a judgment of conviction where it appears from the record as a whole that a fair and impartial trial was given the defendant by the jury chosen. We see no abuse of discretion in overruling the motion for a change of venue in these cases and consequently no error in this particular.

Continuance. The indictment was returned March 12, 1952. The next day the defendant was arraigned and the trial set for April 1. Meanwhile, hearings were had on the demurrer to the indictment and on motions for bail and change of venue. On the 22nd, after a motion for severance of the trials of this defendant, Roy Tarrence, and his son, Leonard Tarrence, the Commonwealth elected to try Roy Tarrence first. On the day of the arraignment of the two men, the court had appointed Mr. Sandy Paniello and Mr. Manny Frockte as attorneys to represent Leonard Tarrence, and two other attorneys were appointed for Roy Tarrence. A few days later Roy Tarrence indicated to the court that he desired the attorneys appointed for his son to represent him also and the other lawyers withdrew on March 20. Thus, it appears that the appellant was represented about a week after arraignment by the other attorneys, and thereafter by Paniello and Frockte. But from the beginning Paniello had been actively participating the proceedings in behalf of both father and son. During the 19 days between the day of arraignment and the day set for trial the attorneys had been engaged in preparing for argument of the demurrer and the hearing on the motion for change of venue. Only nine days intervened between...