Vanover v. Com.

• Decision Date: 09 March 1951
• Citation: 237 S.W.2d 539
• Parties: VANOVER et al. v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 539

237 S.W.2d 539

VANOVER et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 9, 1951.

J. E. Childers, Pikeville, for appellants.

J. E. Funk, Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., J. A. Runyon, W. A. Daugherty, Pikeville, for appellee.

STANLEY, Commissioner.

Roy Conway, the sheriff of Pike County, was lured from his home on a false call for duty and assassinated about eleven o'clock of the night of July 28, 1950. The appellants, Tommy Vanover and Hubert Vanover, half brothers, have been convicted of the crime and sentenced to life imprisonment. As is usual and proper where proof of the charge rests on circumstantial evidence, the testimony covered a broad range. We summarize it very briefly in considering the argument that the evidence was not sufficient to take the case to the jury.

Mr. Conway was shot in the back under the street light in front of his home and died instantly. A neighbor heard the shot and then someone running through a narrow, dark passageway between her house and a garage, striking or stumbling over a gas pipe across it, and going on towards a used car parking lot in the rear. Her son and a police officer quickly discovered footprints and found a German army rifle in the bushes in the passageway. It had the odor of freshly exploded powder. Guards were placed at each end to prevent intrusion. The next morning a plaster cast was made of a very distinct impression of a rubber tennis shoe, the heel of which had sunk well into the earth at an angle such as is made where the foot turns when one falls. It is a reasonable conclusion, considering these facts and the location of the body, that the assassin was concealed near the front entrance of this narrow passageway between the buildings. A bloodhound picked up the trail but lost it at the parking lot.

It is contended that the evidence of the shoe tracks was incompetent because a number of people had been milling around the scene. We think the integrity of the place was proved and that the evidence was competent. It was especially made so by further developments pertaining to the specific footprint.

Sheriff Conway had been very diligent in enforcing the law against gamblers and bootleggers. It brought out by defendants' counsel that threats had been made against him and that he had been previously shot at; also, that as he prepared to go out on the fatal night his wife warned him of danger, but, nevertheless, he went on. He had said he had been offered $75,000. to resign his office. The testimony of the defendants is that Tommy's business was that of raising and racing coon dogs and swapping pistols. His brother, Hubert, added to his vocations that of playing poker. Hubert was a barber and in the dog business too. It appears, however, their principal business was dealing in illegal liquor, Pike County being a local option territory. They had a place in the county at Rocky Gap for that business. They had been raided seven or eight times by the sheriff and his deputies, and the officers were fired upon while destroying a moonshine still in the neighborhood. Hubert had recently filed a civil suit against Conway charging an illegal search of his premises.

About a month before the killing, while the officers were up in that neighborhood, Hubert Vanover and his father, John Vanover, came along in an automobile. According to the officers, Hubert was drunk and driving and tried to run them down. An officer shot at a tire. There was considerable shooting between the occupants of the car and the officers. When finally run down, the car was loaded with whiskey. But according to the defendants, the officers had fired upon them without any cause whatever and had treated them unjustly. When they had been taken to jail, they sent a messenger that night to notify Tommy. He was received by Tommy standing in the door with a pistol in his hand. When the messenger identified himself, the defendant said, 'It's a good thing you hollered. I am expecting them up to raid, and when they come I am going to give them a warm welcome.' There were other occasions of similar character, particularly one where the officers were fired upon from ambush as they approached the Vanovers' place with a search warrant. On a Saturday night, about two weeks before the killing, Tommy Vanover checked his pistol with the proprietor of a dance hall. On that occasion, being asked by a friend why he carried the pistol, he responded, 'Well, Roy Conway sent me word he would kill me, and I am going to protect myself.'

In the afternoon of the night of the murder both appellants were at the Conway corner on two occasions. First, about one o'clock and later around six o'clock. They may we have been viewing the situation, but they say they were at the garage and used car lot seeing about getting an automobile and that they talked with certain persons. Those persons denied it. In the late afternoon they bought two pairs of what are commonly called tennis shoes, having rubber soles and canvas tops. The sizes were 8 and 11. The defendants testified they bought these shoes to hunt with and to use in training and washing their dogs in the creek. After getting the shoes, they went by bus to the home of a friend 8 or 10 miles in the country and borrowed his automobile.

They had spent the night in the apartment of two girls to which Tommy had a key. He had frequently stayed there, but Hubert had not. When the young ladies left for a dance about half past nine with an escort, they left Tommy alone sitting on the porch. He was drinking and said he did not feel like going with the other girl. When the girls returned around one o'clock in the morning, they noticed two pairs of tennis shoes on the porch. They found both men fully dressed asleep in their bed. They were aroused, or at least Hubert was. He was drunk. Tommy had a loaded revolver under his pillow or on a table within reach. The girls spoke of the sheriff having been killed, but neither man made any response. Several witnesses had seen Hubert on the street around 10 or 10:30 o'clock. Joe Coleman, a constable, whose name was used in the false call to the sheriff, talked with him about nine o'clock. He was then wearing blue overalls and had on brown shoes. When the girls found him in their bed he had on gray pants. This apartment was within seven minutes walking time of Conway's corner and, of course, much less by automobile. There was a telephone convenient to the apartment from which the false call might have been made.

The next morning, upon a search of the apartment, the officers found two pairs of tennis shoes, sizes 8 and 11 in the bathroom. They were wet. One had some bits of soil around the soles indicating recent wear. Two revolvers fully loaded were concealed in a small table compartment. Several shotgun shells were also found. Some of the bullets had the sharp end or round point clipped off and a small hole hollowed out in the end. It is...