Wallace v. Commonwealth

• Citation: 180 S.W. 381,167 Ky. 277
• Parties: WALLACE ET AL. v. COMMONWEALTH.
• Decision Date: 10 December 1915
• Court: Court of Appeals of Kentucky

180 S.W. 381

167 Ky. 277

WALLACE ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 10, 1915

Appeal from Circuit Court, Clark County.

T. Q Wallace and another were convicted of murder, and they appeal. Affirmed.

John M Stevenson, of Winchester, John Noland, of Richmond, A. F Byrd, of Jackson, and C. C. Wallace and W. L. Wallace, both of Richmond, for appellants.

Jas. Garnett, Atty. Gen., and D. O. Myatt, of Frankfort, for the Commonwealth.

SETTLE J.

The grand jury of Estill county, at the March term, 1915, of the Estill circuit court, returned a joint indictment against the appellants, T. Q. Wallace and Frank Chaney, together with Ambrose Lynch, Bill Lynch, J. M. Hynes, and L. S. Gardner, charging them with the murder of Houston Underwood. At the same term of the Estill circuit court, by an order thereof, the venue was changed, as provided by section 1112, Kentucky Statutes, to the Clark circuit court. The change of venue was made upon the motion of the commonwealth's attorney, supported by a written statement reciting that there existed in Estill county such a state of lawlessness that the officers of the law would be prevented from discharging their duties and jurors deterred from rendering a free and impartial verdict. Among the things charged in the statement of the commonwealth's attorney as indicating the prevailing state of lawlessness in Estill county, were the facts that the courthouse and a brick school building in the town of Irvine had shortly theretofore been dynamited. Numerous affidavits were filed by the defendants controverting the right of the commonwealth to a change of venue.

The defendants were jointly tried at the April term, 1915, of the Clark circuit court for the crime charged in the indictment, the trial resulting in a verdict and judgment finding the appellants, Wallace and Chaney, guilty of murder, and fixing their punishment at confinement in the penitentiary for life, and in the acquittal of the defendants Ambrose Lynch, Bill Lynch, J. M. Hynes, and L. S. Gardner. Wallace and Chaney were refused a new trial by the circuit court, and both have appealed.

The homicide occurred at the home of Houston Underwood, on the Miller's creek road in the town of Irvine, on Friday, February 12, 1915, about 10 o'clock p. m. The deceased was shot and killed in his own house, while standing in or near the door, which he had partly opened. The killing occurred a few days after the dynamiting of the courthouse and schoolhouse. It appears from the evidence contained in the record that the fiscal court of Estill county and other persons offered a reward aggregating $5,500 or $6,000, for the apprehension and conviction of the parties guilty of the dynamiting of the buildings mentioned, and that Joe Spivy, town marshal of Irvine, Bige Little, a constable of Estill county, and Green Davidson, a resident thereof, acting in concert, and doubtless with a view of obtaining the reward, were endeavoring to ascertain the identity and procure the arrest of the guilty parties, and that they were depending upon one James Carson to furnish them the information necessary to accomplish their undertaking. They appear to have arranged for a meeting with Carson in Irvine at night, about a week before the killing of Underwood. The meeting took place as arranged, between Carson and the persons named, but without any satisfactory result.

It is apparent from the evidence that the appellants, T. Q. Wallace and Frank Chaney, and J. M. Hynes were suspected by Spivy and his associates named of being guilty of the dynamiting of the courthouse and schoolhouse, Wallace as instigator, and Chaney and Hynes as perpetrators of the act, and that they were attempting to obtain from Carson and other sources the evidence upon which to arrest and convict them. On the other hand, it was a theory of the appellants, Wallace and Chaney, that there was a conspiracy on the part of Spivy, Little, and Davidson to take their lives, particularly that of Wallace, but the only evidence offered in support of this theory was certain information claimed to have been given Wallace by one R. C. Williams, admittedly an unreliable person, and the several meetings held between Spivy, Little, and Davidson in Irvine on divers occasions preceding the night of the killing of Underwood. It is more reasonable to infer, however, that the meetings referred to were in furtherance of the plan of Spivy, Little, and Davidson to obtain information connecting the suspected parties with the dynamiting, than that they were held to devise a plan for the killing of Wallace or Chaney. In other words, the evidence introduced by appellants shows no motive on the part of Spivy, Little, and Davidson for the killing of either Wallace or Chaney, but that of the commonwealth shows that their motive was the procuring of evidence that would connect Wallace, Chaney, Hynes, the Lynches, and Gardner with the crime of dynamiting the courthouse and schoolhouse.

It likewise appears from the evidence of both the commonwealth and appellants that while the meetings between Spivy, Little, and Davidson were in progress, there were similar frequent meetings between Wallace, Chaney, Gardner, Hynes, and the two Lynches, and that Wallace and Chaney went armed for as much as a week before the killing of Underwood; the former carrying a repeating shotgun and pistol, and the latter two pistols; and that the day before the killing of Underwood the appellant Wallace went from his store to that of a contiguous merchant, to which Little had gone, and there threatened Little, and attempted to provoke him into a fight. It further appears from the evidence that Carson kept the appellant Wallace informed of his interviews with Spivy and his associates and of the purpose thereof.

On Thursday evening, the night preceding the killing of Underwood, which was also the night upon which Spivy and his associates were to obtain a final interview with Carson at Underwood's house, the store of the appellant Wallace appeared to have been a place of much activity, and a consultation was there held between Wallace, Chaney, and Hynes, immediately following which Chaney and Hynes posted themselves in a buggy shed near the residence of Underwood, where Davidson was known by them to be boarding. At the same time, the two Lynches stationed themselves on either side of Witt's store, into which Bige Little was know by them to have gone. It happened, however, that Davidson was not in Underwood's house that night, but had gone visiting in East Irvine. The meeting between Carson and Spivy and associates, to be held at Underwood's house that night, did not take place. Carson seems to have gone to the house as agreed, but being drunk at the time was ordered by Mrs. Underwood to leave, which he did. Wallace closed his store about 9 o'clock Thursday night, and, armed with his shotgun and pistol, started to go home by the Miller's creek road, which leads by the Underwood house. When within a short distance of the Underwood residence he met Chaney and Hynes. The three then returned to Wallace's store and from there went to Wallace's home by the railroad instead of out the Miller's creek road. This altering of his course, instead of going home by the Underwood residence as he usually did, Wallace claimed was because of his fear that he would be assassinated from the Underwood house.

On Friday morning the appellant Wallace carried his shotgun with him to his store, as had been his custom after he learned of the efforts of Spivy and his associates to ascertain who was guilty of dynamiting the courthouse. On Friday afternoon Chaney and Hynes were arrested upon a warrant charging them with the dynamiting of the courthouse, which warrant was issued at the instance of Green Davidson; their trials being set for the week following. The same afternoon Miss Ione Wilson met L. S. Gardner, who was jointly indicted with Wallace and his codefendants for the killing of Underwood, and a man by the name of Hays, on Main street in Irvine, near the home of Carpenter, the county attorney, and one or the other of them, she could not recall which, had a pistol in his hand. At 7 o'clock of the same evening Lewis Wilson met Gardner in front of Carpenter's house, and there had a conversation with him. Gardner declined to tell Wilson where he had been. Wilson testified as follows as to what occurred in the conversation:

"He said they had had a little rumpus up down in town. I told him I wouldn't inquire too much; he might not want to talk. He said that Tom Wallace--Professor Carpenter and some of them had tried to run down the blowing up of the courthouse; it had about fallen on Tom Wallace; if they didn't let Tom Wallace alone, he was going to kill some one of them, and said they had been gathering guns. He was looking for trouble; said something was going to happen in town; he wouldn't be surprised if it happened that night."

On that night Underwood was killed, and shortly before the killing the appellant Wallace sent the two Lynch boys, his codefendants, to watch the Underwood house. He then knew that Green Davidson was in or about Master's store, diagonally across the street from Wallace's store. Davidson reached Underwood's house about half an hour before the shooting which fact was known to the appellant Wallace. When the electric lights went out in Wallace's store and in the town, which was between 9 and 10 o'clock on Friday night, Wallace, in company with Chaney, W. R. Russell, William Merritt, and L. S. Gardner, left his store, and apparently started out the Miller's creek road in the direction of his home. At that time he was armed with a shotgun and pistol, and Chaney with two pistols. It does not appear whether the other members of...