Warren v. Com.
| Decision Date | 25 March 1960 |
| Citation | 333 S.W.2d 766 |
| Parties | John Henry WARREN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Lay & Knuckles, Grant F. Knuckles, Pineville, Ray C. Lewis, Wm. J. Weaver, London, Wm. L. Rose, Williamsburg, for appellant.
Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
STANLEY, Commissioner.
John Henry Warren, the appellant, Everett Perry and three other men were jointly indicted in the Knox Circuit Court for the murder of Woodrow Smith. Venue for the trial was changed to Laurel County on the defendants' motion. On a separate trial, Warren was convicted of murder and sentenced to life imprisonment.
On March 31, 1959, the appellant and a number of other labor union miners, then on strike, assembled at Arjay in Bell County and formed a motorcade of forty of fifty automobiles to go out, as appellant says, on picket duty. The motorcade, under the leadership of Taylor Maddox, a field representative of the union, went into Knox County. It appears the caravan divided into sections. Twenty or twenty-five cars, including those in which the defendant and Perry were riding, parked a mile or more from the scene of the homicide. The deceased, Smith, operated a small mine on Stinking Creek, the road to which and the general terrain of which are very rough and rugged. It appears several of the men walked up toward or to the mine. They approached in different directions in going to see Smith for the ostensible purpose of inducing him to sign a labor contract with the United Mine Workers Union.
After the case was ready for the trial to begin, the indictment against Perry was dismissed. When it became known that Perry would testify in behalf of the Commonwealth, the defendant, Warren, moved the court to discharge the jury and to continue the case on the ground of surprise. Perry's testimony proved to be vital to the prosecution's case. He had testified before a court of inquiry conducted soon after the homicide, and it appears the defendant knew what his testimony would probably be on this trial. The court exercised a proper discretion in overruling the motion of continuance. We cannot accede to the appellant's claim that this denied him a fair trial.
It appears that as the union men were approaching, Smith attempted to evade them. Several of the men were armed. Perry testified he dropped out from the group following Smith when he passed from their sight around a bend in the road. He stepped behind a big rock by the side of the road and was there when the defendant, Warren, came along and asked him where Smith had gone. He told him he didn't know and suggested to Warren that they go back. Warren replied, 'Hell no, let's not go back.' About that time Smith came into view. Warren said, 'There he goes down the hill' and started after Smith. Perry heard some shooting around the hill. We gather from Warren's testimony that Smith was doing some of that shooting. Smith came along and Perry, according to his testimony, hollered to him, saying, Smith went on a little distance and then pulled a pistol from his pocket and threw it in a briar patch. Warren appeared and picked up the pistol. Perry said to him, 'Let me have that thing,' and he replied, 'No,' and put the pistol in his pocket and walked off. Perry 'walked down' and began talking to Smith, who was sitting or hunkered down. In the presence of Warren, who was five or six feet away, Perry told Smith that Maddox had sent them up there to talk with him and his men about joining the union. Smith answered, 'O.K.' Perry related that at this period 'some big fellow' who had a pistol and another unidentified man, while 'down the hollow,' maybe a hundred feet away, said, 'That scabbing son-of-a-bitch there, I'll fix him.' Perry then heard some shooting and turned around and saw Smith had fallen over on his arm. Warren was there 'with a gun in his hands,' five or six feet from him. Perry ran up to the fallen man and said to Warren, 'John Henry, you are a damn fool,' and Warren walked off down the hollow.
We interrupt the narrative to consider the point that the court committed an error in failing to instruct, as was held to be proper in Skillian v. Commonwealth, 206 Ky. 586, 268 S.W. 299, and other cases, that the jury should not consider the statements of the unidentified man against the defendant unless the jury believed beyond a reasonable...
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