Young v. Commonwealth

• Decision Date: 28 October 1932
• Citation: 245 Ky. 570,53 S.W.2d 963
• Parties: YOUNG v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

53 S.W.2d 963

245 Ky. 570

YOUNG v. COMMONWEALTH.

Court of Appeals of Kentucky

October 28, 1932

Appeal from Circuit Court, Jefferson County, Criminal Division.

John Young was convicted of murder, and he appeals.

Affirmed.

H. M Denton, Clarence Sanders, J. B. Gathright, and Charles A Comstock, all of Louisville, for appellant.

Bailey P. Wootton, Atty. Gen., and Francis M. Burke, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

Near the middle of the day of April 12, 1932, the appellant, John Young, shot and killed Edward E. Parr, a policeman in the city of Louisville, and which occurred in the second story of a flat at 220 East Market street, in that city. He and three others (Delbert Masterson, Della Yeley, and Alpheus Sampson) were later jointly indicted, in which they were accused of murder. On separate trial of appellant he was convicted and punished with death. His motion for a new trial was overruled and from that order and the judgment pronounced on the verdict he prosecutes this appeal. The argument of his counsel for a reversal of the judgment is made under three headings contained in their brief, which are: (1) "The verdict is against the law and the evidence and is the result of passion and prejudice;" (2) "Statements made to jury at scene of tragedy in absence of appellant;" and (3) "A judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby."

Counsel in discussing some of those headings travel a wider range than what they would appear to embrace, but in the course of this opinion we will endeavor to notice every objection made by counsel. Some of the points argued are not properly presented, because not relied on in the motion and grounds for a new trial, and some of the complained of evidence was not objected to at the time of its introduction, nor was any motion made to exclude it. However, because of the gravity of the punishment we have concluded to treat all of the matters discussed as if they were duly presented under prevailing rules of practice for that purpose. Preliminary to the discussion of all the arguments, and especially the one in support of heading (1), a synopsis of the substantial testimony given upon the trial will be made.

Some of the evidence of the commonwealth, to which there was no objection, developed that appellant was on parole after serving some years of a sentence for robbery, and he himself at the solicitation of his counsel testified that he had recently participated in four "stick-up" jobs, and two "high-jacking" jobs, of which the deceased, Edward E. Parr, and other members of the city police force had knowledge. They received information that appellant could be located at 220 E. Market street, and four officers, one of whom was the deceased, repaired to that place near noon of the fatal day. Deceased and his fellow policeman, Fawbush, went to the front of the building, while officers Doerting and Mulligan located themselves at its rear. The occupied apartment in which appellant was supposed to be was in the second story with a rear stairway leading to the ground. Deceased and Fawbush rang the doorbell and the door was opened by Sampson. There was an inside contrivance by which a buzzer could be set in motion which was located in the rear of the apartment, but the sound of which could not be heard by one located at the front, and Sampson or Della Yeley, his codefendants, touched the button that operated the buzzer, the latter having left the kitchen in which the four of them were located when the doorbell rang.

When Della Yeley appeared at the door, the deceased expressed a desire to look through the building, and she consented to it and went along with him. It is unnecessary to describe the rooms of the apartment in detail, it being sufficient to say that from the kitchen, directly or through another room, there was a door to a back porch, and, when the tenant (Della Yeley) left to go to the front door, appellant and Masterson went out on it. When they heard her returning and talking to some one, who was the deceased, they entered the room in which those two had arrived, upon which deceased ordered Masterson, who entered the room first, to hold up his hands. He was then searched by deceased who took a pistol from him. As the pistol was being lifted by deceased from the pocket of Masterson appellant spoke and said: "Wait a minute," and which caused deceased to turn his head and face slightly toward appellant, who then had in his hand his pistol pointed at deceased, and immediately fired a bullet into his body, inflicting a fatal wound, and which caused him to fall to the floor, and other shots were fired into his body by appellant after the fall.

The shooting attracted the attention of Mulligan, who ascended the rear flight of steps and about the time he got to the top of it, Masterson and appellant were making their exit from the room in which the murder was committed, with the view of making their escape from the rear of the apartment, and, in order to clear the way of escape, appellant shot and killed Mulligan also, his body rolling down the steps to a point near a garage, the building being located on an alley. The other officer, Oscar Doerting, who was stationed at the rear, came upon appellant and Masterson after both of his fellow officers had been killed, and he drew two pistols upon them (one in each hand) and made each of them hold up their hands against a brick wall conveniently located. While he held them in that position a citizen passed along and offered his services to the arresting officer, when he was instructed to search them, which he did, and took from appellant his weapons.

The defendants, Yeley and Masterson, were the only eyewitnesses to the killing and they described the way and manner in which it occurred exactly as we have stated it. Defendant in his testimony did not qualify their testimony, except in one particular, when in detailing the facts under which he shot deceased, he said: "This man (deceased) had his right hand in his overcoat pocket and he says Get them up. When he said that Masterson raised his hands about like that. When he did Masterson's gun was sticking out here and he reached and got Masterson's gun and when he did that I said Wait a minute. When I said that he wheeled around and said What is that? and started to draw his gun and then when he did that I shot." He stated that the officer was then about two feet from him and the shot powder burned the overcoat the officer was wearing in the pocket of which he carried his unfired pistol.

Defendant claimed not to know that deceased was an officer, nor did he suspect that he was one. On the contrary he stated that his impression was that the officer was one of a group of highjackers with whom he had come in contact on a recent previous occasion and to which class of criminals he acknowledged he belonged. However, there was evidence tending to show that appellant knew that deceased was an officer, a fact which his codefendants admitted that they knew, and the statements of appellant after he was arrested substantiates the belief that he also knew that fact, and that he falsified when he stated to the contrary in his testimony. The detailed statements of each and every witness (all of which dovetails toward the substantiation of the synopsis of the testimony that we have given) need not be recited, since none of it detracts from, but all of it confirms, the synopsis as herein above made. It will be...