June 10, 2013

Judge & Constable Killed by Deputy Sheriff & Deputy Constable, Pulaski, 1911



This is a lengthy read, but it is a very interesting case.  According to the below sources, James Ellis, a deputy sheriff and Fount Helton, a deputy constable, shot and killed a judge, Andrew Jackson Beatty, and a constable, W. F. Heath, inside Beatty's courtroom over the matter of some warrants issued to arrest Ellis for selling liquor and gaming. The case caused such a stir that there was a threat of lynching, and during the trials it was necessary to bring jurors in from neighboring counties.  Then Ellis, after being sentenced to death, nearly escaped his jail cell by sawing off the bars. He was ultimately executed via electric chair. Helton was given a life sentence.

Related: In or before 1896, Heath and Beatty had a shooting affray.


[July 14, 1911] - Death Record of Andrew Jackson Beaty. Click to enlarge. [32]


[July 18, 1911] -


Court Acts Promptly, Calling a Special Term to Dispose of Cases of Helton and Ellis


Bullets from Two Pistols Made Wounds on Bodies of Both Victims

{Special to The Herald.)

SOMERSET, Ky., July 17-- Circuit Judge B. J. Bethurum today issued an order calling a special session of the Pulaski Circuit Court for July to try James Ellis and Fount Helton on the charge of murdering Magistrate A. J. Beatty and Constable W. F. Heath at Burnside Friday.  Ellis and Helton were arraigned before County Judge R. C. Tartar today for preliminary hearing.  Both waived examining trial and were remanded to jail without bail to await final trial at the special session.

The killing of the two well known officials has aroused the people of the county as never before.  The calling of a special session for such an early date has reduced the fear of mob violence, as the friends of the murdered officers seem willing to await the law's course.

Prisoners Stories Conflict.

The prisoners are kept apart and have told conflicting stories about the killing.  It developed today that there were about five eye-witnesses to the shooting, who saw it through the open door of the courtroom from the street and their stories are to the effect that the killing ws brutal and unprovoked.

The largest crowds ever seen at any court here will attend the trials when court convenes.  Several prominent law firms have been engaged by friends of the officers to assist in the prosecution and the array of legal talent will probably be the most conspicuous ever seen at this bar in a criminal case.

Feeling at Burnside High.

Feeling is still high at Burnside and the jail here has been guarded as a precaution against any attempted mob violence.

Both Ellis and Helton deny shooting Beatty and say they do not know how he was killed, although there was no one else in the room at the time and Beatty was shot three times, all three of the shots taken effect in the back.

Ellis says Helton, who had been deputized by Beatty to serve some warrants on Ellis for the illegal sale of whisky, had him in charge when they entered the courtroom, where Beatty and Heath were sitting.  Arrangments for bond were under way for Ellis when Heath arose and said he had other warrants for Ellis and started to pull his pistol, when Ellis pulled his pistol and shot Heath four times.

Beatty Also Lying Dead.

He says that when the smoke cleared away that Beatty was also lying dead on the floor.  Ellis denies any knowledge of who killed Beatty or how he was killed.

Helton's story agrees with that of Ellis as to what Heath said about other warrants and Helton further says that when Heath pulled his pistol he (Helton) grabbed Heath from behind to prevent his shooting Ellis, and that, Heath being a large man and Helton small and a cripple, Heath got loose; that fearing Heath would kill him, he (Helton), pulled his gun and shot Heath in the abdomen, and that Ellis then began firing into Heath's body.

Helton denies shooting Beatty or knowing who did shoot him.  One eye-witness, who saw the shooting of Heath from a window, says that Ellis shot him four times while Heath was sitting in a chair.  No shots had been fired from Heath's pistol when his body was taken from the courtroom.  It is also a fact that the wounds on both of the dead men showed that the bullets fired into them had been fired from two different pistols, showing tha tboth Helton and Ellis had shot both the officers.

How the Trouble Started.

The beginning of the trouble was the arrest of James Ellis on warrants for the illegal sale of whisky.  After the killing a posse of citizens went to the small house where Ellis was supposed to keep his liquor and found three barrels of malt and beer.  This was destroyed and the building demolished.

It is also said by a number of reputable citizens of Burnside that Ellis and Helton were driving around in a buggy in Burnside sometime before the shooting, appeared to be under the influence of liquor and were creating some disturbance.

Sheriff Weddle and Judge R. C. Tartar and some deputies, who brought the prisoners here, said that if they had been five minutes later in getting them across Cumberland River at Burnside, both of them would have been hung by the aroused citizens, who swooped down on the river bank just as they pushed off in a small boat.

Officers Are Refused Rig.

All boats had been either sunk or hidden along the river front and the liverymen in Burnside would not let the officers have a vehicle to bring the prisoners here and a vehicle had to be sent there from Somerset. [1]


[July 18, 1911] -

Wiped Out The County.

Justice of the Peace A. J. Beatty and Constable W. F. Hearth were both shot and killed at Burnside, Pulaski county, Friday evenng.

Deputy Sheriff Frank Ellis and Fount Helton have been arrested charged with the crime. [2]


[July 19, 1911] -

A terrible double killing occurred at Burnside, Pulaski county, last Friday. A. J. Beattey, a magistrate, and W. F. Heath, a constable, were shot to death by deputy sheriff Frank Ellis and deputy constable Fount Helton. A lynching was barely averted, and Ellis and Helton are in Somerset Jail. It is said that the direct cause of the double tragedy was that Ellis and Helton, officers of the law, were charged with selling liquor. [3]


[July 28, 1911] -

Two women were made widows, thirteen children made orphans and, if James Ellis and Fount Helton, in jail at Somerset, charged with the murder of Magistrate A. J. Beatty and Constable W. F. Heath at Burnside last Saturday, are found guilty and electrocuted, as it now seems they will be, two more women will be mad[e] widows and seven more children made orphans. All of this is one result of the persistent and insolent violation of the liquor laws in Pulaski county. In addition to this, numerous other killings and dozens of shootings have occurred in he four counties of the Twenty-Eighth Judicial district, in the past few years, from the same cause. [4]


[August 1, 1911] -


Crowds Pack the Courtroom At Somerset But No Violence Is Feared


Witness Said to Have Overheard Plan to Kill the Justice and Constable

Special To The Herald. SOMERSET KY., July 31.-- Before the courthouse bell had finished ringing for court at 1 o'clock in the trial of Helton and Ellis for the murder of Justice A. J. Beatty and W. J. Heath, the courtroom was packed to its utmost capacity and the court officials could barely get down the aisle. 

Commonwealth's Attorney M. L. Jarvis announced ready for trial and the lawyers for the defense were permitted two hours time to prepare some affidavits asking for a continuance of the case.  When court reconvened at 4 o'clock Attorney Sharp, for the defense, made a motion to quash the indictment and the court promptly overruled.  After some time consumed by the attorneys for the prosecution in going over the affidavits of the defense they asked for more time and court adjourned until 9 o'clock tomorrow morning. 

Before adjourning the regular juries were impaneled by the court.  The selection of a jury for the trial of the murder case, in the event there is no continuance, will begin with these two panels.

Crowds are Impatient.

Crowds from various parts of the county began pouring into Somerset from all roads this morning at an early hour and the influx kept steadily up during the morning.  Some disappointment was expressed by a good many of the early arrivals when they found that court would not convene to take up the trial of James Ellis and Fount Helton until 1 o'clock instead of 9 o'clock as is the usual custom.  This was done in order to give the one hundred men who had been summoned as jurors ample time to get to Somerset as they had to come from every section of the county, some of them as far as thirty miles or more.

The feeling is still intense, through the crowds are orderly and there is no disposition evinced anywhere to interfere with the law in its regular course, and no apprehension of any attempt at violence against the prisoners, though as a matter of precaution they will be heavily guarded all the time during the trial, while they are in the court room and on their way to and from the jail to the court house.

None Allowed Inside Rails.

Judge Bethurum has issued a ruling that no one will be permitted inside the railing which cuts off the bar from the general seating capacity of the court room, except court officials and press representatives.

It was learned this morning that the prosecution say it has discovered that Ellis and Helton were overheard plotting the killing of Judge A. J. Beatty and Constable W. F. Heath some little time before they went to the courtroom where the bloody tragedy was enacted.  This plot was laid at the small building of Ellis, it is declared, which was destroyed by citizens just after the killing and wherein three barrels of malt beer was found and poured out and the building demolished.

The witness, whose presence was not known by either Ellis or Helton, overheard the entire plot, it is said, and heard the two men making all plans for the killing.

Will Not Divulge Name.

The prosecution will not divulge the name of the witness who heard the two men forming their bloody plans, but they will endeavor to have him to testify at the proper time.  The prosecution will likely spring several surprises during the trial.

J. N. Sharp, chief lawyer for Ellis and Helton, says the defense will also spring a sensation when the trial opens.

It may become necessary to send into another country for men with whom to complete the jury.  It is hardly thought that the taking of evidence will be started before Wednesday or possibly Thursday. [5]


[August 3, 1911] -


Another Case of Delayed Punishment--How We Plead Guilty to the Indictment--Work on the Lincoln Memorial Road--Suffering For Want of Rain.


"Very nearly a farce," may be truthfully said of the courts in Kentucky. A special term of court was called at Somerset to try the cases of Jas. Ellis and Fount Helton for the killing of Magistrate Beatty and Constable Heath at Burnside a few weeks ago. The court met, Monday, and a special grand jury quickly returned indictments, but on the following day the Commonwealth asked for a continuance of the case and got it. The accused are to be taken to Danville for safe keeping. Officers of the law killed by officers of the law! The public aroused, a scathing denunciation of crime and criminals by the Judge, of course, continuance asked by the Commonwealth! That is all except that the State pays its thousands for the farce.

"Both sides have their story to tell," says the Burnside item, "and if half they tell is true  OUR OFFICIALS ARE THE TOUGHEST CITIZENS IN THE COMMUNITY."

Our editorial of last week on, "Where we 'get left,'" ought to be interesting reading.


We need not express much surprise that the Mountains have an unsavory reputation in the Blue Grass and outside the State when it is recalled that so many of our desperadoes are taken to the Lexington Hospital to die. Alonzo Allen, one of the principals in the Quicksand tragedy of last week and two men from Salyersville, wounded in an affray two days later, have all succumbed there with a week. And to think of the terrible nature of the encounters! We had thought that Magoffin County was a pretty safe place to live in. It may be that the days of the Feuds have passed, but if they offered anything worse than the killing of Merideth and his wife in Clay last Spring, the killing of Simms and his wife at Quicksand in Breathitt, the 22nd, and the desperate affair under the shadow of the court house in Salyersville, the 24th, resulting, as in the preceeding case, in three deaths, we have not heard of it.

Shall we never have any advertising but the free kind that our lawless element gives us? There is only one way to efface the terrible indictment that all the world has written against us--an indictment which these crimes would seem to justify -- and that is first of all to elect good men to enforce and execute the laws--drive out the blind tigers and hunt out and exterminate the murderous element.

It will do no good to call attention to fifty Lexington killings in the last four years, and only fourteen convictions, eleven for short terms and three for life. [6]


[August 4, 1911] -

Lynching Feared.

The trial of James Ellis and Fount Helton for the murder of Judge A. J. Beatty and Constable William F. Heath at Somerset, was continued until September 11 because of the absence of witnesses. Judge Bethurum entered an order removing the prisoners from the Somerset to the Danville jail for safe keeping until the trial in September. Feeling is so high it was feared an attempt would be made to lynch the two men. [7]


[August 9, 1911] -

Judge Bethurum, at Somerset, continued the trial of Helton and Ellis, the alleged slayers of Squire Beatty and Constable Heath at Burnside upon affidavits of the defense until the September term of court, and the prisoners were taken to Danville for safe keeping. [8]


[August 11, 1911] -

Trial Continued.

James Ellis and Fount Helton were placed on trial in the circuit court in Somerset last week charged with the killing of Justice Beatty and Constable Heath at Burnside. Because of the absence of a witness and the refusal of the Commonwealth to admit as true an affidavit as to what the missing witness would state, the trial was continued until September 11th. There is considerable feeling in Pulaski county against these men, and because of this, and to avoid the possibility of mob violence Judge Bethurum ordered them removed to the jail at Danville for safe keeping, where they will remain until the time for their trial. [9]


[September 5, 1911] -


Case Against Helton and Ellis For Murder to Come Up

SOMERSET, Ky., Sept 4.--The fall term of the Pulaski Circuit Court will convene September 11 for a six weeks' term.  The docket is a full one in both the criminal and civil branches, and some murder cases, among them being the sensational cases against Fount Helton and James Ellis for the murder of Judge A. J. Beatty and Constable W. F. Heath of Burnside.

This case is set for trial the first day of the term, and one of the largest crowds ever seen at the opening of a term of the Pulaski Circuit Court is expected here next Monday morning.  Since the special term of court several weeks ago, called just after the murder, the two prisoners have been in the Boyle county jail for safe-keeping, having narrowly escaped being lynched at Burnside on the night of the killing.  They will be brought here for appearance at the opening of court, but will be well guarded, though it is hardly thought that there is any danger of any attempted violence, as the people of Burnside and the relatives of the dead men seem satisfied to let the matter take its due course.

This will be the most sensational trial ever held in the Pulaski county courthouse.  When they were arraigned for trial at the special term a few weeks ago the large circuit court room was crowded almost to suffocation, and a large number were unable to get into the room.  The trial will probably consume a week or more, as there have been summoned about 150 witnesses for either one side or the other.  One of the features of the trial will be the testimony of a deaf and dumb boy who is said to have seen almost all of the shooting.  His testimony will have to be given in writing and read to the jury, if they do not get an interpretor for him.

But the rea[l] sensational feature of the trial will be the testimony of a witness whose identity the prosecution has not yet made known.  They admit, however, that they have one witness who saw every part of the killing.  This is said to be the only witness who saw the shooting of Judge Beatty.

Both Ellis and Helton deny shooting Beatty or any knowledge of how he was shot.  This witness saw Beatty when the shots were pumped into his body, and this part of the testimony promises to reveal some very sensational and revolting actions.

Judge B. J. Bethurum, before whom the case will be tried, will not allow any one inside the bar except the lawyers, court officials and newspaper reporters. [10]


[September 12, 1911] -


Panel is Exhausted and 100 Lincoln County Men 
Are to Be Summoned

SOMERSET, Ky., Sept 11. -- The double murder trial of James Ellis and Fount Helton for the mrder of Magistrate A. J. Beatty and Constable W. F. Heats, in the courtroom at Burnside, some weeks ago, was entered in the Circuit Court today before one of the biggest crowds ever seen at the opening of court.

After exhausting the regular panels without getting any jurymen to qualify, Judge B. J. Bethurum, and the attorneys on both sides agreed to go to another county to secure a jury, and the sheriff was ordered to Lincoln county to summon 100 men to appear here Wednesday at noon, and the case was continued to that date.  Ellis and Helton, who have been in the Danville jail for safe-keeping since the crime, were returned here this morning.  The crime with which they are charged as aroused the people of the county as never before and the feeling is so high that securing a jury here was considered impossible.

The two officials who were killed were popular and fearless officers and a double lynching was narrowly avoided at the time of the murder. [11]


[September 12, 1911] -

Sheriff Weddle, of Pulaski county was here Tuesday summoning jurors to go to Somerset to try the Helton case, the terrible murder case at Burnside of a few months ago. There was some tall dodging in town when the officer's purpose was learned. [12]


[September 14, 1911] -


The trial of Ellis and Helton, indicted at Somerset for the killing of a Magistrate and Constable at Burnside a few weeks ago, was called, Monday.  The regular jury pannels were exhausted without getting a single juryman, and the judge ordered the sheriff to summon 100 men from Lincoln County. Feeling seems  to be high against the prisoners. [13]


[September 15, 1911] -


Secured to Try Bad Murder Case in Pulaski County

A Lincoln county jury was secured at Somerset Wednesday to try Fount Helton and Jim Ellis who are charged with murdering Squire A. J. Beatty at Burnside last July.  The defendants are said to be blind tiger operators and to have gone into Beatty's office and shot him down in cold blood.  It is said to be the worst murder case ever known in Pulaski county and feeling is so bitter against the men there a jury could not be secured to try them.

Sheriff Weddle came here Tuesday and summoned 100 Lincoln county men to appear Wednesday and from there twelve good men and true were chosen as follows, R. M. Newland, R. C. Arnold, Ed. Wilkinson, George Carter, J. M. Pettus, Jack Cover, J. R. Harris, Black Huffman, E. B. Denham, George Rout, W. H. Brady and Sam Bishop.

County Attorney W. S. Buch was secured by the Commonwealth to assist in selecting the jury.  There are a number of witnesses summoned, and the jurymen are believed to be in for a protracted visit to the capital of Pulaski. [14]


[September 18, 1911] -


Public Sentiment Upholds Finding of the Jury in Pulaski Murder Trial


Selection of Men Who Will Pass On His Fate Will Begin Tuesday

SOMERSET, Ky., Sept. 17.-- The verdict of death which the jury returned against Deputy Sheriff James Ellis for willfully murdering Magistrate A. J. Beatty at Burnside a few weeks ago, is the first death penalty to be inflicted by a jury sitting in the Pulaski courthouse in more than thirty years.  The comment on the streets and in the hotels relative to the verdict indicates that the finding of the jury has met with general approval by all citizens who were familiar with the crime and the surrounding circumstances.

Ellis will be brought before Judge B. J. Bethurum Tuesday morning, when court convenes and sentence will be pronounced upon him.  Judge Bethurum did not pronounce sentence upon Ellis when the jury brought in its verdict because the law requires that three days elapse after the finding of the jury, before the sentence is pronounced.

Helton Jury to be Chosen.

In a few hours after the sentence is passed the selection of a jury for the trial of Fount [Helton], also incited for the double murder of Beatty and Heath, will be taken up, as 90 men have been summoned from Casey county from whom the selection of a jury to try Helton will begin at [?illegible] o'clock Tuesday.

Helton is a cripple, both feet being mere stubs and it being necessary for him to use crutches in order to walk at all.  He was a deputy constable at the time the killing occurred, having been deputized by Magistrate Beatty to arrest James Ellis on some warrants issued against Ellis for illicit liquor selling and also gaming.

The keenest interest is being manifested in the coming trial of Helton and his evidence is awaited with anxiety by all, as it is believed his testimony will throw a clearer light on the happenings which took place in the little courtroom where the tragedy occurred.

No Witness Saw Helton.

No witness who testified in the Ellis trial saw Helton at any time during the shooting, though one young boy who saw Ellis shooting Heath said he saw Helton's foot at one side as if sitting down.

When Helton came from the room after the shooting there were three empty cartridges in his pistol and two loaded ones, thus indicating he had only fired three shots, while both Beatty and Heath had five bullet wounds in their bodies.

The crime for which Ellis received the death penalty is regarded as one of the most brutal which has darkened the county's record in half a century.  In his charge to the special grand jury, which indicted Ellis and Helton, Judge Bethurum referred to it as one of the most cowardly and brutal crimes ever committed.  Ellis was a deputy sheriff, Helton was a deputy constable, A. J. Beatty was a magistrate and W. F. Heath was a constable.  Heath and Beatty were sitting in their little courtroom at Burnside, where they transacted the business of their district, when Ellis and Helton were seen to enter the room.

Almost instantly the fusillade of shots commenced and when the people rushed into the room after the shooting had ceased they found Beatty lying on the floor gasping as his last breath and in his shirt sleeves, while Heath was lying in his chair, which had turned backward with him.  Both men had five bullet wounds in their bodies and pools of blood trickled around them, while the clothing of Beatty was burning around one of the wounds, the shot having been fired at such a close range as to set fire to his clothing.  His old mother, 66 years old, who was the first person to enter the building, extinguished the blaze.

Sheriff Prevented Lynching.

It developed in the proof that Ellis had established a soft drink stand just outside of the city limits of Burnside and was selling a near-beer.  Just after the killing a number of citizens went to the place and tore the building down and poured out three or four barrels of the drink.

It was only by the coolness of Sheriff J. M. Weddle and his deputies that both Helton and Ellis were prevented from being lynched before he got the[m] out of Burnside.  The sheriff said if he had been five minutes later in getting across the river both would undoubtedly have been dealt with summarily.  The real cause leading up to the point of the killing was the arrest of Ellis on warrants for gaming and selling liquors and it was for the purpose of answering to these warrants and making bond or being recognized to have gone into the courtroom at the time the crime was committed. [15]


[September 19, 1911] -


James Ellis Convicted at Somerset And Condemned to Electric Chair For Murder of Squire Beatty At Burnside.

The Lincoln county jury which tried James Ellis at Somerset last week gave a death verdict against him. The Jurymen returned to their homes her[e] Sunday morning and were met at the depot by friends and relatives who congratulated them upon their action.

A dispatch from Somerset tells of the closing scenes of the elebrated trial:

After being out three hours with an hour for supper, the jury in the case of James Ellis, charged with the murder of Squire Beatty at Burnside some time ago, announced at 8 o'clock Saturday night that they had reached a verdict. The court-room was crowded. Judge Bethurum sent for the prisoner and upon his arrival the jury was brought in E. B. Denham as foreman, read the verdict. He said, "We, the jury, find the defendant guilty and fix his penalty at death."

Each juror said it was his verdict. Ellis showed no sign of weakening and his expression changed by little. His wife threw herself in his arms an cried. His sister also cried aloud. Ellis tried to pacify them. His children hung to his neck. On Tuesday Judge Bethurum will set the day for exe[c]ution.

This is the first death penalty inflicted in the courts there for thirty years. A great crowd of Burnside citizens was present to hear the verdict. The jury on the first ballot voted guilty, one juryman (Mr. J. M. Pettus) holding out for life sentence eleven were for death. On the second ballot the verdict for the death penalty was unanimous.

The trial of Helton will be called on Tuesday. Judge Bethurum has sent to Casey county for a jury.

Most of Saturday was taken up with arguments. The defense finished its evidence at 10 o'clock after which the prosecution offered several witnesses to prove heath's good character. United States Attorney Edwin P. Morrow spoke first for the State and he in a most dramatic way pictured the murder of Beatty and Heath and all that led up to it. His picture of the grief-stricken mother when she as brutally ordered away from the body of her son immediately following the killing brought tears to the eyes of many spectators, and Ellis' sister, who has been constantly in the court-room could not control her emotion. The sobs of Mrs. Beatty could be heard over the hushed court-room. Mr. Morrow spoke for an hour and a half.

All the while that J. N. Sharp was speaking in his behalf Ellis held his smallest child in his lap while the others played about his knees. When Sharp would make a good point in his speech, as Ellis though he would smile and nod his head. Sharp spoke for nearly two hours and was the only one to speak for the defense. He said that no two witnesses had testified to the same thing in the trial that every one of them saw the tragedy in a different way; that he did not see how a jury could send a man to death in the electric chair under such circumstances. Sharp pointedly called attention of jury to array of legal talent for the prosecution that filled the entire side of the court-room. He intimated quite broadly that Ellis was being persecuted instead of prosecuted, that wealth was arrayed against an innocent party.

Commonwealth's Attorney Jarvis closed the case at 5 o'clock, when the jury retired to its room to consider its verdict. Jarvis addressed the jury for nearly two hours, plead for a verdict of murder in the first degree.

"I will not read the instructions of the court as to manslaughter, for they do not, in my opinion, properly enter the case. This was murder in the first degree." [16]


[September 19, 1911] -

Ellis Given Death Sentence.  

After deliberating for three hours Saturday night the jury which has been trying James Ellis at Somerset who was charged with the murder of Magistrate A. J. Beatty, several weeks ago, returned a verdict of guilty in the first degree and fixed the punishment at death. [17]


[September 22, 1911] -

At Somerset Saturday a Lincoln county jury, summoned from that county because one was not obtainable in Pulaski, found James Ellis guilty of the murder of Esquire Beattie at Burnside, Ky. sometime ago and fixed his punishment at death. This will be the first legal execution in Pulaski county in thirty years. Ellis together with Fount Helton is charged with the murder of Esquire Beattie and his constable Heath in the former's court room at Burnside. Helton's trial is now in progress. [18]


[September 24, 1911] -


Jury Returns Verdict and Fixes Punishment At Life In Prison


True Bills Charging Helton and Ellis With Another Murder Stand

(Special To The Herald.)

SOMERSET, Ky., Sept. 23.--"We the jury, find the defendant, Fount Helton, guilty of wilful murder and fix his punishment at confinement in the State penitentiary for life.  W. A. Burkett, foreman."

The above words rang out on a crowded, but deathly still court room at 9:15 this morning, and fell upon the ears of the defendant, Fount Helton, who sat right close to the foreman while he was reading the verdict.  He might have been reading a passage of holy writ insofar as any change of feeling was indicated by the expression on Helton's face.  He sat unmoved during the reading of the verdict, and displayed no unusual concern at all that was discernable to the eye.

To Be Sentenced Tuesday.

He will be formaly sentenced by Judge B. J. Bethurum on next Tuesday, the law requiring the elapse of three days after a verdict is returned before the court passes final sentence.  Helton's wife and children, who have been by his side during the progress of the trial, had not reached the court room when the jury came in with its verdict and none of his family were at his side at the time.

The jury stood ten for the death penalty on the first ballot, after reaching the jury room last night at 10 o'clock, and all twelve of the jurors voted unanimously upon the first ballot of guilty of wilful murder.

They were adjourned at 9 o'clock last night at which hour they had failed to reach a verdict.  They were returned to the court room and sent to the jury room for further deliberation at 8:30 this morning, and at 9 they sent word into Judge Bethurum that they were ready to report with a verdict.  The jailer and sheriff were ordered to bring Helton into court and a short time afterwards the jury filed in and read their findings in the case.

Court Room Crowded.

The large court room was crowded early this morning with an expectant throng, who anxiously awaited the announcement of the verdict.  A large number of women were in the room when the jury came in with the verdict.

The jury had the case under deliberation just two and one-half hours, or almost exactly the same length of time which the jury which tried James Ellis for the same offense and returned a verdict of death penalty, considered the case.  This jury was selected from Casey county and the one which tried Ellis was procured in Lincoln county.

Other Indictments Stand.

Both Ellis and Helton stand indicted for wilful murder of Constable W. F. Heath, who was killed at the same time of A. J. Beatty.  They were tried separately and tried first for killing Beatty, hence the indictments for killing Heath stand.  Both Ellis and Helton admitted on the witness stand that they killed Heath, but said it was in self defense, while both vehemently denied to the end of shooting Beatty or knowing who shot him.

The double killing of Beatty and Heath was one of the most brutal killings that has ever occurred in this section of the State, it aroused the people all over this county as no other killing has ever done.

Both Good Officers.

Beatty and Heath were both efficient and courageous officers, an had been doing a great work in their bailiwick in cleaning out the illicit selling of intoxicating beverages in that vicinity.  They were in the room where they held court about 5 o'clock on the afternoon of July 14 last, when Ellis and Helton entered the room, and in a few minutes the awful destruction of human life had been finished.

To such an extent were the people of Burnside and vicinity aroused that it was by a very narrowest margin and the coolest and bravest actions of Sheriff Weidle that a double lynching was averted at that time before the two men were taken from Burnside and lodged in jail here.

Immense crowds of the best citizens of Burnside, both men and women, have been in the court room every day almost during the trials of Ellis and Helton, which have consumed two weeks time. [19]


[September 25, 1911] -


If Found Helton is given a death sentence at Somerset this week there will be four widows and twenty orphans left as a result of the tragedy wherein Magistrate Beatty and Constable Heath were assassinated at Burnside on July 12th.--Danville Advocate.  [20]


[September 26, 1911] -

Fount Helton was given a life sentence at Somerset for complicity in the Heath and Beatty killing. A Casey county jury tried him. Ten of the [j]urymen are said to have favored the death penalty. The members of the jury were Oscar Cochran, Steve Ellis, Robert Davis, S. B. Sharp, Tom Lowe, James Click, W. G. Jeffries, John Russell, W. D. Moore, Walter Burkett, G. L. Barlow and Hardin Ellis. [21]


[September 27, 1911] -


Murderer of Beatty, Who Attempted To Escape Is Sent to Danville

SOMERSET, Ky., Sept. 26--Judge B. J. Bethurum issued an order today for the removal of James Ellis, under sentence of death for the murder of A. J. Beatty, from the county jail here to the jail at Danville for safe-keeping, until the day of his execution, or retrial, should he appeal his case and obtain a reversal of the death verdict.  Sheriff J. M. Waddle left with Ellis on the 4 o'clock train this afternoon for Danville.

Ellis came so near making is escape Saturday  night by sawing the bars of his cell, having been discovered by the deputy jailer just in time to stop the attempt, that it was deemed best by Judge Bethurum to send him to Danville, where he was kept for the several weeks prior to his trial here.

Helton, who was given a life sentence for the same offense as that of which Ellis was convicted, is still in jail here.  The case against him, charging the wilful murder of W. F. Heath will be continued until the next term of the Pulaski Circuit Court in February.  [22]


[September 28, 1911] -


Fount Helton, indicted as an accomplice of James Ellis, convicted and sentenced to death last week for the murder of Magistrate Beatty at Burnside, a few months ago, was tried this week and also convicted, receiving a life sentence to the penitentiary. It is said that ten of the Jury voted on the first ballot for the death penalty.  Ellis, who is still confined in the Somerset jail, was discovered on the 24th endeavoring to escape. He had two saws and a bottle of acid and had succeeded in sawing through two bars of his cell. Give us a few more such juries and there will be less crime in Kentucky. [23]


[September 28, 1911] -


Somerset.-- "We, the jury, find the defendant, Fount Helton, guilty of willful murder and fix his punishment in the penitentiary for life."

Such was the finding of the 12 men who tried Helton for the killing of Magistrate A. J. Beatty at Burnside.

It is thought that Helton's lawyers will not appeal the case. Helton will be tried at the next term of court for the murder of Constable Heath. [24]


[September 29, 1911] -

At Somerset a Casey county jury found Fount Helton, charged with the murder of Squire Beatty at Burnside, guilty and fixed his punishment at life imprisonment in the penitentiary.  On the first ballot ten of the jury were for the death penalty.  Ellis who was charged with the same offense as Helton, was last week given the extreme penalty by a jury summoned from Lincoln county.  Helton will be tried at the next term of the Pulaski court for the murder of Constable Heath. [25]


[September 29, 1911] -

Somerset Murderer

Makes Desperate Attempt to Escape the Electric Chair

James Ellis the Pulaski murderer, who was given a death sentence by a Lincoln county jury, made a desperate attempt to escape from the jail at Somerset where he is confined on last Sunday night.  A dispatch from Somerset tells of the affair as follows:

Somerset.--Had Deputy Jailer Johnson been a few minutes later last night in investigating the cells in which James Ellis, who is under death sentence for the murder of A. J. Beatty is kept, Ellis would be at large today, as two bars of his cell had already been sawed and four sawblades and a bottle of acid were found in his cell by Johnson when he went to to the cell where Ellis and another prisoner are incarcerated.

Deputy Sheriff George Waddle was given a tip at a late hour last night by a friend, who had overheard a conversation earlier in the night, which lead him to believe an attempt would be made by Ellis to liberate himself.

Waddle went at once to Jailer Neal Silvers and advised him of the fact and Deputy Jailer Johnson was put on guard.  He soon discovered the men at work.

The cell was searched and the four saws and a bottle of acid were found secreted.  The authorities are investigating a clue as to who slipped the saws and acid to the prisoners and how it was done.

It is probable that Judge Bethurum will send Ellis to Danville or Lexington for safe keeping.  He was kept in the Danville jail prior to his trial and conviction here last week. [26]


[October 4, 1911] -

Judge B. J. Bethurum, at Somerset, passed formal sentence on Fount Helton for willful murder of A. J. Beatty, for which the jury gave him a life sentence, and ordered the Sheriff to take Helton to the penitentiary at once. Helton decided to take his sentence and not ask for a new trial. He will not be tried for the killing of Heath. [27]


[February 13, 1912] -

Ellis v. Commonwealth.


146 Ky. 715; 143 S.W. 425; 1912 Ky. LEXIS 168

February 13, 1912, Decided

PRIOR HISTORY:  [***1]  Appeal from Pulaski Circuit Court. 

DISPOSITION: Judgment affirmed.


JAMES GARNETT, Attorney General, CHARLES H. MORRIS, Assistant Attorney General, O. H. WADDLE & SON, M. L. JARVIS, Commonwealth's Attorney; MORROW & MORROW, WESLEY & BROWN for appellee. 




 [**425]   [*716]  OPINION OF THE COURT BY JUDGE CARROLL--Affirming.

Under sentence of death by the judgment of the Pulaski Circuit Court, the appellant prosecutes this appeal, and asks a reversal for errors committed to his prejudice  [**426]  during the trial that resulted in his conviction.

The appellant and Fount Helton were indicted by the grand jury of Pulaski county at a special term of the circuit court held in July, 1911, for the murder of A. J. Beatty, and, when the case was called for trial at this special term, on motion of the defendants, the Commonwealth was required to elect which one of them it would first try, and it elected to try appellant. Thereupon, the appellant filed a motion and grounds for a continuance, and the case was continued until the regular September term of the court, when the trial [***2]  was had and the judgment entered from which this appeal is prosecuted.
 [*717]  Before taking up the facts of the case and the errors that it is alleged were committed in the admission of evidence and in the instructions given to the jury, we will dispose of the preliminary question raised by counsel, that the motion to quash the indictment should have been sustained because the court had no jurisdiction to call the special term or to empanel a grand jury thereat or receive the indictment against appellant returned by this grand jury.

The order calling the special term at which the indictment was found conformed strictly to the provisions of the statute. It set out that it appearing to the satisfaction of the Judge that the business of the court required it, a special term was called to convene on July 28th, and further gave notice that--
"A grand jury will be empaneled at said special term of said court for the investigation of violations of the criminal and penal laws of the State, and should said grand jury return indictments against James Ellis and Fount Helton, or either of them, upon the charge of shooting and killing A. J. Beatty and W. F. Heath, or either of them, said [***3]  prosecutions will stand for trial, and motions, orders and judgments may be made and entered in either or both of said cases."

Upon this record it will be conclusively presumed that there was a necessity for calling the special term, and this order gave the court at the special term full jurisdiction to take any action that could be taken at a regular term of the court in reference to the indictment and trial of violators of the penal and criminal laws of the Commonwealth, and, therefore, the court correctly overruled the motion of counsel for appellant to quash the indictment. Banks v. Commonwealth, 145 Ky. 800, 141 S.W. 380; Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540.

Another error assigned is that the court disregarded the substantial rights of appellant in discharging four jurors. It arises in this way--at the September term, when the case was called for trial, all the jurors composing the regular panel were excused except four, who were tentatively accepted by both parties but not finally by either. After the regular panel had been exhausted, with this result, the court under the authority conferred by Section 194 of the Criminal Code ordered [***4]  the sheriff to summon one hundred qualified jurors from the adjoining  [*718]  county of Lincoln, and after this order was made the Judge on his own motion and over the objection of counsel for appellant, discharged the four Pulaski county jurors that had been conditionally accepted. It is evident that the court was influenced to take this action because he believed a fairer trial could be secured for both the Commonwealth and the accused if all the jurors were selected from an adjoining county; and there is no suggestion in the record that the rights of appellant were in any manner prejudiced by this ruling of the court, to which only a formal objection was made. But if this were not so, we would nevertheless be precluded from reviewing the ruling of the court by Section 281 of the Criminal Code, providing that:

"The decisions of the court upon challenges to the panel, and for cause, or upon motion to set aside an indictment, shall not be subject to exception."

Construing this section of the Code in many cases, we have ruled that error--if there be one--in the manner of obtaining or selecting a panel is not available in this court, as the decision of the trial court on questions [***5]  relating to the empaneling of jurors is not subject to exception. Howard v. Commonwealth, 118 Ky. 1, 80 S.W. 211. It must be admitted that this section and the construction given to it, places great and unrestrained power in the hands of the trial judge in the selection of a jury, but it is not to be assumed that a judge will exercise it in an arbitrary or unjust manner or so abuse his office or discretion as to knowingly or purposely deny either to the Commonwealth or the accused the right to select a jury in the mode pointed out in the Code and statutes. But, however this may be, it is certain that in this case the trial judge did nothing to affect either the rights of appellant or the Commonwealth.

Coming now to the facts of the case, they may be stated as follows: A. J. Beatty was a justice of the peace in the magisterial district of Pulaski county, embracing the town of Burnside, in which the homicide took place, and W. F. Heath was the constable in that district. The appellant, Ellis, was a deputy sheriff of Pulaski county, and his co-defendant, Fount Helton, had been appointed a deputy constable for the district. So that, all of the parties were officers of the [***6]  law, and the evidence shows that both Esquire Beatty and Constable Heath were vigilant and faithful in the discharge of all  [*719]  of their official duties, and especially earnest and efficient in their efforts to suppress the unlawful sale of intoxicating liquors in that district. The appellant for some time previous  [**427]  to the homicide had been engaged in operating what is called a "soft drink" establishment, and a number of warrants had been issued against him by Esquire Beatty for violations of the liquor laws. Some of these warrants had been placed in the hands of Fount Helton for execution, and it appears that on the day of the homicide, Helton, acting in the capacity of deputy constable, in company with the appellant, came to Burnside, where Esquire Beatty lived, and had his office, for the purpose of permitting appellant to execute bonds for his appearance to answer at a trial under these warrants. The shooting that resulted in the death of Esquire Beatty and Heath occurred about five o'clock in the afternoon, and appellant and Helton had been in Burnside for several hours previous to that time. Sometime before five o'clock they both became under the influence [***7]  of liquor, and at some place in the town acted in such a disorderly manner that a citizen at once applied to Esquire Beatty for a warrant for their arrest, of which fact both appellant and Helton had notice before they went to the office of Esquire Beatty, which was in a large room upstairs over a store. When appellant and Helton, both of whom were armed with pistols, and either drinking or drunk, went upstairs to the office, they found there no persons except Esquire Beatty and Heath, both of whom it appears were seated in the room when Helton and appellant went in. It is shown that in addition to the warrants of arrest that Helton had for appellant, Esquire Beatty had prepared and there was on his table several other warrants against appellant for violations of the liquor laws as well as violations of the gaming laws, and also a warrant for his arrest on the charge of disorderly conduct in the town of Burnside that afternoon. Appellant and Helton had only been in the office a few minutes when the shooting commenced, and, as no persons except the four men were present, there is no testimony as to what occurred immediately before the firing began, except the evidence of appellant,  [***8]  as Helton was not introduced as a witness. But there was a brief interval between some of the shots, and before the shooting was entirely over, some persons who were convenient saw a part of what happened  [*720]  through windows in the room. Without relating further at this place the details of the tragedy, it may be said that when the shooting was over, Heath was found lying dead in the room with five shots in his body and Esquire Beatty so desperately wounded by a like number of shots that he died in a few minutes.

The appellant in his testimony said in substance that when he and Helton went into the room, they found Esquire Beatty and constable Heath both seated at a table, Esquire Beatty being busy writing or handling some papers about his typewriter which sat near him on the table. That he asked Esquire Beatty if he was ready to recognize him on the warrants that had been delivered to Helton for his arrest, and, before Esquire Beatty had time to answer, Heath arose up out of his chair and said, "I have a warrant for you," and immediately drew his pistol, when Helton, who was standing close to him grabbed it and at once the shooting commenced. He admitted that he fired several [***9]  shots at Heath, but denied that he fired any shots at Esquire Beatty or that any shots fired by him struck Esquire Beatty, and if they did, it was not intentional on his part, as he had no grievance against Esquire Beatty or against Heath, and only shot Heath in self-defense. There being no direct evidence that appellant shot Esquire Beatty, the Commonwealth was obliged to and did make out the case against him by circumstances and facts which demonstrated in a very satisfactory manner that he either shot Esquire Beatty or aided and assisted Helton in shooting him. That one or the other of them shot and killed Esquire Beatty there can be no doubt, and this being so, it is not material which one of them fired the shots that killed him, if the other aided or assisted the one that did the shooting. Beatty, at the time he was killed, was unarmed, and in the act of discharging his official duties and there is no suggestion that he had in any manner threatened or assaulted either appellant or Helton. Although appellant testifies that he had no grievance against either Esquire Beatty or Constable Heath, it is a fact, nevertheless, that a number of warrants had been issued by Esquire Beatty [***10]  for his arrest and that at the time he was killed he was issuing other warrants for his arrest, and it is also shown that both Esquire Beatty and Constable Heath were determined to suppress the illegal sale of intoxicating liquors, and  [*721]  that appellant, under the guise of operating a "soft drink" establishment, was engaged persistently in this lawless traffic. So that, notwithstanding his protestations of friendship, it is easy to believe that he entertained for both of them a hostile feeling which was aggravated by his intoxicated condition. And, although it is shown that appellant, in company with Helton, went into the office of Esquire Beatty for the purpose of executing bonds for his appearance, declarations made by him that afternoon shortly before he went to the office, strongly establish that his mind was not filled with peaceful intentions. As illustrative of this, it is in evidence that a few days before the homicide, he said in response to a suggestion that Constable Heath would give him trouble if he attempted to sell whiskey in Burnside; "G  d   him; he can't arrest me; I'll be d   if he does; I am crippled up now and can't run." And Lum Evans testified [***11]  that just a few minutes before Esquire Beatty was killed a man named Waldon asked him to go and get out a warrant for the arrest of appellant and Helton  [**428]  for disorderly conduct, and that while on his way to see about having a warrant issued or on his return after he had given the necessary information, he met appellant, who said to him: "Did you go after Mr. Heath?" And, in reply he said that Mr. Waldon told him to do it; when appellant said, "Do you know you are going to cause some trouble here in Burnside right away over that." He further testified that the appellant said "He was there to back up what he had done, and stay in Burnside." Mrs. Sallie Spencer testified that between three and four o'clock that afternoon, she saw the appellant and Helton driving in a buggy towards Loyd's store. Asked to tell the jury whether or not she heard appellant say anything on that day, and if so, what it was she heard him say, she answered:

"I was taking some milk and butter and had to pass Loyd's store, and as I passed the buggy I noticed the crippled man in it (that is, Helton), and as I drew near the store I heard talking in the store; a quick voice said, 'I would kill the d  s  o  b   s,  [***12]  ' and Ellis said, 'If I make a pass I will fill them both full;' and that was as he came out of the screen door; he liked to have run over me. Q. Where did he go? A. He went to the buggy and got in and they drove back. Q. Do you know whose voice it was that said 'he would kill the s   o   [*722]  b   s? A. I don't know. Q. How long after he spoke until Ellis said what he did? A. The man spoke as Ellis opened the screen door and came out, and I stepped up, and Mr. Loyd said 'good evening' in a low tone of voice."

She did not know who the people in the store were talking about, or who remarked that "I would kill the d   s   o   b   s," and it is argued that this evidence was incompetent. It does not appear that any objection was made to the evidence at the time the witness testified, but at the conclusion of the evidence for the Commonwealth, counsel for appellant

"Made a motion to exclude certain testimony of witness York, Solomon, Evans, and made the same motion as to the testimony of Mrs. Sallie Spencer, and the testimony of all the witnesses that stated that they say they saw this defendant Ellis shoot and kill Wm. Heath, because Beatty was killed prior to the [***13]  time Heath was fired at or killed; which motion was overruled."

It is very clear that if this evidence of the witness was incompetent, no proper or available objection or exception was taken to it, as the motion at the conclusion of the evidence to exclude from the jury "the testimony of Mrs. Sallie Spencer" was not sufficiently definite to call the attention of the court to the particular answers in her evidence that counsel desired to object to. By all the rules of practice with which we are familiar, when objection is made to the whole of the testimony of a witness, without specifying any particular part of it, the motion should be overruled, if any of it is competent. If it is desired to save an exception to incompetent evidence that can be available upon appeal, the exception should point out the particular evidence objected to. Mrs. Spencer testified in relation to several matters other than the declarations of appellant, and although the court might have been of the opinion that her statement as to what appellant said was incompetent, he would yet not have been justified in excluding as requested by the motion the whole of her evidence, because other matters testified to by [***14]  her were unquestionably competent. With this statement as to the condition of the record, we might well leave without further comment the objection to this evidence, but in view of the grave character of the case, we will consider it more fully for the purpose of showing that this evidence was competent.  [*723]  As we understand the rule evidence of a threat, or a general threat to do violence to some person or persons, although the declarant may not mention the name of any person, and the witness may not know what person or persons the threats are directed against or have reference to, is competent as showing malice and ill will either general or personal, when, shortly after the threat is made, the declarant carries the threat out by an attack or assault on the person he is being prosecuted for assaulting. The subsequent assault shows that the declarant in threatening to do violence had malice and ill will towards everybody or towards some particular person, and, evidence of the threat is competent to show general malice and ill will and a general desire to commit violence, or malice and ill will towards the person who is the subject of the assault. In this case, that the threat [***15]  was directed at Esquire Beatty and Constable Heath, can not be doubted, when considered in connection with the murderous assault shortly afterwards made upon them. The question of the competency of evidence like this was before the court in Sparks v. Commonwealth, 89 Ky. 644, 20 S.W. 167. In that case, the court said:

"The first error we will notice is the refusal of the court to permit a declaration of the deceased, made a short time before he advanced towards the store house of appellants, to go to the jury. That declaration, accompanied with an oath, was that he was going to take Lilly (the name of the town where the difficulty occurred). Clearly, the court erred in excluding this declaration from the jury; for while the threat was not, in terms, directed at appellants, there can be no doubt that he meant and referred to appellants, or at least to Sparks, who were then in their store house, which was closed to prevent the deceased from entering."

In Brooks v. Commonwealth, 100 Ky. 194, 37 S.W. 1043, it appears from the opinion, that--

"Over the objection of the appellant, testimony was admitted by the trial court in behalf of the Commonwealth of general [***16]  threats made by  [**429]  the appellant on the day and a short time before the difficulty in which the killing occurred, and the object of this testimony was to establish malice. Henry Ross testified that about a half hour before the killing the appellant came to the store where he was clerking, and that he asked him if he wanted anything, and that his answer was: 'Yes; he wanted some damned man to jump on him, so that he  [*724]  could kill him. He had tried Jess Blair and James Blair, and they would not stand in.' Coon Ross testified that from twenty to thirty minutes before the killing the appellant came to where he was, about one hundred yards from the place where the killing occurred, and said he would 'blow some damned man's lamp out.' Dan Caskey testified that a half hour or an hour before the killing, the appellant came where he was, with James Blair, and said: 'Boys, stay in town tonight; I am going to kill some damned man.'"
The court held this evidence admissible:

"In order to establish 'general malice and purpose to injure or kill some one,' of which the deceased became the victim."

In Whitaker v. Commonwealth, 13 Ky. L. Rep. 504, 17 S.W. 358, the Commonwealth [***17]  proved that Whittaker during the day the homicide occurred made threats that he intended to kill some one. In speaking of this evidence, the court said:

"The threats were general; no intended victim was named; but the accused, in profane language, declared his purpose to kill a man upon that day. In making these threats he usually exhibited or referred to his knife or pistol. * * * The evidence of these threats and this conduct was not competent as a part of the subsequent res gestae; they were not a part of the bloody transaction; but it was competent as showing general malice and a purpose to injure or kill some one; and the deceased became the victim." To the same effect is Young v. Commonwealth, 19 Ky. L. Rep. 929, 42 S.W. 1141; Hopkins v. Commonwealth, 50 Pa. 9, 88 Am. Dec., 518; Hodge v. State, 26 Fla. 11, 7 So. 593.
Joe Lewis, Marshal of Burnside, testified that when he heard the firing, he went towards the office of Esquire Beatty and when he got there appellant and Helton were walking out of the room, each with a pistol in his hand, that after appellant came out of the building, appellant remarked "We surrender; we done what we had [***18]  to do," and I said "What have you done?" and he said "We have killed Esquire Beatty and Bill Heath," as I remember. He further testified that while they were walking up the street, appellant said that "him and Helton, or rather that Helton, reached the papers out to the Esquire, and said "Here are the warrants and bonds in these cases" and after he took them into his hand he said "That is all;" he then said Bill Heath spoke up and  [*725]  said 'that is not all for me, Jim; I have papers for you;' and he said Mr. Heath went to his pocket where he had his gun and jerked it out, and he struck at it and the gun fired, and he said 'I thought I was shot and I jerked my gun and went to shooting to save my own life.' Q. Was that all he said? A. Helton rung in then. Q. Did Helton make a statement to you and in the presence of Ellis then and there? A. After this statement had been made by Ellis, Helton said "Esquire Beatty run in and grabbed around me and hugged around me and I don't know what took place." To this last question and answer objection was made and overruled, and it is earnestly insisted that this evidence of Lewis relating what Helton said was incompetent and prejudicial, as [***19]  appellant did not assent or agree to what Helton said and should not be bound by it. Merriweather v. Commonwealth, 118 Ky. 870, 82 S.W. 592. It is quite difficult to understand in what respect this statement of Helton's was prejudicial to appellant, as it did not in any manner or form implicate appellant in the shooting of Esquire Beatty; nor did it contradict appellant's version of what occurred, as will be seen by the following extracts from his testimony:

"Q. What became of Beatty and yourself while that was going on? A. I got against the side of the house and Beatty was behind me. Q. Did you stay there--how long--or, what was said or done by you or Esquire Beatty? A. I was trying to get back out of the way, and Heath was trying to get the pistol loose, and Helton was shooting, and Heath was knocking it off; and it fired back where we was, and the smoke blinded us, and then Beatty hollered. Q. What did he say? A. He said he was killed. Q. After Beatty hollered that he was killed, did you feel him? A. He run around me, and run right into them. Q. What occurred after Beatty fell in there on these people? A. After he run among them, he came down on Fount's arm, and broke [***20]  his hand loose from the pistol, and then Heath turned it on me, and then I went to shooting."

In his cross-examination he said this: "Q. When Beatty hollered, did he fall? A. No, sir. Q. What did he do? A. He run around from behind me and got into them. Q. He run ahead of you and passed around the table and got to where Heath and Helton was? A. No, sir. Q. How did he get to them? A. He was right here, and they were here scuffling over the corner of the table,  [*726]  and Beatty run around here and got in here and Helton's arm was up and he broke it loose from Heath's pistol. Q. He broke Helton's hand loose from Heath's pistol, and you say Heath turned it towards you? A. He did. Q. You heard Beatty hollering 'I am killed' and he run in and grabbed Helton's arm, Beatty was on the left side of Helton and he left you and you commenced shooting at Heath? A. Yes, sir. Q. With Helton and  [**430]  Beatty between you and Heath? A. Yes, sir. Q. And you fired four shots? A. Yes, sir, I did."

From this, it will be observed that appellant not only fully corroborated the statement that Helton made, but related in detail the manner in which Esquire Beatty run in and "grabbed" or "hugged"  [***21]  Helton.

In view of this evidence of appellant, it is clear that the statement of Helton was not at all prejudicial, as a party can not well be prejudiced by the statement of another person that he adopts and makes a part of his own testimony.

Another insistence of counsel is that a new trial should have been granted upon the ground of newly discovered evidence. In the motion of a new trial it is set out as one of the grounds that:

"The defendant has discovered important evidence in his favor since the verdict, to wit: That of Mrs. Mat Loyd, John Cox, Laura Coomer and Agnes Coomer, as follows: That the said witnesses will testify, and the same will be true when proven, that at the time the defendants, James Ellis and Fount Helton were at the store of Mat Loyd, Mrs. Spencer was at the home of Laura Coomer and Agnes Coomer, at least one hundred yards from the store of Mat Loyd, and did not hear and could not have heard James Ellis say that 'if I bring it up, I will fill them full' or any words whatever; that Mrs. Mat Loyd and Laura Hughes will state that neither James Ellis nor Fount Helton made any statement at Loyd's store about Esquire Beatty or William Heath, or either of them,  [***22]  and that neither of them made any statement or statements as testified to by the said Sallie Spencer; and, that the statements of Sallie Spencer were untrue in whole."

In support of this ground, there is filed the affidavits of Mrs. Loyd, Laura Hughes, John Cox, Laura Coomer and Agnes Coomer; but there is no affidavit of appellant that he did not discover and could not by the exercise of reasonable diligence have discovered these witnesses  [*727]  and what they would testify to before the trial was concluded. Excepting the unsupported statement in the ground for a new trial that "the defendant has discovered important evidence in his favor since the verdict," the record does not show when this evidence was discovered. Section 271 of the Criminal Code provides that:

"The court in which a trial is had upon an issue of fact may grant a new trial, if a verdict be rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases. * * * (6) If the defendant have discovered important evidence in his favor since the verdict."

Previous to the amendment of section 281 of the Criminal Code by the act of March 23, 1910, the action [***23]  of the lower court in overruling a motion for a new trial could not be reviewed by this court on appeal; and so if a new trial was asked on the ground of newly discovered evidence, and the lower court declined to grant a new trial, the matter would be finally ended. But now we have the power to review the action of the lower court in overruling a motion for a new trial, if it appears that the court erroneously refused to grant a new trial. And so, if one of the grounds for a new trial is newly discovered evidence, and the motion is overruled in the lower court, we will consider the grounds relied on and grant or refuse a new trial as seems right and proper. Wilson v. Commonwealth, 140 Ky. 1, 130 S.W. 794. But the practice as to granting new trials for newly discovered evidence is the same in criminal as in civil cases. Hays v. Commonwealth, 140 Ky. 184, 130 S.W. 987. And it is the settled and well known practice in civil cases that a new trial will not be granted on the ground of newly discovered evidence unless the party asking a new trial in addition to the other requisites files his affidavit setting out that he did not know and by the exercise of reasonable [***24]  diligence could not have known of the existence of the newly discovered evidence until after the trial had concluded. Bronson v. Green, 2 Duv. 234. The reason for this rule is obvious. Except for it, a party might not make any effort to obtain the presence or testimony of absent witnesses until after there had been an adverse judgment against him. If a new trial should be granted upon the ground of newly discovered evidence, upon the mere statement in the motion and grounds for a new trial that the evidence was not discovered until after the verdict it would  [*728]  encourage defendants to be indifferent and careless in the preparation of their case, would greatly obstruct and embarrass the administration of the criminal law, and afford wide opportunity to obtain new trials when by the exercise of reasonable diligence the newly-discovered evidence could have been procured on the trial. So that, the defendant asking a new trial on this ground must affirmatively show by his own affidavit that the evidence was unknown to him and his counsel engaged in the trial, and could not have been discovered by him during the trial. Nor will a new trial be granted in any state of [***25]  case where the newly-discovered evidence is merely cumulative or unless it be "of such a permanent and unerring character as to preponderate greatly or have decisive influence upon the evidence to be overturned by it; and especially does this rule obtain with respect to parol testimony." It is a further rule of practice that a new trial will not be granted except in rare cases on account of newly-discovered evidence, which only tends to discredit or impeach an opposing witness. Price v. Thompson, 84 Ky. 219, 1 S.W. 408; L. & N. R. Co. v. Ueltschi's Admr.,  [**431]  126 Ky. 556, 104 S.W. 320; Hays v. Commonwealth, 140 Ky. 184, 130 S.W. 987. We may further add that if the practice we have outlined had been observed the discovered evidence was not sufficient to justify us in ruling that the appellant was entitled to a new trial, first, because the evidence of Mrs. Spencer was merely cumulative, and second, because the only effect of the newly-discovered evidence was to discredit or impeach her testimony and this evidence was not of such controlling importance as to warrant a departure from the rule that a new trial will not generally be granted [***26]  to discredit or impeach a witness. Some technical and unsubstantial errors in the instructions are pointed out by counsel for appellant, but upon the whole we think they fairly and correctly submitted the issues involved to the jury.

The first instruction told the jury in substance that if appellant not in defense of himself or Helton shot and killed Esquire Beatty, or, that Helton not in his defense or in the defense of appellant killed him, and that appellant was present advising and assisting Helton in killing him, or, if they believe that appellant not in his self-defense or in defense of Helton shot at Constable Heath and killed Esquire Beatty, or, that Helton not in defense of himself or appellant shot at Constable Heath with the  [*729]  intention of killing him and killed Esquire Beatty, and was advised so to do by appellant, they should find appellant guilty of murder if he acted maliciously in shooting and killing Esquire Beatty or in aiding and assisting Helton to do so, and guilty of voluntary manslaughter if he shot Esquire Beatty or aided or assisted Helton in shooting him in sudden heat and passion and without previous malice.

In another instruction they were told [***27]  that although they believed from the evidence that appellant shot and killed Esquire Beatty, or aided and assisted Helton in shooting and killing him, they should acquit him if he had reasonable grounds to believe that he or Helton was in danger of serious harm at the hands of Esquire Beatty, and that it was necessary or believed by appellant in the exercise of a reasonable judgment to be necessary to shoot and kill Esquire Beatty or to aid or assist Helton in so doing.

In another they were told that although they might believe from the evidence that appellant shot at Constable Heath with the intent to kill him, and in so doing the shot took effect in the body of Esquire Beatty, killing him, or, that Helton fired at Constable Heath with the intent to kill him and the shot so fired killed Esquire Beatty, and that appellant aided and assisted Helton in so shooting at Heath, yet, if they further believed that at the time appellant believed and had reasonable grounds to believe that he or Helton were in danger of bodily harm at the hands of Constable Heath, and that it was necessary or believed by appellant in the exercise of a reasonable judgment to be necessary to aid and assist Helton [***28]  in shooting Constable Heath in order to avert the danger, they should acquit him.

In another instruction they were told that:

"You are to take and receive the affidavit of Waldon and the warrants read to you by the witness, R. H. Waddle, which were issued against defendant, Ellis, by deceased, Beatty, as a justice of the peace, as evidence for the purpose only and in so far only as in your judgment may tend to show a motive for the acts and conduct of the parties to the difficulty, in which A. J. Beatty and W. F. Heath were killed, if in your judgment they do show or tend to show motive. The word 'motive,' as used in these instructions by the court means inducement, reason, cause or incentive to do the acts and things charged  [*730]  in the indictment herein, if they or any of them were done."

On the trial, it was shown that the affidavit of Waldon, and the warrants issued by Esquire Beatty against appellant were lying on the table of Esquire Beatty at the time he was killed--some of them being in a state of preparation, and it was competent for the Commonwealth to prove the existence of this affidavit and these warrants for the purpose of showing that their preparation and [***29]  issual was the motive, or one of the motives, that prompted appellant in his murderous assault upon Esquire Beatty and Constable Heath. Martin v. Commonwealth, 93 Ky. 189, 19 S.W. 580; Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205; O'Brien v. Commonwealth, 115 Ky. 608, 74 S.W. 666. When this evidence was admitted, it was proper to give the instruction to advise the jury of the only purpose for which this evidence was admitted.

We have given to this record a most careful consideration, and our conclusion upon the whole case is that the appellant had a fair trial and the judgment is affirmed. [28]


[March 4, 1912] -

Murderer Repents

James Ellis, former Pulaski county Deputy Sheriff, who is to be executed at Eddyville, whither he was taken, for the murder of Magistrate Heath and Constable Beattie at Burnside, has put aside his bravado, and is diligently studying the Bible. [29]


[June 4, 1912] -

Death Home Overflowing.  

Thirteen Murderers are Awaiting Electrocution In the Penitentiary. 


Brief Mention of the Eight Men Awaiting Sentence At Eddyville.

In the annex or death house of the Kentucky branch penitentiary at Eddyville, Lyon county, Ky., are confined eight men awaiting the death penalty in the electric chair, five of them white and three black, with five more recently convicted that will be brought here perhaps this week.

In Special Cells. 

In consequence of the crowded condition of the annex, four of the condemned men are confined in special cells in the main building, where also the five on the way will be placed until those in the death house have paid the penalty for their crime.  Following is a brief mention of the eight men awaiting sentence: ...

... The next in line of four is James Ellis, of Pulaski county, for the murder of A. J. Beatty on July 14, 1911.  Ellis is a white man and at the time of the murder was deputy sheriff of his county.  His accomplice, Hart Helton, was given a life sentence.

Ellis is a comparatively young man with a wife and two bright children, of which he talks in the tenderest terms.  Efforts in his behalf have been made with a very unfavorable result. The date of his execution has not been set, but is looked for hourly now, since all efforts for clemency have been refused. [30]


[November 26, 1912] -

Ellis Electrocuted.

Eddyville, Ky., Nov. 23-- James Ellis, thirty-four year old, a white man convicted of the murder of Magistrate Beatty in Pulaski county about a year ago, was electrocuted Friday at the Eddyville penitentiary. [31]


[1] "Pulaski Slayers of Officers Will Be Tried July 28." Lexington Herald, Lexington, KY. July 18, 1911. Page 1. Genealogybank.com

[2] "Wiped Out The County." Hopkinsville Kentuckian, Hopkinsville, KY. July 18, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069395/1911-07-18/ed-1/seq-1/

[3] The Adair County News, Columbia, KY. July 19, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069496/1911-07-19/ed-1/seq-1/

[4] The Big Sandy News, Louisa, KY. July 28, 1911. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn83004226/1911-07-28/ed-1/seq-2/

[5] "Trial of Helton and Ellis on in Pulaski." Lexington Herald, Lexington, KY. August 1, 1911. Page 1. Genealogybank.com

[6] "In Our Own State." The Citizen, Berea, KY. August 3, 1911. Pages 1 and 5. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052076/1911-08-03/ed-1/seq-1/

[7] "Lynching Feared." The Bourbon News, Paris, KY. August 4, 1911. Page 8. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069873/1911-08-04/ed-1/seq-8/

[8] The Adair County News, Columbia, KY. August 9, 1911. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069496/1911-08-09/ed-1/seq-4/

[9] "Trial Continued." The Central Record, Lancaster, KY. August 11, 1911. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069201/1911-08-11/ed-1/seq-2/

[10] "Pulaski Will Have Sensational Trial." Lexington Herald, Lexington, KY. September 5, 1911. Page 3. Genealogybank.com

[11] "Double Murder Case in Pulaski Called." Lexington Herald, Lexington, KY. September 12, 1911. Page 1. Genealogybank.com

[12] Excerpt from "Additional Locals." The Stanford Interior Journal, Stanford, KY. September 12, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052022/1911-09-12/ed-1/seq-1/

[13] Excerpt from "In Our Own State." The Citizen, Berea, KY. September 14, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052076/1911-09-14/ed-1/seq-1/

[14] "Lincoln County Jury Secured to Try Bad Murder Case in Pulaski County." The Stanford Interior Journal, Stanford, KY. September 15, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052022/1911-09-15/ed-1/seq-1/

[15] "Verdict of Death in Ellis Case Approved." Lexington Herald, Lexington, KY. September 18, 1911. Page 2. Genealogybank.com

[16] "Lincoln County Jury Gives Death Penalty." The Stanford Interior Journal, Stanford, KY. September 19, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052022/1911-09-19/ed-1/seq-1/

[17] "Ellis Given Death Sentence." The Bourbon News, Paris, KY. September 19, 1911. Page 8. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069873/1911-09-19/ed-1/seq-8/

[18] The Central Record, Lancaster, KY. September 22, 1911. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069201/1911-09-22/ed-1/seq-2/

[19] "Helton Found Guilty of Murder of Beatty." Lexington Herald, Lexington, KY. September 24, 1911. Page 1. Genealogybank.com.

[20] Excerpt from "With the State Press." Lexington Herald, Lexington, KY. September 25, 1911. Page 4. Genealogybank.com.

[21] The Stanford Interior Journal, Stanford, KY. September 26, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052022/1911-09-26/ed-1/seq-1/

[22] "Ellis is Transferred to Boyle County Jail." Lexington Herald, Lexington  KY. September 27, 1911. Page 1. Genealogybank.com

[23] Excerpt from "In Our Own State." The Citizen, Berea, KY. September 28, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052076/1911-09-28/ed-1/seq-1/

[24] "Gets Life Imprisonment" The Citizen, Berea, KY. September 28, 1911. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052076/1911-09-28/ed-1/seq-3/

[25] The Central Record, Lancaster, KY. September 29, 1911. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069201/1911-09-29/ed-1/seq-2/

[26] "Somerset Murderer Makes Desperate Attempt to Escape the Electric Chair." The Stanford Interior Journal, Stanford, KY. September 29, 1911. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052022/1911-09-29/ed-1/seq-1/

[27] Excerpt from "Kentucky News Notes." The Hartford Herald, Hartford, KY. October 4, 1911. Page 5. LOC. http://chroniclingamerica.loc.gov/lccn/sn84037890/1911-10-04/ed-1/seq-5/

[28] Ellis v. Commonwealth, 146 Ky. 715; 143 S.W. 425 (1912)
. Retrieved from Google Books.   (Also see: Alternative Source)

[29] "Murderer Repents."
Daily Public Ledger, Maysville, KY. March 4, 1912. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069117/1912-03-04/ed-1/seq-1/

[30] Excerpts from "Death Home Overflowing." Hopkinsville Kentuckian, Hopkinsville, KY. June 4, 1912. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069395/1912-06-04/ed-1/seq-1/

[31] "Ellis Electrocuted." Hopkinsville Kentuckian, Hopkinsville, KY. November 26, 1912. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069395/1912-11-26/ed-1/seq-4/

[32] Death Record of Andrew Jackson Beaty. Ancestry.com. Kentucky, Death Records, 1852-1953 [database on-line]. Provo, UT, USA: Ancestry.com Operations Inc, 2007. Retrieved 12/7/2013.



kevin campbell said...

This is about my great grandfather. Justice of the Peace Beatty, He was killed 3 months before my grandmother was born, She never got to meet her father. I have a portrait of him that was given to my father by my grandmother. Nice story , love my family history. Thanks, Kevin Campbell

Marc Mitchel said...

And mine too. My grandmother was Anna Heath Gibson, Constable's daughter, one of eight children aged 22 years down to 9 months, with whom my great-grandmother was left. The 9 month old became the father of a lawyer and grandfather of a judge.

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