Previously:
[May 27, 1884] -
DEPUTY MARSHAL KILLED.--News has reached here that Wat Killion, U. S. Deputy Marshal, who has been operating in the mountains in search of moonshiners, was killed near Lily, Laurel county, Saturday night by a man named Spears, who is an alleged illicit whisky vender. It seems that he attempted once before to arrest Spears without avail and this time when he saw him coming Spears shot at him twice through his bar room window, both shots taking affect. Badly wounded as he was Killion returned fire, when Shears opened on him with a pistol and succeeded in putting three balls into his body, killing him instantly. At last accounts Spears had not been arrested and if he would save his neck he had better never show himself, if the above report is true, as it appears to be. [1]---
[June 3, 1884] -
Sparks, the man charged with killing deputy marshal Killion, and Graves, an accessory, were arrested and at their trial, Saturday, in London, were held in $500 each to answer before the Circuit Court. If some of the statements are true, Killion is not as much deserving of sympathy as was at first alleged. [2]---
[June 11, 1884] -
SPECIAL BAILIFF KILLED.
Four Moonshiners Intrench Themselves in a Grocery, and, Resisting Arrest, Kill Bailiff Killion--An Organized Gang.
Louisville Times.
Intelligence of the death of Special Baliff W. L. Killion was received by United States Marshal A. J. Auxier this morning. He was killed at Lily station, in Laurel county, last Saturday by a part of moonshiners while assisting Deputy Marshal J. V. Brown in the endeavor to arrest them.
The particulars as given in the letter were very brief. The county is infested with moonshiners who have followed their illicit occupation for years, and who have avowed their intention never to be arrested as long as they can resist. They had received intelligence of the approach of the officers after they had come to town, and, determining to fight it out then and there, they retreated to a grocery and barricaded the doors and windows. Brown and Killion were aware of their preparations, but resolved to go ahead at all hazards. Going up to the grocery they called upon the men to surrender, but were answered by a shot from one of the windows. The officers returned the fire, and were answered by two of the moonshiners with shotguns from the window. Brown was unhurt, but Killion received a mortal wound. In spite of this he rushed on to the grocery and fired three shots at the men in the window, but without effect. The moonshiners fired again, several shots taking effect in Killion's body, who dropped dead in the street.
The officers persevered in the charge, and seeing that the house was surrounded the outlaws at last surrendered. They were four in number and are named James Sparks, Kit Graves, James R. Hopgers and W. R. Hodge. They were taken to London and their examining trial was set for yesterday, but the result has not been ascertained.
The men are well known here, as they were tried in the United Stats court last year for moonshining, but they received a light sentence of fine and imprisonment. As soon as they were released they returned to their old occupation, and threatened the death of Killion, who had arrested them before. It is even said that they offered a reward for any one who would shoot Killion. It is also alleged that they boast of their ability to defy the law, and say that under no circumstances can they receive a heavy sentence.
The murdered man is well known, and has been aiding the marshals for some time. He has been scouting through the mountains for several months, and has made several important arrests. he had arrested the men who afterwards caused his death, when they were brought here before. Sparks is the man who led the gang, but Robard Hodge is the one who offered a reward for Killion's murder. He was not concerned in the shooting except by presence, however. [3]
---
[April 10, 1885] -
The jury in the case of James Sparks and W. C. Graves, for the murder of Walter Wilson, at London, found the accused guilty of manslaughter, and fixed their punishment at 21 years in the penitentiary. [4]
---
[May 26, 1885] -
Court of Appeals of Kentucky.
Sparks et al.
v.
Commonwealth.
Recently ordered to be reported.
May 26, 1885.
Appeal from circuit court, Laurel county.
“To be officially reported.”
James Sparks and William C. Graves were convicted of manslaughter, and appeal. Reversed.
*167 W. O. Bradley, (Boyd & Craft and Ewell & Ramsey,
P. W. Hardin, Atty. Gen., for the Commonwealth.
Lewis, J.
James Sparks and William C. Graves having been tried together, each convicted of manslaughter, and sentenced to the penitentiary for 21 years under a joint indictment, charging them and one William Hodges with the murder of Walter Killion in pursuance of a previous conspiracy, prosecuted this appeal. Hodges, demanding a separate trial, is not a party to the appeal. The homicide was committed in a small village in Laurel county, called Lilly, a railway station, in front of and near to a storehouse where appellants, as partners, were engaged in selling goods, beer, and probably spirituous liquors. In the side or end of the storehouse fronting the street and railway depot, about 50 steps off, was a door, and a window on each side of it, and from one of the windows was fired at the deceased a shotgun, and from the other a pistol, both of which took effect, and very soon after receiving the last wound he fell and died. The evidence shows that a week or two before he was killed, without any sufficient cause appearing, the deceased took offense at Sparks, and to a witness made a threat of violence, cursing him at the same time. One week before he was killed the deceased went to the storehouse of appellants, and purchased a quart of whisky, but refusing to pay the price asked, and threatening to make Graves, who had filled his bottle, take a less sum for it. Sparks interposed, and to prevent a fuss, as he said, offered himself to pay the difference; whereupon the deceased, without any provocation, turned upon him with a drawn pistol, compelled him to hold up his hands to show he was not armed, and Sparks, in fear of losing his life, ran out of his storehouse, followed by the deceased, who fired two or three shots at him as he ran. A day or two afterwards the deceased told a witness he would have to kill Sparks. On the day of the killing the deceased, who appears not to have been a resident of the place, went to Lilly, and, in company of others, took position on the depot platform, where, for some time during the afternoon, they engaged in dancing, drinking, and firing pistols; and afterwards the deceased was seen going up the road with pistol in his hand, calling to one Moore to stop, but the latter went on, and the deceased, without provocation, shot at him, near to where were women; and soon afterwards the deceased said to a witness, with an oath, that they (mentioning no names) had said he, deceased, could not come to Lilly, but he had run Moore off, and he would run Sparks and Graves off, or shoot their entrails out; and to another witness he said, with an oath, “Jim Sparks shall not live and stay in Lilly.” A short while after this the deceased requested one Hopkins to go with him, and help him whip Sparks and Graves, which Hopkins declined to do; whereupon he upbraided Hopkins for cowardice, who told him they had been loading shotguns down there-meaning at the storehouse of Sparks and Graves-all the evening, and that he (deceased) must not go. To this the deceased replied, profanely, “I can whip them both;” and, unbuttoning his vest and the top button of his pants, drew his pistol up a short distance, but not out, and, *168 with his hand on it, started from where he then was-near Johnson's store-for appellants' store, 50 or 60 yards off, and, though remonstrated with, continued to advance, and when he got to within about eight feet of the window the first shot was fired from the window at him, and then he fired. He then crossed the platform, as some witnesses testify, first trying to force the door, to the other window, from which another shot was fired at him, the deceased himself firing three shots from first to last. The evidence is somewhat conflicting as to the precise attitude of the deceased when the first shot was fired from the window at him. All the witnesses agree that his right side was towards the house, but there is evidence tending to show that when first fired at his right hand was raised, and that if he did not fire simultaneously with, he did do so immediately after, the first shot fired at him, though there is other evidence to the contrary.
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 storehouse of appellants, to go to the jury. That declaration, accompanied with an oath, was that he was going to take Lilly. 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 storehouse, which was closed to prevent the deceased from entering; and in view of the fact that one Dicken, his friend and companion, had just before returned from the storehouse of appellants, the door of which he found fastened, and reported to the deceased that he had housed Lilly, it is clear that the declaration of deceased which was excluded had direct reference to appellants.
The next error is the refusal of the court to permit either Sparks or Graves to testify on the trial. An avowal was made that the former would testify as a witness that Graves had entered into no conspiracy with him to kill or injure the deceased, and did not fire a single shot, and had nothing whatever to do with the killing; and that Graves would testify that at the time the deceased was shot he was drawing his pistol, and that there was no conspiracy or combination whatever between him and Sparks to kill or harm the deceased. If there was no conspiracy established by the evidence, each of the appellants was entitled to the evidence of the other; for it is not the object of the law to give to commonwealth's attorney the arbitrary power to deprive a defendant on trial of evidence essential for his defense by drawing a joint indictment, and charging a conspiracy between him and the witness to commit the crime, when, in fact, no conspiracy exists. A “conspiracy” is correctly defined to be “a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means.” It is the province of the court to determine whether a conspiracy charged in the indictment has been proved in order to pass upon the question of the admissibility of the evidence of a person so charged, and, from necessity, the decision of that question must, to some extent, be left to the discretion of the trial court; but, to deprive a person charged with a criminal offense of the testimony of one jointly indicted with him, it should be made to reasonably appear from the evidence of the whole case that such conspiracy existed, and this court should never hesitate to revise the action of the lower court when it appears that thereby a defendant has been unjustly and illegally deprived of material evidence. We have looked in vain through this record for a single act or word by appellant Graves showing, or tending to show, that he confederated and conspired with Sparks, or any one else, to take the life of or to injure the deceased in any way, or that he aided or assisted any one in taking his life. No threat to do him injury, nor any ill feeling on his part towards the deceased, is shown. On the contrary, it appears from the evidence that he and the deceased were not hostile or unfriendly; the evidence tending to show that the hostility of the deceased was towards Sparks, and not towards Graves. The only circumstances from which a conspiracy could, in any state of case, be inferred, is the fact that when the deceased was shot Graves and Sparks were in the storehouse together, the door of which was closed and fastened. But they were partners in that store. Graves had a right to be there, and his business required him to be there, and, if the door was closed, it was done to prevent the threatened violence of the deceased, and done at the instance and upon the advice of persons who believed and informed them it was necessary to prevent the deceased from carrying out his threats of violence towards Sparks, whose life he had attempted a week before to take, and was then threatening. It is shown that both the shots fired from the house might have been fired by one person, and no witness testifies that Graves fired a single shot, or even had a pistol or gun. It is only by a vague surmise, without any ground for it, that Graves can be implicated in any manner. The evidence then not being sufficient to show that the conspiracy charged in the indictment did, in fact, exist, the court erred in refusing to permit appellants to each testify on the trial as a witness.
The following instruction was asked by appellants, and, in our opinion, should have been given: “If the jury believe from the evidence that defendants, or either of them, at the time of the killing, were in their own house, and that they had reasonable grounds to believe, and did believe, that Killion was then and there about to forcibly enter the same with the view of doing them, or either of them, great bodily harm, then they, or either of them, so believing, had the right to use such force as was necessary to prevent such entry and avert such threatened danger, even to the taking of his life.” We see no objection *169 to this instruction. By the evidence it is shown that to prevent the deceased from taking the life of Sparks, or doing him bodily harm, which he repeatedly threatened to do, and by his demonstrations in full view of their store indicated his intention to do, and from his character, which was that of a determined, overbearing, and dangerous man, they had reason to fear he would do, they were compelled to shut themselves for hours in their own business house, and not even able to go to their dwelling house for their meals without having their lives endangered. The situation and circumstances were such as to authorize the belief that his object in entering the storehouse of appellants, if such was his object, was to take the life or do great bodily injury to them, or one of them, and, as they had it closed, he could only enter by violence, which they clearly had the right to prevent. As there is no proof of a conspiracy, the court erred in giving any instructions based upon such an hypothesis; and, in our opinion, the court was not authorized to give any instruction based upon the assumption that appellant Graves aided and abetted Sparks in killing the deceased, for there was not, as the record now stands, any evidence whatever implicating Graves. We think the appellants were also entitled to an affirmative instruction upon the hypothesis of self-defense and apparent necessity. For the reasons indicated the judgment as to both appellants is reversed, and cause remanded for a new trial and further proceedings consistent with this opinion. [5]
[May 31, 1889] -
W. C. Graves has been removed and James Sparks appointed postmaster at Lily, Laurel county. [6]
---
[1914] -
THE LOAN OF A CANNON.
Judge Boyd was one of the attorneys for James Sparks and Sonny Hodge, indicted for murder. It was proved that Hodge loaned Sparks the pistol with which he shot and killed Killion. The Judge, in answering the attorney who had severely arraigned Hodge, said:
"Jim Sparks had been driven into the back of his store-room and barred the door to prevent the entrance of the man who was seeking his heart's blood without cause. His foe was battering down the door, and he was unarmed. Under these circumstances Sonny Hodge loaned him a pistol. He did right and what any other brave and honest man would have done under the circumstances. If I had been there and had it, I would have loaned him a cannon." [7]
----------------------
[1] "Deputy Marshal Killed." Semi-Weekly Interior Journal, Stanford, KY. May 27, 1884. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1884-05-27/ed-1/seq-3/
[2] Excerpt from "Local Matters." Semi-Weekly Interior Journal, Stanford, KY. June 3, 1884. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1884-06-03/ed-1/seq-3/
[4] Excerpt from "Notes of Current Events." Semi-Weekly Interior Journal, Stanford, KY. April 10, 1885. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1885-04-10/ed-1/seq-2/
[5] Sparks v. Commonwealth, 12 Ky.L.Rptr. 402, 20 S.W. 167 (1885). Retrieved from Westlaw.com.
[6] Excerpt from "News Condensed." Semi-Weekly Interior Journal, Stanford, KY. May 31, 1889. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1889-05-31/ed-1/seq-2/
[7] William O. Bradley, with biographical sketch by M. H. Thatcher, Stories and Speeches of William O. Bradley (Lexington,, KY: Transylvania Printing Company, 1916), 93. Accessed April 24, 2017, Internet Archive.
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