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[September 12, 1901] -
The was a bloody fight on the opening day of the Laurel county fair. Ed Jones was killed and A. B. Riley fatally wounded. It was a pistol fight with six in it. [1]---
[September 12, 1901] -
LAUREL COUNTY FAIR MARRED BY A FIGHT.
One Man Is Killed and Another Is Wounded During a Dispute Over a Game of Dice.
London, Ky., Sept. 11. -- (Special.) -- The opening day of the Laurel County Fair was marred by one of the bloodiest fights in the county's history, and as a result Edward Jones, a well-known young man of this county, is dead and Abner Early, of Corbin, is fatally wounded.
Four men, Edward Jones, William Underwood, Abner Early and a man from Rockcastle county were engaged in a crap game. The dispute arose between Early and the Rockcastle man. Jones interfered to prevent trouble, and revolvers were drawn, about a dozen shots being exchanged. Jones was shot in the back and instantly killed. Early was shot in the back and the arm. Underwood and the man from Rockcastle made their escape.
Underwood is said to have been wounded. [1.5]
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[September 13, 1901] -
KILLING. -- In a fight near the London fair grounds Wednesday Ed Jones, of Laurel, was killed and Abner Early, of Corbin, fatally wounded. Four men, Ed Jones, William Underwood, Abner Early and a man from Rockcastle county were engaged in a crap game. A dispute arose between Early and the Rockcastle man. Jones interfered to prevent trouble, and revolvers were drawn, about a dozen shots being exchanged. Jones was shot in the back and instantly killed. Early was shot in the back and in the arm. Underwood and the man from Rockcastle made their escape. Underwood is said to have been wounded. [2]---
[September 13, 1901] -
Ed Jones, who used to live near Rockcastle River, was shot and killed at London Wednesday, Abner Early, of Corbin, was seriously wounded. Edward Jones, William Underwood, Abner Early and a Rockcastle county man were engaged in a crap game. Trouble arose between Early and the Rockcastle man, and Jones interfered to prevent trouble, when he received a deathly wound in the back. [3]---
[September 20, 1901] -
MISTAKE.-- In our last issue, we stated that Ed Jones, who was killed at London, was in a crap game, but it was a mistake, and Jeff McQueen was the Rockcastle county man, engaged in the game and got into trouble with Early, of Corbin, and Jones only stepped up to prevent it. [4]---
[September 20, 1901] -
OVER A GAME OF CRAPS.
A Terrible Tragedy Marks the Opening Day of the County Fair at London, Ky.
London, Ky., Sept. 12.-- Opening day of the Laurel county fair was characterized by one of the bloodiest fights in the county's history, and the result is that Ed Jones, a well-known young man of this county, is dead, and Ab Early, of Corbin, is fatally wounded. Four men, Ed Jones, William Underwood, Ab Early and a man from Rockcastle county, were engaged in a crap game.
A dispute arose between Early and the Rockcastle man. Jones interceded to prevent trouble. Pistols were drawn and about a dozen shots were exchanged. [5]
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[October 1, 1901] -
Ab Early who took part in the fight near London, in which Edward Jones was killed, had his examining trial and was held under $5,000 bail.
...
William Underwood was arrested at London and released on $1,000 bond. He was one of the parties engaged in a fight Sept. 11, in which Ed Jones was killed and Ab Early badly wounded. [6]---
[October 19, 1901] -
Cases Continued.
London, KY., Oct. 19. -- Friday the cases of Ab Early, Joe Harp and Wm. Underwood, who are under indictment for the killing of Ed Jones in September, were continued until the February term of the circuit court. [7]
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[February 7, 1902] -
MONDAY. -- The case of the Commonwealth against Underwood, Early and others for killing Ed Jones, is set for trial in the Laurel Circuit Court Monday. [8]---
[June 3, 1902] -
Ab Early was sentenced to 12 years in the penitentiary for the murder of Ed Jones. Early killed Jones over a crap game at the London fair last year. [9]
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[January 5, 1905] -
Court of Appeals of Kentucky.
UNDERWOOD
v.
COMMONWEALTH.
Jan. 5, 1905.
Appeal from Circuit Court, Laurel County.
“Not to be officially reported.”
William Underwood was convicted of voluntary manslaughter, and he appeals. Affirmed.
*311 E. H. Johnson and Sam C. Hardin, for appellant. N. B. Hays, Atty. Gen., and Loraine Mix, for appellee.
BARKER, J.
The appellant, William Underwood, was indicted by the grand jury of Laurel county, charging him in several counts, first, with conspiring with Ab. Early and Joe Harp to murder Ed. Jones, in furtherance of which the latter was killed; second, with the murder of Ed. Jones; and, third, with aiding and abetting Ab. Early and Joe Harp, and each of them, in the murder of Ed. Jones. To this indictment he pleaded not guilty, and a trial resulted in his being found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for four years.
The facts are, substantially, these: On the day of the killing, Ab. Early, Joe Harp, and William Underwood were engaged in playing at a game of dice or craps, which it, perhaps, would be more than flattery to call a game of chance. There were a good many others engaged in the game, and it is not clear who owned and controlled it, although there is evidence conducing to show that Underwood and his companions were its operators. Ed. Jones and a man by the name of T. J. McQueen, Sr., were standing near, watching the play. Jones asked McQueen to drop a quarter into the game for him, which was done, and the money lost, it being taken by Early. McQueen then said, substantially, “Come away, boys, they are playing with loaded dice,” whereupon Ab. Early sprang to his feet, and, with a pistol in his right hand, commenced to strike McQueen in the chest with his left, and pushing him about, holding the pistol in easy range, and in a threatening manner. Jones, who seems to have been a friend of McQueen, interfered, and told Early that he ought not to treat an old man in that way. Early then transferred the assault he was making upon McQueen to Jones, holding his pistol in the same manner, and striking Jones in the chest with his left hand. The latter protested that he had no weapon, and was not prepared to fight, and asked Early to desist from his attack, pulling up the skirts of his coat to show that he was unarmed. The men were separated at this point, and Jones taken some 15 to 20 feet away, and given a pistol by one of his friends, said to have been T. J. McQueen, Jr. Early and Underwood left the game, and followed Jones to where he had been conducted by his friends, and the quarrel was renewed, resulting in Early firing upon Jones, and Jones returning his fire. Early was shot in the wrist or forearm, and Jones through the chest; whereupon Early commenced to retreat, firing as he ran, while Jones pursued him, firing upon him as he retreated. At this point, several shots were fired by other parties from behind Jones, one bullet entering his back, killing him instantly. Early and Harp were each tried for the murder, found guilty, and sentenced to the penitentiary, where they are now serving their terms. Upon the trial of this case several of the witnesses of the commonwealth testified that they saw appellant shoot at Jones at the time he was killed, and others as to acts done and language spoken by him, which abundantly showed him guilty of aiding and abetting Early and Harp in the homicide, if the evidence was true. The testimony, however, on this point, was very conflicting. Several of the witnesses, who claimed to be present during the trouble, testified that he did no shooting, nor was in any way concerned in the killing. Under this state of case it is sufficient to say that there was evidence which authorized the submission of the case to the jury, and we will not revise their determination on the facts, but will content ourselves with reviewing the several questions of law raised by counsel for appellant.
*312 Upon the calling of the case appellant moved for a continuance because of the absence of two witnesses, and filed an affidavit in support thereof. This motion the court overruled, it appearing that one of these witnesses was in the United States army, and out of the jurisdiction of the court, and that the other was within a short distance of London, and his attendance could be easily procured. This was afterwards done, and the witness testified for appellant, and he was therefore not prejudiced by the adverse ruling.
During the trial the commonwealth called as witnesses two brothers by the name of Barnes, and two by the name of Jones, the latter being brothers of the dead man, who testified to having seen a small hole through the pants and drawers worn by the deceased at the time he was killed. The names of these witnesses were not included in the subpœna issued for the commonwealth, and appellant objected to their evidence, and at the conclusion of the commonwealth's testimony filed his affidavit to the effect that he was surprised by the testimony of these witnesses, and asked that the jury be discharged, and the case reassigned for trial, or, if that could not be done, that their evidence be excluded from the jury as incompetent. Both of these motions were overruled. Section 120 of the Criminal Code of Practice does require the names of the witnesses who testify before the grand jury to be placed on the indictment, but we know of no rule, and the learned counsel for appellant has cited us to no authority, holding that the commonwealth may not call such additional witnesses as may be able to furnish evidence material to the prosecution. The record does not show any request of the parties that the witnesses should be sworn and excluded from the courtroom; but, even if this were otherwise, the fact that these witnesses had been in the courtroom while other witnesses for the commonwealth testified would not have been prejudicial under the circumstances, as no witness for the commonwealth but themselves testified on the particular subject upon which they deposed, and therefore what they may have heard could not have affected their evidence. Counsel insists that it was incompetent for these witnesses to testify about the hole in the clothing of the dead man, as it was the best evidence of what it showed. These witnesses testified to the physical facts of which they were cognizant. It was shown that the clothing was not within the jurisdiction of the court at the time of the trial, it having been carried out of the state by the widow of the deceased; but there was no more necessity for producing the clothing as the best evidence of its containing bullet holes than for producing the dead body as the best evidence of the wounds appearing on it. Moreover, there was no suggestion in the affidavit of appellant that the testimony of the witnesses was in any wise untrue, or that, if he were given an opportunity, he could contradict it. The affidavit simply recites the fact that the names of the witnesses were not on the subpœna, that they had never been called before, and that no such evidence had ever appeared in any of the former trials of the case; but it wholly fails to impeach the truth of the evidence itself. The surprise which will authorize the court to continue a case or discharge the jury is not the mere mental emotion of a party upon being confronted with evidence he hoped would not be produced, but must be the result of a practical injustice to his substantial rights. He must show that he has been in some way injured or misled by what has happened, and that, if a reasonable opportunity is afforded him, he can remedy the evil.
After the evidence was all heard, the court, upon motion of the commonwealth's attorney, permitted the jury, under the charge of the sheriff, to go to the place of the tragedy, and view the premises; the judge, the accused, and his counsel, and the prosecuting attorney all being in attendance. When at the scene, one of the jurors requested the judge to have the accused point out to them the particular spot where he had testified on the stand that he had hid his pistol. The judge having some doubt as to his right to do this, took the accused and his counsel aside, and, after some discussion, no objection being made, he was permitted to point out to the jury the spot. When the jury returned to the courtroom, his counsel for the first time entered an objection to what had taken place, and this is now insisted upon as a ground for reversal. We are able to see no reason why the judge should not have tried the whole case at the place where the tragedy occurred, if it suited his convenience so to do. There is no peculiar sanctity about the courtroom which requires trials to be held there. The courtroom is for the convenience of the court, but there is no reason that forbids the judge, in hot weather, for instance, to hold his court out in the yard under a tree, or any other place which better suited his convenience and the comfort of the jurors and the parties litigant; nor are we able to see in what way the interest of the appellant was prejudiced by being allowed to give additional testimony in his own favor to the jury. The commonwealth's attorney might have objected to this, but there is no ground for complaint of it by appellant.
The court did not err in overruling the motion for a new trial based upon the newly discovered evidence. Most of it would have been incompetent as hearsay, and the balance was merely cumulative. Besides, under section 281 of the Criminal Code of Practice we have no jurisdiction to reverse a criminal case for an error of the court in overruling the motion for a new trial.
Counsel for appellant earnestly insists that *313 the court should have given the jury an instruction embracing the principle that, although the accused might have wrongfully begun the affray in which the killing was done, yet, if he afterward in good faith had withdrawn from it, and made it apparent to his antagonist that he had so withdrawn in the interest of peace, then his right of self-defense returned to him, and if his antagonist afterwards attacked him he might then kill him in his apparent necessary self-defense. Instructions must be based on evidence, and, while the abstract principle contended for by the counsel for appellant is unquestionably correct, there are no facts in this record upon which it could have been predicated. Jones never knew that he had but one antagonist-Ab. Early; and while Early, after firing, retreated, this was not a withdrawal in the interest of peace, because he fired as he ran. If Underwood shot Jones at all, he shot him from behind, and without Jones' knowledge. There was never any withdrawal by Underwood in the interest of peace, and therefore there was no evidence which would have authorized the trial judge to give the instruction for the absence of which appellant complains.
Taking a survey of the whole case, we are impressed with the fact that the accused had a fair trial in every particular. The instructions, as given by the court, seem to contain the whole law of the case, but, if they are subject to any criticism whatever, it is that they are too favorable to appellant. The jury, under the facts as shown by this record, were more than lenient in their verdict, and this should be a matter of congratulation, rather than complaint, on the part of the accused.
Perceiving no error in the record, the judgment is affirmed. [10]
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[1] Excerpt from "Late State News." The Paducah Sun, Paducah, KY. September 12, 1901. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052116/1901-09-12/ed-1/seq-2/
[1.5] "Laurel County Fair Marred by a Fight." The Courier Journal, Louisville, KY. September 12, 1901. Page 1. Newspapers.com.
[2] "Killing." Semi-Weekly Interior Journal, Stanford, KY. September 13, 1901. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1901-09-13/ed-1/seq-3/
[3] Excerpt from "Local." Mt. Vernon Signal, Mt. Vernon, KY. September 13, 1901. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1901-09-13/ed-1/seq-3/
[4] "Mistake." Mount Vernon Signal, Mt. Vernon, KY. September 20, 1901. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1901-09-20/ed-1/seq-3/
[5] "Over a Game of Craps." The Hickman Courier, Hickman, KY. September 20, 1901. Page 6. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052141/1901-09-20/ed-1/seq-6/
[6] "In Neighboring Counties." Semi-Weekly Interior Journal, Stanford, KY. October 1, 1901. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1901-10-01/ed-1/seq-2/
[7] "Cases Continued." Daily Public Ledger, Maysville, KY. October 19, 1901. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069117/1901-10-19/ed-1/seq-2/
[8] Excerpt from "Locals." Mount Vernon Signal, Mt. Vernon, KY. February 7, 1902. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1902-02-07/ed-1/seq-3/
[9] Excerpt from "In Neighboring Counties." Semi-Weekly Interior Journal, Stanford, KY. June 3, 1902. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1902-06-03/ed-1/seq-1/
[10] Underwood v. Commonwealth, 27 Ky.L.Rptr. 8, 84 S.W. 310 (1905).
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