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[May 27, 1904] -
CORBIN
The scene of a Horrible Murder Last Saturday.
Pascal Bryant, aged twenty-three, of Keavy, Laurel county, was shot in the back of the head and killed at Lynn Camp, in the edge of Laurel county, adjoining Corbin, last Saturday night. Geo. Newman, of Laurel county, and Bert Catron, of this place, have been arrested and lodged in jail at London, charged with the crime, while Laura Newcomb and Mariah Newman, the wife of George Newman, are in jail on the charge of conspiracy.
It is not known what caused the shooting, but after Bryant had been killed his body was placed on the railroad track for the purpose of making it appear that the train had run over and killed him. The engineer of the train, however, saw the body in time to stop the engines before the body was crushed to pieces.
A street fair carnival had been in progress there for a week and it had attracted a large number of the most desperate characters in the surrounding country, and this murder marked the closing of the carnival. [1]
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[September 28, 1905] -
Court of Appeals of Kentucky.
NEWMAN
v.
COMMONWEALTH.
Sept. 28, 1905.
Appeal from Circuit Court, “Not to be officially reported.”
George Newman was convicted of murder, and appeals. Reversed.
*1090 James Sparks, for appellant. N. B. Hays and C. H. Morris, for the Commonwealth.
HOBSON, C. J.
In May, 1904, a street fair was in progress in the town of Corbin, which is situated in Whitley county, near the Laurel line. Lynn Camp creek is the dividing line between the two counties. There is a railroad bridge across the creek; and near the Laurel county end of this bridge on Saturday evening, May 27th, at about 9 o'clock, the body of Paschal Bryant was found lying between the rails of the railroad track, with his head near one rail, his hat on his breast, and a large bullet hole entering his head behind the lower part of his left ear and making its exit at the right eye. The body was warm when found, but life was extinct. The corpse was found by a man who lived not far off and was walking along the railroad on his way to Corbin. This man heard the shot some time before he left home. While he was standing near the body, which was about a quarter of a mile from the station at Corbin, there came through the wire fence a man and a woman, from the east side of the railroad track, who came up on the railroad and looked at the corpse. The woman broke down and cried a little, and said she could not stand to look at him. Then they passed on. The man's name was Henry Carr. The woman's name was Laura Newcomb. They have since been married. That night they and the defendant, George Newman, were arrested charged with the murder of Bryant. Carr and the woman were discharged subsequently, but Newman was held over, and, having been indicted, was convicted, and his punishment fixed at confinement in the penitentiary for life.
On the trial Carr and wife were introduced as witnesses for the commonwealth, and it was insisted for Newman that Carr had killed Bryant and had married the woman to keep her from being a witness against him. There was a merry–go–round at the fair, and there was a considerable crowd in town, especially about the merry–go–round. George Newman was 22 years old, and about two months before had married Maria Hood. They lived six or seven miles from Corbin. On the preceding Tuesday, while he was out at work, she had left home, and when he came home in the evening she was not there, and he could not learn where she was. The next morning, Wednesday, he borrowed a Winchester rifle and, as he says, went turkey hunting with it, but finally, conceiving that his wife might be at Corbin, went on with the rifle to Corbin, arriving there about dark. He left the rifle with a friend, and, finding his wife on the merry–go–round, took her home. There seems to have been no trouble between them then. She claimed that she had simply wanted to go to the fair, and, fearing that her husband would not be willing for her to go, had left home without letting him know that she was going. On Thursday evening the defendant was seen in earnest conversation with Paschal Bryant, who lived about a mile from him. The whole conversation was not heard by any of the witnesses, but the defendant was heard to ask Bryant. “Before God and Heaven did you take Maria off?” Bryant said, “No.” The defendant then asked him, “Where were you when it rained Tuesday evening?” Bryant answered, “At the Laurel River bridge.” This bridge was between their homes and Corbin. The defendant then said, with an oath, “That is where she said she was.” The rest of the conversation was not overheard. On Saturday morning Newman and his wife went to Corbin. He took with him a large .44–caliber Colt pistol, and when they got there they went to the house of a friend, and he hung the pistol up over the washstand. They then went on to the fair. That afternoon Paschal Bryant and the defendant were seen drinking together at a saloon. The defendant was a small man, and wore a white hat. Late in the afternoon, and about dusk, Paschal Bryant went to an eating stand between the merry–go–round and the railroad bridge, and there bought some apples. He came there in company with two other men, who waited for him on the street. Neither of these men were recognized there, but one was a small man with a white hat, and the other was a larger man. The three then left and went on down toward the railroad. Between the railroad depot and the creek there is a cut. Before they had passed through this cut they were seen by two men, with their wives, who were passing along in the opposite direction, and after they passed through the cut they passed a woman named Belle Polly, who came along with two men going up toward the station. She testifies to recognizing Paschal Bryant, and also George Newman, the small man with the white hat; and one of the other witnesses, who did not know Newman, but saw him the next morning, said that from his hat, size, and face he thought he was the same man. The witness Polly had only gone a short distance, when she heard the report of a large gun down about the railroad bridge, in the direction which the three men had gone. This report was also heard by the other witnesses who passed them. The railroad maintains a pumping station at the bridge. The man who runs the pump was at the pumping house, and testifies to seeing the three men come over the bridge, the smaller man with the white hat being behind, and when they got to the far end of the bridge they got in a bunch and the pistol went off. He saw the flash of the pistol, but saw no more of any of the parties, and did not know that *1091 any one was killed until afterwards. Two witnesses testify to seeing tracks of two men leading down from the railroad embankment towards the creek. There was a dam just below on which they could have crossed and gone back to Corbin. The defendant, when arrested soon afterwards, had no weapons upon him; but the lady at whose house he had left the pistol, when she returned home, found the pistol gone. He says that he did not return to the house, and does not know how the pistol got away. It was a private house, and only some ladies seem to have known that the pistol had been left there by him. The pistol has not been seen since, and the theory of the commonwealth is that it was thrown into the creek after the shooting.
The proof leaves no doubt that Bryant was killed by a shot from a weapon carrying a ball similar to the defendant's pistol, and that he was killed by one of the two men who were seen walking out the railroad with him and across the bridge just before the shooting took place. The proof is entirely lacking as to who the third man of this party was. There was no proof of intimacy between Bryant and Mrs. Newman. It was shown where she staid while away from home. There was no proof of any attentions by Bryant to Laura Newcomb, and the proof was that she and Carr had gone down there into the woods before dark with three pints of whisky, and after the shooting they came up out of the woods together. Carr was evidently quite drunk, and there is no evidence that he had any weapon, or that he left the woman after he went down there with her. While he is about the size of the defendant, it is not shown that he wore a white hat, nor is he in any way identified as one of the three men going down the railroad. The woman Belle Polly and the woman Laura Newcomb were both of loose morals. While the defendant's evidence is in many respects impressive, it is unsatisfactory as to the interview between him and Paschal Bryant, in which he was asking Bryant about his wife. He claims to have been with his wife at the merry–go–round the whole evening, but the other witnesses do not substantiate this statement. There was a large crowd there. One or two witnesses speak of seeing him there, but there was no proof showing that he was missed from there, or that he was there continuously.
It is insisted for the commonwealth that he was jealous of his wife, and that his jealousy was pointed at Paschal Bryant. The only real issue in the case was whether the defendant was the small man wearing the white hat, who was seen by the witnesses going down the railroad with Paschal Bryant in company with a third man just before he was shot. There is some uncertainty about the case, and it is possible that the witnesses are mistaken who identify the defendant with the small man wearing the white hat. It was usual for persons to shoot over there beyond the bridge. At least it was not uncommon, and it is possible that Paschal Bryant and two others were going home, and he was shot by one of them in firing off a pistol at the far end of the bridge. He was found with his hands in his pockets, and when he was shot was evidently not anticipating trouble. The shot was fired from behind him. The small man was behind him when they passed the witnesses. The lady at whose house the defendant hung up his pistol locked up the house, and the house was found locked when the family returned. The defendant took supper there, and it does not appear from the evidence that any other man was there, at supper or after supper. There is testimony tending to show that the defendant was not jealous of Paschal Bryant, but of a man named Smith, and that he regarded Paschal Bryant as his friend. All these matters were for the consideration of the jury, and, while the evidence is not conclusive, we cannot say that there was no evidence warranting the verdict of the jury.
It is insisted for the defendant that the indictment against him is insufficient. The indictment charges that the defendant and other persons whose names are unknown to the grand jury, then and there acting with him, shot and killed Bryant, and that either the shot was fired by Newman or “one of the above–mentioned persons whose name is unknown to the grand jury, while the other was present aiding and assisting, but which so actually fired the shot is to the grand jury unknown.” The indictment is sufficient. The word “mentioned” should have been omitted from the indictment in the expression “one of the above–mentioned persons,” as no other person but Newman is mentioned in the indictment. While this is so, the sense is perfectly clear that the indictment charges that either Newman or one of the unknown persons fired the shot; the other being present and acting with him.
The court allowed J. C. Floyd to say that he made the following statement to the defendant: “The next morning after his wife went to Corbin on Tuesday evening I saw Mr. Newman at Keavy, and he seemed to be busted up some way, and was inquiring about his wife. He said she had gone. I saw from his looks he was a little out of shape, and I said to him, ‘George, don't hurt—’ (Defendant's objection overruled. Defendant excepts.) I said: ‘George, don't hurt anybody over this woman, because you are not an innocent purchaser in this woman. You know she run off with a married man before you married her.’ He didn't say anything at all.” The latter part of this testimony should not have been admitted, as it was simply a statement of the witness to which the defendant made no response.
When the defendant was on the stand as *1092 a witness, the commonwealth attorney, on cross–examination, questioned him as follows:
“Q. You didn't go up through that cut at the time Mr. Ellison speaks of seeing you?
A. No, sir.
Q. If you had been over there and killed a fellow, you would not admit it, would you?
A. Yes, sir.
Q. You would not hesitate to do it?
A. No, sir.
Q. If you had gone over there with somebody and shot him in the head and run off, would you tell it?
A. Yes, sir.
Q. If you had gone over there and shot a fellow, and you and some other fellow had run off down the bank and down by the milldam and crossed over, would you tell it?
A. Yes, sir.
Q. And if you had shot him in the back of the head, when he had his hands in his pockets, you would not care to tell it?
A. No, sir.
Q. You would do that, especially because you and him were good friends, wouldn't you?
A. Yes, sir; me and him was the best of friends.
Q. If you had never had any suspicion of any intimate relations existing between him and your wife, do you know why the people were talking about you being jealous of him?
(Defendant's objection sustained. Plaintiff excepts.)
Q. Don't you know it to be a fact that the people generally talked about you being jealous of Mr. Bryant?
A. No; I never heard of it.
Q. Didn't you go over there on that bridge and shoot that fellow in the head and throw that pistol in that pond?
A. No, sir.
Q. If you did, you would tell it, I reckon?
A. Yes, sir.
Q. If you had gone over there and shot a fellow in the back of the head, and him with his hands in his pockets, and you had run down there on that dam and throwed your pistol in that pond, you would tell the jury about it?
A. If I had been there and shot him, I would tell the jury about it.
Q. And if you had thrown your pistol in the pond, you would have told about that? A. Yes, sir. Q. At the May term of this court, 1904, you made application for bail, did you not? A. Yes, sir.
Q. Did you not testify as a witness upon that application?
A. No, sir.
Q. Why didn't you testify, if you had nothing to do with the killing of that man?
(Defendant's objection sustained. Plaintiff excepts.)”
The defendant introduced Wesley Wells to impeach the witness Belle Polly, and on cross–examination the commonwealth attorney asked him:
“Q. Do you know which has the worst reputation, you or she?
A. I don't know, hardly.”
The defendant did not put his character in issue. The commonwealth attorney asked one of his witnesses, introduced to impeach Belle Polly, what the defendant's general moral character was. The witness said he was a pretty reckless character.
The defendant then introduced a witness to sustain his character, and the commonwealth attorney cross–examined him as follows:
“Q. Did you hear about his breaking up a church in Virginia?
A. No, sir.
Q. Did you know that he carried a pistol regular?
A. No, sir; I have saw him with a pistol in Virginia, but every man did. It was nothing unusual.
Q. Is it a penitentiary offense in Virginia to carry a pistol?
A. No, sir; I don't think so.”
He also asked another character witness as follows:
“Q. How long had this fellow been married until Paschal Bryant was killed?
A. About two months, maybe.
Q. Before that time what was his general moral character, good or bad?
A. Not very good. He went with wild boys; sorter reckless.
Q. Did you know that he carried a 45 pistol most all the time?
A. Never saw it.
Q. What was his reputation about it?
A. The reputation was that he carried it.
Q. His reputation was that of a fellow that drank a right smart, wasn't it?
A. He was of a class of boys that was not good.”
“Q. You didn't go up through that cut at the time Mr. Ellison speaks of seeing you?
A. No, sir.
Q. If you had been over there and killed a fellow, you would not admit it, would you?
A. Yes, sir.
Q. You would not hesitate to do it?
A. No, sir.
Q. If you had gone over there with somebody and shot him in the head and run off, would you tell it?
A. Yes, sir.
Q. If you had gone over there and shot a fellow, and you and some other fellow had run off down the bank and down by the milldam and crossed over, would you tell it?
A. Yes, sir.
Q. And if you had shot him in the back of the head, when he had his hands in his pockets, you would not care to tell it?
A. No, sir.
Q. You would do that, especially because you and him were good friends, wouldn't you?
A. Yes, sir; me and him was the best of friends.
Q. If you had never had any suspicion of any intimate relations existing between him and your wife, do you know why the people were talking about you being jealous of him?
(Defendant's objection sustained. Plaintiff excepts.)
Q. Don't you know it to be a fact that the people generally talked about you being jealous of Mr. Bryant?
A. No; I never heard of it.
Q. Didn't you go over there on that bridge and shoot that fellow in the head and throw that pistol in that pond?
A. No, sir.
Q. If you did, you would tell it, I reckon?
A. Yes, sir.
Q. If you had gone over there and shot a fellow in the back of the head, and him with his hands in his pockets, and you had run down there on that dam and throwed your pistol in that pond, you would tell the jury about it?
A. If I had been there and shot him, I would tell the jury about it.
Q. And if you had thrown your pistol in the pond, you would have told about that? A. Yes, sir. Q. At the May term of this court, 1904, you made application for bail, did you not? A. Yes, sir.
Q. Did you not testify as a witness upon that application?
A. No, sir.
Q. Why didn't you testify, if you had nothing to do with the killing of that man?
(Defendant's objection sustained. Plaintiff excepts.)”
The defendant introduced Wesley Wells to impeach the witness Belle Polly, and on cross–examination the commonwealth attorney asked him:
“Q. Do you know which has the worst reputation, you or she?
A. I don't know, hardly.”
The defendant did not put his character in issue. The commonwealth attorney asked one of his witnesses, introduced to impeach Belle Polly, what the defendant's general moral character was. The witness said he was a pretty reckless character.
The defendant then introduced a witness to sustain his character, and the commonwealth attorney cross–examined him as follows:
“Q. Did you hear about his breaking up a church in Virginia?
A. No, sir.
Q. Did you know that he carried a pistol regular?
A. No, sir; I have saw him with a pistol in Virginia, but every man did. It was nothing unusual.
Q. Is it a penitentiary offense in Virginia to carry a pistol?
A. No, sir; I don't think so.”
He also asked another character witness as follows:
“Q. How long had this fellow been married until Paschal Bryant was killed?
A. About two months, maybe.
Q. Before that time what was his general moral character, good or bad?
A. Not very good. He went with wild boys; sorter reckless.
Q. Did you know that he carried a 45 pistol most all the time?
A. Never saw it.
Q. What was his reputation about it?
A. The reputation was that he carried it.
Q. His reputation was that of a fellow that drank a right smart, wasn't it?
A. He was of a class of boys that was not good.”
While there were no exceptions taken to the questions above indicated, except as quoted, it was misconduct on the part of the commonwealth attorney to ask them. When the defendant is sworn in his own behalf, in a criminal case, he is to be treated on cross–examination as any other witness, and it is very improper for the commonwealth attorney to insinuate in cross–examining him that he is swearing an untruth or would swear an untruth. The mode of cross–examination followed by the commonwealth attorney was calculated simply to discredit the witness before the jury. It was improper for the attorney to indicate what the people generally thought or said about the defendant's being jealous of Bryant. The defendant is entitled to a fair trial on the evidence heard before the court, without any reference to the sentiment of the community. It was improper for the attorney to refer to the fact that the defendant did not testify as a witness upon the application for bail. The statute which allows the defendant to testify in his own behalf in a criminal case expressly provides that his failure to testify shall not be adverted to, and this clause of the statute applies no less to previous trials than to the one in progress. It was improper for the commonwealth attorney to discredit Wesley Wells by a question implying that his character was bad. The mode of discrediting a witness is pointed out in the statute, and insulting questions should never be asked a witness. The defendant did not put his general character for peace and quiet in issue, and, he not having done that, it was improper for the commonwealth attorney to attack his general character for peace and quietness. The commonwealth might have attacked his character for truthfulness, or his general moral character, for the purpose of impeaching his testimony as a witness; but, when this is done, the court should always admonish the jury that the evidence is only to be considered by them for the purpose of impeaching his testimony as a witness. It was improper for the commonwealth attorney in any view of the case to ask whether he was in the habit of carrying *1093 a pistol, or to go into particulars as to what he had done in his past life. The examination should have been confined to the witness' character for truthfulness or his general moral character.
By the incompetent evidence above referred to the impression, no doubt, was left upon the minds of the jury that there was an apprehension among his neighbors that appellant would hurt somebody about his wife, and this impression was fortified by the improper examination to which we have referred. When this impression was fastened upon the minds of the jurors, a foundation was laid for them to conclude that it was probable that he had killed Bryant because he was jealous of him. While we would not reverse the judgment for the conduct of the commonwealth attorney, which was not objected to, and might not reverse for the admission of the evidence which was objected to, if the proof was clear as to the defendant's guilt and the trial was otherwise fair, still the evidence was prejudicial, and being given undue weight by the matters indicated, may have had great effect upon the jury. In view of the inconclusiveness of the evidence against the defendant, and in view of the conduct of the commonwealth attorney in asking the questions above referred to, we cannot say that the defendant has had a fair trial, or that upon the whole case there was no substantial error to his prejudice.
Judgment reversed, and cause remanded, with directions to grant appellant a new trial. [2]
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[1] "Corbin." Mountain Advocate, Barbourville, KY. May 27, 1904. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn87060032/1904-05-27/ed-1/seq-1/
[2] Newnan v. Commonwealth, 28 Ky.L.Rptr. 81, 88 S.W. 1089 (1905). Retrieved from Westlaw.com.
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