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[October 28, 1898] -
Clint Strange was held at London without bail. He killed Henry Rowland by beating his brains out with a pair of tongs. Milt Green, white, who killed James Mullins, colored, was refused bail. Green walked up and shot Mullins in the back without warning. [1]---
[February 28, 1899] -
Clint Strange, for the murder of Henry Rowland, in Laurel, was sent to the penitentiary for 21 years. [2]
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[January 26, 1900] -
STRANGE v. COMMONWEALTH.
COURT OF APPEALS OF KENTUCKY
55 S.W. 204; 1900 Ky. LEXIS 503; 21 Ky. L. Rptr. 1333
January 26, 1900, Decided
PRIOR HISTORY: [**1]
Appeal from circuit court, Laurel county.
Clinton Strange was convicted of the offense of voluntary manslaughter under an indictment for murder, and he appeals.
DISPOSITION: Reversed.
COUNSEL: W. S. Pryor and W. L. Brown, for appellant.
Clifton J. Pratt, for the Commonwealth.
JUDGES: PAYNTER, J.
OPINION BY: PAYNTER
OPINION
[*204] PAYNTER, J. We are of the opinion that the court below erred in overruling defendants motion for a continuance. If the absent witnesses should testify to the facts detailed in the affidavit, their testimony would be very material to the defendants defense. Under all the circumstances, we are of the opinion that he used proper diligence to procure their attendance. The judgment is reversed for further proceedings consistent with this opinion. [3]
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[May 28, 1901] -
At London, Clint Strand was given 12 years' imprisonment for the murder of Henry Rowland. [4]
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[May 31, 1901] -
At London Clint Strand was given twelve years' imprisonment for the murder of Henry Rowland. [5]
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[November 13, 1901] -
STRANGE v. COMMONWEALTH.
COURT OF APPEALS OF KENTUCKY
64 S.W. 980; 1901 Ky. LEXIS 605; 23 Ky. L. Rptr. 1234
November 13, 1901, Decided
PRIOR HISTORY: [**1]
Appeal from circuit court, Laurel county.
Clint Strange was convicted of the offense of manslaughter, and he appeals.
DISPOSITION: Reversed.
COUNSEL: B. B. Golden and W. L. Brown, for appellant.
W. R. Ramsey, for appellee.
JUDGES: HOBSON, J.
OPINION BY: HOBSON
OPINION
[*980] HOBSON, J. Appellant was indicted jointly with Lowie Colvin for the murder of Henry S. Rowland. He was tried separately, and found guilty of manslaughter, and his punishment fixed at 12 years' confinement in the penitentiary. The proof shows that the deceased, Rowland, married a sister of the defendant, and that Mrs. Colvin, who is indicted with him, is also his sister. Mrs. Rowland died some years ago, as the defendant thought from neglect on the part of her husband, and some bad feeling between them existed on account of this. Before Mrs. Rowland died she gave her two little children, the youngest being only a few days old, to Mrs. Colvin. Mrs. Colvin took the children and kept them for several years. Rowland then married again, and wanted the children, but Mrs. Colvin refused to give them up, and took them to Alabama. Rowland followed her to Alabama, and there got one of the children. She brought the other to Kentucky, and he was about to take legal process for the possession [**2] of the children, when she agreed to surrender the one she had. She took the child to his house, and both of the children cried to come home with her. It was then agreed that she would take both of the children home with her, and that Rowland would come over the next evening and get them. Accordingly he drove over the next day with his wife and another lady, and the party was invited in by Mrs. Colvin. The ladies sat in chairs on the porch, and Rowland sat on the steps of the porch. After some talk, Mrs. Colvin suggested that they go up to the barn, where the children were, and the ladies started up there. The proof at this point is conflicting. The proof for the commonwealth is that before the three ladies left the porch the defendant, Strange, came to the door of the house with a pistol in his hand, and said to Rowland, who was still sitting on the steps of the porch, that he would kill him, and immediately began shooting at him. The proof for the defendant is that the witnesses for the commonwealth had left the porch, and gone around behind the house, before he came to the door; that he was lying down, having been sick or complaining for several days, and when he heard the party [**3] leave the porch, being apprehensive that there might be some difficulty between him and Rowland if he stayed, he got up to go away, at the front of the house, while the others were up at the barn in the rear, so as to have no trouble, and that, when he reached the door, Rowland, as soon as he saw him, said he would kill him, and began an assault upon him; that he tried to draw his pistol, but Rowland was so close to him that in the struggle between them he shot part of the loads towards the ground, and others upward, to prevent Rowland's getting the pistol from him and shooting him with it Rowland and the defendant clinched upon the porch. The pistol was fired several times in the struggle on the porch, and [*981] three times in the yard, where the struggle was continued. The defendant was shot through the foot, the ball ranging forward. He had also a flesh wound on the head. Rowland was shot twice back of the shoulder, flesh wounds ranging upward. After a prolonged struggle in the yard, the defendant got hold of a piece of iron, and with it struck Rowland over the head, mashing his skull and killing him. There was proof that he struck Rowland with "the iron after he was down, and when he [**4] was begging him to quit; but the defendant was himself bruised about the head and arms, and testified that Rowland had struck him with the iron, and that he was numbed by the shock, and acted only in his apparently necessary self-defense. There are circumstances in the case that seem to us, in some measure, to confirm the defendant's version of the transaction.
The case was called for trial about 11:45 a. m. The commonwealth having announced ready, the defendant announced not ready. The commonwealth's attorney demanded a showing on the part of the defendant as to why he was not ready for trial. His attorney then asked the court for time until 1 o'clock p. m. to prepare the affidavit. The court replied that he would not delay any time to give opportunity to prepare the affidavit. The attorney stated to the court that it was the first opportunity he or the defendant had had to call the witnesses, and ascertain if they were present. The court remarked that it was the business of the defendant to keep his counsel informed, and directed the clerk to call the jury. While the clerk was calling the jury the attorney renewed his request for time to prepare the affidavit as a right of the defendant [**5] which had not been objected to by the counsel for the commonwealth, and the court then said he did not propose to have the court blocked; to all of which the defendant excepted. At noon the court adjourned till 1 o'clock. The next morning the defendant tendered his affidavit for a continuance, and moved the court to set aside the order swearing the jury, and give him time to procure the attendance of his witnesses, many of whom were absent. The court overruled the motion, but, at the conclusion of the evidence, allowed the affidavit to be read to the jury as the deposition of all the absent witnesses but two, and of this the defendant also complains.
The court should, under the circumstances, have allowed the defendant a reasonable opportunity to prepare his affidavit for a continuance. The remark of the court to the counsel, in the presence of the jury, was calculated to prejudice the defendant before them. We are inclined to the opinion that the affidavit did not show that John Bossy could with any certainty be secured as a witness at any other term, as he was out of the state, and it appears from the affidavit that the defendant had sent a subpœna "to him at his place of residence [**6] in Tennessee," and that the court properly refused to allow the affidavit to be read as the deposition of this witness. But as to the other witness, Thomas Turner, we have reached a different conclusion. According to the statements of the affidavit, Turner was present, and saw the difficulty from its beginning, and, if he testified as set out in the affidavit, his testimony might have had a controlling effect on the trial. It was stated in the affidavit that the witness resided in Jackson county, Ky., and that the defendant had not learned the name of the witness, or where he resided, until the last term of the court; that about a month before the trial he had had a subpœna issued, and mailed it to the sheriff of Jackson county, but it had not been returned by the officer. We are unable to see that the defendant did not exercise proper diligence to secure the presence of this witness, and we think that he should have been allowed another opportunity for this purpose, or that his affidavit should have been allowed to be read as the deposition of the witness.
There is no proof in the record sufficient to show a conspiracy between Mrs. Colvin and the defendant, and the court erred in admitting [**7] proof of statements made by her, and not in his presence, against him. The fact that there was an altercation between her and Rowland before she went to Alabama might be shown for the purpose of establishing bias on her part, but the particulars of this altercation should not have been given in evidence. In view of the peculiar circumstances of the case, the evidence to which we have referred may have been very prejudicial to the defendant, and on the whole case we are of opinion that the substantial rights of the defendant were prejudiced on the trial, and that a new trial should be granted.
Judgment reversed, and cause remanded for further proceedings consistent with this opinion. [6]
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[May 30, 1902] -
Clint Strange, charged with killing his brother-in-law, Henry Rowland, in Laurel, got two years. [7]
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[3] Strange v. Commonwealth, 55 S.W. 204, 21 Ky. L. Rptr. 1333 (1900).
[4] Excerpt from "In Neighboring Counties." Semi-Weekly Interior Journal, Stanford, KY. May 28, 1901. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1901-05-28/ed-1/seq-2/
[5] Excerpt from "General News." Mount Vernon Signal, Mt. Vernon, KY. May 31, 1901. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069561/1901-05-31/ed-1/seq-4/
[6] Strange v. Commonwealth, 64 S.W. 980, 23 Ky. L. Rptr. 1234 (1901).
[7] Excerpt from "In Neighboring Counties." Semi-Weekly Interior Journal, Stanford, KY. May 30, 1902. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1902-05-30/ed-1/seq-1/
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