Former Rockcastle County Jailer Charged With Killing Neighbor, 1921

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Click here for a list of my other Pulaski/Rockcastle/Laurel County KY articles

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[October 26, 1920] -

Court of Appeals opinion Rockcastle Co., et al. v. Norton, Rockcastle, 1920.

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[August 26, 1921] -

A Murder in Rockcastle

(By Associated Press)

Mt. Vernon, Ky., Aug. 26--Watt Norton died late last night, shot by James Winstead at the Norton home 10 miles from here.  Winstead is a bondsman for John Bailey on trial for slaying Beverly White.  Winstead surrendered and is in the county jail on a charge of murder.  This renewed an old quarrel growing out of a suit for a roadway across the Norton farm. [1]

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[August 26, 1921] -

Baily Bondsman Shoots Neighbor

Watt Norton, living ten miles from here in the southwestern part of the county today was shot and possibly fatally wounded by James Winstead, a neighbor, as the result of a renewal of an old quarrel over a road across the Norton farm to Winstead's farm. Norton was shot twice in the abdomen and is not expected to live it was stated.

Winstead several years ago sued Joe Norton, father of the wounded man, for right-of-way across his farm. Bad blood is said to have existed ever since. No details of today's trouble have been received here. [2]

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[September 1, 1921] -

Woman To Probe Murder Case In Rockcastle

Mt. Vernon, Ky., Sept. 1--Mrs. W. J. Starks, this city, the first woman to sit on a grand jury in Rockcastle county, was foreman of the special grand jury sworn in by Circuit Judge B. J. Bethurum to investigate the killing last week of Watt Norton, 22 years old, which today returned an indictment against James Winstead former jailer of this county, who is charged with willful murder.

The killing occurred four miles from here.  Farms of the principals adjoined and they had had litigations over the closing of a road on the Norton property.  In a sworn, dying statement, the victim stated he was shot without provocation after he had denied Winstead's accusation that he had been "telling lies about him."

Winstead was one of the bondsmen of John Bailey, convicted of the murder of Beverley White, but the killing of Norton had no connection with that case. [3]

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[September 6, 1921] -

WOMAN FOREMAN OF SPECIAL GRAND JURY.

A special grand jury, headed by Mrs. W. J. Starks, of Mt. Vernon, as foreman, was called by Circuit Judge B. J. Bethurum to investigate the shooting last week of Watt Norton, at his home, ten miles from there.  James Winstead, a farmer, who was on the bond of John Bailey, sentenced to life imprisonment for killing Beverly D. White, is in jail charged with the killing.  Mrs. Starks is the only woman member of the special grand jury [4]

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[August 25, 1921] - 

Death Record of Watt H. Norton. (click to enlarge) [5]

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[June 23, 1922] -

Court of Appeals of Kentucky.

WINSTEAD

v.

COMMONWEALTH.

June 23, 1922.

Appeal from Circuit Court, Rockcastle County.

James Winstead was convicted of murder, and he appeals. Affirmed.

*41 B. J. Bethurum, of Lexington, L. W. Bethurum, of Mt. Vernon, and Wm. Lewis, of London, for appellant.

Chas. I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

CLARKE, J.

This is an appeal by the defendant from a judgment of the Rockcastle circuit court fixing his punishment, in accordance with the verdict, at confinement in the penitentiary for life for having shot and killed Watt Norton in August, 1921.

The grounds upon which a reversal is sought are: (1) Error of the court in summoning the jury from an adjoining county; (2) admission of incompetent evidence over the objection of the defendant; and (3) improper conduct of counsel employed to assist in the prosecution.

[1] In presenting the complaint that the court erred in summoning the jurors from an adjoining county to try the case, after the regular panel had been exhausted, counsel for defendant admit that by reason of the provisions of section 281 of the Criminal Code of Practice this court is without jurisdiction to review the action of the trial court in this respect, and this court has uniformly so held in many cases, among which is the recent case of Logan and Tribble v. Commonwealth, 174 Ky. 80, 191 S. W. 676.

Hence this assignment of error must be overruled in any event, although we think it fair to say that the record fails to show that the court abused the discretion conferred upon it in this respect by section 194 of the Criminal Code of Practice.

[2][3] The first complaint with reference to the admission of incompetent evidence is that George Bray, who heard the shooting and was among the first to arrive upon the scene of the difficulty, was permitted to testify that immediately after he heard the shooting and as he was hurrying in that direction he saw the wife of the defendant running down the road about as fast as she could run from the direction of her home and in the direction of where the killing occurred.

Not only was this evidence competent in our judgment as a part of the res gestæ, but, even if this were not true, its admission could not have proven prejudicial, and was in fact beneficial to the defendant, since she was introduced by him in rebuttal and permitted to explain her presence out in the road at the time, and her testimony, which otherwise would have been incompetent, corroborated her husband's explanation of how he happened to be at the place where the difficulty occurred, and for a purpose not in any way connected with the presence of the deceased there at that time.

[4] The next complaint under this head is more serious, because the court did err in permitting John Scott to read to the jury what he had written down upon a paper as the dying declaration of the decedent, which was not signed by, or shown to have been read to and approved by him. Saylor v. Commonwealth, 97 Ky. 184, 30 S. W. 390, 17 Ky. Law Rep. 100; Fuqua v. Commonwealth, 73 S. W. 782, 24 Ky. Law Rep. 2208; Sailsberry v. Commonwealth, 107 S. W. 774, 32 Ky. Law Rep. 1085; Lucas v. Commonwealth, 153 Ky. 424, 155 S. W. 721; Eastridge v. Commonwealth (Ky.) 241 S. W. 806, *42 decided June 2, 1922, and not yet [officially] reported.

[5] But, even though this was error, it is insufficient to authorize a reversal under the express provisions of sections 340 and 353 of the Criminal Code of Practice, unless upon a consideration of the whole case this court is satisfied that the substantial rights of the defendant have been prejudiced thereby. This rule is applicable to all errors upon a trial resulting in a conviction, and its applicability to this particular error was expressly recognized in the Sailsberry Case, supra, upon which appellant chiefly relies, in the Eastridge Case and in some of the others cited above.

Hence, in order to determine whether or not the error was prejudicial here, it will be necessary to state as briefly as we can the substance of such parts of the evidence as we consider of sufficient importance to affect the question materially.

A pronounced unfriendliness had existed for some time between the defendant and the members of decedent's family by reason of a litigation over a road, and defendant's feeling toward the deceased was particularly hostile by reason of some statements he had heard decedent had made about his having accused another of stealing his watermelons, and the commonwealth proved that the defendant, upon the morning of the day of the difficulty, said in discussing this matter and referring to the deceased:

“The boy is much larger than I am and younger than I am, but I would like to tangle with him. Of course, he is larger than I am, but that don't matter a damn; I am always ready for him; but, being a boy, I hate to say anything to him about it, but, if it was his Uncle Joe or one of the older boys, I would tangle with them over it.”

The killing occurred about 1 o'clock in the afternoon, in the public road, almost directly opposite a walnut tree where defendant's farm adjoins the Skaggs Creek church lot. Deceased, a short time before, had gone from the home of his father along this road, past the house of the defendant and the place of the killing, to the home of Green Cress, for the purpose of getting a road scraper, making the trip in a wagon drawn by two mules, and the killing occurred as he was returning with the scraper in the wagon.

The only witnesses who saw what happened, although quite a number heard the shots and arrived upon the scene a few minutes thereafter, were the defendant, who testified in his own behalf, and the deceased, whose dying declaration was introduced. Many facts and circumstances, however, were proven, all of which, in our judgment, tend almost as strongly to prove, as does the dying declaration of the deceased, that the killing was deliberately planned and carried out by the defendant without provocation or excuse, and which contradict defendant's version of self-defense.

Tracks of a man and expectorations of tobacco amber were found just inside defendant's field at the walnut tree, which indicated that some one had been stationed at that point recently and for at least a brief time, and that this person had ridden a horse at a gallop from the place toward the rear of defendant's farm. The wagon tracks swerved abruptly toward the opposite side of the road just opposite the walnut tree, and deceased was found by the first arrivals, unarmed, lying on the opposite side of the road at this place, with a shot, which defendant admits he fired, in his left side that, penetrating his abdomen, ranged slightly upward.

Defendant admits that immediately after the shooting, and in the short interval before any of the witnesses reached the spot (one of whom was only about 300 yards distant and ran there immediately upon hearing the shooting), he got on his horse just inside the fence near the walnut tree and rode to the rear of his farm. He says, however, that he did not see deceased pass his house in the wagon going toward the home of Cress for the scraper, and that he was standing at the fence, but on the outside, fixing up the bars, after having let some mule colts through, when deceased approached on the return trip with the scraper, and that he--

“jumped off of his wagon and says, ‘God damn you, you have accused me of lying,’ and I says, ‘How is that, Watt?’ and he says, ‘You say you never accused George Bray of stealing your watermelons, and whenever you told that you told a God damned lie,’ and he grabbed me and shook me and pulled me down a little bit, and hit me in the breast and knocked me down.”

He was then asked and answered:

“Q. Where were you and he at the time he had hold of you? A. Standing right here by the corner, facing to him. Q. Now were you on the inside or the outside of the fence at the time? A. I was on the outside. Q. Where was your horse? A. Standing on the inside, hitched to a chestnut limb. Q. To a chestnut tree standing there? A. Yes, sir; standing right above there. Q. You say he grabbed hold of you, how? A. Well, I could show you if I had somebody; just grabbed me right this way by the shoulders or the arms. Q. Now, you say after he got out of the wagon and got hold of you there he hit you; did you say he hit you? A. He hit me in the stomach with his fist, right in here. Q. What effect did it have? A. It knocked me almost down. Q. What did you do then? A. I went to get up, and he threw a rock at me, and when he threw that rock at me, I seen it hit the ground right at me, and it hit my hat--my hat had fell off--and I looked, and he was getting another rock, stooped down right over here getting another rock on this side of the road, and I pulled my *43 pistol and shot him. Q. What position were you in when you shot him? A. Something like this (a half-kneeling position). Q. What position was he in? A. He was stooping down to get a rock. Q. How far were you apart at the time the shots were fired? A. I never measured, just have to guess. I was here at the side of the fence, and he was about even with the far wagon track, and it must have been between 12 and 14 feet, something along there; I am just guessing at it. Q. About how much time elapsed, do you think, from the time he first got out of the wagon and got hold of you until you shot? A. Well, it wasn't long; he just come up and grabbed me and struck me, and you know it was done pretty quick. It must not have been over two minutes. Q. Well, what did he do or say, if anything, after you shot? A. He fell there on his right hip. Q. Did he say anything? A. Yes, sir. Q. What was it? A. He says, ‘Jim, I give it up; don't shoot me no more.’ Q. And then did you shoot any more? A. No, sir; I never. Q. What did you do immediately after he fell and made that remark? A. I got over the fence and got on my horse. Q. Where did you go? A. Rode out to the far end of the pasture field and pulled the bridle off the horse. Q. Now there has been some testimony describing the horse tracks up through the field. Tell the jury how you rode. A. Rode in a trot.”

The fact admitted by the defendant, who was 38 years of age and had been jailer of his county, that after shooting the deceased, who was about 23 years of age, and after deceased had said to him, “Jim, I give up; don't shoot me no more,” he got on his horse and rode away at a trot, and left even an enemy lying on the side of the road unattended and mortally wounded, is decidedly out of keeping with the only defense offered by him, that he shot only in his necessary self-defense. The proverb that “The wicked flee when no man pursueth; but the righteous are bold as a lion,” truly expresses human experience throughout the ages.

Then, too, the abrupt swerve in the wagon tracks in the road opposite the corner of defendant's field from which he fled indicates that the shots were fired when the wagon was at that place, and this could hardly have been so if defendant's version of what occurred is true, since seemingly the wagon and team would have been between the defendant and deceased when the shots were fired.

[6] These facts and others thoroughly established, it seems to us, sustain the verdict, despite the contrary evidence for defendant, and without regard to the dying declaration made by deceased to John Scott, which was erroneously read to the jury. Declarations of deceased to other witnesses at different times were proven, which were made under such circumstances as rendered them admissible, as counsel for defendant admit, but they insist that the declarations recited by these witnesses were incompetent and erroneously admitted over their objections, because of the erroneous admission later of the written declaration. This contention is upon the theory that both oral and written declarations of deceased are not admissible, and that, where the commonwealth elects to, or can, introduce a written declaration, it, being the best evidence, is alone admissible. In support of this proposition, but only where the written declaration is competent, there is some authority, although even upon this proposition reason and the weight of authority are to the contrary. Hendrickson v. Commonwealth, 73 S. W. 764, 24 Ky. Law Rep. 2173;Hines v. Commonwealth, 90 Ky. 64, 13 S. W. 445, 11 Ky. Law Rep. 865; Saylor v. Commonwealth, supra; 21 Cyc. 979; 1 R. C. L. 531.

But it would be a strange perversion of the rule contended for, even if its soundness were conceded, to exclude otherwise competent oral evidence, and especially of other declarations by decedent, because of the written declaration, when it was incompetent, since it is only upon the ground of its competency and supposed superiority as evidence that the oral declarations are excluded when a written one is available in any of the cases.

[7] The declarations of deceased to witnesses other than John Scott do not differ materially in any respect from the statement the latter transcribed and read to the jury, although some of them are not as full as the written statement, but, considered together, they cover in every respect and are in accord with that statement. The written statement as read to the jury is as follows:

“Watt Norton states that James Winstead was in the coal house as he passed the house and James Winstead went into the house. He states that he was going to Green Cress' to get a road scraper, and as he came back he was over on the inside of the fence near the church house, and he stopped me and asked me if I had been lying on him, and I told him I had not, and he said ‘By God,’ he lived here, and he pulled his pistol and shot me twice, and went to shoot me again, and I threw up my hands and begged to him not to shoot me any more, and he got on his horse and run out through the field. Nobody was present when it occurred. He states further that he was in the wagon sitting in the seat and had no gun or made no attempt to fight.”

It therefore appears that the contents of the written statement erroneously read to the jury were otherwise competently proven, and this fact, considered with the other convincing proof of defendant's guilt, forces the conclusion that the error in admitting the written declaration could not have been and was not prejudicial to the defendant in this case.

It is next insisted that declarant's statement, proven orally and also contained in the written declaration, to the effect that defendant left his coal house and went into his residence as declarant passed in his wagon, was incompetent and prejudicial.

*44 [8] The rule sought to be invoked is thus stated and explained in 1 R. C. L. at page 535:

“It is a rule of general application that statements of facts and circumstances not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations. For declarations which relate to such transactions do not come within the principle of necessity on which such declarations are received. Therefore dying declarations by the injured party as to previous threats made by the accused, or as to previous attempts made on the declarant's life by the accused, are not admissible, for the declarant does not become a general witness. He can only speak of the transaction which caused the death, and such accompanying act, statements, and conduct as shed light on it; the res gestæ, in a strict sense. Anything previously done or said, unless called up and made part of the altercation, cannot be proven as a dying declaration; and when so called up it can be proved as such only to the extent it is repeated or uttered in the altercation. It does not legalize any statement by the declarant of the past transaction out of which the difficulty grew. It is only such acts or statement, done or uttered at the time of the final fatal encounter and catastrophe, and which tend to shed light on it as a part of the res gestæ, which can be so proved. If the rule admitting dying declarations can be extended to a separate and distinct act occurring half an hour before, it will extend to any act done the day before, or a week, month, or year. As soon as the limit fixed by absolute necessity is passed, the principle upon which the exception is based being exceeded, there is no longer any limit whatever, and dying declarations become admissible, not merely to prove the act of killing, but to make every homicidemurder by proof of some old grudge.”

The authorities cited in support of the text fully sustain it, and, applying it here, our inquiry is: Was defendant's action in leaving his coal house and going to his residence when decedent passed in his wagon “a previous distinct transaction,” or was it “such accompanying act and conduct as shed light on” the killing, and a part of “the res gestæ in a strict sense”?

If the defendant did not see deceased at the time, and simply went to the house to get a drink and then went to the place of the killing in the attendance upon his stock, as he testified, then doubtless this was evidence of a “previous distinct transaction,” and therefore incompetent as a dying declaration.

But if, on the other hand, as is the theory of the prosecution, the defendant saw deceased as he passed in his wagon, and that was why he quit work in the coal house, went to his residence, and thence to the place where the difficulty followed almost immediately, then defendant's action in leaving his coal house just as decedent passed was “such accompanying act and conduct” as not only to shed light upon how the killing occurred, but so immediately accompanied that act as that it constituted a central and vital element in the one transaction, and therefore probably formed an important part of the res gestæ in a strict sense.

The fact that deceased saw defendant at his coal house as he passed (and he could not have known of his presence there if he had not seen him) is evidence from which it might reasonably be inferred that defendant saw him, despite his denial.

That this evidence possessed such potency is apparent, and the recognition of that fact by counsel for defendant no doubt prompts the effort to exclude it.

[9] But, even if it be conceded this statement of declarant was not of the res gestæ, and therefore incompetent, its admission was not prejudicial, because any inference deducible from it, is even more readily drawn from defendant's own evidence.

He testified that he ate his dinner about 12 o'clock, sat in the shade talking to a neighbor for awhile, then shoveled back coal in his coal house for about half an hour and until about 1 o'clock; that he then went to his residence to get a drink and “put on my pistol and my coat,” and went to the place of the difficulty to turn some colts from one pasture to another. As the killing occurred at about 1:15 to 1:30 p. m., or within 15 to 30 minutes after defendant left his coal house, it is apparent that he was in or about the coal house or his residence when deceased passed, and where he could have seen or heard the wagon. And the fact testified to by him that he put on his pistol and coat when he says he went to turn out his colts just after decedent had passed furnishes a stronger basis for the inference that he saw him pass than does the fact that deceased saw him.

The statements made by special counsel for the prosecution complained of are as follows:

“The deceased did not attack the defendant as claimed by him, because the deceased knew at the time that the defendant was armed, and was in the habit of going armed.”

“I have seen men sent to the gallows without a single eyewitness, and to the penitentiary for life on entirely circumstantial evidence, and oftentimes on the testimony of only one witness. I have seen, and you have, too, where a man was hung, and before death they had confessed where they had denied the crime on the witness stand. Counsel for the defendant, Judge Lewis, in making his argument said, ‘Oh, they will talk to you about lawlessness and all of that.’ I wonder if Judge Lewis, when he was circuit judge, in giving his charges to the grand juries and trial juries, gave them that way.”

[10] The latter of these statements was so plainly but an argument based upon an assumed *45 common experience of all mankind, and not upon any facts claimed to have been established by the proof, that we are sure it could not have been otherwise understood by the jury, and that it could not have been prejudicial, even if it can be regarded as improper, which in our judgment is at least doubtful.

[11] The other statement, that deceased did not attack defendant as claimed by him, is supported by much evidence, both direct and circumstantial, but there is no direct evidence that deceased knew defendant was then armed or that he was in the habit of going armed. That he was armed at the time was of course proven, and that he was in the habit of going armed is reasonably inferable from the evidence. Defendant himself testified that, when he left his house to change his colts from one pasture to another, he “put on my pistol and my coat,” just as though it was as natural and customary to put on his pistol as it was to put on his coat when leaving the house for any purpose.

The only vice, therefore, if any, in this statement is that deceased knew of these proven and inferable facts, and that because of such knowledge he was not the aggressor at a time when he was unarmed.

Assuming, but not deciding, that all the proven facts and circumstances did not warrant the inference that decedent knew that defendant was armed at the time or in the habit of going armed, we are yet confident that defendant's version of the killing is so thoroughly discredited, not only by competent direct evidence, but by all of the proven facts and circumstances, that this argument, if improper, could not have affected the verdict.

Summarizing, we feel entirely justified in saying that the only certain error appearing upon the entire record was the admission of the written declaration, and this was certainly not prejudicial, because every statement therein was otherwise completely proven, that the evidence is so convincing of defendant's guilt that the other matters complained of, and about the propriety of which we have expressed some doubt, could not have affected the verdict, and that the trial was free of any error prejudicial to defendant's substantial rights.

Judgment affirmed.  [6]

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[February 1, 1927] -

Court of Appeals of Kentucky.

NORTON, JR. 

v. 

WINSTEAD.

218 Ky. 26; 290 S.W. 1034; 1927 Ky. LEXIS 86

February 1, 1927, Decided

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

DISPOSITION: Judgment affirmed.

COUNSEL: C. C. WILLIAMS for appellant.

B. J. BETHURUM and JOHN S. CARROLL for appellee.

JUDGES: JUDGE MCCANDLESS.

OPINION BY: MCCANDLESS

OPINION

 [*27]   [**1034]  OPINION OF THE COURT BY JUDGE MCCANDLESS--Affirming.

R. P. Norton, Jr., sued James Winstead for assault and battery. A jury trial resulted in a verdict for defendant, upon which judgment was entered dismissing the petition. Plaintiff appeals.

The difficulty upon which the suit was based occurred in the Rockcastle county jail, both parties being prisoners at the time. Norton was serving sentence for a violation of the liquor laws and accorded the freedom of the jail. Winstead was in custody in default of bail, charged with the murder of Watt Norton, a cousin of appellant, and confined in a room on the first floor of the building. This room was not well lighted and was occupied by several prisoners. On the day of the difficulty the jailer called Norton and another prisoner (Hall) from an upper room to come down and take out a tub of trash, and admitted them into this room from the outer door. Norton claims that he could not see distinctly but went around the tub and started [***2]  to pick up the handle, when Winstead, without any warning, struck him on the top of the head with a bottle filled with water, inflicting serious and permanent injuries upon him, and followed this by knocking him out of the door. The jailer heard the lick but did not see the difficulty. Hall, who accompanied Norton, was unable to tell how it occurred. He was in the act of picking up the tub at the time he heard the lick struck.

Winstead testifies that at the time Norton entered the room he was sitting on a bench; that Norton was in a crouching position; he started toward him as if he was going to strike him; he could not see what was in the appellant's hand and thinking his life was in danger he threw a bottle at him and then shoved him out of the door; that a few months previous and while he was out  [*28]  on bail Norton laid in wait behind a shock of fodder near a road he was travelling and menaced him with a pistol; that about the same time Norton came to his house one night after dark and fired two shots at him while he was in his room; that he went to the window and saw Norton in the yard about thirty yards away. The moon was shining and he was able to recognize him. Two other [***3]  witnesses were in Winstead's house and heard the shots fired and saw where one of them struck the ceiling, but these witnesses lay down and remained on the floor for several minutes without attempting to see who was the offender. Two other parties who passed Winstead's house the same night testify that they saw two men in Winstead's coal house, one of whom was about the size of Norton, and that they went on, and as they reached a point about one-half mile distant heard shots in the direction of Winstead's house.

Another inmate of the jail testifies to overhearing Norton making threats against Winstead while in the jail, which he repeated to the latter.

On appeal the instructions are not criticised, but it is urged that the verdict is flagrantly against the evidence. As to this, if Winstead's version is correct, the jury were authorized to find for him. They were the sole judges of the credibility of the witnesses, and in accepting Winstead's version we cannot say that the verdict is so flagrantly against the evidence as to appear at first blush to be the result of passion or prejudice.

It is also urged that the court erred in the admission and rejection of evidence. However, a close [***4]  inspection of the record shows that the appellant is in error as to this. His objections were sustained to the incompetent questions to which he refers and the court admitted the evidence to which he claims he was entitled. We find no merit in this contention.

The last insistence is misconduct of counsel for appellee in his closing argument to the jury in which he said: "This plaintiff attempted to assassinate defendant twice; he laid in wait for him on the roadside; he shot into defendant's home and tried to murder him; under these circumstances you should not give the plaintiff one  [**1035]  cent. To do so would be an outrage on decency and humanity."

It is not improper for counsel to recite the evidence and comment upon it and to draw reasonable deductions  [*29]  and inferences therefrom, and in doing this he should be given reasonable latitude. 2 R. C. L., page 411, sec. 9; 21 R. C. L., pages 414-416; 38 Cyc. 1485; Lou. Gas Co. v. Ky. Heating Co., 33 Ky. L. Rep. 912; L. & N. R. R. Co. v. Vaughan's Admr., 183 Ky. 829, 210 S.W. 938; Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005.

It does not appear that this rule was violated in [***5]  this case. While stated in strong language the argument seems to have been based on the evidence.

Wherefore, perceiving no error, the judgment is affirmed. [7]

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[February 22, 1927] -

Court of Appeals of Kentucky.

NORTON'S ADMINISTRATOR 

v. 

WINSTEAD.

218 Ky. 488; 291 S.W. 723; 1927 Ky. LEXIS 177

February 22, 1927, Decided

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

DISPOSITION: Judgment reversed.

COUNSEL: C. C. WILLIAMS and A. FLOYD BYRD for appellant.

B. J. BETHURUM and JOHN S. CARROLL for appellee.

JUDGES: JUDGE LOGAN.

OPINION BY: LOGAN

OPINION

 [*488]   [**723]  OPINION OF THE COURT BY JUDGE LOGAN--Reversing.

This is an appeal from a judgment of the Rockcastle circuit court based on the verdict of the jury rendered in favor of the appellee. On the 25th day of August, 1921, appellee shot and killed W. H. Norton. It is alleged in the petition that this was wrongfully and maliciously done and not in the self-defense, or apparently necessary self-defense, of appellee.

The appellant relies for reversal on errors committed by the lower court in sustaining objections to certain evidence offered in support of his cause of action. At the time of the killing of W. H. Norton by appellee, E. B. Norton, Oscar Scott and George Bray were about 250 yards away from the scene. There was no eye-witness to the killing other than the deceased and appellee. Hearing the shots the three witnesses mentioned ran to the scene. They arrived at the place where the killing took  [*489]  place in about three minutes according to their testimony. E.  [***2]  B. Norton was the brother of W. H. Norton. He heard W. H. Norton cry out and he knew something of a serious nature was happening to him. He ran as rapidly as he could. The distance that he ran was about 300 yards as he did not traverse a straight line from the place where he was to the place of the killing. It is reasonably certain that no more than three minutes elapsed before E. B. Norton, Scott and Bray arrived at the place of the killing. When they reached the place they found W. H. Norton lying in the road shot through the bowels. These witnesses were not allowed to tell what W. H. Norton said upon their arrival and that is the chief basis of complaint urged for a reversal of the judgment. E. B. Norton was examined, not in the presence of a jury so that the court might know exactly the nature of the evidence which was proposed. This witness made this statement:

"He said he was killed, and I asked him who did it. He said Jim Winstead. I asked him what the trouble was. He told me he hailed him there, and was standing inside of the fence and halted him, and he stopped, responded to the halt, and he said you have been lying on me. I told him I had not. He said, I give you to understand,  [***3]  by God, I live around here, and went to shooting.

"My brother said he was sitting in the seat. Winstead jumped on the horse and started to shoot him again, and he put up his hands and begged him not to, said he had already killed him, and he jumped on his horse and ran through the field."

Appellant offered to prove by Oscar Scott and George Bray that W. H. Norton made the statements as testified to by E. B. Norton. The court would not allow this proof to be heard and considered by the jury. It is insisted by appellant that it was a part of the res gestae, and that is a question which we must determine.

This court has often had before it the question what is a part of the res gestae, but it is difficult to deduce any rule which is applicable to all cases. It has been held that the statements need not be strictly contemporaneous with the exciting cause before they may be admitted as a part of the res gestae. The admission of statements as a part of the res gestae is not controlled wholly by the  [*490]  question of time, but probably the controlling question is whether or not there was an opportunity to deliberately make up a statement between the happening of [***4]  the event and the time of making the statement. Before a statement can be admitted as a part of the res gestae the nervous excitement produced by the happening must still predominate and the reflective processes of the mind must be in abeyance. Statements to be admitted as a part of the res gestae must be spontaneous utterances of thoughts springing out of the happening itself and they must be made at a point of time which would exclude the presumption that they were the result of premeditation  [**724]  or design. Some of the cases illustrating the proper admission of statements as a part of the res gestae are as follows: Deacon v. Comlth., 162 Ky. 188, 172 S.W. 121; Roberts v. Louisville Railway Co., 168 Ky. 230, 181 S.W. 1131; Louisville Railway Co. v. Broaddus' Admr., 180 Ky. 298, 202 S.W. 654; Louisville Railway Co. v. Johnson's Admr., 131 Ky. 277, 115 S.W. 207, 20 L. R. A. (N. S.) 133; McLeod v. Ginther's Admr., 80 Ky. 399; Illinois Central Railway Co. v. Houchins, 125 Ky. 483, 101 S.W. 924; L. & N. R. R. Co. v. Strange's Admr., 156 Ky. 439, 161 S.W. 239; L. & N. R. R. Co. v. Messer, 164 Ky. 218, 175 S.W. 360; [***5]  Cinn., N. O. & T. P. Ry. Co. v. Evans's Admr., 129 Ky. 152, 110 S.W. 844; L. & N. R. R. Co. v. Shaw, 53 S.W. 1048; Brown v. Louisville R. R. Co., 53 S.W. 1041; Floyd v. Paducah R. R. Co., 64 S.W. 653, 23 Ky. L. Rep. 1077; L. & N. R. R. Co. v. Molloy, 91 S.W. 685, 28 Ky. L. Rep. 1113.

An examination of these cases will show that this court has been rather liberal in the admission of statements as a part of the res gestae.

In the recent case of Davis, Director General of Railroads v. Burns' Administratrix, 207 Ky. 703, 269 S.W. 763, the court well stated the rule deducible from the authorities above cited. The court there said:

"The ancient rule that statements of either party to the transaction that is the subject of litigation to be competent as part of the res gestae must have been made contemporaneously with and at the place of the main transaction has in modern times been much liberalized. Under the ancient rule the questioned statement here would have been excluded as  [*491]  being too far removed both in point of time and place from the main transaction. The spontaneity of the statement [***6]  seems to have been substituted for its contemporaneousness in point of time and place until now the rule seems to be that any statement made by either of the parties with reference to the transaction, which is the subject of the litigation, which is made close enough in point of time and place to it and under such circumstances as to make it appear that the one making the statement still is so gripped by and under the influence of the main transaction that the statement appears to be the transaction itself speaking through the person, may properly be admitted as part of the res gestae. If it appears that the statement is an attempt on the part of the party to narrate what occurred and to be merely his version of the transaction, it is not a part of the res gestae and should be rejected as a self-serving declaration."

Applying the facts in the instant case to the rule deduced as set out above we find some difficulty in arriving at a conclusion as to whether the statements made by Norton were merely his version of the transaction or whether at the time he made the statements he was still so gripped by, and under the influence of, the main transaction that the statements appeared [***7]  to be the transaction itself speaking through the person.

An examination of the case of McLeod v. Ginther, supra, discloses that one Mr. Fish was the conductor on the train which had collided with another train resulting in the death of Ginther and others. The following evidence was offered:

"Q. What did you say to Fish and what did Fish say to you concerning the collision?

"A. Well, he was the first man I met. He came up to me and commenced pulling out his watch, and says, 'What time have you got?' I says, 'I have no time to compare time now; there is my conductor.' He says, 'I had until 10:10 to make Beards.' I says, 'No, you had not.' He went on to my conductor, and that is all that passed between us at that time."

 [*492]  In passing on the competency of this evidence the court said:

"The appellant insists that the statement of Fish that 'I had until 10:10 to make Beards' was incompetent, because not a part of the res gestae.

"What constitutes res gestae is often difficult to determine, as the relationship of facts, when the thing done is composed of different agencies and actions, separated more or less in point of time and manner of [***8]  performance, is not always palpable, and though necessary, may frequently be obscured by the multiplicity of particles which go to make up the main fact under consideration. (1st Greenleaf, section 108.) Hence the particular facts of each case must determine the relevancy of declarations sought to be proven as part of the act of facts constituting and legally belonging to the cause of action."

In the Molloy case, supra, the court admitted statements made by one Oller, who was in a buggy at the time it was struck by a train, which statements were made a few minutes after the accident. We quote from the opinion in that case as follows:

"John Burnett was sitting on his porch 475 yards away and ran to the crossing at once, getting there just about the time that Dr. Blakeman did, or a little after. He asked Oller, 'How in the world did this thing happen?' Oller said he had started with this gentleman to Brownsville, and when they got in the flat this side he stopped and told the gentleman to hold on, that they had better not try to cross, and the gentleman told him that he thought they could get across, and they started up. When they got right up on the railroad the gentleman [***9]  grabbed the lines and aimed to turn the horses to the left and the engine struck the right-hand wheels and killed the right-hand horse. This occurred at the scene of the wreck while Molloy was still lying there insensible, and before anything had been moved. It is in substance the statement as was made to Butler. Oller made the same statement at the same place to Garvin, the operator, about the same time, and within two or three minutes after the accident. Each of these statements were made by Oller within three minutes  [*493]  after the occurrence, and should have been admitted as res gestae, being made at the scene of the wreck, and so soon after its oc [**725]  currence as to be fairly regarded as part of it and a verbal act explaining it."

If the statements of Oller in that case were competent as a part of the res gestae, and the court held that they were, we are forced to the conclusion that the statements of the deceased in the instant case as shown by the evidence which was offered and rejected were competent and should have been admitted as a part of the res gestae.

It is also insisted that the court erred in sustaining objection to the evidence of the [***10]  witness, George Bray, as to the actions and conduct of the wife of appellee about the time of the killing. It appears that Mrs. Winstead was at or near her home when the shots were fired and that this witness saw her running down the road immediately after the shots were fired and that she passed on down beyond the home of this witness and went through the gate and into a corn field back of the house. We suppose that counsel insist that this evidence was competent as showing that Mrs. Winstead had knowledge of what her husband intended to do when he left the house. We do not think, however, that the action or conduct of Mrs. Winstead is competent and the court properly so ruled. For the error of the court in refusing to admit the evidence of E. B. Norton, George Bray and Oscar Scott as to statements made by W. H. Norton, the case must be reversed.

Judgment reversed for proceedings consistent with this opinion. [8]

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[April 1930] -

In 1930, James Winstead is a prisoner at the Kentucky State Reformatory. (click to enlarge) [9]

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[July 31, 1930] -

75 CONVICTS ARE GIVEN PAROLES

[Special to The Herald]

FRANKFORT, Ky., July 30.-- Of the 75 prisoners paroled today by the state board of charities and corrections 18 gained their freedom through commutation of sentences granted to them by Gov. Flem D. Sampson for "heroic services" rendered when the prison chair factory was destroyed by fire.

There are a number of other prisoners eligible for parole by reason of commuted sentences and their cases will be taken up at the next meeting of the parole committee of the board at the state reformatory.

The prisoners from central and eastern Kentucky paroled by reason of commuted sentences include: George Sparks, Fayette, grand larceny, five years, June, 1928; Francis Wiley, Madison, housebreaking and grand larceny, two years and three years, October, 1925; John Sadley, Madison, obtaining money under false pretense and detaining woman against her will, 12 years, May, 1918; Taylor Samuels, Woodford, uttering a forgery, five years, May, 1928; Will Hays, Clark, housebreaking, and store housebreaking, six years, April, 1925; Sherman Grigsby, Breathitt, confederating and forgery, two years, October, 1926; Everett Coomer, Wolfe, grand larceny and housebreaking, five years, September, 1928; and Alfred Bryant, Garrard, turkey stealing, two years, November, 1929.

Other prisoners from central and eastern Kentucky paroled follow by counties; Bourbon, Goebel Kiser, receiving stolen property, one year, November, 1929; Boyle, Jesse Pike, chicken and turkey stealing, one year, January, 1930; Ed Watkins, chicken stealing, four years, September, 1927; Esstill, Archie Lynch, manslaughter, 15 years, January, 1923; Fayette, Andrew Wickliffe, store housebreaking, two years, July 1929; Herman Nelson, housebreaking, two charges, 10 and two years, June, 1922; J. W. Long, robbery, two years, April, 1929; J. Will Jones, Jr., forgery, two years, July, 1929; H. E. Bullis, forgery, five years, February, 1927; Porter Annes, murder, life, January, 1919; Floyd, Joe Hall, manslaughter, five years, May, 1927; Dock Boyd, horse stealing, two years, June, 1929; Franklin, John D. Wright, grand larceny, one year, January, 1930; Harlan, Noah Johnson, horse stealing and forgery, four years, March, 1926; James Harris, murder, life, September, 1921; J. W. Harrell, forgery, two years, December, 1928; Harrison, Harry Jones, grand larceny, two years, February, 1929; Eugene Copes, grand larceny, two years, February, 1929; Mason, Thomas Brewer, grand larceny, one year, December, 1929; McCreary, Fred Taylor, manslaughter, 10 years, June, 1924; Pike, William May, manslaughter, 14 years, May, 1922; Ed Williams, rape, 10 years, assault with intent to, two years, September, 1921; Pulaski, C. D. Cundiff, embezzlement, two years, February, 1928; Rockcastle, James Winstead, willful murder, life, February, 1922; Scott, Hanson Thomason, housebreaking, one year, October, 1929. [10]

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[1] "A Murder In Rockcastle." Richmond Daily Register, Richmond, KY. August 26, 1921. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069168/1921-08-26/ed-1/seq-1/

[2] Excerpt from "Nine Accepted on Baily Jury." Lexington Herald, Lexington, KY. August 26, 1921. Page 1. Genealogybank.com.

[3] "Woman To Probe Murder Case In Rockcastle." Richmond Daily Register, Richmond, KY. September 1, 1921. Page 4. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069168/1921-09-01/ed-1/seq-4/

[4] "Woman Foreman of Special Grand Jury." The Bourbon News, Paris, KY. September 6, 1921. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn86069873/1921-09-06/ed-1/seq-3/

[5] Death Record of Watt H. Norton. Ancestry.com. Kentucky, Death Records, 1852-1953 [database on-line]. Provo, UT, USA: Ancestry.com Operations Inc, 2007.

[6] Winstead v. Commonwealth, 195 Ky. 484, 243 S.W. 40 (1922). Retrieved from Westlaw.com.

[7] Norton, Jr. v. Winstead, 218 Ky. 26; 290 S.W. 1034 (1927). Retrieved from LexisNexis Academic.

[8] Norton's Admr v. Winstead, 218 Ky. 488; 291 S.W. 723 (1927). Retrieved from LexisNexis Academic.

[9] United States Federal Census, Year: 1930; Census Place: Frankfort, Franklin, Kentucky; Roll: 745; Page: 2B; Enumeration District: 0006; Image: 708.0; FHL microfilm: 2340480.

[10] "75 Convicts Are Given Paroles." Lexington Herald, Lexington, KY. July 31, 1930. Page 2. Genealogybank.com.

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