xt77wm13ng0p_85 https://exploreuk.uky.edu/dips/xt77wm13ng0p/data/mets.xml https://exploreuk.uky.edu/dips/xt77wm13ng0p/data/51w15.dao.xml unknown 6 Cubic Feet 9 boxes, 1 item archival material 51w15 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Caleb Powers papers Assassination -- Politics and government -- Kentucky. Conspiracy -- Kentucky. Affidavits Statesmen. Lawyers -- Kentucky. Kentucky Court of Appeals: Caleb Powers, appellant versus the Commonwealth of Kentucky, appellee. Brief for appellant. Copy 1 text Kentucky Court of Appeals: Caleb Powers, appellant versus the Commonwealth of Kentucky, appellee. Brief for appellant. Copy 1 2017 https://exploreuk.uky.edu/dips/xt77wm13ng0p/data/51w15/Box_8/Folder_6/12830.pdf section false xt77wm13ng0p_85 xt77wm13ng0p - 1
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BRIEF FOR APPELLANT.
R. C. KINKEAD.
S. M. WILSON.
J. A VIOLETT, J' R' MORTON'
A. T. wooo, JAMES C. SIMS,
OF COUNSEL. FOR APPELLANT.
“WM—m“—
PRESS OFJAS. E HUGHES. LEXINGTON, KY. .

 court of A as of Kentuck
WE Ye
CALEB POWERS, . . . . . . . . . Appellant,
Versus
THE COMMONWEALTH or KENTUCKY, . . . . Appellee.
BRIEF FOR APPELLANT.
The trial of: this cause covered a period of twenty—six days.
One hundred and seventy-five witnesses testified before the jury.
The transcript of the record in twelve volumes, contains over ’
twenty—five hundred pages.
The evidence heard upon the trial conclusively shows that 1
William Goebel, a member of the General Assembly and a contestant
for the office of Governor of this Connnonwealth, on the morning of
January 30th, 1900, near the State House, in Frankfort, was shot
by an assassin from the effect of which shot he died; that either
Henry E. Youtsey or James B. Howard, both charged in the indict-
ment as principals in the murder, was the assassin that fired. the
fatal shot, and that appellant, the Secretary of State, charged in the
indictment as an accessory before the fact of the murder, was not
in the office of the Secretary of State or Frankfort at the time of the

 _ 2
assassination, but was miles distant en route to the city of Louis— ,9
ville. ‘

The verdict of the jury, if true, carries with it the necessary
implication that the appellant sustained to the assassin a crimi- ’i‘
nal relation, which under the law warranted his conviction and the
penalty imposed by the verdict. '

The appellant challenges the truth of his implication and :
declares the judgment against him is prediétéd upon a verdict, the
product of prejudice and passion on the part of the jury, and grave ,1
errors of law upon the part of the Presiding Judge at the trial.

SELECTION or THE JU’RY. .2.,

The lower Court, upon the second day of the term, after recit-
ing the fact of the two former trials of the cause and expressing ‘.
the opinion that a proper jury could not be obtained from Scott i
County, entered an order directing the sheriff of Scott County
to summongl from the County of Bourbon two hundred men possess—
ing the statuatory qualifications for pctit jury service, one hundred
to appear on the next day, Wednesday, the other hundred on Thurs- ‘
day morning.

Immediately, upon the entry of this order, the appellant, by i
counsel, entered two motions; first, that the jury selected to try the {
cause be composed of six Republicans and six Democrats; second, i

i that the Court admonish the officers directed to summon the special
venire to select jurors without reference to their party affiliation.

The Commonwealth objected to each of said motions and the
same were overruled by the Court.

In overruling said motions the Court held, as to the first, that
such an arbitrary selection of the jury was impracticable and un- 2‘
warranted under the law; and, as to the second motion, that the :’
Ogigtbéiad already defined to the officers directed to summon the "
itliewcharacter of jurors qualified under the law'forlfjury service and i,

 25
i ._ w i
‘1 that the Court had no reason to assume the ofhcerjwould not per- *
form their duty. '
l The selection of the jury began on the fifth of August, and at
.‘“ the adjournment that day there were twelve jurors in the box
qualified, in the opinion of the Court, to try the case, and accepted
, by the Commonwealth.
f The appellant, on the morning of the 6th of August, made the
a following motion: '
‘: “The defendant, Caleb Powers, now comes and enters his
challenge to the panel of jurors and each juror tendered him
and moves that said panel and each juror thereof and the special
' venire summoned from Bourbon County be discharged upon the
1, following grounds, to-wit :—
‘, “That the officers of this Court directed to summon the
" special vcnire from Bourbon County by order of this Court en-
tered in this cause August 5, 1903, and who were sent by the
sheriff of this County to perform said service did not impartially
perform their duties and did not and have not fairly and im-
partially selected said jurors, but, upon the contrary did illegally
and in violation of the Statutes and Constitution of this Com~
monwealth and in violation of the rights secured to this defend—
’ ant as a citizen of Kentucky, and as a citizen of the United
, States, and particularly in violation of the rights secured to him
; by the Fourteenth Amendment of the Constitution of the
‘ United States, select and summon said jurors , and the said ~,
officers did consciously and purposely, select jurors of a different
affiliation from the political affiliation of the defendant, and
this they did with the purpose of discriminating against the
rights of the defendant, and with the intention of depriving the
defendant, who is a. citizen of Kentucky, and of the United
States, of the right to a fair and impartial trial by a jury
impartially selected, as required by the laws and Constitution
of Kentucky and the Constitution of the United States and the
, Amendments thereto.
‘- “The defendant further moves the Court for the reasons and
‘ upon the grounds hereinbefore stated and set forth, to require
: the Sheriff to designate other officers than those by him directed
f to summon the seeia-lrjvenire aforesaid, to summon petit jurors
: fl-Q’CLAO .

 for the trial. of this cause, and that such persons so designated
for such service receive all proper admonitions and instructions
from this Court in respect to the performance of their duties
and if the Court is unable to grant this motion, as indicated, the
defendant for the reasons and grounds stated, moves the Court
to designate some other ol'licer or person than the Sherii‘l to
summon jurors in this case.” (Vol. A. 1., 1021:, 105).
' In support of said motion the appellant filed his own. affidavit
(Vol. I A, 107—114) and that of Thomas C. Whaley (Hi—118 same
Vol). The Commonwealth filed counter affidavits of William
‘ Rogers, James Burke, Z. D. Lusby and Joseph Williams. (Vol. I A,
120—125).

The Court overruled appellant’s motion, not upon the proof
contained in the affidavits, but, solely, upon the ground and reason
stated in his opinion delivered in overruling said motion, viz., that
there was no claim or suggestion contained in the grounds of
appellant’s motion that any of the jurors selected did not possess
the requisite statuatory qualifications for petit jury service.

Thercupon the appellant in the exercise of his peremptory
challenge, excused six of the said jury and made his motion further
as follows:

“The defendant Caleb Powers now comes and moves the

Court to discharge the second special. venire which has been se—

_ lected and summoned from Bourbon County pursuant to an
order of this Court, and. the members of which has this day
appeared and reported for duty in this Court. And he moves

. the Court to discharge each and all of the men composing said
. .,venire upon the following grounds :—

“The defendant charges that said venire and the citizens
composing same have not been fairly and impartially selected
by the officers charged with the duty of selecting and summoning
said venire; that all of the men composing said venire, with
one exception, are members of the Democratic party and warm
friends and admirers of the late William Goebel and that they
were his ardent partisans and. active supporters and each and all
of them were summoned on account of political hostility to this

 5 .
affiant. The defendant states that the fact that said venire was ,
composed of Democrats, with only one exception, was not a
result of accident or chance or of inadvertence on the part of
thc ollicers who summoned said venire, but that such result
was caused by the constant purpose and effort on the part 0"
said ollicers to select and summon only such citizens of Bourbon
County as were men‘ibers of the Democratic party and personal
and political friends of the late William Goebel, and he charges
\ that but for such unlawful discrimination on the part of said
ollicers in selecting and suimnoning said venire, a large portion
thereof should have been, and would have been, composed of ‘
citizens of said County possessing all the necessary qualifications ‘
for jury service, who are members of the Republican party, the
party with this (.lc'licndant has been, and is now identified, and
in support of his motion to discharge said vcnire the defendant
tiles his atlidavit herein.” (Vol. A, 132—3.)
In support of said motion appellant filed his own affidavit and
that of R. B. Boulden (Vol. I A 134-138) and the Commonwealth
filed counter affidavits of E. D. Lusby, William Rogers, James A.
Gibson, E. 1’. Clarke, James Williams and James Burke (Vol. I A,
140). The Court overruled this motion.
Thereafter the selection of jurors nroceeded and after the
appellant had exhausted his challengéand the jurors selected over
his objection, the jury was completed and accepted by the Common— 1'
wealth.
Without accepting said jury, and before the jury was sworn,
the defendant moved the Court to discharge the panel as follows:
“The defendant Caleb Powers comes and moves Court to
discharge the panel made up from the two special venires here-
tofore summoned from Bourbon County, pursuant to an order
of this Court, because he says that all of said veniremen from
the two special venires, were not impartially summoned, but on
the contrary were selected from the partisan adherents and
admirers of the late William Goebel and purposely summoned
because of their political hostility to this defendant, and for the
further reason that, under the laws of the State of Kentucky,
he is allowed only fifteen peremptory challenges, all of which
have been exhausted, and because of the further fact that the

 . ' 6
defendant cannot and will not have received that kind of a
trial, if tried. before said jury, as is guaranteed him under the
laws of the State of Kentucky and the Constitution of the
United States, wherein it is provided that every citizen accused
of a crime is entitled to a trial before a jury impartially selected.
And in support of said motion to discharge said panel, the
defendant files his aflidavit herein.” (V 01. I A, 1437).
‘ And in support of said motion appellant filed his own affidavit.
(Vol. I A 118). This motion was also overruled. by the Court.
There can be no doubt that the learned judge of the lower
2 Court entertained the opinion that the sheriff in selecting the Bour—
bon County jurors, did no wrong to the appellant, if he selected
jurors possessing the qualifications fixed by the statute, however
malicious his purpose in making his selection, and whatever may be
the intensity of the political prejudices and animosities of the 1
jurors selected.
With a history of this case before him and the knowledge that
appellant upon the former trial had insisted both in the lower Court
' and in this Court, that he had been grievously wronged in the
selection of the jury that tried him, the refusal of the learned Judge
to admonish the sheriffs that in selecting the jurors} they should
‘ perform their duty without discrimination and without reference
to the party affiliation of the jurors, was a serious disappointment
and great surprise to the appellant and his counsel. The modest
' appeal so refused by the Judge was especially to the prejudice of
appellant, because this Court had announced in effect, that however
. grossly malicious the purpose of the officer in selecting the jury,
1 however gross the discrimination against the appellant, this Court
could not review such wrongs and was powerless to grant relief.
This refusal of appellant’s request, on the part of the learned Judge
in the presence of the officers charged with the duty of selecting
the jury, doubtless caused said officers to believe that they could do
what they did actually do as stated in the affidavits of appellant,

 . 7 ,
Whaley and Boulden, select jurors with a purpose of securing the
conviction of appellant.

And the learned Judge when the wrong apprehended, if not
anticipated, was again brought to his attention, closed his eyes and
refused to even investigate the wrongs complained of, forsooth,
because there was no charge or complaint that the jurors summoned
from Bourbon County did not possess the requisite statutory quali-
fications.

It has already been observed that the officers of the Common- -
wealth conducting the prosecution, filed counter affidavits and made
therein some effort to controvert the statements contained in the
affidavits offered in support of appellant’s motion. But the evidence
contained in these affidavits did not control the trial Judge in
refusing the relief appellant sought. for? we have already shown, his
refusal of appellant’s motion was decided irrespective of the merits
of appellant’s contention as shown by the affidavits filed.

But if the Court had been desirous of deciding the question
involved, upon the strength of the evidence presented in the affida—
vits, he would have found that the feeble denials, evasive and irre-
sponsive averflfnents in the counter affidavits, in no serious way
affected the force and strength of the statements of fact recited in
all fullness and detail in the separate affidavits of appellant and in
the affidavits of Whaley and Boulden. It is true that counter
affidavits in respect to the facts alleged regarding one Wyatt
Thompson alone, as set out in appellant’s affidavit, are vigorous,
but the vigor displayed in the counter affidavits in respect to
Thompson, and Thompson alone, we submit, implies and carries
with it a feebleness and want of strength in respect to all other
features of said affidavits.

Thus the position assumed by the trial Judge must be regarded,
as he intended it to be, unaffected by aught contained in the affida- ,
vits, and we do no injustice to the View entertained by the trial

 8

Judge when we define his position to be, that the officers, charged
with the duty of selecting the jury, discharged that duty by select-
ing persons pessessing the technical statutory qualifications, how-
ever guilty of gross discrimination in making their selection and
however malicious in their purpose. With the light of centuries of
' history heating upon him, it would seem impossible that a Judge
of a Court among an English speaking people, could entertain so
low a value or appreciation of a legal trial by a jury. For what is
the value of this great privilege or right if the trial Judge permits
a subordinate officer of his Court to reduce it to a mere empty form.
We cannot resist repeating in this connection, what Judge

Story has stated with such earnestness:

“The great object of a trial by a jury in criminal cases is to
guard against a spirit of oppression and tyranny on the part
of the rulers, and against a spirit of violence and vindictiveness
on the part of. the people. indeed it is often more important
to guard against the latter than the former. The sympathies
of all mankind are enlisted against the revenge and fury of a

, single despot, and every attempt will be made to screen his
victims. But how difficult is it to escape from the vengeance
of an indignant people, roused to hatred by unfounded calum—
nies, or stimulated" to cruelty by bitter political enmities, or
unmeasured jealousies. The appeal for safety can, under such

‘ circumstances, scarcely be made by innocence in any other
manner than by the severe control of courts of justice, and by
the firm and impartial verdict of a jury sworn to do right, and
guided solely by legal evidence and against the prejudices of
‘ judges who may partake of the wishes and opinions of the
government, and against the passions of the multitude who may
demand their victim with a elamorous precipitaney. So long as
this palladium remains sacred and inviolable, the liberties of
a free government cannot wholly fall. But to give it real
efficiency, it must be preserved in its purity and dignity, and not
with a view to slight inconveniences, or imaginary burdens, be
put into the hands of those who are incapable of estimating its
worth, or are too inert, or too ignorant, or too imbecile to weild
its potent armor.”
' No act of the General Assembly of this Commonwealth impair-

 9
ing the great right and privilege of trial by jury, as defined in the
Constitution of the C(mn‘nonwealtli, can, or should stand.

No construction ol’ the 281st Section of the Criminal Code
should he adopted, it it can be avoided, which forbids a review by
this Court of the serious questions presented by the appellant.

It is a matter of regret that this Court, upon the former appeal
of this case, bold itself powerless to correct or review a similar
wrong upon the former trial of appellant. We, again, insist that
notwithstanding the terms of the Section of the Code referred to -
and after a full consideration of all the cases decided by this
Court with respect to this question, it is within the power of this
Court to review a question attecting in such a serious way the
integrity ol’ the trial by jury; and this, we think the Court can do
without holding this Section of the Code to impose an unwarranted
limitation upon the power of this Court. (Terrell 728. Common—
wealth, 78th Blush, 1,8; Kennedy 128. Commonwealth, 14th Bush
342; Foreman 'vs. Commonwealth, 86 Ky; Smith vs. Common—
wealth, 21 Kg. Law Rep. 11,770).

If, however, we are in error in this respect, then surely no
case ever came before this Court that more imperatively demands
that this Court resent such legislative interference with the exercise
of its proper functions.

But the appellant in the lower Court insisted that the discrimi-
nation against him in the selection of the jury, not only invaded
a right secured to him by the Constitution of this Commonwealth,
but violated rights secured to him by the Constitution of the
United States.

Section 1, Article 14: of the Constitution of the United States,
provides:

“All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the State wherein they reside.

“No state shall make or enforce any law which shall abridge

 10
' the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty or property
without due process of law 3 nor deny to any person within its
jurisdiction the equal protection of the law.”

Is appellant’s contention within the terms of the provisions
of the Constitution of the United States? If so, this Court must

‘ grant him the relief he seeks or fail): to discharge a high and solemn
» duty imposed by the paramount law of the land.

The Fourteenth Amendment was intended to secure equality of
rights to all peol’)le!--Tt is in effect a limitation upon every depart-
ment of the State government, and upon every agency employed by
the State in the conduct or administration of government. Con-
sidered in the past by many eminent statesmen and jurists a serious ‘
menace to the perpetuity of our duplex system of government,
State and Federal, the day is not far distant when it will be hailed
by all men as the keystone in the arch of our political fabric, the
Gibraltar within whose protecting walls the spirit of American

' institutions will be ever secure against the assaults of ignorance,
prejudice and passion;

The Declaration of Independence declared the equality of all

> ‘ persons to the enjoyment of life, liberty and the pursuit of happi-

ness. The Fourteenth Amendment is a pledge to every person of

equality or protection in the enjoyment of these great rights, and

i a shield against unjust discrimination in the administration of law
everywhere within its jurisdiction.

The appellant is a Republican, charged with a base crime, the
result of a fierce and passionate political contest in which, in a

‘ degree, more or less active, the entire population of the Common-
wealth became interested and thousands became bitter partisans.

Appellant was not entitled to have a jury of Republicans to try
him, or a jury composed in part of Republicans and Democrats;

 ' ’ ' 11 '
but he was entitled to have the jury that tried him selected without
discrimination and without reference to their party affiliation.

A subordinate agent in the administration of the government
of this Commonwealth, denied him the equal protection of the law
in discriminating against him in the selection of the jury that
tried him. The lower Court practically confessed itself powerless
to undo the wrong, and refused appellant the relief he asked.

If appellant had. been a Catholic charged with a crime, the .
result of a bitter contest between the Protestants 011 one side and
the members of his own Church on the otheifio: if appellant had
been a member of a labor union charged with a crime of assassinat-
ing a leading captain of industry,—in neither case would he be en—
titled to have a jury of his own associates or party friends to try
him; but he would have had the undoubted right to have a jury
selected, in the one case, without reference to whether they were
Catholics or Protestants; and, in the other case, without reference
to whether they were members of a labor union, or were capitalism.
If the jury that tried him in the one case were all Protestants or in
the other all captains of industry, and they were selected by reason
of their party or class association, with a purpose to convict, such
a case would not be unlike in all essential features the ease presented
in this Court.

This Court is not powerless and should not refuse to correct
this great wrong of which appellant complains. This Court is
not powerless and should not refuse to resent so dangerous an
assault upon the great bulwark of liberty, a. trial by a jury impar-
tially selected. (Carter vs. State of Texas, Book 41;, Law Ed. Sup.
Ct. Rap. 1). 839; James Tarranco, aa, vs. State of Florida, Book
47 Law Ed. Sup. Ct. Rep. 572; and the recent case of Rogers vs.
Alabama, decided by Mr. Justice Holmes, but not yet reported.)

We will not undertake to review or discuss at any length the
cases sustaining the constitutional principle for which we contend.

 12
I That service will be exhaustively rendered by other counsel for
appellant.

It is sulTicient to note in this coni’iection, the result of the cases
cited as summed up by Justice Gray in Car/m- «12.9, Slate 0f Tamas,
and recently re-atlirmed and approved by the Supreme Court of the
United States in the case of Inlay/31's “128. Male of Alalmmu, decided
January 18, 19049——

’ “Whenever, by any action of a State, whether through its
legislature, through its courts, or through its executive or ad-
ministrative officers, all persons of the African race are excluded,
solely because of their race or color, from serving as grand jurors
in the criminal prosecution of a person of the African race, the
equal protection of the laws is denied to him, contrary to the
Fourteenth Amendment of the Constitution of the United
States.”

. Surely it the Constitution of the United States is effectual to
protect the negro against discrimination on account of his color,
it is potent to protect a white citizen of the United States from

, discrii‘nination on account of his party alliliations.

If. protection against discrimination on account of a purely

physical quality or characteristic is afforded a defendant, how
. much more should protection against like discrimination be afforded

‘ where it touches moral and mental characteristics.

A reversal of this case upon the grounds stated will be a

_ message to all inferior tribunals from this high Court of last resort
that such abuses of the great right of trial by jury will not be
tolerated, and will, at the same time, discharge a. most imperative

“ duty to appellant. The opportunity comes rarely to this Court to
render a higher or more important service to the Commonwealth.

 The Certain Identification of the Assassin of William Goebel, in
the Last Trial of Appellant, Rendered a Large Part of the
Evidence Heard Upon His Former Trials, and Admitted on '
the Last, Incompetent and Irrelevant, and Demanded a ,
Radical Alteration or Modification of the Rulings of the I
Lower Court Made Upon the Two Former Trials. And the
Court Should Have Sustained Appellant’s Motions Made at
the Conclusion of the Evidence to Withdraw From the Jury
Certain Evidence Heard Upon the Trial.
The indictment, while in its terms so bread, is uncertain in
the enumeration of both the alleged. accessories and principals in
the murder of William Goebel. Twelve persons are named in the
indictment as the alleged accessories and five as the alleged princi-
pals ; other persons are alleged. as accessories and principals, whose
names were unknown to the jury 5 quite a number of witnesses, not
introduced upon former trials, testified to material facts upon the
last trial. Evidence was heard upon the last trial in effect alto-
gether inconsistent with evidence heard upon the former trials;
Theories or deductions from the evidence indulged in by the prose—
cution and presented to the jury upon the former trials and relied
upon to satisfy the jury of appellant’s connection with the assassin,
were in effect abandoned and discarded by the Commonwealth upon
the last trial; and other theories or deductions, altogether dill’erent
were presented and relied upon to connect appellant with the
crime. This change of theory and deduction was due to the changes
in the evidence and the new conditions of the case.
But the learned trial Judge, not unlike the attic robber of

 _ 14

old, who required all his victims to rest upon a, bed. of certain
dimensions and when the Victim was too long to suit the bed, broke
his legs, and, when too short to fit the bed, stretched his legs, inex—
‘ orably followed in the footsteps of his predecessor in the former
trials, apparently unconscious of the new features and conditions
of the case, brought about by the introduction of other and different
evidence in many respects than that heard upon the former trials.
I The evidence presented by the Commonwealth upon the former
trials, and upon the last trial, relative to certain series or rather
* nuclei of fact principally relied upon to establish a criminal
connection between the appellant and the assassin, we will briefly

state and in the order of their occurrence.

First: Evidence relative to the character of witnesses sum—
moned for W. S. Taylor in the gubernational contest, and, the in—
structions given by appellant to his associates in procuring the
presence of such witnesses in Frankfort. This evidence, it will be
perceived, conduced to show that these witnesses, or some of them,

' residing principally in the Eastern section of the State, were fight—
ing men and rough in character, if not desperate. (Geo. Lockard,
‘ Vol. 2, 426, Wharton Golden, Vol. 3, (310; l). D. Fields, Vol. 4,
l V 7’59; W. H. Culton, Vol. 4, 811; Caleb Powers, Vol. 7, 1448).
‘ (Second)—MEETING IN OFFICE OF SECRETARY OF
- STATE.
Evidence was admitted relative to what occurred at a meeting
' ' in the private office of the Secretary of State, about the 18th of
January.
. The significance of this meeting lies alone in an incident, con-
ceded by all present to have occurred. The evident object of the
, meeting was to arrange some system of caring for the witnesses.
‘ and to adopt some order or method in the presentation of evidence
‘ in the gubernational contest then pending before the Legislature.
. . . .__. M~

 15

n It seems that at some juncture of the meeting, a man by the name
e of Burton, sherifi' ol’ Breckinridge County, made a bitter speech,
._ and in the course of his address, exposing in his hands some cart-
, ridges, said: “The only way to settle the contest was to burst a
s few of these,”referring to the cartridges, “around the Capital
t Hotel.” I
‘.. This outburst of Burton was rebuked by all present and by
r no one more promptly and vigorously than the appellant. The in- .
r troduetion by the Commonwealth of this incident was obviously for
.l the sinister purpose of exciting the prejudice of the jury. (Frank
Y Cecil, Vol. 2, 234; D. D. Fields, Vol. 41-, 768; W. H. Culton, Vol.

4», 8M; Caleb Powers, Vol. 7, 1449, J. L. Butler, Vol. 8, 1860; R.
_ C. Blaudl’ord, Vol. 9, 1997; Dr. Smith, Vol. 11, 2526; S. G. Price,
_ Vol. I11, 532).
e Zé‘fégLMEETING IN AGRICULTURAL BUILDING.
e
_, {q/ The prosecution insist with great earnestness, that at a meeting
_ held in the Agricultural Building, at Frankfort, on January 20th,
-: was formed the criminal conspiracy in the execution of which
3. William Goebel was killed. The appellant, on the other hand, with
I equal earnestness, persistently contends that the purpose of that

meeting was neither to kill William Goebel, nor engage in any
’1 enterprise or i‘novement in the execution of which either the killing

of William Goebel was, or could have been reasonably contemplated.
:3 Nor was the death of William Goebel the result or probable result
E of such enterprise, or induced thereby.

In this meeting, unquestionably, was organized the movement

_ to Frankfort of what is termed in the Iécérd “the mountain army”.
3 There is some conflict of evidence in respect to what was said in
4 this meeting, relative to its purpose, but no rational man can criti-
; cally examine the evidence and doubt that such conflict is due to the
J perjury of the witnesses introduced by the Commonwealth. (Frank

 16
I Cecil, Vol. 2, 239; W. H. Culton, Vol. 1, 822; Caleb Powers, Vol.
’2’, 1457; H. H. Howard, Vol. 9, 2061:; Geo. S. Page, Vol. 11, 2180;
H. S. Vansant and T. C. Davidson, Vol. 11, 2531).
(b)—MEETING AT BABBOURVlLLE ON JANUARY 23,
1.900.
The Commonwealth attempted to strengthen its evidence, rela—
- tive to the purposes of the meeting in the Agricultural. Building
by the evidence of other witnesses of admissions of Caleb Powers
‘ and Charles Finley, made on the 22nd, 23rd and 21th of January,
1900, at Barbourville, Ky. (J. F. Hawn, Captain of Militia Com—
pany, Vol. 2, 319; Wharton Golden, Vol. 3, (319; John A. Black,
Vol. 10, 165; Caleb Powers, Vol. '7, 1172; Charles Finley, Vol. 10,
2271).
An examination of the record will make it appear that the
evidence of Caleb Powers, in respect to his conversation with John
A. Black and Capt. Hawn, upon January 22nd and 23rd, at
. Barbourvillc, and in respect to the interview with Black and Finley
on January 23rd, in no material degree varies from the testimony ,
of Black, Finley and Hawn relative thereto; and is, in no sense,
. inconsistent with his statements made in the meeting at the Agri—
cultural Building at Frankfort on January 20th. But there is that
‘ obvious struggle for accord between the evidence of Cecil and
~ Culton relative to the statements imputed by them to Caleb Powers
in the meeting in the Agricultural. Building at Frankfort in respect
to the purpose of bringing the mountain men to Frankfort, and the
‘ evidence of Golden as to statements he imputes to Caleb Powers
and Charles Finley in reference to the same subject made at the
interview between Powers and Finley at Barbourville, on January
23111., well calculated to excite a suspicion that Cecil, Culton and
2 ' Golden had each been touched by the same expert in the crime of
subordSnation of perjury.

 17 ‘ j

l. ‘
;_ ('c)—ALLEGED ADMISSIONS OF JOHN l’() W MRS AND
7 ’ CHARLES FINLE Y.
a The Commonwealth Ifurthcr attempted to bolster the evidence ‘
a, of Cecil, Culton and Golden, in respect to the purpose of taking the

mountain army to Fra