Bard v. Kentucky Petition for Rehearing

    COURT OF APPEALS OF KENTUCKY

NATHAN BARD, Appellant,

COMMONWEALTH OF KENTUCKY, - Appellee.

PETITION FOR REHEARING.

Appeal from Hopkins Circuit Court.

ROSCOE CONKLING,
Attorney for Appellant..

W M T M H E L M O H T *  CO., H tC O K O U TU D , L O C IIT IU Jt , K T .



From:

To:

Subject:

Date----- -— -

M EM O R AN D UM

ll /  * )



INDEX.

PAGE
Failure of appellant to receive Commonwealth, ’s

brief in time to file a reply brief...........................  1

Appellant did not receive fair and impartial trial
guaranteed him by Constitution.........................  2

Failure of testimony to corroborate testimony of ac­
complice. Lack of identification.........................  5

Kentucky Criminal Code, Section 241.



COURT OF APPEALS OF KENTUCKY

Nathan B ard, - - - - - -  Appellant,

vs.

Commonwealth of K entucky, - - Appellee.

PETITION FOR REHEARING.

APPEAL FROM HOPKINS CIRCUIT COURT.

Appellant, Nathan Bard, moves the Court to 
grant him a rehearing on the following grounds:

1. Appellant in this case did not receive the ap­
pellee’s brief in time to file a reply brief. There are 
numerous points in appellee’s brief to which the ap­
pellant could make answer and to which authorities 
might be cited and which he would have made had the 
opportunity been given him. The Court rendered its 
decision within less than a week after appellant was 
in receipt of appellee’s brief. Appellant believes 
that he should have had time in which to file his reply 
brief before this case was decided.

The Commonwealth held in its brief that the wit­
ness, Hollis, was not an accomplice, yet appellant was 
not given sufficient time within which to answer this 
statement.



2

2. Because of the intense feeling and excited 
state of the public mind appellant could not and did 
not have a fair and impartial trial as guaranteed him 
by the Constitution.

Your Honors can readily see the conditions exist­
ing both immediately before and at the time of the 
trial held in Madisonville at which this appellant was 
convicted. We feel, in spite of the fact that a motion 
for a change of venue was not made and the reasons 
therefor which have not and can not be brought be­
fore Your Honors, that you should take judicial no­
tice of these conditions existing and that Your 
Honors can take judicial notice of the presence of 
the soldiers in Madisonville and the reasons for their 
presence there. Following the commission of the 
crime the populace arose and threatened to lynch this 
appellant. I t  was necessary that he be spirited away 
in order to protect the good name of the State, yet 
he was brought back amid wild scenes of excitement 
surrounded by soldiers to the number of five hun­
dred to be indicted and tried. From among this 
seething public were chosen men for jury service, 
men who were part and parcel of this seething public, 
men who appeared to seek jury service, men who, to 
our minds, had already made up their minds to con­
vict, and these same men sat upon the jury and tried 
this case. On the streets martial law was declared; 
at the door of the courthouse and at the ja il squads 
of soldiers were manning loaded machine guns. At 
the courthouse door every one who entered was com-



3

pelled to show his pass in order to enter. Each per­
son was searched for weapons upon reaching the first 
landing place on the stairway. Soldiers were sta­
tioned there for that purpose. Even jurors were 
compelled to go through this procedure, each person 
had impressed upon him the conditions existing at 
this time. How, under these circumstances, was it 
possible for appellant to have a fair and impartial 
trial? What of the guarantee of our Constitution? 
Is  it only a scrap of paper made to be destroyed at 
w ill; does it carry with it a guarantee to all people, 
black or white, rich or poor ?

As stated before, soldiers lined the streets, the 
town was under martial law, these prisoners, when 
they were brought to the ja il from the courthouse 
and taken from the courthouse to the jail, were 
guarded by squads of soldiers and led back and forth 
amid these stirring scenes. At the time these prison­
ers and this appellant were brought to the courthouse 
on the day of the trial, this venire, which was chosen, 
was there to see and hear everything that went on, 
they passed back and forth in the streets; they talked 
to their friends and they actually imbibed the feeling 
exhibited by the people in Madisonville, and yet this 
man was tried. Was this trial fa ir? Was it im­
partial ? Was it a trial by a jury of his peers, or was 
it a cut and dried verdict, ready to convict, anxious 
to convict and anxious to serve on the jury in order 
to convict?



4

We maintain that although this trial was held 
with a semblance of law, yet, in back of it all, was the 
hatred of this appellant, a desire to do him bodily 
harm, a desire to punish some one to obtain a victim. 
A prisoner was at bar, guilty or innocent, a prisoner 
should be punished. W e say and I  firmly believe 
that no matter who had been at the bar of justice on 
the day this trial was had, no matter who had been 
indicted for this crime that person would have been 
convicted by a jury, should this case be permitted to 
go to the jury. The only way on earth to have pre­
vented a conviction in this case, or in the case of any 
person who had been charged with this crime was for 
the Judge of the lower Court to give a peremptory 
instruction for the jury. Guilty or not guilty a man 
is entitled to that fair and impartial trial guaranteed 
him by the Constitution; to that trial by a jury of his 
peers; to that trial before a jury who are impaneled 
not to convict, but to listen to the evidence with an 
unbiased mind, to weigh the testimony of the Com­
monwealth and of the defendant and to resolve any 
reasonable doubt to the benefit of the defendant. 
This is no criticism of the lower Court. The Judge 
before whom this case was tried was as fair-minded 
as it is possible for a Judge to be, but this is a criti­
cism of the town of Madisonville and its inhabitants, 
of the county of Hopkins and its inhabitants; this is 
a criticism of those men, and they were in the great 
majority, who sat to take the life of this appellant 
even before a trial, even before an indictment, a town



5

and a county which before this trial had already de­
cided that this appellant was guilty; a town which 
had decided that this appellant was guilty even with­
out any evidence whatsoever; a town and county 
which needed a victim and this poor darkey, the ap­
pellant herein, stands before this Honorable Court as 
a victim of an unfair trial, a victim of a verdict by a 
jury which had theretofore made up their minds to 
convict; a victim because Hopkins County and the 
town of Madisonville needed a victim to pay for the 
crime that had been committed against this young 
girl. We feel that Your Honors have not considered 
the facts and circumstances existing at the time of 
this trial and that is the reason that we have at­
tempted to dwell so fully upon the conditions exist­
ing at that time.

3. As to the identification in this case, we do not 
feel that it has taken place. Other than the witness, 
Columbus Hollis, we have the witness, Adair Stum, 
to corroborate Hollis’ testimony. Adair Stum, a 
proven coward, a man who was afraid to look the at­
tackers in the face, a man who goes out with a little 
girl quite a bit his junior and fails to protect her in 
the face of a brutal assault; a man who. even though 
at the point of the gun, faced the wall and held his 
hands up in the air and this man says that he recog­
nizes the appellant in this case. Other than Adair 
Stum and Columbus Hollis, who is it that picks out 
Nathan Bard? Adair Stum, as stated, had his back 
turned toward these men; Adair Stum was afraid



6
even to turn Ms head in defense of this poor little 
defenseless girl and yet he identifies the man as the 
perpetrator of this crime. We do not feel that Your 
Honors have really given a close inspection to Adair 
Stum’s testimony. The night was dark and raining; 
the night was cold, the lights of the club house were 
extinguished and there was no one at this club house 
excepting Adair Stum and this little girl and sup­
posedly three men. Adair Stum as he testified was 
startled by the appearance of a man on either side 
of the car and Adair Stum himself had turned the 
lights out on his automobile, yet Adair Stum, in spite 
of testifying in answer to a question as to whether 
or not he attempted to defend this girl, replied: “ Do 
you think I  wanted to be killed,” and this man who 
was afraid, as we have stated before, to make a move 
in defense of this poor little girl, testified that he 
identified this man. We do not feel that Adair Stum 
could be believed under oath, we feel that Adair Stum 
was so frightened, so overwrought by the occurrences 
there that Adair Stum could not recognize anybody 
and his appearance on the stand bears out our con­
tention and the Court will recall here Louisiana Hol­
lis was not there to identify Nathan Bard.

Louisiana Hollis knew nothing about Nathan 
Bard because, if  the testimony is true, Nathan Bard, 
or whoever the person was in Columbus Hollis’ auto­
mobile, if  he was there, got out of this automobile 
before it reached Louisiana Hollis’ home. I t  is with 
the greatest of respect to the lower Court that we call



7

Your Honors’ attention to the fact and it is a pe­
culiar fact, that in order to convict this man it was 
necessary to have somebody identify him other than 
Columbus Hollis and that in order to convict the 
other appellant in this same offense it was necessary 
that somebody identify shoe prints. I t  was impos­
sible for the Commonwealth to identify this one shoe 
as belonging to different people and there is where 
Adair Stum came in ; he could identify this one man, 
but we seriously doubt the identification and we feel 
that because of the failure of this identification, the 
failure to sufficiently corroborate the testimony of the 
accomplice, Columbus Hollis, corroboration strong 
enough which tended to connect the defendant with 
the crime, we feel that under Section 241 of our Crim­
inal Code that the Court in this case should have di­
rected the jury to bring in a verdict for the de­
fendant.

Upon this whole case it appears to u s:
First. That whether or not this appellant is 

guilty he did not obtain a fair trial.
Second. That this appellant should be given time 

to file a reply brief in this case, and
Third. That the appellant should have received a 

directed verdict from the Court acquitting him be­
cause of the failure to properly corroborate the tes­
timony of Columbus Hollis, and we respectfully ask 
that a rehearing be granted herein and that this 
cause be reversed.

R oscoe Conkling,
Attorney for Appellant.



Nathan B a r d , ............................................

v. Hopkins County.

Commonwealth of Kentucky,

Appellant,

Appellee.

PETITION FOR REHEARING.