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Jim Dixon Lyr Req/Add: Stella Kenney / Murder of Stell Kenny (11) RE: Lyr Req/Add: Stella Kenney / Murder of Stell Kenny 17 Mar 20

From The South Western Reporter, Volume 185, (St. Paul: West Publishing Co., 1916), page 146:

(Court of Appeals of Kentucky, April 25, 1916.)
. . .
Appeal from Circuit Court, Carter County.

Robert Frasure was convicted of murder, and appeals. Reversed and a new trial granted.
. . .
The grand jury of Carter county, on the 26th day of May, 1915, returned against appellant, Robert Frasure, an indictment charging him with willfully murdering in that county Stella Kinney on the 2d day of May, preceding the indictment. His case was set for trial at that term of the court, and on the 7th day of June. A trial at that time resulted in a hung jury, and a second trial was had at the following October term of the court, resulting in appellant being convicted by the verdict of the jury and his punishment fixed at confinement in the penitentiary for his natural life. His motion for a new trial having been overruled, he prosecutes this appeal, assigning numerous errors for a reversal of the judgment. The ones urged before us may be stated as follows: (1) Error of the court in failing to order a jury summoned from another county adjoining Carter county; (2) the court should have peremptorily instructed the jury to find the defendant not guilty; (3) failure of the court to give to the jury the whole law of the case; and (4) error of the trial court in admitting before the jury prejudicial and incompetent testimony offered by the commonwealth.

Before considering any of these objections, and to assist in an understanding of them when considered, it is necessary that we should make as brief a statement as possible of the facts.

The appellant at the time resided in Fleming county, and was engaged in operating a country store about 1½ miles from a station in that county called Ewing. His brother-in-law, and the father of the deceased, Stella Kinney, lived some 4 or 5 miles east of Olive Hill, in Carter county; the distance between these two points being something between 55 and 60 miles. The murdered girl had been staying at the home of appellant for something near 10 months immediately preceding the tragedy resulting in her death, and which occurred about 1 or 1½ miles west of Olive Hill, in Carter county. The appellant is a married man 34 years of age, his family consisting of a wife and some two or three children. Mrs. Frasure was in delicate health and in an advanced stage of pregnancy at the time, and the niece of appellant had been engaged in discharging necessary household duties throughout her 10 months' stay at his house, or at any rate for quite a while preceding the 1st day of May, 1915. She was a robust girl, being just past 17 years of age, and weighing about 125 pounds. The proof shows that she was somewhat retired and timid in her disposition, and did not participate in the usual festivities of young people as do most girls of her age, and that she had comparatively few, if any, young men visitors who paid her attentions, and that she did not seem to court or encourage such, but nevertheless a very industrious, sensible, and good girl. Some few days before May 1st appellant received a letter from the father of the girl stating, in substance, that her mother's health had become bad, and that they needed her at home to assist in performing the duties necessary to housekeeping, and at about 4 o'clock on the morning of May 20 the appellant started with his niece through the country to take her to her father's. They traveled in a no-top buggy drawn by one horse, it being rather under size, and a great portion of the road being rough and hilly. Neither the appellant nor his niece was acquainted with the road necessary for the journey, especially so with the greater portion of it. This necessitated frequent stopping to inquire the route that should be pursued, but, notwithstanding these precautions, the way would sometimes be missed. Frequently they stopped and rested; at one time ate a lunch which they had prepared and carried along. The horse became exceedingly fatigued, and could not be made to travel except in a slow walk. When within between 6 or 8 miles of Olive Hill one of these stops was made, and a rest of about 1 hour and 15 minutes was taken. At the close of this rest, which was about 3:15 p. m., the journey was pursued. At the place where the road leaves what is stated by the witnesses to be the “North fork of Holley” several roads seem to converge, and, although the appellant had been given directions, he seems, after passing this point and traveling something near 1½ miles, to have concluded that he was upon the wrong road, and he turned around and went back to the point where the road converged, taking another one and traveling about the same distance, when he arrived at the same conclusion, and again returned to the starting point and pursued his journey over the first road that he had taken, which he had from some cause concluded was the right one. Just beyond this is Garvin Ridge, and the hill is known as “Clark's hill.”

About this time it began raining, and as the travelers were going down Clark’s hill it is claimed by appellant that two persons appeared from the side of the road, one taking hold of the bits of his horse, and the other taking a position at the rear of the buggy; the latter one at the time saying, in substance, “Where is your whisky?” or “Give up your whisky.” He about this time concluded that he was about to be robbed by these men, and made an effort to get out of the buggy, but before he got upon the ground he was struck upon the head by the man at the rear of the buggy with a club, which for a brief time rendered him partially insensible, but he had sufficient mind to realize that his niece was making some outcry, and he heard two licks which he supposed was applied to some part of her body. By this time he had sufficiently recovered to straighten up, and he engaged in a scuffle with his assailant, and in this he was thrown against a nearby barb wire fence, resulting in the gashing of the back of one of his hands. This scuffle finally resulted in his antagonist throwing him down and extracting from him his purse containing $25 in cash and a check issued to him by a Mr. Jackson, of Ewing, for the sum of $32.97. About this time he discovered that his buggy was moving off down the road with one man in it, presumably the one who had robbed him, and he saw another jump in the buggy, which was presumably the one that took hold of the bridle bits of the horse, and they in this manner disappeared down the road. It might be here necessary to state that the appellant was a cripple, having for many years suffered from white swelling, and one of his legs was about 4 inches shorter than the other; the usefulness of this afflicted leg being very much impaired. After the combat and observing the departure of the buggy under the circumstances stated, he was unable to walk without the use of his stick, which he says was carried away in the buggy, but he crawled on his hands and knees down the road for a distance of about 53 yards, and he there found his niece lying just at the edge of the road covered in mud as well as blood. He crawled up to her and took the raincoat, which she had thrown over her head to protect her hat as well as her body, and placed it under her head, and then commenced to raise an alarm which resulted, after about 30 minutes, in the arrival of a Mr. Binion and a lady who came with him. These parties say that it was then, and had been, raining, and had turned quite cold; that they heard the distress signals of appellant for 20 or 30 minutes before they went there, having concluded that it was some person who was intoxicated, and for this reason did not get to the scene sooner. The appellant told them the facts as to the tragedy substantially as we have stated, and they found him lying within 6 or 8 feet of the girl, and he seemed to be exhausted. He was aided to his feet by Mr. Binion, and at his request was walked up and down the road until he became sufficiently exercised to regain his ability to walk and his powers of locomotion. These witnesses also state that appellant was very muddy, and that his hand was bleeding, and that he had some character of knot on his head. This was testified to also by a number of other witnesses who soon appeared upon the scene.

The horse with the buggy hitched to it was found at about 8:30 o'clock in the town of Olive Hill, which, as stated, is about a mile or a mile and a half beyond the scene of the tragedy. Some parties drove back to the scene with this horse and buggy, and in it brought the girl to the city hall of Olive Hill, where she was ministered unto, and the next morning carried to the home of her father, where she died between 12 and 1 o'clock of that day, never having regained consciousness or ability to speak. At about the time the girl died the appellant was arrested charged with her murder.

After the death of the girl an autopsy disclosed that she was pregnant, and there was removed from her a fœtus which the physician said was some three or four months old. There was also found to be on her head seven distinct wounds, each of them penetrating to the skull, and three of them through the skull, and they appeared, according to the testimony, to have been made with a sharp instrument, and not with any character of club. It might here also be stated that the appellant appeared to have some scratches upon certain parts of his neck which had the appearance of having been made with finger nails. It is shown by Dr. Runyon, a physician at Ewing, and who seems to have been the family physician of appellant, that the latter on or about March 8, 1915, applied to the doctor for some medicine for his niece, he stating that she was suffering from cold, and that his wife had informed him that the niece had been suffering from suppressed menstruations; she having for one time or more missed her monthly periods. The doctor prescribed and delivered to appellant medicine for each of these complaints. Appellant admits this, but says that he thought no more about it, and that, as he observed that the cold had improved, he thought the other ailment also had disappeared. Many other circumstances are shown by the evidence to exist, but we believe what we have stated sufficient to illustrate our rulings upon the questions presented for our determination….

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