Rome Daily Sentinel, August 12, 1927
Kilbourn Brothers Held for Grand Jury on Charge
City Judge T. J. McNamara Issues Above Decision at the Close of Hearing
Today for Death of Chauncey Carpenter on July 31
At the conclusion of the hearing and
examination of Ralph C. and Jay L. Kilbourn, brother, held this forenoon
in City Court, on the charge that they caused the death on July 31 of George
Chauncey Carpenter, their neighbor, by shooting him, they were held for
the action of the grand jury on a charge of murder, first degree.
All concerned are neighbors who reside in the easterly part of the city of Rome in a section commonly called Kilbourn’s Corners. The trouble leading up to the shooting was of long standing and resulted from a dispute over a line fence and the alleged cutting of the boundary line fence at the highway by Carpenter. Evidence given tended to show that the Kilbourn brothers lay in wait and when they heard and saw some one cutting the fence they called on the man to halt and on his failing to do so the brothers opened fire with shot guns and brought Carpenter to earth, death resulting soon afterwards.
Brothers Allege Act was Justified
Justification of their act was the basis of their defense introduced into the City Court hearing today. The hearing was begun last Friday and adjourned until today. At the first session the prosecution placed its side in evidence and then rested. Today the defense had its inning in court.
During the first part of the hearing there was mention of statements made by the defendants and reduced to writing at the police station. This the brothers are said to have read, acknowledged as being true and signed by them.
Also there was mention of shot guns and shells found in the home of Chauncey Carpenter. The defense issued subpoenas for the above exhibits. They were in court in possession of Chief of Police J. T. Owens, but their admissions as evidence in the case was opposed by Assistant District Attorney John J. McGinty of Utica. Judge T. J. McNamara denied the motion of Attorneys M. J. Larkin and James T. Cross, for the defense, for their being placed in evidence.
The guns and shells, however, were admitted and marked for identification, but the statements made by the defendants were not produced, as Judge McNamara upheld Attorney McGinty’s objection that they were inadmissible.
At the opening of the hearing today City Judge McNamara said that the people having concluded their part of the case the defendants were given the right to make any statements they desired in order to explain the facts and answer the charges. Both attorneys said that their clients at this time waived the right to make such a statement.
Chief Of Police J. T. Owens
The first witness called was Chief of Police J. T. Owens. He was questioned by Attorney Cross in regard to conversation held at the police station the night of the crime, with Jay L. and Ralph C. Kilbourn. Also in regard to written statements taken at the time. The chief said that such statements were made. In answer to a question Chief Owens said that he had the statements in his possession. He was asked to produce them and refused to do so unless directed by the district attorney and the court. Attorney Cross requested the court to direct and cause the statements to be produced in court. Assistant District Attorney McGinty objected to their admission. He said that this was an examination before the court to satisfy the court that a crime had been committed and that it was the duty of the district attorney to establish that proof. Mr. McGinty said that the district attorney and his assistants were the sole judges of the proof to be submitted. Mr. McGinty then characterized the attempt to produce these papers as “a fishing expedition” to find out what evidence was in the possession of the prosecution. Continuing Mr. McGinty said that the sitting judge had no power to compel the production of this evidence that there is no
ruling of the Supreme Court to uphold that contention of the defense. At this point Attorney McGinty produced a court ruling to substantiate his contention and Attorney Cross produce one to establish his side of the controversy. The latter said that there was no law to protect police officers and allow them to withhold or suppress evidence.
Chief of Police Owens, who today was subpoenaed as a defense witness, was requested by Attorney Cross to produce the statements and all the conversation had between the police and the defendants. This was refused by the witness. City Judge McNamara said that his recollection was that at the previous hearing that the witnesses had testified to oral statements made by the defendants and that reference to the written statements was brought out of the defense cross-examination.
Judge McNamara ruled that the statements were inadmissible, that the defense ??? made these statements they must still have knowledge of their contents.
A motion by Attorney Cross to compel the production of the statements were denied by Judge McNamara. Attorney Cross then asked the permission of the court to examine the witness as to whether the statements were in the direct language of the defendants in narrative form or in the form of question and answer. The motion to question was denied.
Chief Owen was asked if he had certain guns and shells in his possession not yet placed in evidence and the chief replied that he had.
When asked to produce them for marking as exhibits in the case, an objection was interposed by District Attorney McGinty unless it was specified which and what guns and shells were referred to. (The above related to two shot guns and shells found in the Carpenter home by police officials following the shooting.)
Attorney McGinty said that he had no objection to their being shown, but he objecting to their be put into evidence. He said that these were inadmissible as evidence, that they were found at the home of the deceased, and not at the scene of the crime and had no part in the crime.
Attorney Cross said that he wanted to know by what right the district attorney had to secrete or withhold any exhibits in the case.
District Attorney McGinty said that they were withheld because he did not believe that this evidence was admissible. City Judge McNamara said that he would allow the guns to be shown in court. They were shown and marked for identification, but not as exhibits. The first was a double barreled shot gun, hammer and muzzle loading type. There was some ducking and dodging in court as the gun was produced. At the suggestion of the court the gun was taken to an ante room and examined as to whether or not it was loaded. There were cobwebs in the muzzle of the gun. It was taken apart and the ramrod loosened from its holder. The barrels were measured and one was found to contain “four fingers” of a load and the other “three fingers” of a load of some kind. There was a percussion cap on the firing hole of the left barrel. The barrel of the gun was kept downward during the remainder of its examination. Next a hammer breech loading shot gun was produced. It was marked for identification. Objection was made to the introduction of the gun on the ground that it had no part in the crime.
Judge McNamara sustained the objection on the ground that the gun was not found at the scene of the crime, but in the
Next to be shown was a box containing 11 loaded shotgun shells found by the police in the Carpenter home. These like the guns, were refused in evidence.
Photographs of Scene
At this point Attorney Cross asked Chief of Police Owens if photographs of the scene of the crime had been taken. Chief Owens replied that there had. Attorney McGinty objected to their being produced. He said that they were the private property of the prosecution and if the defense wished pictures they should have same taken and pay for them the same as the prosecution. The objection was sustained. At this point the defense rested its case.
Discharge Motion Denied
Attorney Larkin moved for the discharge of Jay L. Kilbourn on the ground that there was no evidence to hold the defendant on the charge of murder, first degree. The motion was denied. Attorney Cross made the similar motion on behalf of Ralph C. Kilbourn. This was also denied.
Attorney Larkin then addressed the court and quoted law as to the different kinds of homicide. He said that there were times when homicide was justifiable especially when an attempt was made to cause an arrest following the commission of a crime and a person was fleeing from arrest. Excusable homicide, said Mr. Larkin, was when it was done without intent to kill.
People Must Prove?
Attorney Larkin said that the question was up to the people to prove that a crime had been committed, that this pointed to justification homicide, that Chauncey Carpenter was engaged in the commission of crime, that he (Carpenter) was trespassing and destroying private property, that Carpenter was engaged in committing a crime of felony. Here Attorney Larkin read a portion of Section 1423 of the Penal Law, Sub-division 5, which he said relates to felony, punishable by two years imprisonment. The section relates to the injuring of highway boundary. It follows: “Sec. 1423. A person who willfully or maliciously displaces, removes, injures or destroys; *** 5 A tree, rock, post or other monument, which has been erected or marked for the purpose of designating ***the boundary***of a farm, tract, or lot of land, or any mark or inscription thereon *** is punishable by imprisonment for not more than two years. Continuing Attorney Larkin said that if Chauncey Carpenter was guilty of destroying the boundary line he was engaged in the commission of a felony for which the defendants had all the right to apprehend him and bring him to justice for the crime. On the part of the people it has been established that Carpenter engaged in the cutting of the highway boundary fence at the time of the crime and the cutting of the fences on this occasion was a felony. There was no question that he, (Carpenter), was escaping. The question is: “Did these private persons have the right to arrest.”
Citizen May Arrest
He, (a citizen), may arrest any person found committing felony. If this was felony they, (the Kilbourn brothers), had the right to make an arrest, because they saw him, (Carpenter), commit the crime. The Kilbourn brothers attempted to make an arrest, they told the person to stop. Carpenter ran away. He was told to stop or they would shoot. Private persons have the same right to use the same methods as a police officer and use such force as is found necessary.
Was Crime Premeditated?
The question here is, was this taking of human life premeditated? If they simply tried to make an arrest there was no design to take the life of a human being. There are cases where even police officers exceed their authority.
Was Not Murder
There is no evidence of murder in the first or second degree. The only holing that can be made, as I take it, said Attorney Larkin, is manslaughter. The defendants could not get Carpenter unless they could stop him. They did not know whether it was Carpenter or not. It was dark. If they simply intended to stop Carpenter, did not design his death, but simply shot to stop him, it is not murder, but manslaughter. I doubt if they intended to injure him, but simply to stop him. A private person has the same right to arrest when they see a crime committed. “A private person may and a police officers must.” In conclusion Attorney Larkin said that there was no evidence to hold the defendants for murder in the first or second degree. That it was justifiable homicide following a crime commission and an attempt to bring a person to justice.
Attorney James T. Cross
Attorney James T. Cross said that as to the Defendant Ralph C. Kilbourn, everything said by Attorney Larkin was applicable.
Life Ruthlessly Taken
The above motions by Attorneys Larkin and Cross were opposed by Assistant District Attorney McGinty, who said that the people had submitted evidence to show that a human life had been ruthlessly taken. The evidence, he said, goes farther and shows that the crime was committed by the combined acts of Ralph and Jay Kilbourn. For some time past a feud existed and the evidence shows that on the night the crime was committed Jay Kilbourn was requested by his brother, Ralph, to come to the latter’s place and lay in wait for Chauncey Carpenter, that Jay went to his home and procured his shotgun, that he joined his brother and lay in hiding for one-half hour, that they heard the noise of the cutting of a fence, that they left the garage, each armed with a shotgun, that they fired at a person on the highway and who was retreating at the time, that while Carpenter covered a distance of 77 feet the Kilbourns ran 148 feet, that while 29 feet away unloaded the contents of a shotgun into the body of Chauncey Carpenter. They said that they did it because Chauncey Carpenter was cutting wires of their fence. The evidence is uncontradicted. There is evidence to hold the defendants for murder in the first degree.
Decision By Judge T. J. McNamara
City Judge T. J. McNamara said, in making his decision, that it appeared that the defendants believed that some one was cutting their fence, that they rushed out with loaded guns toward a point where they heard a noise and seeing an object they turned their flashlight on it and told it to stop. The object was retreating at the time and not stopping, both defendants shot at the object. One shot the second time, taking
time to reload. The court can not agree with Judge Larkin that there was the commission of a felony by Carpenter. The section of the Penal Law relates to a more substantial boundary monument than a line road fence. Carpenter was not engaged in the commission of the crime of felony, but a misdemeanor. (A lesser crime). Judge Larkin claimed that Carpenter was engaged in the crime of a felony. Even a police officer, under the evidence so far produced, would not be justified in shooting. Peace officers may not take a life carelessly –only when the case is extreme. It can not be said that this was extreme when the object was retreating. On all the evidence, said Judge McNamara, the court finds no evidence for reducing the charge. There is evidence to the effect that the defendants admitted the act. The defendants are held to await the action of the grand jury on a charge of murder, first degree. The brothers were committed to the Rome Jail to await the action of the grand jury which sits the first Monday in October.
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