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February 11, 1926

The Trial of Robert O. Haviland
February 11, 1926

Robert O. Haviland Is
Released on Bail of $20,000

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Examining Trial Before Judge W.R. Curle yesterday.  Summary of Testimony. Defense Offers None.

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BOND SIGNED BY FIFTEEN FRIENDS.

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          At three o’clock yesterday afternoon, after an examining trial lasting from 10 o’clock that morning, Judge W.R. Curle granted Robt. O. Haviland bail in the sum of $20,000, on the charge of shooting and killing Jos. W. Arnold.  The shooting occurred at the LeBus loose leaf warehouse in this city Wednesday morning, Feb. 3, and Arnold died at the Harrison Memorial Hospital that afternoon, as told in The Democrat last week.  Mr. Haviland gave himself up immediately after the shooting, was released on $10,000 bond, then arrested again after Arnold’s death.

          Mr. Haviland was released on bond yesterday afternoon signed by himself and 15 friends:  Harcourt Switzer, W.E. Hayes, Daniel Durbin, Dixie McKinley, Newton Kearns, E.B. Midden, Fred McCarthy, Joe K. Lake, Geo. Midden, R.S. Haviland, Lovell Jett, Otwell Humphrey, Dr. H.F. Midden, Harold Poindexter, L.M. Midden.

          The summary of the testimony below was taken by Mr. Sherman Porter for The Democrat.

            The examining trial of Robt. O. Haviland, charged with shooting and killing Joe W. Arnold on Wednesday, Feb. 3, as detailed in this paper last week, was continued from last Friday to yesterday morning on account of inability of Col. John R. Allen, of Lexington, of counsel for the defense, to be here Friday.  Later Col. Allen was obliged to withdraw from the case on account of illness in his family.  Stephen D. Blakely, of Covington, was engaged to take the place of Mr. Allen.  Other counsel for the defense are Hanson Peterson and Daniel Durbin, of Cynthiana.

            Counsel for the Commonwealth are Commonwealth’s Attorney T.E. King, County Attorney M.G. land, Wade H. Lail, of this city, and Wallace Muir, of Lexington.

            All were present when the case was called in Judge W.R. Curle’s court at 10 o’clock yesterday morning.  The circuit court room was crowded to the limit. Every available space was occupied, women and men standing in the aisles and many around the walls and at the doors.  Scores were unable to force their way into the courtroom.

A.L. Jennings Testifies

            The first witness for the State was A.L. Jennings, who gave practically the same testimony as that published in this paper last week immediately following the shooting.  He testified that he and Arnold were on a basket of tobacco, about three feet high, about 50 feet from the scales toward Church street, on the LeBus warehouse floor.  Had been with Arnold about thirty minutes.  Jennings was partly reclining on the tobacco.  Arnold was sitting.  Crowd of men coming and going, some standing around the parties discussing various things.  Arnold was joking with Uriah Price about Price’s team shortly before Robert Haviland came up.  Haviland and Arnold were talking about how much tobacco would be sold on the loose leaf floor; something was said about women growing tobacco and Arnold remarked they handled it well.

            The talk seemed to be pleasant enough.  Jennings turned for a moment to look about the warehouse, when he faced Arnold and Haviland again noticed expression of anger on latter’s face.  Heard Arnold say, “If you say that you are a damned liar.”  The shooting followed.  Jennings said Arnold had partly risen from the basket of tobacco, but was not standing straight.. Had his hands down by his side  Saw nothing in his hand.  Arnold did not advance before the shooting.  After the shot he swayed, stood straight up, circled to the right with both hands to chest, tearing at his clothing.  Pulled his clothes open, walked down five or six rows of tobacco and sat down on a basket at end of row.  When witness asked him if he were hurt and wanted a doctor, said nothing, but groaned.  After shooting saw Haviland with gun in his hands.  Did not see the gun before the shot was fired.  The men were about four feet apart when the shooting occurred.  The witness was questioned by Judge King.

            On cross examination by Mr. Peterson Jennings named several men who he remembered were present, said there were 45 to 50 people on the floor, said Arnold did not take a step toward Haviland before the shooting.  Described how they were sitting or nearly standing as on direct examination.

Dr. C.L. Swinford

            Dr. Charles L. Swinford was questioned by Mr. Muir.  He said he was called to the hospital to see Arnold, who was suffering from shock.  He had a bullet wound below the heart and he illustrated on the body of Mr. Muir the point at which the bullet entered.  He said it left the body at a point about 3 1-2 inches below the point on the opposite side of the body.  He said death was caused by hemorrhage due to the gunshot wound which passed through his body.  He said he helped undress Arnold but saw no weapon at any time.  On cross examination by Mr. Peterson, Dr. Swinford said Dr. McDowell was called in but was not there when Arnold was undressed.  He said several other persons were present at the time besides the nurses.

Clarence Tolle

            Clarence Tolle was the next witness.  He said he was employed by Clarence LeBus part of the time at the loose leaf warehouse and part as a truck driver.  He said he was 12 to 15 feet away from the basket when the shooting took place.  Arnold was there before Haviland joined the crowd.  He said Arnold was reclining on the basket of tobacco with both hands in his overcoat pockets, the thumbs out.  He said he heard no conversation and that he was paying no attention to what was said.  He said he happened to look up as Haviland fired and that Haviland stood for a second or two before he turned and walked out of the warehouse.  He said Arnold did not change his position on the basket until after the shot was fired, when he “grabbed at Haviland,” but got up and walked over to the other basket.  He said Arnold had no weapon or stick in his hand so far as he could see.

            On cross examination Tolle said he had been employed for eight or nine years for Mr. LeBus.

Urias Price

            Urias Price, first cousin of Joe Arnold, told of being in the warehouse when the shooting took place.  He was close to Arnold when the shooting occurred.  He said Arnold and the witness’ son were talking and laughing when the witness came up.  He did not see Haviland until a few minutes before the gun was fired.  Arnold was leaning on the basket of tobacco, which was about three feet high above the floor.  The witness said he heard some loud talking but did not pay any attention to it till he heard the shot.  He said he did not know who was engaged in the loud talking because it was not unusual in the warehouse.  Arnold was almost standing straight when he noticed him.  He said Arnold called him by name when he was shot.  He did not see any demonstration toward Haviland on the part of Arnold.  Duke Smith took Arnold to the hospital and the doctor was asked to go there to attend him.  He said that he and Duke Smith had undressed Arnold, with the assistance of others.  The witness said he had himself searched Arnold’s pockets.  He found $44 in money and a check for $75, [and] an ordinary pocket knife which was rusty.  It was a small four[-]bladed knife and was closed when found.  No other weapon was found on the victim

            The witness said there had been no opportunity for anyone to have concealed the fact that Arnold was armed if a weapon had been found on him.  He said Arnold made no statement in regard to the shooting on the way to the hospital.  He said he took Arnold’s clothing home to his wife.

Duke Smith

            Duke Smith said he had known Haviland for seven or eight years and was on friendly terms with him.  He reached the warehouse five minutes after the shooting.  Arnold was sitting on a pile of tobacco, surrounded by a crowd.  He said he and U.F. Price took Arnold to the hospital.  He said Arnold said: “I’m suffering right smart,” but declined assistance in entering the hospital.  Arnold staggered, however, on mounting the steps and the witness helped him into the hospital and at Arnold’s direction took the contents of his pockets out and laid them on the window sill.  He corroborated Price’s evidence in this respect.  No pistol or weapon was found in Arnold’s pockets, he said.  He said the money and things were taken by him and Price to the Arnold home.  He was not cross-examined and his testimony was followed by adjournment for lunch.

Rev. R.H. Jones

            Rev. Robert Henry Jones, of the Indian Creek and Connersville Christian churches, was the first witness of the afternoon.  He said he had no feeling against either Haviland or Arnold but had been on friendly terms with both.

            The witness said he was at the warehouse to deliver his mother’s tobacco.  He said he talked with Arnold  about the condition of the tobacco market.  He was ten feet away from Haviland and Arnold when the shooting occurred.  He said Arnold was leaning against the basket of tobacco, with his hands at his side.  He said those in the group about the basket were talking about tobacco and that some one made a remark to the effect that “a lot of women were raising tobacco.”  He said Haviland then accused Arnold of inducing growers to dump their tobacco and that Arnold then said Haviland was “a d–d liar,” or perhaps an even stronger expression, and that the shot was fired almost immediately after.  He said he went to Arnold after he had walked over to the other basket of tobacco and sat down and that all Arnold said was “That settles it,” or some such remark.

            Cross examined he said he did not recall the names of any of those about the basket where the shooting took place except Arnold and Haviland.  He said Arnold was standing erect when the shot was fired, “as nearly erect as I ever saw him stand,” but that he made no demonstration toward Haviland.  He said Clarence LeBus came in after the shooting.

J.S. Jones

            J.S. Jones, of Fayette county, said he was at the LeBus warehouse on the day of the shooting.  He knew Arnold and Haviland only by sight, he said.  He was eighteen feet away from the scene of the shooting.  He said he paid no attention to the talk until the heard “the d–d lie passed,” when he turned and saw Haviland fire.  He said Arnold “sort of grabbed with his hands toward Haviland after the shooting.”  He said Arnold was unarmed.

            Cross examined he said he lived on Clarence LeBus’ farm and had lived on LeBus’ place for several years.  He said that at the time of the shooting Arnold was standing in a crouched position by the basket.

Defense Offers No Testimony

            This closed the case for the Commonwealth and Mr. Blakely stated that the defense would introduce no witnesses but would like to discuss with the court the question of bond for the defendant.  He said the law of Kentucky was settled in regard [Page 12, column 2] to the matter and that the court must grant bond unless the evidence offered was such as to make it probably that the penalty would be death or life imprisonment and that the most that could be gotten out of the evidence offered was killing in sudden heat and passion with the probability of a verdict of manslaughter at the most.  He said he thought it proper, too, for the court to take into consideration other facts not in the evidence, that Haviland would be in court when called for trial.  He said his home was here, his property and his friends here, and that there was no doubt of his being present when called for trial.

Muir Argues

            Opposing the motion for bail, Mr. Muir read the constitutional provision that bail must be allowed in cases except those in which the proof is evident and the presumption of guilt.  He said he contended that while bail was a matter in the discretion of the judge, he believed that bail in this case would be an abuse of that discretion.  He said that in his opinion, the killing was a cold-blooded murder.  He did not think that in Harrison county human life was so cheap that one might kill his fellow man for the simple offense of calling him a liar.  He said the only thing that would have justified Haviland in killing Joe Arnold was that his own life was in danger from Arnold and there was not a scintilla of evidence to show that Haviland’s life was in danger.  He declared that the element of premeditation was present and that it could be found in the twinkling of an eye.

            Mr. Muir recalled the conversation between Haviland and Arnold and declared that Arnold was shot while still down on the basket of tobacco, as shown, he said, by the fact that the bullet left Arnold’s body at a point three or four inches below the point on his body at which it entered.  He read from Ruling Case Law to uphold his position in opposition to bail.  He said that in all cases of this kind the burden is on the defendant to show that he is entitled to bail.  He said the proof submitted was that an unarmed man had been shot down and that if ever there was a case in which bail should be denied a defendant this was such a case.

Blakely Replies

            Mr. Blakely said that it was not a question of whether a jury would convict the defendant but that the court, in the exercise of a sound judgment and discretion, must have evidence of malice and premeditation in cases in which the charge is capital.  He cited a Texas case in point that bail must be granted in any case in which the evidence is not conclusive or the presumption of guilt.  He said that if the law were otherwise the court could grant no bail in any case in which capital punishment was at all possible.

            Mr. Blakely quoted 202 Ky., Page 831.  He said not motive was shown in this case and conviction was reversed, the court of appeals ruling that the lower court, on the return of the case to its jurisdiction, would grant bail to the defendant.  He cited another Kentucky case in point to show that even on a charge of murder, the defendant was entitled to bail.

            Mr. Blakely said that in order to pass on the question of bail the court must come to come conclusion as to the probably outcome of the case, and that if the court should conclude the outcome likely to be other than capital, he ought to grant the bail.

Mr. Muir Rejoins.

            Mr. Muir said he did not mean to say that because the charge is murder the defendant ought not to have bail, but if the defendant were committed no bail could be granted unless the defendant proved himself entitled to it on a haring of motion for bail in circuit court.

            Judge Curle sustained the motion for bail and fixed the bond at $20,000.

SOURCE: The Cynthiana (Ky.) Democrat, Thursday, Feb. 11, 1926, Page 1, Cols. 4-6 (Cont’d on p. 12, cols. 2-3):

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