Murder and Retribution - 1889

On Thursday, 20 Jun 1889, two tramps, Charles Ardell and Thomas Mitchell, accosted a peddler named Joseph Lavine along the L. and N. Railroad near Belmont in southern Bullitt County, and shot him in the abdomen, a wound that led to his death.

The two tramps were captured, arrested, and placed in the jail at Shepherdsville. Shortly after midnight on the following Wednesday an angry mob took Ardell from the jail and hung him from a tree north of town. Mitchell's life was spared when the jailor pleaded for him, saying he thought he might be innocent.

Later, Mitchell was tried and convicted of the murder. The case went to the Kentucky Court of Appeals which rejected his appeal.

Below are two newspaper reports of the murder and subsequent hanging, followed by the text of the Court of Appeals' decision that gives more details of the event.

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SWIFT RETRIBUTION

A Tramp Lynched for the Brutal Murder of a Peddler.

LOUISVILLE, Ky., June 26. - A mob went to the jail at Shepherdsville, Bullitt county, at 1 o'clock this morning and demanded of Jailer Bowman the surrender of Thomas Mitchell and Charles Ardell, who were confined there, charged with the murder of a peddler named Joseph Lavine. Mr. Bowman refused to surrender the men and took his stand in front of the door with a shotgun, declaring that he would kill the first man who tried to pass. Mrs. Bowman, hearing the threats and fearing her husband would be killed, ran forward and gave them the keys, begging Mr. Bowman not to provoke them. The leaders then unlocked the doors and went into the cell where the prisoners were confined.

The jailor followed, begging them at least to spare Mitchell, who he believed was innocent. They yielded to his entreaties, telling Mitchell he might thank Mr. Bowman for his life, and binding Ardell took him to the woods. The men all wore masks and it is believed they have hanged Ardell near town, though nothing further has yet been heard about the matter.

The crime with which the men are charged was a most fragrant one. Lavine had stopped at a house near Shepherdsville last Thursday and was showing his goods when two tramps came up and asked for something to eat. They remained several minutes, and when they left secreated themselves by the side of the road a short distance away. When lavine came by they demanded his money, and upon his refusal to give it up shot him down and robbed him.

From: Galveston Daily News (Galveston, Texas) 27 Jun 1889.

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Also reported in The Sun, of New York City, Thursday, June 27, 1889, page 2

A Tramp Lynched
He was One of Two Men who Killed a Peddler for His Money

Louisville, June 26 [1889]. - A mob went to the jail at Shepherdsville, Bullitt county, at 1 o'clock this morning. They demanded of Jailer Bowman the surrender of Thomas Mitchell and Charles Ardell, who were confined there charged with the murder of a peddler named Joseph Lavine. Mr. Bowman refused to surrender the men, and took his stand in front of the door with a shotgun, declaring he would kill the first man who tried to pass. Mrs. Bowman, hearing the threats and fearing her husband would be killed, ran forward and gave the mob the keys, begging Mr. Bowman not to provoke them. The leaders then unlocked the doors and went to the cell where the prisoners were confined.

The jailer followed, begging them at least to spare Mitchell, who he believed was innocent. They yielded to his entreaties, telling Mitchell he might thank Mr. Bowman for his life, and, binding Ardell, took him to the woods. The men all wore masks.

The body of Ardell was found this morning hanging to a tree in the woods about a mile and a half from Shepherdsville.

Lavine had stopped at a house near Shepherdsville on last Thursday, and was showing his goods when two tramps came up and asked for something to eat. They remained several minutes, and, when they left, secreted themselves by the side of the road, a short distance away. When Lavine came by they demanded his money, and, upon his refusal to give it up, shot him down and robbed him in broad daylight. The shots were heard, and the men were seen running away. Lavine, who was a Pole, was brought to his home in this city, and died on last Sunday. On Friday, Mitchell and Ardell were arrested, and Ardell was identified as one of the tramps. The indentification of Mitchell was not positive.

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Bardstown, Ky., May 29. - (Special) - Thomas Mitchell, tried in the Nelson Circuit Court at this place, was tonight given a life sentence. The trial was begun on Wednesday morning, and was concluded at 9 o'clock to-night. The prosecution was conducted by Commonwealth's Attorney Schuck and Nat W. Halstead, and the prisoner was represented by John D. Wickliffe and Charles Carroll.

The crime for which Mitchell receives a life sentence was the murder of a Louisville peddler, near Belmont, in Bullitt county, on the 19th day of June 1889. He and an accomplice by the name of Harry Ardell attempted to rob the peddler, failing in which they shot him, from the effects of which he died in five days, not, however, till he had recognized Ardell and Mitchell as his assailants. The prisoners were lodged in the jail at Shepherdsville, from which Ardell was taken and hanged by a mob. Mitchell applied for a change of venue, which was granted, and the case sent to this county for trial. When the verdict was rendered Mitchell displayed no emotion, beyond a slight swelling in the throat. Public opinion is divided as to the justice of the verdict. Mr. Carroll says he will move for a new trial in the morning, and if that is overruled, then the case will be appealed to the Court of Appeals.

The Courier-Journal, 30 May 1890, page 3

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The Kentucky Law Reporter
Volume XII (July 1, 1890 to June 15, 1891)
Frankfort, Ky., Geo. A. Lewis, Publisher, 1891.
Pages 458-460

Mitchell v. Commonwealth.
(Filed Oct. 14, 1890 - Not to be reported.)

1. Criminal law - Evidence - Dying declaration of an accomplice - Upon the trial of appellant charged with aiding and abetting another in the commission of murder, the declaration of the principal, exculpating appellant, made just before he was hung by a mob, was incompetent. Dying declarations are only allowed when made by the deceased where his death is the subject of investigation, and this is allowed from mere necessity. But this testimony having been admitted without objection, appellant received the benefit of it.

2. Witness compelled to answer question tending to degrade him only - Appellant offered himself as a witness, and on cross-examination was asked if he had not once been in a State prison. This question he was required to answer over the the objection of his counsel, and his response was that he had been in the Ohio penitentiary. Held - That this was not error. In cases where the answer of the witness would convict him of crime or show such infamy as would render him incompetent, he should not be compelled to answer, but such questions as when answered only tend to disgrace witness, he may be compelled to answer. Besides the privilege in such cases as would render the witness infamous or rather make him guilty of a crime is to be exercised by the witness alone. It is for his protection and not that of the party on trial that the law interposes and says you shall not be compelled to answer.

3. Instructions - The court properly refused an instruction offered by appellant that aiding in commission of the crime, must be by force of arms. It also properly refused an instruction offered directing the jury to find for the defendant, as his guilt was clearly shown by the evidence.

Jno. D. Wickliffe and Chas. Carroll for appellant.
P. W. Hardin and N. W. Halstead for appellee.
Appeal from Nelson Circuit Court.
Opinion of the court by Judge Pryor.

The appellant, Mitchell, was convicted of the murder of one Lavine, a peddler, near the town of Belmont, in Bullitt county. There was a change of venue to the county of Nelson, where the conviction was had. His confederate in the crime, Ardell, had been taken from the jail, in Bullitt county, by a mob and hung, and in order to a fair and impartial trial the prosecution against the appellant was conducted in another venue.

The man murdered was near the L. & N. railroad, at the house of a man by the name of Collings, exhibiting to Collings or his family some of his goods, when Mitchell, the appellant, approached the house, asking for buttermilk. The milk was given him and his associate, Ardell, who was not in sight of where the peddler was making a display of his wares, also drank some of the milk, it having been taken to him by Mitchell. The two, Ardell and Mitchell, started on their way down the railroad and stopped near a cut in the road, either to rest or in wait for the doomed man. The deceased reached the railroad and while passing through a cut the two men started after him, or in the direction of the deceased, walking rapidly.

The witness who saw them was going in an opposite direction, and had gone so far as to place himself where he could not see the shot fired that took Lavine's life. He heard the report of the pistol and the exclamation and cry of the deceased, who was making his way from the two men. He returned and found that the deceased had been shot in the abdomen, and from that shot he died in Louisville in a few days after his removal to that city. Parties started in pursuit of the two guilty men, who were taking a circuitous route, with a view of avoiding detection, and when arrested they both denied having been on the L. & N. road at the point where the shooting took place. The appellant, however, finally said that Ardell was the man that did the shooting, and that it was done against his, Mitchell's, protest. Ardell heard Mitchell's statement and said, in substance, that he was the guilty man, and that Mitchell was in no manner to blame. Ardell also proclaimed Mitchell's innocence at the time he was hung by the mob, and the men who had taken the law into their own hands, fearing that Mitchell might be innocent, returned him to jail, that he might be tried by a judge and jury.

On the trial below the accused offered to prove by a witness the confession made by Ardell, at the time he was hung by the mob, exculpating Mitchell from all blame and making himself the murderer. This testimony was objected to and sustained by the court, and is one of the errors complained of.

Dying declarations are only allowed when made by the deceased, where his death is the subject of the investigation, and this is allowed from mere necessity, so as to prevent the murderers from going unpunished; and we know of no instance where the declaration or confession of a confederate in crime is allowed, unless a part of the res gestae, to exculpate or convict one charged with a criminal offense. In this instance the accused had the benefit of the confessions made by Ardell at the time the assault was made and also when the two were taken before the magistrate. What took place at each time seems to have gone to the jury without objection, and in this manner the appellant had the benefit of Ardell's statement that he, Ardell, was alone guilty.

The appellant offered himself as a witness, and, on cross-examination, was asked if he had not once been in a State prison. This question he was required to answer over the objection of his counsel, and his response was that he had been in the Ohio penitentiary. This is another error urged.

In cases where the answer of the witness would convict him of crime, or show such infamy as would render him incompetent, he should not be compelled to answer; but such questions, as when answered, only tend to disgrace witness, he may be compelled to answer. These two men who committed this murder were, doubtless, tramps, traveling through the country unknown and for the purpose of making their living in a dishonest way, and when offering himself as a witness the Commonwealth had the right to inquire, as of any other witness, what had been his pursuits in life; where he had lived; in what places he had resided; if he had ever been confined in prison, with a view of showing what credit should be attached to his testimony as well as to enable the jury to arrive at the truth of the question at issue.

It is true that where the issue involves a former conviction, the record of that fact being the best evidence, must be produced; but we see no reason for conceding to a witness the right to refuse answering a question that may tend, when answered, to disgrace him or to lessen the weight of his testimony. Besides the privilege in such cases as would render the witness infamous, or rather make him guilty of a crime, is to be exercised by the witness alone. It is for his protection and not that of the party on trial that the law interposes and says you shall not be compelled to answer.

The instructions offered by counsel for defense were all given but two, and they were properly refused. The accused was indicted for aiding and abetting the murder. The instruction was that the aiding must be by force and arms. Such instruction was properly refused. The other instruction was to find for the defendant. The testimony shows the guilt of both. They were in wait for the peddler, at the mouth of the cut, and would have robbed him, if the shot had taken his life at once. In this it failed, and the fear of exposure, from the cries of the wounded man, caused them to flee for safety.

The story of the accused as to the manner or cause of the killing is, itself, incredible. He states that when himself and Ardell started on their journey, after resting by the road side, that Ardell was some thirty yards ahead of him, and he then saw a man with a pack walking slowly ahead of Ardell. When Ardell came up to him he said to the man: "Sheeney, what time is it." 'The man answered: "I have no time," and raising his stick struck Ardell on the head, when Ardell drew his pistol and shot him;" and when reproved for it by Mitchell, Ardell said he was mad; could not help it; he, the deceased, had struck him on the head. The appellant not only acquits himself, but makes a cause of self-defense on the part of Ardell. placing the peddler, who was at the mercy of the tramps, as the offender, striking Ardell on the head with a stick, in this lonely spot, without any provocation whatever. This statement, and their conduct after the murder, is inconsistent with the theory of innocence on the part of either.

In our opinion the instruction was proper, and the judgment is now affirmed.

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