The Washington times., 1929-06-06
CASE PU I
IN HANDS
Of JURY
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prosecution as malicious, mean and
unfair.
"LAt us rise above the personali.
ties in this case as the prosecu.
ton seems to want to do and put
on trial the daInnable system that
they described"
Says Boys Were Drinking
Widener declared that the Phelps
and Dutton boys had been drink
ing on the afternoon of the shoot.
ing. that liquor had been smelled
on their breaths that night and
that the movements of Phelps were
enough to arouse the suspicion OF
the officers that he was transport.
ing whisky. This would have been
O. felony under the Virginia laws,
Phelps having been previously con-
victed of two violations. Under the
instructions of the court on the law,
the officers would have had q right
to fire on Phelps.
J. M. Barker, one of the special
prosecutors retained by the Kend-
rick family, opened for the prosecu'
ton.
"Shall we extend to one man
the right to try, convict and exc.
cute a man for mere misdemeanor
on the State highway" he asked
the jury. Barker pointed out that
there are only four crimes in Vir-
ginia punishable by death penalty
and that they are not so punish
able except by due process of the
law. The only crime the three
young men were committing, he
asserted, was that they were riding
around. He pointed out that under
the Instructions, unless the officers
had reason to believe that the boys
were committing a felony, they had
no right to shoot.
"No Right to Shoot"
"why," he said, "these boys
hadn't even committed a misde-
meanor and, if they had. the Off
GERS had no right to shoot"
Barker declared the officers didn't
even know the men at whom they
were shooting, attacking the de-
Tense contention that the shooting
was justified on the grounds that
the officers had believed Phelps to
be committing a felony.
Clara Eller Grove, the pretty 81
year-old daughter Of the 50-year.
old deputy, is one Of the class of
four which is to be graduated from
the nurses training school Of the
George Ben johnson Hospital. The
daughter. with Groves other chill.
dren. has sat near her father
throughout his trial. and the father
is anxious to attend the graduation
tonight.
Hospital Where Kendrick Died
The hospital from which Miss
Grove is to graduate Is the institu-
ton In which young Kendrick died
q few hours after he was shot. DR..
J. M. Hayter, who treated the youth,
and who testified against Grove at
the court hearing yesterday, will pre-
sent the graduation pin to Groves
daughter tonight.
All yesterday afternoon was de-
voted to wrangle behind the
closed doors Of the judges cham
Der while counsel argued on in
structions to be given teh jury. The
defense had % instructions that it
wanted and the prosecution had IL
more. The judge cut them down
considerably, but they were still i'm
posing as they were read to the
jury--not only imposing. but con,
fusing. for some of them to the
lay mind are flat contradictions of
others,
The principal argument yester.
day was on the instructions regard
ing aiding and abetttng, there being
little precedent in Virginia to
govern the conduct of two police
officers who, without previous
arrangement, start firing at car.
The instructions from the defense
included one to the effect that if
Phelps, who was driving the car
in which Kendrick was riding, was
transporting liquor, as the officers
contend, he was committing a
felony and the policemen had a
right to shoot at him.
Another instruction said that II
the killing of Phelps could be justl'
fled, then the killing of Kendrick
was justified.
Prosecution instruction declared
that driving while drunk does not
constitute a felony, regardless OF
the record of previous convictions
Of Phelps. Phelps previously had
been convicted of transporting
Iiuuor.