Cummings v. Com.

• Decision Date: 11 October 1927
• Citation: 221 Ky. 301,298 S.W. 943
• Parties: CUMMINGS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

298 S.W. 943

221 Ky. 301

CUMMINGS v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 11, 1927

Appeal from Circuit Court, Clinton County.

Bill Cummings was convicted of murder, and he appeals. Reversed and remanded.

S. G Smith, of Albany, and Bertram & Bertram, of Monticello, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

McCANDLESS J.

Bill Cummings, Dora Burchett, Cass Lawrence, and Mrs. L. C Lawrence were indicted in the Clinton circuit court, charged with the murder of Frank Burchett, alleged to have been committed by the administration of strychnine. The indictment charged each defendant with the commission of the offense and by apt terms in separate counts charged a conspiracy between the four, and also the commission of the crime by one, and that the others were present at the time aiding and abetting. In a joint trial, at the close of the commonwealth's evidence the court gave a peremptory instruction to the jury to find Cass Lawrence and Mrs. L. C. Lawrence not guilty, but overruled a similar motion of the other defendants. On final submission the jury returned a verdict, finding Dora Burchett not guilty, but finding Bill Cummings guilty of murder, and fixing his punishment at life imprisonment, and judgment was entered accordingly. From this judgment he appeals, insisting that the court erred in the admission of evidence; that the verdict is not sustained by the evidence; and that he was entitled to a peremptory instruction to find him not guilty.

These grounds necessitate a statement of facts; the record in this respect being quite voluminous. The defendant Dora Burchett (hereafter called Dora) was the wife of deceased. Cass Lawrence and L. C. Lawrence are her parents and Bill Cummings is claimed to have been her paramour. Frank Burchett (hereafter called deceased) was a well-to-do farmer, owning several valuable farms and having $14,000 on time deposit. He and Dora were married in September, 1925. He was then 72 years of age and had two sons and a daughter, all of whom had families and lived in homes of their own. Dora was a school-teacher 25 years of age. She was the mother of an illegitimate child 2 years of age, and lived with her parents, who owned a small farm. The marriage resulted after a brief courtship, and seems to have been one of convenience. Dora admitted that she did not love her husband, and had only promised to be kind and dutiful to him, and this she seems to have been, unless she was unfaithful or connected with the charge in the indictment. The marriage naturally created a bit of gossip in the neighborhood and much of the evidence in this case is of that nature and has no real bearing on the issues. The competent evidence does not disclose any marital troubles and the parties apparently lived agreeably with Dora's child as a member of the household. In the early spring of 1926 Dora was not well and deceased had her parents move in a house about 300 yards from his residence, renting them land for cultivation. On the 11th of May, 1926, deceased executed and acknowledged a deed of general warranty, by which he conveyed to Dora his home farm valued at $12,000 in consideration of love and affection and the relinquishment by her of her dower and homestead in his other property. However, he retained a life estate in the land and the right to sell and remove the timber therefrom during his life. It was also distinctly provided that the deed was to be held in escrow until his death and was not to take effect in the event that he survived Dora. It was then delivered to Judge Smith, who held it until after Burchett's death, when it was recorded. It further appears that on Saturday preceding his death deceased, in consideration of $1,000, verbally sold the timber on this land to his son and another gentleman, and arranged for them to return on the following Wednesday to execute a written contract; all of this with Dora's knowledge. However, he died on that day. During the year deceased became involved with his son John in a bitter litigation, and his son was ejected from deceased's place, and moved to a farm in the vicinity, and retaliated by his indicting his father for a violation of the liquor laws, and all this produced an enmity that continued until his father's death.

In May, 1926, deceased employed Bill Cummings as a workhand. Cummings boarded in the house, worked on the farm, carried water from the spring for household use, and sometimes assisted Dora in sweeping and washing the dishes. At the end of hay harvest his employment ceased and he went to the residence of Cass Lawrence to board and worked at other places in the vicinity. On Sunday, the 15th of August, deceased rode horseback to the residence of his daughter and while there met his family physician. He was complaining of having a cold and otherwise not feeling well, and returned in the afternoon and continued to complain during Monday and Tuesday. On Tuesday afternoon he had his horse caught and rode to a store some 600 yards distant, returning in a short time. That evening he requested Mr. and Mrs. Lawrence to stay all night at his house, saying that he might get bad during the night and Dora was too big a coward to go for the doctor. They did this, and as to what occurred during the night and the early morning they and Dora are the only witnesses.

They agree: that deceased was restless and suffered continuously. That he was complaining of severe pain in his left side, and that they would rub his side and back with hot ashes. He complained of smothering spells, and, upon being moved, would have to lie back on the bed. After 11 o'clock he became some easier, but did not sleep. The three sat up with him all night. Between 2 and 3 o'clock Dora gave him a dose of cascarets, a proprietary medicine which he kept and took regularly. He also drank water several times during the night. Dora suggested sending for a doctor, but it was raining and deceased objected, saying that it would incur a bill, though he would send for a doctor in the morning, if he did not improve. At daybreak Cass Lawrence went home and found some hogs in his potato patch and aroused Bill Cummings, who was in his house, to assist him in driving them out. At the time Cass left the women began preparing breakfast. The deceased got up and dressed, Dora assisting him to put on his shoes and socks, and he came out into the kitchen where they were getting breakfast, still complaining. Mrs. Lawrence gave him some coffee. After sitting in the kitchen for a time he complained of smothering and went out on the porch. A bucket containing about a gallon of water was on the shelf at the side of the wall and he drank a full dipper and sat down. Dora was on the porch at the time and returned to the kitchen. (The remainder of this water was afterwards thrown out by some one, it not appearing by whom; it further appearing that the water used during the night was taken from a bucket in the kitchen, Dora explaining that she was afraid to go out on the porch at night.) In a few minutes after he drank this water the women heard him fall. They thought he had slipped on the floor and ran out to him. He complained of his limbs cramping and they tried to assist him to the bed, but he was a large and portly man, and told them not to do this. He asked for some more coffee, and Mrs. Lawrence returned with a cup of coffee, pouring some into a saucer to cool. He asked her if he could drink more, and she told him "Yes," and, after tasting it herself to test its heat, she gave him the cup, and he drank it all. In the meantime the cramping grew worse and Dora went to a neighbor's, 600 yards distant, to telephone the doctor. Mrs. Lawrence called her husband and rang the bell and Cass Lawrence came and brought Bill Cummings with him.

In the meantime another tenant of the farm, Perry Cross, had come by the house on the way to feed deceased's horses. He had stopped in, saw deceased in the kitchen, and inquired as to his health, and deceased said he was feeling very badly. After feeding he heard the bell ringing and returned, arriving shortly after Cummings and Cass Lawrence, who were rubbing deceased with camphor, and in this he assisted, but the cramping developed rapidly and soon reached the chest and larynx, death ensuing in a very short time. Up to near the time of his death deceased was conscious and his mind was clear. Dora did not return until after his death and Cross says she did not evince much concern. The doctor, the two sons of deceased, and several neighbors arrived shortly afterward. The doctor expressed the opinion that death might have resulted from natural causes or might have been the result of strychnine poisoning, and an analysis of the stomach was suggested. Dora assented to this and the stomach was removed, placed in a sealed jar, and sent to the Kentucky Experimental Station at Lexington and analysed by Dr. Martin, who found two-fifths of a grain of strychnine sulphate therein; the uncontradicted expert evidence being that the symptoms described by these witnesses indicated that deceased died from the effect of strychnine poisoning.

It is further shown by the commonwealth that on the 14th of August Bill Cummings purchased from a druggist in Albany 20 cents' worth of strychnine. He first asked for 10 cents' worth and wanted it in powdered form. The quantity was so small that he increased the amount. He had the druggist indicate an amount sufficient to poison a dog, saying that he wanted to kill a "d____n dog." Later while in jail he told a barber who was shaving him that he had purchased the strychnine, but would be able to show on his trial the purpose for which he purchased it.

J. A Flowers, an attorney at Albany,...