Anderson v. Commonwealth

• Citation: 166 S.W.2d 30,291 Ky. 727
• Parties: ANDERSON v. COMMONWEALTH.
• Decision Date: 23 October 1942
• Court: Court of Appeals of Kentucky

166 S.W.2d 30

291 Ky. 727

ANDERSON v. COMMONWEALTH.

Court of Appeals of Kentucky

October 23, 1942

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Robert Anderson was convicted of murder, and he appeals.

Judgment affirmed.

W Clarke Otte and S. Rush Nicholson, both of Louisville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

MORRIS Commissioner.

This is an appeal from a judgment rendered upon a verdict declaring appellant guilty of the murder of Marion Miley and inflicting the death penalty. Appellant, indicted with Thomas Penney and Raymond Baxter were tried separately; the latter were found guilty with like penalties inflicted.

Opinions in the Baxter (Baxter v. Com., Ky., 166 S.W.2d 24) and Penney (Penney v. Com., Ky., 166 S.W.2d 18) cases this day decided, will be found preceding this; we make reference to the Penney case for detailed statement of facts relating to the condition of the Miley apartment in the clubhouse of the Lexington Country Club on the early morning of September 28, 1941, and to testimony of Penney connecting Anderson with the crime.

We shall detail only such testimony as appears necessary in considering grounds set up by counsel as constituting errors, which in substance are: Errors of the court in: (1) failing to instruct the jury on the whole law of the case; (2) overruling appellant's motion to direct a "not guilty" verdict; (3) admitting incompetent prejudicial evidence; (4) failing to admonish the jury prior to various recesses of the court and upon final submission; (5) failure to admonish the jury as to the effect of testimony of witnesses who said that accused had been an inmate of the State prison, and lastly, error of the court in overruling motion to quash the indictment.

We shall take up this ground first, since consideration does not depend upon facts other than as shown by the court's record of procedure. Counsel contends that the order calling the "special term of court" failed to comply with 23.220 et seq., K.R.S. § 971-1 et seq., Ky.Stats.) which requires the court in calling a special term to designate in order and notice the style of each case to be tried, and motions to be made or judgments entered, further providing that at such term no other case shall be tried unless by agreement of parties. Counsel misconstrues the state of the record which does not show an order calling a special session of the Fayette court, which is a court of continuous session. 23.050(22), K.R.S. (K.S. § 965-22). The order merely discharged a grand jury empaneled prior to October 27, 1941, which had consumed its allotted time. It directed the empaneling of a "special grand jury," to complete what the court considered unfinished business of the discharged body, which met on October 27, and returned the instant indictment.

The section of the statute relied upon by appellant, relates to trials and not to actions of a grand jury, regular or special. The action of the court was authorized by 29.240, K.R.S. § 2251, Ky.Stats.) under which the court in its discretion, in case of emergency may call not more than three special sessions of a grand jury in one year. We note that motion to quash was not made prior to time of arraignment. Criminal Code of Practice, § 157; Ridings v. Com., 245 Ky. 22, 53 S.W.2d 190; Salyers v. Com., 274 Ky. 284, 118 S.W.2d 208. Disregarding the failure to follow required procedure, the objection is untenable because of our ruling in the case of Taylor v. Com., 256 Ky. 667, 76 S.W.2d 923, which counsel concede to be persuasive and we hold conclusive.

The propriety of the court's adverse ruling on the motion for directed verdict made at the close of commonwealth's evidence, and renewed when all proof was in, depends upon and requires a recital of evidence, some of which is not common to that in the Penney or Baxter cases. Anderson did not testify; following his arrest he had made a voluntary statement to the officers, in which he denied that he was in Lexington at the time of the homicide, and asserted absolute innocence in the preparation for or participation in the crime, or knowledge of either; a claim of alibi.

This statement was read to the jury, following other testimony showing the condition of the premises on the morning of September 27th; introduction of numerous exhibits, and proof of witnesses as to the identity of the car which was used by the persons engaged in the robbery, and the testimony of Penney. It developed from the statement that appellant, with his brother Andrew, operated a saloon and dance hall at 19th and Main Streets in Louisville, called the "Cat and Fiddle," to the operation of which appellant gave more attention than the brother, who had other business. Appellant first gave his movements during the day (27th) and up to 10 p. m., following his usual customs. At ten o'clock he got into his car, a gray-blue 1941 Buick, and drove to a liquor store at 15th and Market, and bought a case of, whisky from a man named "Jake". (It was later developed that this was Jacob Ashkenaz, operating a drugstore at the address). He returned to his place about 11 p. m., and was there until 2 p. m., about which time he checked his cash register and went to bed. He arose the next morning around 10 a.m., and later he and his wife went to appellant's camp up the river, returning home about 1 p. m. At 9 p. m. he learned from a newspaper that there had been a "shooting and murder in Lexington."

He then takes up his acquaintance with Penney, "a boy that I had met in the Frankfort penitentiary." On September 22d or 23d Penney walked into the saloon and they had some conversation about Penney's personal affairs. Penney asked for a job; Anderson told him Andy did the hiring and he would see him. Penney was broke and Anderson gave him a dollar. Penney returned the next day; Anderson told him he could not hire him just then. "He asked me if I would be interested in a barrel of whisky and I said I would; Penney then said he could get three barrels," at what appeared to be a low price. Penney had no sample, but Anderson arranged to and did meet Penney at an appointed place where Penney left the car, and in ten minutes returned saying he could not get a sample. This trip, and for the same purpose, was repeated the next day with like result. Later Penney reported to Anderson that he thought he could make the deal; Anderson turned his car over to Penney, and told him to get the whisky and bring it back. Penney came back with a sample, which Anderson examined and pronounced moonshine. Penney insisted that it came from a distillery in Carrollton. There was no deal; later Penney called and Anderson told him to come to his place. Penney came and offered the whisky at $2 per gallon, but Anderson said he could not use it; they separated and Anderson said that he had not seen him since that afternoon.

With relation to the car later found in the possession of Penney in Fort Worth, Anderson said that after he got the whisky from Jake on Saturday night, he parked his car near his place and locked the doors, but was not sure he had locked the ignition. He shows no further use of the car unless it was to go to the camp on Sunday. However, he says that on Tuesday he went to his room at 5:30 to rest. His wife woke him about eight o'clock and told him "that scarfaced s. b. is fooling around your automobile." His wife took the keys and put them in her pocket. Mrs. Anderson and her sister-in-law went to a picture show; Anderson met them at the show, and all returned at midnight in a taxi. Anderson did not look to see if his car was parked where he had left it. He went to bed at 1 p. m., and Andy came in the next morning at 7; Anderson asked him to take some whisky from the garage, put it in the truck and take it to Henry, another brother. "I told him I did not want to put the liquor in my machine." Andy told him the car was parked at the time. At ten o'clock Anderson arose and went to a barber shop, "but did not pay any attention as to whether my car was there at the time. I came back and still did not notice to see if it was there." At 10 p. m. he came out of the saloon to get the car and found it gone. He made report to the Detective Bureau. Recalling what his wife had told him about Penney, he suspected him. He did not hear any more about the car until October 8th, when he learned it had been found in Texas.

In closing he denied any knowledge of the Miley case; said that he had not been in Lexington since the latter part of August, when driving through. "I know of no reason why Penney would want to say that I was with him on the occasion mentioned. I only lent him my car on one occasion to go and get the sample of whisky."

Before undertaking to detail Commonwealth's evidence we deem it best to present appellant's proof in support of his claim of alibi. His mother, who lived in the apartment above the dance hall with Anderson and his wife, and Andrew and his wife, recalled the night of the 27th, saying she saw appellant around the place at seven o'clock when she went to her room. She retired about twelve o'clock, and about two o'clock she saw and heard Anderson and his wife going to their room. She was unable to give any reason for fixing the particular Saturday night, except that it was his usual custom to retire around two o'clock every Saturday night. Andrew and his wife saw appellant around the club as late as twelve o'clock, when they retired.

In addition to members of the family, there were introduced six or more girls, frequenters of the club, who say they were present the night of September 27, during hours ranging from eight to twelve o'clock, each testifying that during these hours they saw appellant...