Baxter v. Commonwealth

• Decision Date: 23 October 1942
• Citation: 292 Ky. 204,166 S.W.2d 24
• Parties: BAXTER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

166 S.W.2d 24

292 Ky. 204

BAXTER v. COMMONWEALTH.

Court of Appeals of Kentucky

October 23, 1942

Rehearing Denied Dec. 18, 1942.

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

Raymond S. Baxter was convicted of conspiracy to commit robbery which resulted in murder, and he appeals.

Affirmed.

A. B Thomason, Lasserre Bradley, Burnett Dadisman, and Delmer D Howard, all of Lexington, for appellant.

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

MORRIS Commissioner.

This appeal is companion to Penney v. Commonwealth, Ky., 166 S.W.2d 18, and Anderson v. Commonwealth, Ky., 166 S.W.2d 30, growing out of convictions for the murder of Marion Miley on the morning of September 28, 1941. The trial for conspiracy beginning on December 15, resulted in a verdict and consequent judgment of guilty, with sentence of death. It is not necessary to state facts and circumstances relating to the corpus delicti, the preparation for and consummation of the crime; they are detailed in the Penney opinion. As in that case, the accused being unable to employ counsel, the court appointed members of the local bar to represent him.

In support of motion for a new trial counsel set up numerous grounds. In brief the grounds presented are: (1) The court erred in permitting the introduction of incompetent evidence calculated to create prejudice against appellant. (2) The evidence fails to sustain the charge of conspiracy to commit the crime charged. (3) The accused was denied his constitutional rights because one of the jurors, selected from special Fayette County venire was a resident of another county. (4) A statement made by the court during trial in the hearing of the jury was prejudicial to defendant's substantial rights, and in a general conclusion a charge of improper argument of the prosecuting officer, and insistence that at the time of the alleged agreement with his co-defendants, Baxter was not capable of normal mental thinking or acting.

On his trial witnesses testified substantially as in the Penney case. Penney was introduced as a witness for the Commonwealth and insofar as the evidence showed Baxter's suggestion of the plan, the part he was to take, and his actions and activities, it was without material variation. There were no objections offered to any questions or answers which connected Baxter with the offense, though there were a few interposed to questions not material to consideration of the case. The witness was put through a lengthy cross-examination, and his story as to Baxter's connection was not shaken in any material point. It did develop that Penney was slightly acquainted with the Club property, and that he and Anderson did not carry out an agreement with Baxter to divide the spoils.

Appellant, about 27 years of age, was a native of Fayette County, and had attended the grade schools. He detailed the different classes of work he had engaged in and places where he had worked. He was in California in 1939, and the latter part of the year came back to Lexington and began work at the Club, first caddying later caring for the greens, and assisted in parking cars around the clubhouse when there was a dance or party; his employer was Mrs. Miley. At the time of the homicide he had extra work as night watchman at the driving range, a short distance from the clubhouse. He said he was addicted to the use of intoxicants and smoked marijuana cigarettes quite frequently when he was "drinking a lot." He went into details as to the effect, particularly when the combination was used.

Coming to the date of the homicide, he said he remembered the "day and night before." He recalled that he went to Joyful Inn and later to Ma Gabbard's roadhouse, which he said he frequented. He had been introduced to Penney ten or twelve weeks before the date of the homicide, and saw him afterwards at Kozy Inn, when Penney asked witness if he knew of any work or chance of getting work at the Club; he told him that there was none right then. Penney said, "there ought to be some money out there," whereupon Baxter left the place.

The next time he saw Penney was the night before the homicide, at the Gabbard place, and around ten or eleven o'clock. A strange man came in and said Penney was outside and wanted to see him. (Penney says he had told Anderson how to identify Baxter). He says later this man was Bob Anderson. He went out but did not "to his knowledge" get in the car where the two found Penney, who asked him "are you going to work tonight?" to which he replied that he was, at about two o'clock; Penney replied, "I will be seeing you out there." He left about midnight to go to the range in a car with Earl McConnell and Margaret Folger. After arriving there he got in Mr. Bernie's car and went to Joyful Inn, where he says he drank and smoked marijuanas. After that his mind was blank; the next time he remembered anything was when he woke up in the car in the middle of the driving range.

In the car with him were Thelma Truitt, Margaret Folger and Jimmie Hilen. As soon as he awoke he went to the clubhouse to see about the sprinklers, and found the existing disturbance and disorder. He says he was arrested on October 17, early in the morning and "they checked me in on a murder charge, and put me in a cell," and that he had been drinking and smoking the drug cigarettes the night before.

He then undertakes to show that the officers, about dark that night, accused him of the murder; said that he would "burn for it," and plied him with questions until he became frightened. He says he signed a statement, but did not know its contents. The statement was written on a typewriter in his presence. He insisted that while he "looked over the notes," he did not now remember what was in the statement.

Appellant was put through a lengthy cross-examination, in which he fairly well stuck to his story, though admitting that he remembered quite a number of things which had transpired the night before the homicide, which were apparently considered by him as immaterial. It seems that he remembered practically everything up till the time he left the driving range to go across from Joyful Inn, a short distance away. He did not deny, but plead entire lack of memory of every act, or word attributed to him by Penney, except the former meetings with Penney, and the time he was called from the roadhouse. Asked specific questions as to acts, words and circumstances, he responded with one answer, "I don't remember."

Reverting to the evidence of the Commonwealth for the moment, we find Jimmie Hilen testifying that before midnight he was at the driving range when two men drove up in a blue Buick and asked for Baxter. At twelve o'clock he went to Joyful Inn, just across the road from the driving range. Baxter came in with McConnell and the Folger girl. Witness got in Bernie's car with Baxter, a girl and another boy. Baxter was drinking but not drunk. They went to Ma's Place, Baxter (at all times) driving the car. There they took up the Truitt girl and went back to Joyful Inn, then across the pike to the range, where two of the parties got out and went to a trailer, leaving the other two in Bernie's car.

Afterwards they all went over to the Club, parking in the driveway. Witness saw the Buick parked there, the same car he had seen when the two men called earlier for Baxter at the range; it bore a Jefferson County license. Baxter got out and went to the parked car, remaining a short while. He then got back in Bernie's, or another car. Baxter said that Floyd Poynter and his girl were in the strange car. Poynter testified that he was not on the Club grounds at any time that night. After Baxter came back to Bernie's car, they drove toward the pump house, Baxter turned his lights off; left the car and said he would be back in a few minutes, and went in the direction of the caddy house not far from the clubhouse. When he came back witness was asleep. When he awoke the car had been driven to a point near the tool house, and the first thing he saw was Baxter and the Truitt girl getting out of a truck. They all got in Bernie's car, Baxter driving, and went back to the range, where he saw a "big car" blinking its lights. Baxter went to the car and spoke to some one and came back. Their movements thereafter are not of importance. This witness was in part corroborated by Margaret Folger and others, who were in the party at various times.

Earl McConnell, who was with Baxter from 7:30 to 11:00 says that they were continuously drinking beer at the two places, Joyful Inn and Ma's Place. He did not see Baxter drink whiskey, nor rolling any cigarettes. Stella Sloan also introduced by defendant, was the proprietor of Joyful Inn; she said that Baxter was in her place two or three times on the night of the 27th; that he was drinking, but "I don't know whether he was drunk or not." She saw him last sometime between twelve and one o'clock; "he was drinking, that's all I know about it; you could see that." Ma Gabbard said that he was in and out of her place on the night of the homicide, from eight until about one o'clock. She served no whiskey, but said that Baxter looked like he was drinking. She had also seen Anderson and Penney at her place around one o'clock that night.

With this statement of what we deem pertinent testimony, we take up in order the alleged errors. It is argued that it was prejudicial to allow Maupin, the investigating officer, to go into a detailed account of what he found in making the investigation, including description of the premises as he found them on the morning following the homicide, the introduction of exhibits, and the frequent references to the presence of much blood. Objections were made to "this line of...