Bennett v. Commonwealth

• Decision Date: 15 May 1928
• Citation: 226 Ky. 529,11 S.W.2d 437
• Parties: BENNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W.2d 437

226 Ky. 529

BENNETT v. COMMONWEALTH.

Court of Appeals of Kentucky

May 15, 1928

As Modified, on Denial of Rehearing, December 21, 1928.

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

Robert Bennett was convicted of murder, and he appeals. Reversed and remanded.

J Rivers Wright, of Louisville, for appellant.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen., for the Commonwealth.

SANDIDGE C.

Appellant was convicted in the Jefferson circuit court of the crime of murder, and, in accordance with the verdict of the jury so providing, was sentenced to pay the extreme penalty, death by electrocution. He appeals.

The chief and serious question presented by the appeal is whether the alleged confession of accused, which, over his objection, was introduced in evidence against him, was competent. He insists that it was procured in a manner prohibited by sections 1649b1 to 1649b5, Kentucky Statutes, commonly referred to as our "anti-sweating" statute. After providing "that what is commonly known as 'sweating' is hereby defined to be the questioning of a person in custody charged with crime in an attempt to obtain information from him concerning his connection with crime or knowledge thereof, after he has been arrested and in custody, as stated, by plying him with questions or by threats or other wrongful means, extorting from him information to be used against him as testimony upon his trial for such alleged crime," the statute further provides that no confession obtained by "sweating" as so defined shall be permitted as evidence in any court of law in this state.

In a case involving a construction of this statute, Sutton v. Commonwealth, 207 Ky. 597, 269 S.W. 754, it was said:

"We do not agree with counsel for the commonwealth, that in order to render incompetent evidence of a confession made by a defendant of his guilt of a crime with which he stands charged, the confession must have been extorted from him by violence. While the word 'extorting' may, by implication, be given a meaning that would include a result attained by violence, we think the word, as employed in the statute, supra, is used in the sense of 'compelling' or "coercing' from the person charged with crime the confession or information intended to be used as evidence of his guilt, which may be accomplished by any means that would serve to overcome his power of resistance, or make the confession or admission other than a voluntary one."

It was held that the evidence in that case was not sufficient to establish that the confession had been procured in the forbidden manner, because, as the opinion reads:

"There is no evidence whatever conducing to prove that there was any persuasion, compulsion or extortion, either by the 'plying' of questions, threats, offer of immunity from prosecution, promises of reward, or other wrongful means, employed by the officers or others to obtain the confessions."

The construction there given this section of our Statutes is in accord with all the other opinions we have written involving the question. Many previous opinions are cited in the Sutton Case, and Webb v. Commonwealth, 220 Ky. 334, 295 S.W. 154, is perhaps the latest utterance of the court on the question. See, also, Dickson v. Commonwealth, 210 Ky. 350, 275 S.W. 805; Singleton v. Commonwealth, 210 Ky. 456, 276 S.W. 141; Myers v. Commonwealth, 212 Ky. 245, 278 S.W. 620.

Unquestionably if the testimony of appellant is to be believed, the confession introduced in evidence against him was procured from him in a manner prohibited by this statute, as construed by this court. According to his evidence, he was taken to detective headquarters of the police force of the city of Louisville at approximately 9 o'clock a. m., handcuffed. The confession was obtained from him about 4 o'clock p. m. In the meanwhile he had been handcuffed; had been permitted to eat no food at the usual time for the noontime meal. Some five or six detective and police officers, taking turns, plied him with questions constantly. He was repeatedly cursed and defamed with vile and insulting language. At different times he was subjected to most brutal physical violence at the hands of one or two of the officers, being kicked repeatedly, struck on the face and body with their fists, and struck on the head with a blackjack. After a day of this character of treatment, his power of resistance was broken, and he confessed in order to relieve himself of further torture. He was corroborated in a measure by a witness, then a fellow prisoner in the Jefferson county jail, who testified that, when he was returned to jail late that...