Bowman v. Commonwealth

• Decision Date: 16 March 1956
• Citation: 290 S.W.2d 814
• Parties: James Franklin BOWMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 814

290 S.W.2d 814

James Franklin BOWMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 16, 1956.

Rehearing Denied June 22, 1956.

James A. Crumlin, Louisville, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.

MONTGOMERY, Judge.

James Franklin Bowman was convicted of the murder of Roberta Busby. He received a death sentence, from which judgment he has appealed. It is insisted that: (1) a confession was improperly admitted in evidence; (2) the evidence was insufficient to sustain the verdict; (3) the argument of the prosecuting attorney was improper; and (4) the jury was allowed to separate improperly.

The body of Roberta Busby, 72 years of age, was discovered lying on the floor of her apartment about 2:30 a. m., on Sunday, August 29, 1954. She had bled profusely and her clothing had been pulled up so that her body was nude from the waist down. Her purse containing $37 and a large bottle containing about $10 in coins were undisturbed.

The accused had previously performed odd jobs about the apartment for the dead woman. He had been seen near by about 4:30 p. m. of the preceding evening by the dead woman's son. When arrested, less than six hours after discovery of the body, appellant admitted his presence at the apartment the previous evening but denied killing the woman. Two Louisville police officers talked with appellant about two hours, during which time he denied the killing and signed a statement to that effect. Upon inquiry being made as to what clothes he had worn on the previous day and their location, appellant gave the officers written permission to go to his home to look at the clothing he had worn.

Appellant lived with his sister, Mary Ray, and her common-law husband, Henry Jones, with whom he worked part time. Jones had also worked for Roberta Busby. The dampness of a pair of pants, shirt, and pair of undershorts found in a small kitchen closet was explained by appellant by saying that he had carried a bucket of water up the steps for his sister earlier in the morning and had spilled it. The testimony of A. J. Miller, one of the officers, described the events following thus:

'* * * About that time, James' sister and brother-in-law came in, and after asking him who they were, I told them who we were and what we were doing there. And Mr. Jones said, 'You mean that Mrs. Busby is dead?' I said, 'Yes, sir.' He said, 'Well, who did it?' I said, 'I don't know.' So James was sitting on the little couch there in the kitchen where he slept, and I told Jones in front of James Bowman, I said, 'James has lied to us, and we want to get this straightened out one way or another.' So James was rubbing his head and perspiration popped out all over him, and he said, 'I did it. I did it. I'm guilty.' He says, 'A man that was with me did it, but I was along with him.' We asked James then who this man was and he furnished us a name which I have forgotten, but it is in my notes. And Jones described the men to him and he said, 'No, it wasn't that man,' and Mr. Jones asked him someone else and he said no, and then finally James said, 'I done it myself. I'm guilty.' So Mr. Jones asked him, he said, 'You mean you killed Mrs. Busby?' 'Yes, but I didn't rape her.' So with that, I asked James if he would go back and show us just what happened, and he said he would.'

The damp clothes were identified by Mary Ray and Henry Jones as being those worn by the appellant on the day before. The accused then accompanied the officers to the home of Roberta Busby. On the way, he told them he had gone to do some work for Mrs. Busby. He said that he had seen her son and had walked into an alley to urinate. He stayed there until the son had departed. Appellant then was admitted by Mrs. Busby to her apartment. They discussed the work to be done and engaged in sexual intercourse. Afterwards, an argument arose about the charge for the work to be done. When Mrs. Busby threatened to have him arrested for rape, 'he became angry, picked up a pair of scissors * * * grabbed Mrs. Busby and stabbed her several times in the throat.' Appellant pointed out the place where he had thrown the scissors after leaving the apartment. Upon return to the homicide office at police headquarters, appellant gave the written statement which was introduced at the trial. The officers stated that the confession was given freely and voluntarily.

When the statement was offered in evidence on the trial, an objection was sustained to the first paragraph and the remainder was admitted over objection.

In considering the admissibility of the confession, the uncontradicted testimony shows that the first acknowledgment of guilt was made by the accused in the presence of his sister, his friend Henry Jones, and the two officers. It was not made in response to any question but was a statement volunteered although, perhaps, prompted by a sense of guilt. This was followed by a second admission of guilt in response to a question from his friend. These statements were made shortly after the accused had given permission to the officers to look for and examine his clothing worn when the crime was committed. Appellant then cooperated willingly with the officers by accompanying them to the scene of the crime and in looking for the fatal scissors. On their way to the Busby apartment, he described the killing in detail. The confession concludes with the following statements:

'I have made this statement on my own free will, with out threats or promises and had same read to me by Detective A. J. Miller as I can not read. After it was read to me, I find that it is true to the best of my knowledge and have signed same.'

There was no proof that the confession had been obtained by a plying of questions or extorted by threats, promises, or other wrongful means, as condemned by KRS 422.110. The appellant declined to testify or offer any evidence in his behalf. The statement made by appellant was made freely and voluntarily and was not obtained by any of the means prohibited. As such, it was admissible and the objection was properly overruled. Powell v. Commonwealth, 276 Ky. 234, 123 S.W.2d 279; Curtis v. Commonwealth, 312 Ky. 205, 226 S.W.2d 753.

It is further urged that it was error to permit the jury to take the confession with them to their room. We have searched the record and have not found anything to indicate that such was done or anything upon which to base such an objection. A mere assertion by counsel for appellant in his brief furnishes the only basis for this objection. We find no merit in this contention.

The sufficiency of the evidence to sustain the verdict was questioned in one respect only. Appellant contends that the evidence was insufficient to show the cause of death. Harry P. Elstone, Jefferson County deputy coroner, testified that he viewed the body shortly after it was discovered and that he was present during the autopsy. He described the wounds on the body and stated that the death was due to shock and hemorrhage occasioned by the severance of the trachea and carotid artery. No question was asked by appellant's counsel concerning the qualifications of the witness. He did not object to any question or answer given by the witness. At the conclusion of the testimony given by this witness in response to a question by the trial court, appellant's counsel agreed with the prosecuting attorney that there was no disagreement as to the cause of death. The deputy coroner's testimony adequately established the case of death, which also was amply sustained by other proof.

The next two grounds urged as error normally would not be available to the appellant since timely objection was not made and proper exception was not preserved. The questions of improper argument and separation of the jury must be considered under the prevailing rule for cases involving death sentences.

The duty of maintaining the constitutional rights of a person on trial for his life and the importance to society and constitutional government that such person be accorded a fair and impartial trial require that the court take notice of any prejudicial error in the record, whether objected to or not, and direct a reversal of the judgment in order that such a trial may be had. When the accused's life is at stake, technical rules of procedure must give way in order that justice may prevail. McClure v. Commonwealth, 81 Ky. 448, 5 Ky.Law Rep. 468; Graves v. Commonwealth, 256 Ky. 777, 77 S.W.2d 45; Drake v. Commonwealth, 263 Ky. 107, 91 S.W.2d 1009; Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948; Anderson v. Commonwealth, 302 Ky. 275, 194 S.W.2d 530. This is an exception to the general rule that this Court will consider only errors of the trial court to which proper exception has been taken and preserved. Warren v. Commonwealth, Ky., 256 S.W.2d 368; Ramsey v. Commonwealth, Ky., 267 S.W.2d 730; Patton v. Commonwealth, Ky., 273 S.W.2d 841. It was said in the Anderson case that such deviation from the general rule did not mean its abolition and was limited only to cases where the penalty was death and there could be no doubt that the errors to which no exceptions were taken were such as to be highly prejudicial to the accused's substantial rights. See Ellison v. Commonwealth, 311 Ky. 757, 225 S.W.2d 470.

Appellant complains that the prosecuting attorney's argument to the jury was prejudicial and beyond the scope of the evidence. The objectionable parts of the argument are quoted:

'She will never be able to tell you or her friends or anyone else the truth as to what happened in that room on that terrible, terrible Saturday afternoon. * * * You have a right to take his statement to the jury room with you and you are invited to do so. * * * why was it necessary to lurk, hidden in the alley, until Frank Busby left? Why? * * * This man tells you among other things, 'We had intercourse. We went back to the kitchen...