Crawford v. Commonwealth
Decision Date | 26 May 1936 |
Citation | 95 S.W.2d 12,264 Ky. 498 |
Parties | CRAWFORD v. COMMONWEALTH. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County.
David Crawford was convicted for murder, and he appeals.
Reversed and remanded with directions.
Robert J. Watson and Charles E. Herd, both of Middlesboro, for appellant.
B. M Vincent, Atty. Gen., and A. E. Funk, Asst. Atty. Gen., for the Commonwealth.
Ed Anderson, Wade Eastridge, and the appellant, David Crawford were indicted for the murder of Floyd Turner, and, on his separate trial, David Crawford was convicted and his punishment fixed at death. The indictment charged a conspiracy, and that in pursuance of such conspiracy and while it existed David Crawford shot and killed the deceased.
Floyd Turner operated a taxicab in the city of Middlesboro, and at about 7 o'clock on Saturday evening, April 6, 1935, a young man approached the taxi, which was parked on one of the main streets of Middlesboro, and was heard to direct Turner to drive him to Fern Lake, about two miles from the city. Fern Lake is an artificial lake owned by the Kentucky Utilities Company. Jim Venable is employed by the utilities company as caretaker, and resides with his family near the edge of the lake not far from the boathouse. Between 7:45 and 8 o'clock he heard an automobile entering the grounds and saw the headlights. It stopped near the boat-house, and immediately four or five shots were fired. There was an electric light near the boathouse and one on Venable's front porch. Venable's young son switched on these lights and, looking through the window, saw a man running away from the automobile. He was unable to recognize him. Venable observed that the automobile was a taxicab, and, believing that it was one owned by a Mr. Yeary of Middlesboro he got into communication with Yeary over the telephone and notified him of the occurrence. Yeary in turn notified the police department of Middlesboro, and within a few minutes several policemen arrived on the scene. They found Turner at the driver's wheel of the automobile, his body slumped over in the front seat. He had been shot twice, once in the head and once in the body, and evidently had died instantly.
At the trial, three witnesses testified that they saw a young boy approach Floyd Turner's taxicab, and heard him request Turner to drive him to Fern Lake. None of them was acquainted with appellant, and only one positively identified him as the boy who entered the taxicab on the occasion. Mrs. Virginia Pattison testified as follows:
M. V. Brown testified, on direct examination, that he, Harry Gaunt, and Floyd Turner were talking when the appellant approached the automobile and asked Turner to take him to Fern Lake. On cross-examination, he testified as follows:
The presiding judge then asked if he could make it any more definite than that, and he replied, "No, he just looked like the boy to me." Harry Gaunt testified that he had never seen appellant before that occasion, but he identified him as the boy who got in the car and drove away with Turner.
Appellant's defense was an alibi, but he produced no witness who was able to state positively that he saw him in Middlesboro at or about the time of the killing. A number of witnesses testified that they saw him at a certain place in Middlesboro playing checkers between 8:30 and 10 o'clock that night. It was shown that one could walk from the scene of the killing to Middlesboro in about 45 minutes. One of the bullets was removed from Turner's body, and the commonwealth proved that it had been fired from a pistol owned by Eastridge, and which was found in Eastridge's home about a week after the killing. Appellant admitted that he was with Eastridge and Anderson in Middlesboro an hour or two before the killing.
The foregoing is, in substance, all of the evidence tending to connect appellant with the murder of Turner except his alleged confession, which was made the day after he was arrested. He was arrested on Sunday, April 14, 1935, and was questioned as to his whereabouts on the evening of the homicide. He was again questioned by the county attorney in the presence of members of the police force and by the county attorney alone on the following day, and about midnight he made a statement admitting that he had killed Turner for the purpose of robbery, and had used Eastridge's pistol which he returned to Ed Anderson.
On this appeal, the appellant relies upon the following grounds for a reversal of the judgment: (1) The alleged confession having been obtained by duress and threats is not admissible as evidence; (2) the court erred in submitting to the jury the question as to whether or not the alleged confession had been made voluntarily; (3) the record fails to show that the circuit court properly acquired jurisdiction of appellant, he being under seventeen years of age; and (4) improper remarks of the county attorney and commonwealth's attorney in their closing arguments to the jury, which prejudiced his substantial rights.
The appellant repudiated his confession, and claimed that it was made as the result of threats by the county attorney and the continuous plying of questions. On the other hand, the county attorney and the police officers who were present when the confession was made testified that appellant was not threatened nor plied with questions, but that he made the confession voluntarily.
Section 1649b-3, Kentucky Statutes, forbids the introduction in evidence of any confession obtained by means of sweating, as defined by section 1649b-1. That section defines sweating 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." In Bennett v. Com., 242 Ky. 244, 46 S.W.2d 84, 85, it was said:
The evidence as to how the confession was obtained was in sharp dispute, and the court, after first having heard the evidence on this point out of the presence of the jury, properly permitted it to be repeated before the jury.
Appellant complains because the court submitted to the jury the preliminary question affecting...
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