Davis v. Commonwealth
| Decision Date | 20 June 1939 |
| Citation | 279 Ky. 127 |
| Parties | Davis v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — In murder prosecution, testimony of undertaker who had given inexpert assistance in taking photographs of deceased's head was sufficient proof of accuracy of the photographs without verification by person who actually took them.
4. Criminal Law. — Ordinarily, photographs of dead body are admissible in evidence even without admonition to jury as to effect to be given them.
5. Criminal Law. — In murder prosecution, where photographs of deceased's head were sufficiently identified as accurate and were not gruesome, and jury was admonished that they were only for purpose of showing nature and location of wounds, admission of photographs in evidence was not error.
6. Criminal Law. — Circumstances including presence of uniformed officer in crowded courtroom, searching of all persons entering courtroom, and large attendance of persons from county in which defendant convicted of murder contended there existed a "flaming passion," did not create prejudicial atmosphere preventing a fair trial.
7. Indictment and Information. — The statute requiring indictment to be endorsed by foreman of grand jury as "true bill" is mandatory and an indictment not so endorsed is fatally defective (Criminal Code of Practice, sec. 119).
8. Indictment and Information. — The failure to demur or move to set aside an indictment on ground it is not signed by foreman of grand jury as a "true bill" as required by statute waives defendant's right to rely upon the defect (Criminal Code of Practice, sec. 119).
9. Criminal Law. — Where defendant demurred to indictment on ground it was not signed by foreman as a "true bill" as required by statute but trial court did not pass on the demurrer and there was no request or suggestion that court do so, defendant waived right to raise the question on appeal (Criminal Code of Practice, sec. 119).
10. Criminal Law. — Where accused was dealt fairly with by counsel on both sides and court carefully protected his every right, and accused was thus given a fair trial, appellate court was required to affirm conviction for murder.
Appeal from Leslie Circuit Court.
D.G. Boleyn and W.O. Miller for appellant.
Hubert Meredith, Attorney General, and J.M. Campbell, Assistant Attorney General, for appellee.
Before S.M. Ward, Judge.
Affirming.
The appellant, Jack Davis, alias Berry Brewer, has been sentenced to death for the murder of Abram Combs
Whatever weakness there may have been in the chain of circumstances and obscurity in the case as developed by the Commonwealth, they were strengthened and cleared by the testimony of the defendant. It was that in Breathitt County, where they lived, he, Ben King and Walter Riley had conspired to kidnap and tie up a certain man who boarded with King's sister, obtain a check for $1,500 from him, cash it and escape. King and Riley were under indictment for some felony in Breathitt County. An automobile was required to accomplish this purpose, and Davis proposed that he would get Combs, who lived in Hazard, to take him over on McIntosh Creek, in the edge of Leslie County, where some of his wife's people lived, and there the three men would tie up Combs and take his automobile. Pursuant to that plan, on the night of July 8, 1938, Davis got Combs to take him there where King and Riley met them. They took Combs off the side of a dirt road and Davis grabbed him first. Without any understanding, prearrangement or purpose to hurt him, according to Davis, King struck Combs on the head with a large iron bolt. The only physical hurt the defendant did Combs, he related, was to strike him with his fist when he swung around and grabbed him around the leg. He got the automobile key from Combs' pocket and left the scene to go get his wife at her sister's home near by, leaving the other two men with the victim. He dropped the key while trying to put it in the ignition lock and this required him to go up the mountain to Jim Wooton's place to get a flashlight with which to find the key. But he first called for some whiskey. He borrowed the flashlight, found the key and went for his wife. Near by he picked up the two men and headed towards Versailles where his brother-in-law lived. He testified that he knew nothing about what had happened to Combs after he had left the two men with him, and says that King reported that he had not killed Combs but had tied him up in the bushes.
Fortuitous circumstances at Winchester precipitated the disclosure of the crime. Having information that an air hose had been stolen from a garage at Stanton, the Winchester officers were on the lookout, and seeing what seemed to be the end of such a hose hanging out the back of an automobile the officers undertook to stop it for investigation. This was Combs' car in which Davis and wife were riding. In the pursuit Davis had a puncture and when driven into the curb he jumped out and ran. The article proved not to be the air hose, but the wife was taken into custody and it was soon learned that the automobile belonged to Combs. Investigation as to his whereabouts led to the discovery of his body and the murder. His neck was broken and he had been terribly beaten in the head with some heavy instrument. Near by was found an iron bolt about 18 inches long and portions of a brown paper sack. Davis was afterward arrested and made a confession as to his participation in the crime, but not to the extent that he disclosed on the trial.
The indictment accused the appellant, Davis, King, Riley, and the appellant's wife and her father with murder committed: (1) Pursuant to a conspiracy to kill Combs; (2) by Davis with the others aiding and abetting him; and (3) by each of the others, specifically, with Davis, and his co-defendants as aiders and abettors, respectively. The instructions conformed to the charges as set forth in the indictment. The argument is made in behalf of the appellant that it was error to authorize a conviction pursuant to a conspiracy to kill Combs since the evidence disclosed only a conspiracy to rob him. The evidence was not so closely confined. Davis did testify that it had been agreed that the party would hurt nobody and they intended only to take Combs' automobile. He testified that while they were sitting around the railroad at Hazard, apparently working out the details of their plan, he picked up the large bolt, found at the scene of the murder, and pitched it over in the road to Riley, saying: "Here Walter." Riley picked it up saying: "I will take that; I might want to knock a nigger in the head." He rolled it up in a piece of brown paper and "they" laid it behind a rock. Nothing was said about taking this bolt on the expedition and he did not see it any more. That night after the murder he asked King what he had hit Combs with and he told him it...
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Fitzgerald v. Commonwealth
...that such pictures are admissible in evidence where they show correctly the things which they purport to represent. Davis v. Commonwealth, 279 Ky. 127, 129 S.W. (2d) 1030. The next complaint is directed toward the following "If, upon the whole case, you have a reasonable doubt of the defend......