Deboe v. Commonwealth

• Decision Date: 12 February 1935
• Citation: 79 S.W.2d 236,257 Ky. 792
• Parties: DEBOE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

79 S.W.2d 236

257 Ky. 792

DEBOE v. COMMONWEALTH.

Court of Appeals of Kentucky

February 12, 1935

Rehearing Denied March 19, 1935.

Appeal from Circuit Court, Livingston County.

Willie Deboe was convicted of rape, and he appeals.

Affirmed.

Charles Ferguson, of Smithland, and M. E. Gilbert, of Paducah, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

RICHARDSON Justice.

This is an appeal from a judgment of conviction entered at a special term of the court for the crime of rape of a female above the age of twelve imposing the death penalty. Section 1154, Kentucky Statutes.

The accused presents as grounds of reversal: Error of the court in overruling a demurrer to the indictment; the verdict is not sustained by, and is flagrantly against, the evidence the admission of incompetent, and the excluding of competent, evidence; the verdict is the result of passion and prejudice, arising from inflamed public sentiment and the presence in the courtroom during the trial of eighty-five armed deputy sheriffs; and error in an instruction of the court.

A correct and fair disposition of these grounds requires a review of the evidence.

It substantially shows that on the 16th day of May, 1934, Randall Johnson, in Livingston county, Ky. on the highway near Gum Spring Church, was engaged in the mercantile business. About 7:30 or 8 o'clock p. m. Willie Deboe and George Taylor approached the home of Johnson, which was near his store, and "hollered"; Mrs. Johnson appeared at the door, when they informed her they desired to obtain gas. At that time Johnson was in his home preparing for supper. To accommodate them, he left the house and walked out in the yard. They stated to him they "had run out of gas down the road a little bit," and wanted to get gas at his store. Johnson was not acquainted with either of them. He consented to go, and did go, with them to his store. After arriving, he drew three gallons of gas, when they informed him they desired to purchase cigarettes and tobacco; he and they entered the store; they purchased two packages of cigarettes and a plug of tobacco, and inquired of him if he had handkerchiefs for sale; he stated that he had them. Then Willie Deboe placed a gun in Johnson's side and announced, "Stick 'em up." He endeavored to argue with them, stating, "If there was anything in the store they wanted to take it." Deboe still holding a gun in his side, Taylor searched him, obtaining about $10 from his pockets. They were not satisfied, and asked him, "Where is your money?" They proceeded to tie his hands behind him and compelled him to lie on his back, and continued to search for money. While they were engaged in searching the store, Johnson assured them he had no more money, when they would curse him. They put out all the lights and employed a flash-light while engaged in the search. While this was occurring, Mrs. Johnson, who was at their home, was calling her husband. Johnson begged them to let him go to her, informing them she was in bad health. They inquired of him what was her ailment. He stated to them "she is in the family way." They loosened his hands; he arose, and they accompanied him to his home; he begging them not to do so on account of his wife and children. They cursed him, ordered him "to get on," or they would kill him, and declared they were going to his home. They compelled him to go in front, directing him to tell his wife, when they arrived at his home, "there were two boys that wanted supper." On entering the home, she met them, when he informed her, "Here are two boys that want supper." Thereupon they stated to her "you are in a hold-up." They again tied the hands of Johnson and also his wife's; then tied her to a bedpost. Taylor ate his supper, and Deboe searched the house for money, continuously cursing because he was unable to find it. Mrs. Johnson informed him she had the Sunday school money. He declined to accept it. Taylor, on finishing eating, returned to the room, where Johnson, his wife, and Taylor were, and demanded to know "where was their automobile" and demanded Johnson deliver the key and go with him to the car. Before his departure, he and Deboe engaged in a "whispered conversation" in a room adjoining that in which were Johnson and his wife. Then Taylor forced Johnson to go with him to the car. After the car was secured, Taylor forced Johnson to get in it and accompany him to the store. Deboe opened the gate through which the car was driven. On arriving at the store, Taylor ransacked it in an effort to locate money; failing to find it, he laid on the counter such merchandise as he desired, of the value of about $100, then loaded it in Johnson's car. After Taylor and Johnson left in the automobile, Deboe, with a pistol in his hand, again entered the home of Johnson and again demanded of Mrs. Johnson to disclose where he could find money, when she again assured him she had only the Sunday school money. Thereupon, addressing her, he said, "Get in front of me." She obeyed his command and went into a bedroom. He then put his pistol in his pocket, walked up and took hold of her and said, "Kiss me." She refused to kiss him. He then stated that her husband had told them about her condition and said to her, "That won't make any difference." He pushed her clothing up to her hips; told her to lie down on the bed; she did so; and again he pushed up her clothing, and announced, "This does not suit me"; he drew a knife from his pocket and "cut her step-ins in two," and "ravished her." After so criminally assaulting her, he indulged in further conversation and departed, going to the store, when he and Taylor left in the automobile with the merchandise placed in it by Taylor while Deboe was at the home of Johnson.

Deboe and Taylor traveled the highway about four miles, then returned, passing the premises of Johnson, eventually carrying the merchandise to Dyersburg, Tenn. Later Crawford was arrested at Charleston, Mo., suspected as one of the parties engaged in the crime of robbing Johnson's store and raping Mrs. Johnson. Johnson and his wife went to Charleston to determine the identity of Crawford whom they did not identify.

Some time later, in July, the sheriff of the county, acting on information, went to Dyersburg, Tenn., located the merchandise of Johnson, arrested Deboe and Taylor, and returned them to Livingston county. When first arrested, they denied all knowledge of the commission of the crimes and asserted ownership of the merchandise and stated where they had obtained it. However, after they were arrested, and before their arrival in Livingston county, they confessed, and thereafter repeatedly confessed the commission of the crime of robbing Johnson and his store; both strenuously insisted that Deboe had not committed the crime of rape.

On June 22, 1934, the judge of the circuit court, in the manner and as required by section 971-13, Kentucky Statutes, as amended by Laws 1932, c. 61, § 5, called a special term of court, ordering the impaneling of a grand and petit jury for the trial of criminal cases named in the notice posted for that purpose, including any indictment that might be returned by the grand jury against Deboe and Taylor, who were at that time confined in the Eddyville penitentiary for safe-keeping, charged with the crime of robbery and rape.

The judge's notice calling the special term recites that, since the last term of the court, robbery and rape had been committed by force and violence by reason of which two highly respected ladies of the county were outraged and raped in the presence of their husbands, and the accused apprehended, identified, and confined in the penitentiary for safe-keeping; therefore a special term of court was called beginning and continuing as stated in the notice.

The grand jury, on the 18th day of June, returned an indictment charging Deboe with the crime of rape and Taylor with aiding and abetting him in its commission. The descriptive portion of it reads: "The defendants, Willie Deboe and George Taylor, *** did unlawfully, wilfully, feloniously, rape, ravish and carnally know a female, *** of and above twelve years of age, and not the wife of said Willie Deboe nor George Taylor and against her will and consent and by the use of force," etc.

The accused were brought into open court, informed of the nature of the indictment, and asked if they were able to employ counsel. They informed the court they were not. Thereupon the court appointed the Honorable Charles Ferguson to defend them. He accepted the appointment and proceeded to defend Deboe on the charge of rape. Deboe asked for a separate trial, and it was granted. Later a jury was impaneled and accepted by the commonwealth and Deboe. During the periods of adjournment, Deboe was confined in the Eddyville penitentiary.

On July 14th, the father of Deboe, with a relative by marriage, sought the judge and requested that Willie Deboe, the accused, be protected against violence during his trial. The father and the relative agreed with the judge that a sufficient number of deputy sheriffs be appointed to take care of the situation. The attorney of Deboe agreed to this arrangement, and, when Deboe was brought into court, he expressed his gratification for so protecting him against violence. There were eighty-five deputy sheriffs appointed in compliance with the agreement of the father, the relative, the counsel of Willie Deboe, and of the judge of the court.

On his trial, Deboe and Taylor admitted that they had planned the commission of robbery of Johnson and his store before they engaged therein; that they went to his place of business especially to accomplish the crime of robbery upon his person and store. On the...