Drake v. Commonwealth

• Decision Date: 06 March 1936
• Citation: 91 S.W.2d 1009,263 Ky. 107
• Parties: DRAKE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

91 S.W.2d 1009

263 Ky. 107

DRAKE v. COMMONWEALTH.

Court of Appeals of Kentucky

March 6, 1936

Appeal from Circuit Court, Jefferson County, Criminal Branch.

Alford Drake was convicted of murder, and he appeals.

Affirmed.

Louis P. Maniatis and William Kiel, both of Louisville, for appellant.

B. M Vincent, Atty. Gen., and A. E. Funk, Asst. Atty. Gen., for the Commonwealth.

PERRY Justice.

The appellant, Alford Drake, prosecutes this appeal from a judgment entered on a verdict of the jury finding him guilty of murder and fixing his punishment at death.

It appears from the record that both the deceased and appellant are negroes who at the time the offense here in evidence was committed lived in Louisville, Ky. where the deceased, James Edward Simpson, was employed and serving as a merchant policeman.

The appellant, Drake, a younger man, was caught by the deceased officer on the early morning of April 14, 1935, as he was coming out, or just after he had come out, of the Ben Zeiden grocery store at Fifteenth and Madison streets with some goods which he had stolen from the store, after first breaking through the window to gain entrance.

Just after Drake came out of the store, Simpson discovered him with the stolen groceries, which he had in a sack, and thereupon undertook to place him under arrest. It was then about 3 o'clock in the morning, and no one else was present, but shortly afterwards colored friends of the deceased, who lived in the rear of the grocery, answered his call and came to his assistance. He asked one of them Garland Cole, to phone the police for help, when Cole, a witness for the commonwealth, testifies that, as he did not have the required nickle for making the requested telephone call, Simpson undertook to reach in his pocket and supply it, and while so doing, he transferred his gun over to Cole, telling him to keep defendant covered with it. As Cole sought to hand him back this gun, Drake grabbed it from him and ordered them all to "stick them up." Simpsons's helpers, Cole and a Negro woman, both ran away, leaving Simpson holding up his hands, as ordered, as he attempted to back away from Drake, "all the time asking him not to shoot him." However, when Simpson had thus backed away some 20 feet, Drake shot and killed him.

This version of Simpson's killing, so given by the witness, Cole, is fully and substantially corroborated by the like testimony of other witnesses for the commonwealth, who were then present and eyewitnesses to these facts and circumstances leading up to the shooting and killing, except as to seeking the defendant at the very second he fired the one shot that killed Simpson, which they testify they did not see, for the reason that Simpson had at that instant backed out of their view, around the corner of the store when he was shot by appellant, though they were than close by and heard both the shot fired and Simpsons's cry that he was shot.

Also the further evidence for the commonwealth, identifying Drake as his murderer, is that Simpson's gun, with which he was shot by defendant, was a German pistol of unusual mechanism, and so constructed that it could not be accidentally discharged, but required for its firing the simultaneous pressing of the handle safety and the pulling of the trigger, and that this unusual mechanical feature of the gun made much easier and more certain the later identification had of it. Further, evidence for the commonwealth was that the deceased was killed by a bullet fired from this pistol by the defendant when the deceased was not at close range but some distance from him, as a ballistic expert also testified the facts in evidence showed.

Also it was further shown, and undenied by appellant, that after shooting the deceased, he had sold or pawned this pistol, taken by him from Simpson's assistant, to one There Young, who so testified and identified the gun introduced in evidence as being the same he had bought from him the following Easter Sunday. The evidence for the commonwealth further showed that appellant shot and killed the deceased upon this occasion, as was later admitted by him, but claimed it was done accidentally during their scuffle for the pistol.

Also the defendant, when testifying in his own behalf, states that on the night of and just before his killing of the deceased, that as he was on his way home and came to Zeiden's grocery at the corner of Fifteenth and Madison streets, and that, "well, quite naturally, I broke in the store, all right. No one didn't see me. When I got out this here man come up to me with a pistol and struck me up. I didn't know who he was, he didn't tell me who he was, he didn't tell me who he was an officer, he didn't say I was under arrest, and another fellow came up there and he asked the other fellow to hold this gun on this boy, while I get a nickle. When he handed the other man the gun, he hit me with his blackjack and on the side of the head. That was when I snatched the gun. When I snatched the gun this man broke and run and the woman broke and run. When we were scuffling there on the corner the gun went off and shot him. He run around the corner and I went across the street." He further testified that he did not know how the gun went off, that he didn't pull the trigger; that it just went off during the scuffle; that he tried to get the deceased to turn him loose but he would not. On cross-examination he admitted that he had pawned the gun; also that he had just before broken into the store and was caught as he was coming out, or just after he had gotten out, by the deceased; that at the time he did not know who the deceased was, as he did not show him any badge and did not tell him he was an officer; that he did not know exactly what deceased was doing, "so many funny things are pulled off like that"; that he did not hear decreased tell Cole to call the police, though he did hear him tell the woman to go and get some help; that he did not know he had shot the man until the gun went off in the scuffle; that he did not know when he left there that the man had been shot, as he was running when he shot him. Also he stated that he had been in the penitentiary twice before for other crimes committed.

Upon the conclusion of the evidence, the jury was very clearly, appropriately, and thoroughly instructed by the court upon every phase of the evidence and covering every theory, both of the prosecution and the defense, based thereon. The jury thereupon, after hearing the evidence, the instructions thereon and argument of counsel, returned a verdict finding the defendant guilty of murder and fixing his punishment at death.

Defendant's motion and grounds, consisting of some fourteen assignments of error, having been overruled, he has appealed.

While appellant refers to and discusses in a general way all of these several grounds set out in his motion for a new trial, he, by counsel, states in his brief that: "The only real question involved in the case is the degree of guilt of this defendant, who admits having broken into the grocery and having shot the deceased, but claims that this was done in a scuffle and there was no premeditation to the shooting"; and further insists that: "It is not justice to convict a man of first-degree murder because he is caught robbing a grocery store and in a scuffle shoots one whom he does not know to be an officer, even though that one had the power of arrest though not an officer."

At this point it seems not amiss to state that it appears by the record that this young negro defendant was without funds with which to employ counsel, and that the court was, for such reason, called upon to appoint counsel to represent him upon his trial. Also it appears that the attorneys so appointed accepted the unpleasant task and have loyally and earnestly represented appellant upon his trial in the lower court and are here presenting his appeal, to the end that the accused, in so far as their experience and skill permits, might in all respects receive a fair and impartial hearing and trial of this case.

While this duty has been performed by counsel for appellant, we nonetheless, in view of the severe penalty imposed upon appellant, deem it advisable to review somewhat fully the different grounds urged for a reversal of the judgment, even though most of them are not here insisted upon nor argued by counsel in brief.

In the motion and grounds for a new trial, the appellant urges first, that the verdict was contrary to the law and the evidence. Clearly, as the instructions given fully warranted the verdict found by the jury, it cannot be assailed on this ground as being contrary to law. Because of the nature of a further objection, that the verdict is against the evidence, we have fully summarized, supra, the evidence in the case, which very sufficiently and amply, it would appear, supports the verdict of guilty as returned. Appellant's contention urged in support of this objection is that, although admitting that he shot and killed the deceased, he is, notwithstanding this, not guilty of the charged offense of murder, as he did so, not willfully, but accidentally, while scuffling with him for the possession of the pistol. The commonwealth's contention, on the other hand, is that Drake shot the deceased, not accidentally, but willfully, and while the deceased was backing away from him, with upheld hands and begging him not to shoot him. Also, by ample evidence brought before the jury, it was shown that deceased was not shot while engaged in a struggle over the pistol at close quarters with the defendant, as there were found no burns or powder stains about or upon the deceased, as testified by the ballistic expert and other witnesses. Accused, having admitted that he killed...