Fry v. Com.

• Decision Date: 14 May 1935
• Citation: 259 Ky. 337,82 S.W.2d 431
• Parties: FRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

82 S.W.2d 431

259 Ky. 337

FRY v. COMMONWEALTH.

Court of Appeals of Kentucky

May 14, 1935

Appeal from Circuit Court, Logan County.

Elmer Fry was convicted of robbery of bank by means of a pistol and he appeals.

Judgment reversed for a new trial consistent with opinion.

Hubert Meredith, of Greenville, for appellant.

Bailey P. Wootton, Atty. Gen., and Ray L. Murphy, Asst. Atty. Gen for the Commonwealth.

RICHARDSON Justice.

In 1893, the Legislature enacted section 1159, Kentucky Statutes (Acts 1891-93, c. 182, p. 756, § 32), which fixed the punishment of the common-law crimes of robbery and burglary at confinement in the penitentiary at not less than two nor more than ten years. In 1904, it enacted section 1159a (Acts 1904, c. 43, p. 117), prescribing the punishment for same crimes, committed by the means of explosives or any other force, at not less than two nor more than twenty years at confinement in the penitentiary.

The act of 1934 (chapter 52) merely reenacted section 1159. It re-enacted in its entirety section 1159a with this addition "That if any person shall commit acts of robbery, burglary as defined in sections 1159 or 1159a, robbery of bank or safe, and in committing said act or acts shall use or display any pistol, gun or other firearms or deadly weapon of any character in so doing; upon conviction such person or persons shall be sentenced to death or life imprisonment in the discretion of the jury," etc.

The grand jury of Logan county indicted Richard Roe, alias Elmer Fry, under the latter clause of this section (1159a), charging that he had committed the crime of robbing a bank by "unlawfully, willfully and feloniously, and by force and violence and by the use and display of a deadly weapon, firearms, to-wit; a pistol." On a trial to a jury he was convicted and his punishment fixed at confinement in the state reformatory for the period of his natural life.

He is here urgently insisting that the title of the act is within the inhibition of section 51 of the State Constitution. The former reads: "An Act to amend and reenact Sections 1159 and 1159a, Carroll's Kentucky Statutes, prescribing punishment for robbery or burglary, robbery of bank or safe, or for having burglarious tools, the use of fire arms in committing any of said acts and knowingly giving protection or comfort to any person committing these acts." Acts 1934, c. 52.

The general rules for amending laws by title are so familiarly and generally known, it is unnecessary to reiterate them. For an accurate statement of them, see Board of Penitentiary Com'rs v. Spencer, 159 Ky. 255, 166 S.W. 1017. An examination of the title and the context of the act, in the light of the rules therein stated, is convincing that Fry's objection to the title is not meritorious.

He argues that the statute under which he stands convicted is within the prohibition of section 17 of our Bill of Rights. He does not dispute that the punishment by death or confinement in the penitentiary for life, in a proper case, is not "cruel punishment," within the prohibition of this section of our Bill of Rights, or within the Eighth Amendment to the Constitution of the United States; but he contends that the death penalty is excessive or cruel in view of the degree of the crime of which he is convicted.

Much difficulty has been expressed by the courts of the country in attempting to define the scope of these constitutional provisions. It is the thought of some that they are not a limitation of legislative discretion in determining the severity of punishment. Others view them as referring to the mode of the infliction of the punishment. Aldridge v. Com., 2 Va. Cas. (4 Va.) 447; Commonwealth v. Hitchings, 5 Gray (Mass.) 482; Sturtevant v. Commonwealth, 158 Mass. 598, 33 N.E. 648; State v. Williams, 77 Mo. 310; Territory v. Ketchum, 10 N.M. 718, 65 P. 169, 55 L. R. A. 90; Commonwealth v. Evans, 33 Mass. (16 Pick.) 448; Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519.

Still others are of the thought they are broad enough to confer upon the courts the power to review legislative discretion concerning the adequacy of punishment. State v. Becker, 3 S. D. 29, 51 N.W. 1018; In re McDonald, 4 Wyo. 150, 33 P. 18; In re Bayard, 25 Hun (N. Y.) 546, 63 How. Prac. 73; Thomas v. Kinkead, 55 Ark. 502, 18 S.W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68; see, also, dissenting opinions of Justices Field, Harlan and Brewer in O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450.

We have adopted the rule that the fixing the penalties for crimes is a legislative function; and whatever constitutes an adequate punishment is a matter of legislative judgment and discretion. We have steadfastly declined to interfere therewith. Since the sentence here imposed is within the limits prescribed by the statute for the crime committed, we decline to accept the view it is cruel punishment. For the most recent statement of our views, see Crutchfield v. Commonwealth, 248 Ky. 704, 59 S.W.2d 983. With these questions disposed of, we are confronted with the difficult and perplexing one, Is the verdict against the evidence? To dispose of it requires a patient, careful, painstaking, and extended review and analysis of the evidence, which we shall now undertake.

Around 7:30 o'clock, Saturday morning, the 22d day of September 1934, at Russellville, Logan county, Ky. as Tom Garrison finished "cleaning up" the interior of the Southern Deposit Bank and was going out the back door, two men approached and required him to get into the bank, they following, where they "wired" his hands and feet, laid him in a hallway, face down, where he remained ten minutes, during which time they left him and on their return compelled him to arise, walk into the directors' room, where they, after placing tape over his mouth, laid him on a couch with his face to the wall. He identified the accused as one of the two men who did this. He testified that the one he identified as the accused was wearing at the time a "cap" "blue shirt," "black shoes" and "solid colored pants." The man whom he identified as the accused, after he first entered the bank, put on "big, brown goggles." About five minutes of 8 o'clock, Lewis Richardson, cashier, entered the bank, when he discovered that the janitor was lying on the couch in the directors' room, his hands behind him, tied with wire. He walked ten or twelve feet from the front door, and as he started to go behind the counter Richardson heard a voice commanding him to put up his hands and be quiet; the man was behind him with a gun in his hand, and remained behind him "nearly all the time." At his command, Richardson entered the vault, made the electrical connection to open the safe, and in about 15 minutes he opened it, secured $7,000, and placed it in a sack. He then compelled Richardson to lie on his back on the floor and wired his hands and feet. At this moment Richardson discovered a second man was present. Richardson was not asked to, nor did he, identify either of the men as the accused. While Richardson was on the floor, a Mr. Yates entered the bank. He was not introduced as a witness. Following Yates, came C. Y. Williams who had an office in the bank. He walked to his desk, laid down his mail, walked back to the cage, and as he was in the act of pulling off his raincoat, he observed a man, a distance from him of about five steps, approaching. He identified the accused as the man who approached him, from his carriage and voice, claiming that he was a musician. Next after Williamson, Henry Long, an old colored man, entered the bank, when some one grabbed him and tried to put him in a room; the old colored man began to kick at the one who had grabbed him, when some one in the rear struck him over the head from which he bled profusely. While this was occurring, Long made an outcry. He did not undertake to identify the accused. While Long was "hollering," Mr. and Mrs. O. M. Smith were in the act of entering a hallway which led to O. M. Smith's office and from which a door entered the bank. O. M. Smith was reading his mail and only observed the men pass out at the door and gave neither of them any attention. He did not identify the accused. As Mrs. Smith heard some one make an outcry in the bank, she opened a screen door and started to enter the hallway. At that moment she observed two men coming out the bank door carrying guns; she was within two feet of them; one was wearing a cap, "amber colored glasses," "small brown striped trousers," and a "brown suede jacket." She was asked if she had seen either of those men since that time. Her response was, "Yes, I feel sure that I have." Following this question, she was asked if she saw either one of them at that time. She answered, "Yes, I think I do." She then pointed to the accused. She was then asked if she could be mistaken. She stated, "No, I am not certain that this is the man, though I am satisfied in my own mind that he is." Ira Lee claims that at the time the two men left the bank, he was just across the street. He identified the accused as one of them, and stated, "When I first saw him he came out of the door of the bank with a pistol in one hand; he came around the back of the car and got in the driver's seat and drove off." At that time he was 24 steps from the men. He was asked if the one whom he identified as the accused looked him "square in the face"; he responded, "they were facing me when they came around the car; he was bound to be facing me when he turned and got in the car." He claims the accused at the time was wearing a "dark cap," "overall jacket," "blue overalls" and "blue pants." When asked if his trousers were "striped," he stated, "I said they were blue and I'm...