Gray v. Commonwealth

Decision Date23 March 1943
Citation170 S.W.2d 870,293 Ky. 833
PartiesGRAY v. COMMONWEALTH.
CourtKentucky Court of Appeals

Rehearing Denied May 25, 1943.

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

William Carson Gray was convicted for murder, and he appeals.

Affirmed.

A. B Thomason, Milton Quinton, Jr., David Weil, and George Woolcott, all of Lexington, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

VAN SANT, Commissioner.

Appellant was found guilty of the murder of Byrd Taulbee and sentenced to die in the electric chair. We are asked to reverse the judgment because (1) alleged error of the court in overruling a demurrer to the indictment; (2) alleged mental condition (3) alleged coercion used in procuring the confession introduced in evidence; (4) alleged error of the court in admitting incompetent evidence; and (5) because of his youth.

The uncontradicted facts are: On the afternoon of January 31 1942, appellant, William Gray, accompanied by Archie Simpson, who was jointly indicted with him, and a boy named Taylor, all of whom are young negroes, attended a show at the opera house in Lexington, at which time they drank some wine which was furnished by Taylor. They left the show about 5:30 p. m. and proceeded to Carver's Tavern where they continued drinking. Gray and Simpson, after buying additional wine, departed for the latter's home located at 603 Marino Street in the vicinity of the Southern Railroad. Taylor remained at the tavern and did not participate in the events hereinafter related. Appellant and his companion remained at Simpson's home until about 8:15 P. M. While there, Joseph Childs called and was invited by Simpson to "go out" with him and Gray that night. Childs asked them what they were going to do and he was told that they were "going to knock old man Taulbee in the head when he closed up, and rob him." Childs refused to join them. Mr. Taulbee was an elderly white man who ran a store on Marino Street close to the home of Simpson. Gray and Simpson went to the Taulbee store wherein Gray first entered. He ordered a nickel's worth of minced ham and engaged the storekeeper in conversation. While Taulbee's attention thus was diverted, Simpson entered the store and, going behind the counter, stole 150 pennies from a box. Gray was the first to leave the store, but was followed closely by Simpson. They divided the loot and agreed to lie in wait for Mr. Taulbee and rob him as he passed under an overpass of the railroad which it was necessary for him to do to reach his automobile parked nearby. They waited there about an hour and a half. In the meantime Gray possessed himself of a Pepsi-Cola bottle which he carried for the admitted purpose of striking Mr. Taulbee on the head. Simpson secreted himself in the shadows under the bridge while Gray remained in sight of anyone who might approach. Mr. Taulbee closed the store and proceeded along the road towards his car. As he passed Simpson, he was tackled by the latter and thrown to the ground. While Simpson held him Gray struck him on the side of the head with the Pepsi-Cola bottle, which broke with the first blow. In the scuffle a pocket was torn from Simpson's coat and was later found at the scene of the crime. Gray found a large paving brick lying nearby and with it as a weapon continued the assault, resulting in injuries to the victim which caused his death a few hours thereafter. Before departing, the conspirators robbed their victim of a bunch of keys and approximately $4 in money. They then proceeded to Simpson's home. Having no use for the keys Simpson placed them in a lighted stove, in the ashes of which they were later recovered by the police. They remained at the house about five minutes, then proceeded to a gambling house which was being operated by Tom Vernon in the east end of Lexington. There they engaged in a crap game and lost all the money they had secured in the robbery, except the small amount they spent for a quart of wine. They remained at Vernon's place until about 12:15 a. m. on the following morning. Gray then went to his residence where he was arrested later that day. The officers began questioning Gray about 1:30 p. m. and at 5:33 he signed a confession from which we have taken the above statement of facts.

Separate trials were had on the joint indictment. Simpson too was convicted and sentenced to death, the judgment in which case was affirmed in an opinion this day rendered styled Archie Simpson v. Commonwealth of Kentucky and cited in 293 Ky. 831, 170 S.W.2d 869.

The complaint concerning the indictment is frivolous, and is based on the fallacious contention that an indictment for murder must recite that the instrument causing the death of the victim was not only deadly in itself but is one susceptible of producing death in the manner in which it was employed at the time of the commission of the crime. If counsel for appellant are serious in this contention, they have been misled by the opinions of this court in respect to the requirements of an indictment for the offense of wounding with a deadly weapon denounced by KRS 435.170(2) (Section 1166, Carroll's Kentucky Statutes). That section of the Statutes provides that any person shall be...

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