Hicks v. State

• Decision Date: 24 November 1937
• Docket Number: 26849.
• Citation: 11 N.E.2d 171,213 Ind. 277
• Parties: HICKS v. STATE. [*])
• Court: Indiana Supreme Court

11 N.E.2d 171

213 Ind. 277

HICKS v. STATE. ^[*])

No. 26849.

Supreme Court of Indiana

November 24, 1937

Appeal from Franklin Circuit Court; Roscoe C. O'Byrne Judge.

Virgil J. McCarty, of Brookville, Stephens L Blakely, of Covington, and Owen S. Boling, of Indianapolis for appellant.

Omer Stokes Jackson, Atty. Gen., Glen L. Steckley, Deputy Atty. Gen., and Chas. A. Lowe, of Lawrenceburg, for the State.

HUGHES Judge.

The appellant was indicted, tried, and convicted for the murder of Harry R. Miller. He, together with William Kuhlman, Frank Williams, and John Poholsky were indicted in five counts, and he was found guilty on the third count which charged murder in the first degree and the death penalty was fixed as his punishment. The other three codefendants pleaded guilty to the charge contained in the third count, were sentenced to death, and have been duly electrocuted. The appellant alone entered a plea of not guilty and stood trial, although the evidence clearly shows that he was the instigator of and took part in the murder.

The murder occurred on the night of the 11th day of June, 1936, at the home of the deceased near the town of New Trenton in Franklin county, Ind. All four of the defendants were former convicts and some of them had served several prison sentences. The deceased, Harry R. Miller, was a man of considerable wealth. He lived near New Trenton. He had a sister, Flora Miller, an eccentric woman, age 66 years, who lives in Cincinnati. The evidence shows that she at one time had considerable wealth, but had largely dissipated it. The appellant had been in the employment of Miss Miller since 1934, as chauffeur and doing other kinds of work for her. The evidence shows they were on very friendly terms.

It is shown by the evidence that the appellant by some means had secured some bonds and stocks belonging to the deceased, Harry Miller, prior to the murder on the night of June 11, 1936, and it is apparent that one of the motives for the murder was the belief on the part of the appellant, Hicks, that, if the deceased, Harry R. Miller, was dead, his sister, Miss Miller, would inherit his property and that he would be able, either through friendship or otherwise, to appropriate part of the Miller property to himself. This motive is given by Hicks in his confession.

Whatever the motive may have been, the evidence clearly shows that the appellant, Hicks, for several weeks before the murder was committed began to make plans for its perpetration. All of the perpetrators were living in Cincinnati and saw one another frequently. Hicks was cautious in proposing his plan to his associates and conspirators. He talked to them individually and as a group as to a murder he proposed to commit and finally agreed to the sum each would receive and as to the part each would perform in the murder. Shortly before the murder was committed he told them the name of the party, and all of the defendants on June 4th prior to the murder drove at night to the home of the deceased for the purpose of killing him, but he was not at home. It was on June 4th that all four of the men met at 30 N. Court street, Cincinnati, and planned the murder, and then drove down to Miller's home at about 10:30 p. m. to murder him, but, when they found that he was not at home, they returned to Cincinnati. On the following Monday they met at Kuhlman's apartment, Morrison street, Cincinnati, and discussed their plans and decided to return to Miller's on June 11th. Hicks said this would be the best time for him, as he could then establish an alibi by taking Miss Miller to the show. They met at this place several times. On the night of June 11th all the men went to Kuhlman's apartment and left there for Miller's and arrived there about 10:30 p. m. They went in an automobile which had been stolen by Kuhlman. When they arrived at Miller's, Hicks told the other men to remain in the car. Hicks had written a letter to Miller to be at home that night as he was bringing some whisky men to see him. As the party went through Harrison, Hicks purchased some whisky. After Hicks went into the house, he called for Williams and Kuhlman. They then went up to the house. Poholsky remained in the car for the time being. Miller was in his kitchen seated in a chair by the table. Hicks passed some drinks around. Kuhlman then hit Miller on the head with a lead pipe. Miller jumped up and ran to the front porch. Williams and Kuhlman were wrestling with Miller when Poholsky came up. Miller fell on the porch and Poholsky struck him several times on the head with the lead pipe. Hicks ran into the house and secured a towel and sweater, and he and Poholsky wrapped the towel and sweater around Miller's head. He was unconscious and there was a great amount of blood on the porch. The four men picked Miller up and carried him to the car and put him in it between the front and rear seat. He was a very large man, being over six feet and weighing about 250 pounds. Miller was covered with a tent to prevent any one from seeing him. After Miller was placed in the car, Kuhlman, Williams, and Poholsky got in the car. Hicks remained at the home of Miller to clean the blood from the porch and also to straighten up the house. This was all prearranged, and Hicks was to take Miller's car to Cincinnati, which the evidence shows that he did. The three who were in the car drove down toward Madison and to a place located across the river from Warsaw, Ky. They gave a signal for the ferry to take them across, but just at that time Miller started groaning and they turned around and drove up the road towards Madison. Kuhlman then took his revolver and shot Miller three or four times. They drove to Madison, crossed the river into Kentucky, and went through Carrollton. Near this place the body was taken out of the car, and Poholsky, with a meat cleaver and axe which they had with them, cut off Miller's head and hands. They were placed in a cardboard box with cement and placed in the trunk of the car. The body was thrown in the car and taken to a place below Eminence, Ky., where it was put under a culvert. The clothing was all taken off the body, lime was poured over it and covered with rocks. They then drove back toward the Ohio river and put the box containing the head and hands into a pond or lake by the side of the road. From this place they drove to Cincinnati on the Kentucky side of the river. They went to Kuhlman's apartment on Morris street. This was about 10:00 a. m. June 12th. About 2 p. m. Hicks came to the apartment where he met the other three. Hicks was told where the body, head, and hands were and that Kuhlman shot Miller.

Hicks had agreed prior to the murder to pay Williams, Kuhlman, and Poholsky $6,000 for the part they were to play. On the evening of the murder he gave them some money for expenses. After the murder he gave them 100 shares of Bethlehem Steel. He told them that it was part of the stock that he had taken from Miller's safe located at his sister's home. Hicks had agreed to pay in cash, but he told them he could not make connections to sell the stock and bonds which he had; Kuhlman and Williams took the Bethlehem steel stock to Cleveland and, through other parties, received $2,500.

The evidence discloses that the head and face of Miller had been badly beaten, bruised, and crushed. The nose was broken off and was barely attached to the face. The forehead was mashed and crushed in. There was a hole in the temple and one practically between the eyes about the size of a dime.

A Mr. Dunn lived near the pond or pool of water where the head and hands were found. He first found an axe, fishing poles, and a metal folder. There was also a large pool of blood on the bank and some cement and sand. Hicks and the other occupants of the car when they went to Miller's house had these fishing poles on the side of their car so that they might pose as fishermen. Two handkerchiefs and some pieces of cloth were also found. The match folder had the name of a Harrison concern on it. All of these objects were introduced in evidence. On June 28th some boys found a box in the pond or lake and called the sheriff of Carroll county, Ky. The sheriff and deputy, and Dr. D. C. Bakes went to investigate. He pulled the box out and opened it. A finger protruded from a square concrete block which was in the pasteboard box. The block was taken to the sheriff's office. The head could not be seen--it was entirely covered with cement and, after being broken away, the head was exposed. In addition to the other articles, a towel and tent or tarpaulin were found. Two holes were found in the towel.

The first two errors assigned in appellant's motion for a new trial are that the court erred in denying his motion and request to have removed from the courtroom four armed state policement. It appears that these state policemen were stationed in the two rear corners of the courtroom and two in the front part of the courtroom. In addition to these four officers, the sheriff and deputy sheriff were in the courtroom. The motion was made before the introduction of any evidence, and it was charged by the appellant that said officers created an atmosphere which might be prejudicial to the rights of the defendant. It is to be noted that it was not charged that the presence of the officers was prejudicial to the appellant, but that it might be. It is insisted by appellant that by permitting said officers in the courtroom section 13, article 1, of the Constitution of Indiana, providing that the 'accused shall have the right to a public trial, by an impartial jury,' was violated, and also section 15, article 1, of the Constitution of Indiana, providing that 'No person arrested, or confined in jail, shall be treated with...