Higgins v. Commonwealth

• Decision Date: 09 March 1911
• Citation: 142 Ky. 647,134 S.W. 1135
• Parties: HIGGINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

134 S.W. 1135

142 Ky. 647

HIGGINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 9, 1911

Appeal from Circuit Court, Greenup County.

Sarah Hill Higgins was convicted of murder, and she appeals. Reversed and remanded.

Theo. K. Funk and A. S. Cooper, for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

HOBSON C.J.

Fred Ferguson and Sarah Hill Higgins were indicted for the murder of William Culbertson. She was tried first. The jury found her guilty and fixed her punishment at eight years in the state penitentiary. The court entered judgment on the verdict, and she appeals.

The facts as shown by the proof for the commonwealth on the trial are these: William Culbertson was the night agent of the Chesapeake & Ohio Railway at South Portsmouth, Ky. which is just across the Ohio river from Portsmouth, Ohio. Sarah H Higgins and Ferguson lived in Portsmouth, Ohio, although she was a native of Kentucky, and had lived, until shortly before the death of Culbertson, in South Portsmouth, Ky. She had a son named Ike. Ike and Ferguson were arrested by the railway authorities some weeks before Culbertson's death for stealing coal. After this, Ike had a difficulty with William Culbertson, whom he charged with having had him arrested. Culbertson slapped him, and he then went off and got a gun. His mother, who was present when he came back with the gun told her son to shoot him, and then, when he did not shoot him, said, "Give me the gun, and I will shoot him," using a vile word. About two weeks before Culbertson's death, she said she would bet a dollar that inside of two weeks Culbertson would not make anybody else quit getting coal. On the Saturday before his death, she said in the presence of several people that she would kill the man who had had her son arrested, if she had to slip up behind him and knock him in the head. Some of the witnesses say that she used Culbertson's name in this connection. On the next day she said that they had Ike in jail for stealing coal, and that if she had her gun she would blow the man's brains out who had him arrested. She was then in Portsmouth, Ohio, and went toward the river. According to other testimony for the commonwealth, she was not about her home any more that evening. That night Culbertson was the only person at the depot. He sold tickets for a passenger train which passed at 12:24, and about that time talked over the telephone to the dispatcher, who was at another building, several hundred yards away. At 1:24 a freight train passed from the east, the first train which passed after the passenger. A brakeman on this train sitting in the engine saw the body of a man lying on the platform near the depot with his feet toward the track, and his head out from it. The brakeman looked at the man after he passed him on the engine to see if he was free of the cars, and when he reached the next station reported the fact to the conductor of a train he met there going west, thinking perhaps the man was drunk. The conductor of the west-bound train saw the man as he passed in the same position as the brakeman on the other train. He reported the matter to the station agent as he passed, but did not stop. The station agent then called up the depot by phone, but got no answer. This was about 2:30. Early in the morning a person went to the depot and found Culbertson lying on the platform in the position described. He was alive but unconscious. His skull was crushed on the right side of his head. The top of the right ear was clipped. The left eye was black. He had bled profusely from the nose and mouth. There was a slight bruise or cut on the left hand, and a slight bruise on each elbow. He died without regaining consciousness. Between 2 and 4 o'clock Monday morning, Mrs. Higgins met a woman in an alley near where she lived; seemed to be frightened, and said to her: "I told you this ticket agent should never interfere with William Ike. I told you last night he should never see the sun set again. We fixed him. We got him out of the way. I got that Ferguson boy to help. When the early train went by we came down, and I called this ticket agent to the door, and asked him to change some money for me, and he started to change the money, and the Ferguson boy hit him with a club. We then took him by the feet and shoulders and laid him on the railway track to make people think the train killed him." It was shown by other witnesses in Portsmouth that she made similar statements to them. To the officers who arrested her after Ferguson was arrested, she said that there were only three people on earth that knew anything about the case, that they had the right man in jail that did the killing.

It is insisted that this proof was not sufficient to warrant the conviction of the defendant for the reason that the corpus delicti was not shown. In 3 Greenleaf on Evidence, § 30, it is said: "The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the act itself was done; and, secondly, that it was done by the person charged, and by none other. In other words, proof of the corpus delicti, and of the identity of the prisoner. It is seldom that either of these can be proved by direct testimony; and therefore the fact may lawfully be established by circumstantial evidence, provided it be satisfactory." Again, in section 131, speaking of the corpus delicti, the learned author says: "And this involves two principal facts, namely, that the person is dead, and that he died in consequence of the injury alleged to have been received." In section 134 he further says: "The death and the identity of the body being established, it is necessary, in the next place, to prove that the deceased came to his death by the unlawful act of another person. The possibility of reasonably accounting for the fact by suicide, by accident, or by any natural cause, must be excluded by the circumstances proved; and it is only when no other hypothesis will explain all the conditions of the case, and account for all the facts, that it can safely and justly be concluded that it has been caused by intentional injury."

The commonwealth showed here beyond doubt, that Culbertson was dead, and that he came to his death from a blow on the head which fractured his skull. The identity of the prisoner with the crime was shown wholly by circumstantial evidence and her own declaration. It is earnestly insisted that the proof does not show that anybody killed Culbertson; that it is reasonable from all the circumstances that he was sleeping on the platform and raised up as the train passed him and was struck by the cars, thus receiving the injury on his head. But this was a question for the jury. Section 240 of the Criminal Code of Practice provides: "A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed."

In Patterson v. Commonwealth, 86 Ky. 320, 5 S.W. 390, 9 Ky. Law Rep. 485, the court pointing out the difference between section 240, relating to confessions out of court, and section 241, relating to the testimony of an accomplice, said: "But there is a material difference between the two sections, for, while one relates to the legal effect to be given to a confession when proved as a fact, the other not only prescribes the legal effect which may be given to the testimony of an accomplice when credited, but also determines the condition upon which the jury may give any credence to it. The converse of the proposition stated in section 240 is that if the confession is accompanied with proof such offense was committed--that is, with proof of the corpus delicti--it will warrant a conviction." See, also, to same effect, Wigginton v. Com., 92 Ky. 289, 17 S.W. 634, 13 Ky. Law Rep. 641; Dugan v. Com., 102 Ky. 252, 43 S.W. 418, 19 Ky. Law Rep. 1273; Gilbert v. Com., 111 Ky. 798, 64 S.W. 846, 23 Ky. Law Rep. 1094.

It is also held in the cases cited that, if it is doubtful if the crime has been committed, the jury should be instructed in the language of this section. The defense here was rested in a large measure on the ground that the...