Holmes v. Commonwealth

• Decision Date: 15 February 1927
• Citation: 291 S.W. 383,218 Ky. 314
• Parties: HOLMES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

291 S.W. 383

218 Ky. 314

HOLMES v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 15, 1927

Appeal from Circuit Court, Lee County.

Virgil Anderson Holmes was convicted of murder, and he appeals. Reversed and remanded.

E. B Rose, of Beattyville, Frank S. Ginnocchio, of Lexington, and Carter D. Stamper, of Beattyville, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

HOBSON C.

Virgil Anderson Holmes was indicted in the Lee circuit court for the willful murder of his wife, Louisa Holmes, by driving running, and directing an automobile in which she was sitting over a steep, high cliff, thereby hurling her with great force to the ground below and causing her death. The defendant pleaded not guilty. On the second trial of the case he was found guilty of murder and his punishment fixed at life imprisonment. He appeals.

The testimony for the commonwealth is in substance as follows: On November 10, 1925, the defendant with his wife and two children in a Ford car drove out of Beattyville on the Irvine pike. As they went along they passed, a mile or two out, R G. Riley and wife, who were riding out the pike on horseback. Soon after this, and before Riley reached a cliff known as Bear Track, he saw Holmes coming down the road toward him, walking a very curious walk. When he got near them Riley said, "What is the matter with you?" He commenced to try to tell him, made two or three staggers at it. He stretched out his hand and said, "Lord, wasn't that awfully?" Riley said, "What is awful; did the car run over you?" he said, "No; I was putting a chain on the car and told her to back the car up, and it went over the cliff with her." He fell down in the road. Riley got down to him and shook him and said, "Your wife and children is over that cliff; I will go to them; you go to that next house and call for help." Holmes went on down the road, as directed by Riley, to get further help, and the next man he came to thus states what occurred when he got to his house:

"He opened the gate and walked in. I walked out and met him half way of the yard. He came right up to me. He was pointing. He said, 'I went out here to the Bear Track, my wife and two little children in the car;' he says, 'I pulled down over that rock there and turned around, got out to put on my chain; I told her to back up a little, and she backed too far and slipped right over the cliff with my wife and two children'; said, 'Lord have mercy!' He fell down there and went to crying, fell down and rolled right over and over, rolled and tumbled and cried. He wanted me to go to town after the doctor. I told him, 'Well; I will go.' "

They all then went back up to the cliff and found that the wife and one of the children were dead; the other child was not seriously hurt. The car was a complete wreck, as the cliff was about 90 feet high and precipitous. The county judge was introduced by the commonwealth. He says that he asked the defendant why he drove into Bear Track and that he answered as follows:

"Well, for the purpose of picking mountain tea; and my wife mentioned about she wanted to get out to herself, and we was talking about gathering mountain tea after we had turned around, and she wanted to gather some to take home to her father. I don't think he had ever seen any; and as we talked this we were nearing Bear Truck, and so I said, 'We will drive down in there.' * * * When I got out of the car I stopped the car there and got out and walked around. I discovered that the chain had come loose on the outside and had dropped over on the axle of the car. * * * The chain was off of the tire wheel and lying on the axle and was drawn in such a manner that the casing was setting on the chain being caught--caught on the spring perch and underneath the wheel. * * * I walked around there. I drove down and stopped. I got out and walked around and I discovered that, and I mentioned the fact to her, and I said, 'That chain is off'; and I asked her then to get me a pair of pliers, and after I had scooted down behind the hind wheel to unhook the catch of the chain she reached back in the back part of the car and took the tool bag and poured them out in the front seat, and I had asked for the pair of pliers, but she couldn't find them, said they wasn't in there, and by this time I was working at it with my thumb. I had got the catch shoved up, and I asked her then to give me a little slack that I might unhook it and then withdraw the chain out from under it. * * * Well, I suppose she applied the gas; the engine began roaring and making a noise and racing, the engine, and I called to her, 'Not so much gas, not so much gas,' and it continued to roar a little more if anything, and I raised up and started to go

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