King v. State

• Decision Date: 19 April 1922
• Docket Number: 22265
• Citation: 187 N.W. 934,108 Neb. 428
• Parties: JAMES B. KING v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

187 N.W. 934

108 Neb. 428

JAMES B. KING v. STATE OF NEBRASKA

No. 22265

Supreme Court of Nebraska

April 19, 1922

ERROR to the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

H. A Reese and Richard F. Stout, for plaintiff in error.

Clarence A. Davis, Attorney General, and Mason Wheeler, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, ALDRICH, DAY FLANSBURG and DEAN, JJ.

OPINION

DEAN, J.

James B. King was informed against in Lancaster county for murder in the first degree. The jury found him guilty and imposed the death penalty. His motion for a new trial was overruled and he was sentenced to death by electrocution. He prosecutes error to this court.

Following is a summary of the material facts: Defendant is a convict who was at the time of the tragedy serving time in the penitentiary under an indeterminate sentence for burglary. His age was then 30 years. The charge is that he killed Robert L. Taylor, a penitentiary guard, by stabbing him with a knife in the throat and in the back and in his left arm. From the effect of the wounds Taylor died in less than a half hour while he was being carried by the attendants to the prison hospital. It was shown that defendant on a former occasion threatened to stab Taylor and for this he was reported at the warden's office. It also appears that Taylor afterward charged him on several occasions with the commission of offenses against the discipline of the prison and for all of these he was punished from time to time by being confined in the solitary cell house for periods ranging from three days to a week. This and other punishment, based on Taylor's reports to the warden, aroused defendant's resentment and caused his hatred for Taylor and furnished the alleged motive for the crime.

Taylor was killed May 11, 1921, at about 5 o'clock in the evening. Joe Elmore, an inmate, was the only eye-witness, being only about 10 feet away at the time. He testified that at about 4:30 in the afternoon, and shortly before the prison supper hour, he overheard Taylor and defendant engage in a dispute at defendant's cell door. He said that King stopped him as he was about to pass and said: "Taylor, you got my comb; I asked you for it once. I want it." To which Taylor replied: "'You got a comb in there anyhow,' and walked on off, started to walking away. King says, 'That is all right, that is a state comb you took from me, and I want it; everybody is entitled to the state's stuff,' and Taylor kept going, and King says, 'Well, you will hear me.'"

Shortly after the supper hour, when the prisoners were returning from the dining room at about 5 o'clock, Taylor was standing at his post of duty as a prison guard at the foot of one of the stairways which leads up to the cells on the second and third floors. It was his duty to see that the convicts on their way to and from the dining room marched in orderly and quiet procession. On the day in question defendant was near the head of the line when the prisoners began their march from the dining room. But as he stepped from the room into the corridor he dropped out of his place and, waiting for the others to pass, again joined the line, but this time at the rear, apparently to prevent interference with a premeditated design upon Taylor's life and to prevent ultimate detection. When defendant arrived at the place where Taylor stood on guard and alone he, without a word, drew a knife and plunged it into his throat. Taylor turned quickly and apparently tried to escape by running up the stairway, but defendant, before his victim's flight was fairly begun, again stabbed him twice in the back and once in his left arm. Taylor did not quite reach the landing at the head of the stairs, and when he was almost at the top he turned slightly to one side and, sinking down, he rolled down the stairway to the landing below. Defendant stood for a little while looking at Taylor lying at his feet and then turned away and deliberately walked to his cell.

Very soon afterward Elmore went on his way to his own cell. He testified: "I got to my cell, and he (defendant) was standing there in his door, and the only thing I heard him say was that he did not have nothing to lose." Subsequently, on the cross-examination, the witness testified that sometime before defendant stabbed Taylor, the time not being definitely fixed, he saw a knife in defendant's hand, which was about eight inches long and made out of a new file. The knife which was described by the witness corresponds with the description of the knife which is in evidence and which was found concealed in a broom in defendant's cell within less than an hour after Taylor was killed. Albert Bell, an inmate, and two or three others lifted Taylor from where he lay at the foot of the stairway to carry him to the prison hospital, but when they reached the penitentiary office he was dead.

R. T. Ritchie is an inmate who saw defendant standing in his cell door almost immediately after the killing. He testified: "I looked around and King was standing in his door, and I walked over to King. I says, 'What is the trouble, King?' He said, 'I just killed one of them that sent me to the hole (the solitary cell) the other day, and I am going to get the other one as soon as he gets to this cell?'" On the cross-examination Ritchie testified that defendant's language was: "Q. Now, somebody ran by and said that Taylor has been killed? A. Yes, sir. Q. And you walked right over to King's door? A. Yes, sir. Q. Did they say King has killed Taylor? A. Yes, sir Q. You went right over to King's door, and you said, 'King, what is the matter?' A. Yes, sir. Q. And King said, 'I have just killed one of those for putting me in the hole?' A. Yes, sir. Q. And 'there will be another one up pretty quick to search my cell and I will kill him?' A. Yes, sir. * * * Q. Had you ever seen King have a knife? A. Well, yes. * * * Q. Now, describe the knife you saw King have; well, just a minute--when did you see King have a knife? A. Three or four weeks before that. Q. What kind of a knife? A. Oh, a knife about like that. Q. How long, how big a knife? A. I don't know, a knife made out of--it looked like a piece of iron or something on there."

The prison physician testified that he saw defendant in his cell before he was taken to the warden's office and very soon after Taylor's death. He testified: "When we visited his cell first, he was sitting in a chair in his cell reading a newspaper, apparently very much unconcerned and cool. That was what aroused our suspicion." He further testified that defendant was the only man in the cells who was not standing and looking out between the bars as he and one or two others approached. The doctor said that on a subsequent occasion defendant admitted that the knife was his, but protested that he did not know how it came to be smeared with blood, nor did he know how certain spots of fresh blood happened to be on one of his shoes. The bloodstains on the knife and the blood-spots on defendant's shoe were pointed out by the doctor at the trial.

Marion Jones is a prison employee. He identified the knife in evidence as the one that he found concealed in a broom in defendant's cell in the evening after Taylor was slain. He said that when the knife was found it was stained with blood. Jones also testified that some time afterward he heard defendant say to a convict named Anderson, in the solitary cell, that "We will expect to go to the chair in about a month. Anderson says, 'How is that, King?' King replied, saying, 'I bumped off Taylor today.'" On cross-examination Jones testified that, when he saw defendant in the evening just after the killing, he was calm, cool, collected and deliberate.

Charles Burns is a penitentiary employee. He said that he heard King talk in the solitary cell to a convict named Smith the morning after Taylor was killed. He testified: "A. Why, Smith asked King who found Taylor. He said he did not know; he said it was some slim fellow, and he says, 'Well, where was you, that you could not see who it was?' He says, 'I was in my cell planting my (knife) chisel.' Q. Did you hear anything more? A. Yes, sir; he then asked him where he found it. He said they found it in a broom; * * * he did not have any chance to ditch it any place else. Q. Did you hear him say anything else? * * * A. Oh, yes, sir; I heard him ask him how many times he had to hit him; he says, 'How many times did you hit him, King?' He says, 'three.'"

In less than an hour after the homicide defendant was hurriedly rushed by two or more of the guards into a convenient office or room at the penitentiary. The news of the tragedy having spread, they were almost immediately joined by a numerous company of persons, amongst whom were four or five peace officers, and some of these occupied positions of great responsibility. But, of course, none of these men were in any way connected with the prison nor with its management. The avowed object of the assemblage, to which we have referred, was to obtain a confession from defendant, but in spite of coarse epithets, intimidation and threats he repeatedly protested his innocence.

While the inquisition was in progress, for so indeed the unusual proceeding may well be named, some of those who participated in it, and while he was seated in a chair, brutally and repeatedly struck defendant in the face with clenched fists and otherwise maltreated him. Finally one of the prison guards, with an oath and a vile epithet, proposed that defendant be taken out and hanged unless he confessed. It is almost needless to say that, up to this time, neither the warden nor the deputy warden were present, and it may here be added that all the guards who participated in the affair...