Lett v. Commonwealth

• Decision Date: 01 November 1940
• Citation: 284 Ky. 267,144 S.W.2d 505
• Parties: LETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

144 S.W.2d 505

284 Ky. 267

LETT v. COMMONWEALTH.

Court of Appeals of Kentucky

November 1, 1940

Appeal from Circuit Court, McCreary County; Flem D. Sampson, Judge.

Lee Clemons Lett, alias Lee Thomas, was convicted of murder, and he appeals.

Reversed.

J. C Bird, of Williamsburg, for appellant.

Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellee.

MORRIS Commissioner.

Appellant alias Lee Thomas, Hoyt Butler, alias Jeffrey, Thomas Ross and Rogers Tate, were jointly indicted December 4, 1939, for the murder of William D. Tittle on September 21, 1939. All four were arraigned on December 5, and trials set for the 12th of the same month; being without counsel a member of the local bar was appointed to defend. Later severance was granted, the commonwealth electing to try Lett.

Motion for a change of venue and continuance were overruled. A jury was empanelled, and trial resulted in a verdict of guilty and death penalty. Counsel filed motion for a new trial, and in support set up seven or more grounds. This was overruled and appeal followed; the technical errors here charged are:

(1) Error in refusing appellant's motion for a continuance.

(2) In admitting evidence of a confession, because obtained in violation of the anti-sweating act, and the State and Federal Constitutions.

(3) In permitting the commonwealth to read in evidence the statement of a co-defendant, made after the alleged crime was committed, and not adopted by appellant as his own.

(4) In failing to submit an instruction as to the "anti-sweating" proof, under applicable law.

(5) In admitting evidence of other offenses.

(6) In permitting the jury to rehear testimony in the absence of counsel for appellant and without notice to him.

Tittle, a white man, on relief, lived in Cincinnati. A week prior to his death he had gone to visit his father in Knoxville, Tenn. He was out of funds, and later was endeavoring to make the return trip on a north-bound freight train. Lunnie Cox, living in Tennessee, had been visiting his home and was "hoboing" north to get to his C. C. Camp near Brownstown, Indiana.

Appellant Lett, sometimes calling himself Lee Thomas, and Butler, sometimes calling himself J. Jeffrey, lived in Pittsburg, Pa. About two weeks prior to the homicide they had gone to Knoxville to visit Butler's relatives. They had money for the return trip but during their visit Butler's aunt died in Cincinnati, and they sent all their money to relatives to transport the body to Tennessee, so they decided to "hobo" to Cincinnati. They went to a suburb of Chattanooga, where with Ross and Tate, two other colored men, they got into a box car, and when the train stopped at Dayton, Tenn., all four were arrested, placed in jail for "hoboing" and there remained for eight days.

Released on September 21, they walked to a point north of Dayton and all save Ross got into a box car; the train proceeded to Oakdale, where Tittle and Cox got in the car. Ross had selected a car further front, but later came to the box car with a young white boy, referred to in the testimony as the "kid." Tittle had a bundle with some clothing and perhaps some food; Cox had a brown traveling bag. Ross remarked that he was going to get one bag, evidently referring to the one carried by Cox.

Cox, who was thrown from the freight car about the time Tittle was thrown off, was the only eyewitness who testified, save appellant and his companion Butler. Cox had just been released from the hospital at the time of trial. After detailing the facts, substantially as given above, he said the train left Oakdale about 5:00 p. m., and proceeded to Lansing, when Ross and the kid got into the car. After the train left Lansing he, Tittle and the boy were sitting on the floor on the east side of the middle of the car as the train went north; the door was partly open. The colored men were in the south end of the car, about 10 feet distant, and in which positions they all rode for some time, apparently not in disagreement. At some point the engineer jerked the slack out of his train; Tittle was thrown off his balance and started to get up. There was another jerk which caused Tittle to move suddenly toward the south end of the car.

Witness says the next thing he felt an arm under his chin, and some one said "Don't move," and tightened his grip on his head; Cox was struck several times on the head with an iron pipe, shown in evidence. He caught hold of the assailant's leg, and he said "turn loose my leg," and witness, with effort, shoved him back to the side of the car; he heard a shuffling of feet, and some one "halloed for assistance; the two who were handling me, the one or the other." The other two came up, grabbed witness and "swung" him two or three times; one said, "Let go," and he was thrown from the car. The blow on the head had filled his eyes with blood, and he could not see whether they had thrown the "other man" from the car or not, but he believed they had, and physical facts proved this to be true.

Cox suffered the breaking of both arms and legs, and was otherwise bruised and injured. Notwithstanding his condition, with great effort, he crawled to a section house, and a Mr. Thompson called Somerset, asking to have the train stopped and the parties arrested. Cox was taken to a hospital in Somerset, and later on the same evening positively identified the four colored men who had been in the car.

A railroad police officer in Somerset received a report of the occurrence, and relayed the information to another officer at Danville. The two started investigation at once, and one of them met the train at Danville and made the arrests. Investigation led officers to the place where it was clearly indicated that Cox had been thrown from the car. Search was made for Tittle, and his body was found about one-half mile south from the point where Cox had landed. About 40 feet north of Tittle's body his pocketbook was found, with identification memorandum; other articles were found, but the traveling bags, and other articles, were found in the car when arrests were made. The zipper bag was among these.

Tittle's arms and legs were both severed; the top of his head missing, and from description it would appear that he landed on another track and was mangled by a passing train. The evidence shows that the boy was also thrown from the train, though there was found no trace of him.

Evidence tended to show that after the arrest the accused had splotches of blood on his shoes and trousers. Butler was found with Cox' cigarette lighter, and tie clasp belonging to him was found in the zipper bag taken by officers.

Defendant in testifying, as did Butler, endeavored to lay the crime on Ross and Tate, referred to frequently as the "southern negroes". He said Ross had indicated that he was going to get the zipper bag carried by Cox. He then details the occurrences much in the same manner as above, but insisting, as did Butler, that Ross and Tate were the sole aggressive actors, and that neither he nor Butler were more than onlookers.

We have not gone into minute details in stating facts and circumstances, which show beyond doubt that an inexcusable, vicious murder was committed, because due to an error, technical though it be, it was such as to compel reversal of the judgment.

No. 1, refusal to grant continuance, need not be discussed, since it may be concluded that such grounds as were there advanced, could not be presented on a succeeding trial. No. 2 related to the introduction of a written confession, made by appellant while in custody of officers, on the night of the homicide. The contention is that it was obtained by repeated questioning, threats and intimidation, so that under our anti-sweating act (K.S. § 1649b-1) its introduction constituted prejudicial error.

The officers say that while questions were asked, they were not numerous, nor such to indicate duress; no threats or promises were made, and appellant was advised that his statement might be used against him. Indeed, as we read the testimony of appellant, though denying that he made some attributed statements, he does not contradict the statements of the officers as to circumstances under which the confession was made. His testimony shows that the statement was not impelled by influence, promise, threat or coercion. We, therefore, hold that it was properly admitted. See Powell v. Com., 276 Ky. 234, 123 S.W.2d 279, and cases dealing with the subject, 6 Kentucky Dig., Criminal Law, § 522(1).

Contention No. 3 challenges the propriety of introduction as substantive evidence, the confession of Butler, made at the same time and place, and under the same circumstances as was appellant's confession. This presents a closer question than the one last discussed, and counsel insists that this was highly prejudicial under our rulings in Merriwether v. Com., 118 Ky. 870, 82 S.W. 592, 26 Ky.Law Rep. 793, 4 Ann.Cas. 1039, and Eaton v. Com., 122 Ky. 7, 90 S.W. 972, 28 Ky.Law Rep. 906, 12 Ann.Cas. 874.

These cases were referred to and distinguished in Barton v. Com., 240 Ky. 786, 43 S.W.2d 55, and in the later case of Griffith v. Com., 250 Ky. 506, 63 S.W.2d 594,

in which dealing with admissions, or accusatory statements made by third parties, we laid down the general rule to be that such admissions or...