McGee v. Commonwealth

• Decision Date: 11 November 1932
• Parties: McGEE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

55 S.W.2d 382

246 Ky. 445

McGEE v. COMMONWEALTH.

Court of Appeals of Kentucky

November 11, 1932

Rehearing Denied Jan. 13, 1933.

Appeal from Circuit Court, McCracken County.

Sam McGee was convicted of murder, and he appeals.

Affirmed.

Leland H. Logan and Samuel M. Rosenstein, both of Frankfort, for appellant.

Bailey P. Wootton, Atty. Gen., and Francis M. Burke, Asst. Atty Gen., for the Commonwealth.

PERRY J.

At the January term of the McCracken circuit court, the grand jury indicted the appellant, Sam McGee, for the willful murder in that county of Charles Clark.

In the following February, upon his trial therefor, the jury returned a verdict of guilty of murder as charged, and fixed his punishment at death, upon which judgment was pronounced.

On March 21 next following, the defendant filed his motion and grounds for a new trial, in which he assigned seven grounds for reversal, and in support of his said motion filed his affidavit, undertaking to show thereby that he had not received a fair trial.

A new trial was refused, and he now prosecutes this appeal, seeking a reversal of the judgment, complaining that the following alleged errors were committed by the trial court: (1) That the court erred in permitting incompetent evidence to be introduced by the commonwealth; (2) that the court erred in failing to give the whole law of the case; (3) that the court erred in overruling the demurrer to the indictment; and (4) that the verdict is contrary to the law and to the evidence.

Before considering any of these objections, and to assist in a clearer understanding of our discussion of them, a brief statement of the facts is necessary.

The facts as disclosed by the record show that Charles Clark was shot and killed in the city of Paducah, McCracken county, Ky on the evening of January 17, 1931; that he was shot between 7 and 8 o'clock as he walked with his father-in-law George Rock, along North Twelfth street of said city dying almost immediately; that the shooting occurred there near the home of George M. Rock, where the deceased and his wife had gone that evening to visit her parents; that at about 7:30, George M. Rock and his son-in-law, Charles Clark, left Mr. Rock's residence to go to a barber shop; that, when they had gone about 150 to 300 feet from Mr. Rock's residence, they were accosted by the appellant, Sam McGee, and Milton Risby, who demanded that they "stick 'em up." Mr. Rock, realizing that they were about to be robbed, resisted, when the appellant, McGee, and Risby immediately opened fire on them. In the holdup, Charles Clark was shot near the heart and died immediately, and Mr. Rock received two serious gunshot wounds, one in the shoulder and one in the side. Mr. Rock, being armed, returned the fire, killing Milton Risby. The appellant, McGee, escaped, and was arrested a few hours later.

By the commonwealth's evidence, it is shown that these two negroes, the appellant, McGee, and Risby, were but a short while before seen about one-half a block from where the difficulty occurred, and that they were armed, and that they had robbed three different men in that neighborhood within an hour of the attempted robbery and killing of the decedent.

One Nathan Blakeley testified that he runs a barbeque stand on Jones street near the place where the killing in evidence took place, and that about 6 o'clock of the evening of January 17, McGee and Risby, both of whom he knew, were at his place of business, when he noticed that both were armed with the pistols later identified by Blakeley as the ones shown upon the trial to have been used by McGee and Risby upon the occasion of the killing of the decedent, Charles Clark. Blakeley further states that they, after stopping at his place a short while, left it together.

It is also shown by the commonwealth witness, F. A. Jennings, a crossing flagman, whose testimony was admitted without objection, that upon this same evening, at about 6:15, while he was returning from work, the appellant and another colored man held him up and searched and robbed him in this neighborhood, which he detailed, and identified the appellant, McGee, as one of the negroes who then robbed him.

Also Lee Kepner testified that on the night of the killing he and his brother, Charles Kepner, started to town at about 6:20 o'clock, and that just as they got to Ninth and Harrison streets, two fellows showed up in front of them and said, "Stick 'em up"; that they put up their hands and were marched across the street into an alley, where they were made to lie flat on their stomachs and were robbed; that he was robbed of a signet ring, which they found on the person of the deceased Milton Risby, and witness also identified at the trial the defendant, McGee, and the deceased Risby as the men who had robbed him and his brother, Charles Kepner, who also likewise testified to the fact of their robbery by these negroes, Risby and McGee.

Lee Kepner's testimony as to how and where he and his brother had been robbed had been given without objection thereto, and only when he began to testify as to his later telling a watchman about the robbery did counsel object to that testimony, but as to which no ruling was made by the court nor exception taken by the appellant.

The appellant, McGee, did not testify in his own behalf, nor did he introduce any proof whatsoever in his defense.

From the record, it further appears that upon the completion of the trial, and after a new trial was refused upon appellant's motion and grounds therefor, the attorneys appointed by the trial court to defend McGee, at the April term, 1931, entered motion that their names be stricken from the record as attorneys for appellant, which was sustained by the court, and thereafter, upon the record of the trial being filed in this court, Leland H. Logan and Samuel M. Rosenstein, attorneys of Frankfort, were by this court appointed as counsel to brief the case for appellant, and we feel that they for their services here rendered the defendant, both in their forceful oral argument made before us in his behalf, as well as in the studious and excellent briefs submitted by them, are deserving of the commendation of this court for the fidelity, skill, and earnestness with which they have gratuitously performed the duty and trust assumed under their appointment.

We will now address ourselves to the first ground of complaint made that appellant was prejudicially injured through the court's allowing the introduction of alleged incompetent evidence, consisting of the admitted testimony of the commonwealth's witnesses Jennings and Lee and Charles Kepner as to the robbery of them by appellant McGee and his associate, Milton Risby, a short while prior to and in the neighborhood of their attempted robbery and killing of the decedent Charles Clark, and also further complaining of the court's alleged error in permitting Mr. Rock, the only eyewitness to the shooting of his son-in-law, Charles Clark, by the appellant, McGee, to testify upon the grounds that the defendant, upon entering his plea of not guilty to the charge contained in the indictment had by counsel moved the court that all witnesses be put under rule, which was so ordered, but that notwithstanding such order, the witness Rock had, in violation of the rule, remained in the courtroom and in the hearing of other witnesses while they testified for the commonwealth, yet thereafter had been allowed to testify.

Disposing of these objections in the order made, it may be conceded that the general rule is as contended for by appellant, that evidence of other crimes is not admissible against the defendant while under trial for the particular offense charged, "except where proof of such other crimes is necessary to show, (1) the identity of the accused as the person who committed the crime proved, (2) the guilty knowledge, (3) particular criminal intent, (4) malice or motive and (5) that the crime of which he is accused and for which he is being tried is part of a plan or system of criminal actions." The complained of evidence in the case at bar was as to the two robberies committed within an hour of the time appellant killed the decedent, Clark, while endeavoring to rob him and his companion, Mr. Rock, in the same manner that he had robbed Jennings and the two Kepners. We are of the opinion that this evidence was properly admitted as coming within the exceptions to the rule stated, supra, to identify the appellant as one of the two who had engaged in this series of robberies committed but a short while before their later attempted robbery which resulted in the death of Clark and to show the crime of which McGee was accused was a part of a plan or system of criminal actions on the part of McGee and his confederate Risby.

No seasonable objections were offered by counsel for appellant to the admission of this evidence, and even had there been, we are of the opinion the same was properly admissible as coming within the exception, supra, and as coming within and under the ruling of this court in the cases of Powers v. Commonwealth, 197 Ky. 154, 246 S.W. 436, Moore v. Commonwealth, 188 Ky. 505, 222 S.W. 934, 936, Music v. Commonwealth, 186 Ky. 45, 216 S.W. 116, and Crenshaw v. Commonwealth, 227 Ky. 223, 12 S.W.(2d) 336.

In the Moore Case, supra, the appellant was charged with housebreaking, and the court permitted the commonwealth to introduce evidence showing that two other robberies had been committed in the immediate neighborhood where it was alleged that the appellant had robbed the home of one Foster. On appeal, it was argued that the admission of evidence of the other robberies was incompetent and prejudicial. The court in holding such contention without merit, said: "The crimes were...