Penney v. Commonwealth
| Decision Date | 23 October 1942 |
| Citation | 292 Ky. 192,166 S.W.2d 18 |
| Parties | PENNEY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Dec. 18, 1942.
Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.
Tom Penney was convicted of murder and he appeals.
Affirmed.
William B. Martin, of Lexington, John A. Fulton, of Frankfort, and Charles Wylie, of Lexington, for appellant.
Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.
MORRIS Commissioner.
In the early morning of Sunday, September 28, 1941, J. M. Giles owner of a sanitarium in Fayette County, one-fourth mile from the Lexington Country Clubhouse, was aroused by the ringing of his doorbell. When he opened the door a woman clad in her night clothes fell into the hallway. Her night clothing was soaked with blood. The woman was Mrs. Elsie Miley, matron at the clubhouse, the mother of Marion Miley for whose murder appellant, Robert Anderson and Raymond Baxter were indicted convicted and sentenced to death.
Mrs. Miley made it known that her daughter was in a precarious condition, and asked that she be given aid. She was taken to a hospital where she died within a few hours without making any statements relating to the tragedy. When officers and neighbors went to the clubhouse, following the appearance of Mrs. Miley at the sanitarium, they encountered a scene of disturbance and disorder. There were indications that persons had entered the building through a door to the kitchen, and to that part of the building occupied by Mrs. Miley and daughter. The door on the steps leading to their sleeping quarters had been smashed in, and the apartment was in great disorder.
Marion Miley's body was found in the hallway between her bedroom and the mother's room; the latter was spattered with blood. The telephone had been ripped from connections; the bed was blood soaked, and there was much confusion. The episode naturally caused great excitement, and vigorous investigation by officers was at once set in motion; for a time officers were baffled, and were so after a boy, who delivered papers in the neighborhood of the Club, gave them a clue by describing to them an automobile he had seen parked near the clubhouse in the early morning of the tragedy. Nothing developed from this clue until officers learned that appellant had been arrested in Fort Worth, Texas, with an automobile reported as stolen, and which tallied with the car described by Cramer, the Lexington newsboy.
Penney, in Fort Worth, admitted complicity in the crime, and implicated Anderson, and later Baxter, who were thereafter arrested. On October 27, 1941, the grand jury returned a true bill charging the three with the murder of Marion Miley; the indictment in seven counts covered every phase of the crime of homicide, and a conspiracy. Separate trials were had, Baxter going to trial on December 15th; Anderson on December the 12th, and Penney on December the 18th, with the result that each was found guilty and sentenced to death. Judgment was entered in accordance and each has prosecuted appeal to this court, asking reversal on grounds some of which appear to be common, but in several instances of different nature.
Due chiefly to the fact that Penney made a confession implicating his companions, we take up his case first, thus getting his version of the plans laid for, and the consummation of the crime. Penney was unable to employ counsel and the court appointed attorneys of the Lexington bar to represent him.
At the outset it was stipulated that Penney did not fire a shot or shots which struck either Mrs. Miley or her daughter. After introduction of evidence which proved the corpus delicti, details of the occurrences at the sanitarium, and a thorough description of the condition of the clubhouse, particularly by Officer Maupin of the Police Department, it was brought out that Penney had made a confession, which had been reduced to writing and read to and signed by accused. At this point, at request of counsel, a hearing was had in the Judge's chambers for the purpose of giving accused opportunity to examine the statement, and for the court to ascertain if it had been obtained in violation of our anti-sweating act.
This proceeding was short and simple; accused said that he had made the statement voluntarily, without threat or promise; that it was "all he wanted to say about it at this time." The statement was introduced and read to the jury by the Commonwealth's attorney. Penney was introduced as a defense witness and we have concluded to quote from his testimony, in which he related the preparation for the robbery, culminating in robbery with deadly weapons and the homicide.
Accused, thirty-two years of age, had lived in Lexington for eighteen years. He was a carpenter and metal worker, out of employment. He had known Baxter for about four months. Some time in August, 1941, and later in September, he had asked Baxter if he knew where he might get work; Baxter at the time was working at the Country Club, and appellant asked if there was an opening. Baxter told him there was not, but that there was a "lot of money out there to be made easy; that there was just one old woman who slept there, with three or four thousand dollars under her pillow, and there was nothing to do but go out there and pick up the money; no gun would be needed, as there was no one there but the old lady." Appellant said that he afterward talked to Tom Lunsford, and he agreed to join in the enterprise, but later declined. He corroborates Penney.
Referring to his confession and reiterating certain statements therein, he said that he had talked with some man who inquired "what he was doing," and who suggested that he go to Louisville to see Bob Anderson who might have something for him to do. Appellant knew Anderson, and had at some prior time talked with him about a place to store some whiskey. He later saw Anderson; told him of the Lexington Clubhouse proposition, and he agreed to take part. Penney and Anderson left Louisville in Anderson's car about 8:30 p. m. (27th), each driving a portion of the way. Reaching Lexington about 11 p. m., they drove out to the place where Baxter worked. They failed to find him and drove to "Ma" Gabbard's place (roadhouse) where they located him, and all three parties got in the car and talked about the proposed robbery. Baxter said there had been a good crowd that night and it was a good night to go out. The three rode around in Anderson's car; visited another roadhouse, then back into Lexington where they stopped at a drugstore and got a flashlight. (A clerk testified that some man, at about 1:30 a. m., September 28, bought a flashlight; he identified him as Anderson.)
Later Baxter left the two and agreed to meet them at the Club grounds at two o'clock. When they arrived Baxter was not around, but came up about twenty minutes later. The Anderson car was parked inside the grounds, a short distance from the gate, and Baxter pulled in back of them, got out of his car and told the two to follow him; they stopped near the clubhouse and Baxter then left to take some people to the pump house, and in a short while came back, walking. (Oscar Givens testifies as to the trip with Baxter from the Club grounds to pump house, and as to Baxter's going to the Buick car and talking to some one he did not know.) One of the two asked Baxter whether the telephone wires had been cut; Baxter was supposed to have cut them, but he plead lack of opportunity. The three went around the building looking for the place where the wires came in, but could not locate them. Baxter, with his flashlight, pointed out the room where Mrs. Miley slept. He was also to have had a key to a rear door, but had failed in this respect, so, one or the other, Anderson or Baxter, removed a screen and Penney, with some assistance, got in through the window, unlocked the rear door and Anderson came in; Penney supposed that Baxter left.
The two went to a door at the top of the steps and found it locked. They heard a car and saw lights, and both left and went to the driving range to find Baxter and located him. They were to meet him at this place after they had accomplished the robbery. They told Baxter of their difficulties and he agreed to go back and "look things over again"; he came back shortly and said everything was all right and left. The two got out of the car, leaving the door open; Anderson said "wait," and went back to the car and got two guns and gave Penney an automatic pistol. They went in through the kitchen; Anderson got an "iron piece of some kind," and a screwdriver, which he gave to Penney, and Anderson wrapped the iron piece in a towel, which he used in breaking the panel of the stair door, reaching in and unlocking it. Before they entered the apartment Penney thought he heard some one call out, "Who's there?" Just after they entered the door Penney says he was knocked down; he could not tell who or what had struck him as it was dark. Some one grabbed him around the neck; in struggling to get up the pistol was fired, the "flame going toward the floor."
He says that then "everything broke loose; there was lots of shooting, scuffling, screaming and hollering," all up the hallway, from the point where he was knocked down. Penney then went up to the room at the end of the hall and saw Anderson jerking the telephone out of a woman's hands. The woman was telling Anderson that the money was in the drawer. He (Penney) went to the dresser, opened a drawer and "grabbed out two ten dollar bills and a check for five dollars." About this time a light came on from the outside, "like a car light," and Penney said to Anderson, "Let's get out of here; we left and got away as quick as we could," and Anderson drove back to...
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