Renaker v. Commonwealth

• Decision Date: 15 December 1916
• Citation: 189 S.W. 928,172 Ky. 714
• Parties: RENAKER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

189 S.W. 928

172 Ky. 714

RENAKER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 15, 1916

Appeal from Circuit Court, Mason County.

Barry Renaker was convicted of the crime of house burning, and he appeals. Affirmed.

Allan D. Cole, of Maysville, for appellant.

M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

SETTLE J.

This appeal brings to us for review a judgment of the Mason circuit court entered upon a verdict finding the appellant Barry Renaker, guilty of the crime of house burning and fixing his punishment at confinement in the penitentiary not less than two years nor more than three years. The indictment under which appellant's conviction was had, in substance accused him of conspiring with one Ennis Williams to burn a slaughtering or packing house at Marshall station, in Mason county, used for the slaughter and packing of turkeys and other poultry; that, pursuant to such conspiracy, Williams burned the packing house by appellant's procurement, and that the building, which was the property of the appellant, was at the time insured in the Liverpool, London & Globe Insurance Company.

Briefly stated, the facts shown by the evidence of the commonwealth were that Williams was hired by appellant to burn the packing house and assured by him that, as the property belonged to him (appellant), there would be no danger in his doing so. Williams, when first spoken to by appellant on the subject, seemed reluctant to undertake the service required of him, but in a later interview with appellant agreed to do so upon the latter's promise to pay him $250. Thereupon, at the request of appellant and with money furnished by him, Williams purchased in Cynthiana, where they both resided, five gallons of coal oil, two gallons of which were bought at one place, two at another, and one at a third place. This coal oil he took to appellant, who put the whole of it in a five-gallon jug, and at the time requested Williams to return the next morning and take the boxes for him to the railroad station at Cynthiana, for shipment to the packing house at Marshall station, in Mason county. On the following morning, which was December 6, 1915, Williams went to appellant's house as requested, was given by the latter a railroad ticket entitling him to ride from Cynthiana to Marshall station, and asked by him to take the two boxes to the station and have them checked to Marshall station, at the same time informing him that one of the boxes, which was about 70 pounds heavier than the other, but of the same size, contained the five gallons of coal oil purchased the previous day. Williams had the boxes checked to Marshall station as directed, but by further direction of appellant did not himself go to Marshall station that day. On the morning of the next day, which was December 7th, he did, at appellant's request, go to Marshall station for the purpose, as the latter told him, of examining the premises and being advised by appellant of the manner of burning the packing house. Before taking the train, however, Williams went to the railroad ticket agent at Cynthiana to ascertain of him whether the ticket which appellant had bought and given him on the previous day would still entitle him to ride on the train to that station. Being advised by the agent that it could not be so used, he, by the direction of the latter, returned to him the ticket for cancellation and received the money thereon. Williams then obtained from appellant $5 for the Marshall station trip, and thereafter purchased another ticket, which he used to pay his fare on the Cynthiana and Maysville train to Marshall station, upon reaching which he went to the packing house and was shown by appellant over the building, and told where he would find the coal oil and where to start the fire. He was also directed by appellant to empty the fire extinguisher before starting the fire in the building. On the morning of December 16th appellant again saw Williams, told him to burn the packing house that night, provided him with $10, gave him the key to the packing house, a flash light to use after entering it, directed him to procure a pair of overshoes, and, instead of buying a ticket from Cynthiana to Marshall station, to get one from Cynthiana to Paris, and after the arrival of the train at Paris there buy another ticket to Mill Creek, a station two miles south of Marshall station, leave the train at Mill Creek and walk from there to Marshall station, and in the darkness of the night set fire to the packing house. Complying with the above directions, Williams arrived at Mill Creek on the afternoon of December 16th, and from there walked to Marshall station, which he reached about 5:30 o'clock. Shortly thereafter he went to the packing house, unlocked a door with the key given him by appellant, and upon entering the building turned on the flash light and found the coal oil and fire extinguisher where appellant had told him they would be. The coal oil was still in the five-gallon jug into which it had been poured at Cynthiana. Williams then emptied the fire extinguisher, poured the coal oil over parts of the building, and, after setting fire to it with matches, left the building, locked the door, and started on his way to Maysville. He discovered, however, before he got out of sight of the building that the fire started by him had obtained full headway. Shortly thereafter he encountered a man upon the road who remarked that Renaker's poultry house at Marshall station was on fire. The man then went on in the direction of Lewisburg, a village near Marshall station. Williams himself soon arrived at Lewisburg, but before doing so threw the key with which he had entered the packing house and the flash light into a creek. At Lewisburg persons on the streets were standing in groups discussing the fire, from one of whom Williams obtained a match. From Lewisburg he went immediately on to Maysville, thence on a Chesapeake & Ohio train to Cincinnati, from which city he returned by rail to Cynthiana on the afternoon of the following day, arriving in Cynthiana in the early part of the night. On the way from Cincinnati to Cynthiana he threw away the overshoes which he had worn the night before. On Saturday morning following his return to Cynthiana he had an interview with appellant, who asked him if he had burned the packing house, to which Williams replied: "I sure did; I could see the blaze three miles off." Appellant then said: "I got a telegram that she was burned straight down." At this interview appellant gave him $20 and promised to later pay him the remainder of the $250 he was to receive for burning the packing house.

The facts thus far stated were furnished by the testimony of Williams alone. Williams was arrested in Cynthiana on the 19th day of January, 1916, charged with the burning of appellant's packing house, and immediately thereafter taken to Maysville, where he was incarcerated in jail. On the next day he called appellant up by telephone, informed him of his arrest, and demanded his assistance in being released from jail. Appellant went at once to Maysville in his automobile, and upon getting there immediately saw and talked with Williams at the jail. Before his arrival at Maysville however, Williams had confessed his guilt to the local officers, but this fact was unknown to appellant until some time the next day. One Stewart, a detective in the employ of the Chesapeake & Ohio Railroad Company, had been engaged by a member of the state fire marshal's department to investigate the burning of appellant's packing house. Knowing of the coming of appellant, Stewart placed himself in a cell close to that in which Williams was confined, to hear what was said in the interview between the latter and appellant, to accomplish which purpose he feigned to be drunk or crazy. According to the testimony of Williams, appellant in that interview asked him, "Have you said anything?" to which Williams replied, "I have nothing to say only that I am here." Appellant then told him he would get him out; that he knew the county judge, Rice, and would get him to reduce the bond. Stewart admitted that this conversation was unheard by him, because it was conducted by appellant and Williams in a whispering tone of voice. Appellant left after this interview, but returned to the jail later in the day, and informed Williams that Judge Rice was out of town, but that he would stay in town until he got him out. Appellant did not see Williams until the following morning, when he again went to the jail and had another conversation with him. Before this interview took place, however, Williams had been placed in the hospital room of the jail, and his conversation in the last interview with appellant occurred in that room. This conversation Stewart, the detective, who was at the time concealed in an adjoining cell behind some bedclothing, claimed to have overheard, and according to his testimony, as well as that of Williams, this conversation was carried on in an audible tone of voice. So much of it as bore upon the burning of the packing house was as follows: Williams said to appellant, "Was the place insured?" to which the latter replied, "Hell, yes; for $4,000; * * * that is what they are after; they don't want to do a damn thing with you." Appellant also said, "Don't talk so loud; some one might be listening;" to which Williams replied, "I guess not." Following this statement Williams also said, "I want some money; my wife is sick and I am in trouble." Appellant then told him, "I will go by and give her some." Upon being asked by appellant who identified him, Williams said, "Capt. Hibler and the chief detective, Helm; he got my footprints and everything." Appellant then said, "We are as smart...