Sams v. Commonwealth

• Decision Date: 21 May 1943
• Citation: 171 S.W.2d 989,294 Ky. 393
• Parties: SAMS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

171 S.W.2d 989

294 Ky. 393

SAMS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 21, 1943

Appeal from Circuit Court, Ballard County; L. B. Alexander, Special Judge.

Thelma Sams was convicted of murder as an accessory before the fact and she appeals.

Judgment affirmed.

Ben B Morris, of Wickliffe, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

STANLEY Commissioner.

The appellant, Thelma Sams, has been convicted of murdering her husband by being an accessory before the fact and sentenced to life imprisonment. The most important and the closest question is the sufficiency of the evidence tending to corroborate the testimony of Thomas Russell who killed him. Sams, his wife and two daughters, about 13 and 15 years old, lived in a comfortable home on a farm near Barlow. Russell, a neighbor boy, had been employed off and on by Sams to work on the farm for about three years, and stayed in his home much of the time. When Russell killed Sams he was about 20 years old and Mrs. Sams some 16 years his senior. They began illicit relations in August, 1941, when the husband was temporarily working in Indiana, and continued those relations with regularity. Difficulties between Sams and his wife became acute in the early part of 1942 and she sued him for a divorce. She claimed he was running around with his first wife and other women, and was drinking and wasting the estate she had helped him accumulate. Two weeks before he was killed, he returned home from Detroit where he was working and the divorce proceedings were dismissed.

On the morning of February 17, 1942, Russell shot Sams when he came to the barn to do the milking, and he died that afternoon in a hospital in Cairo, Illinois. Russell testified that he did it because of Mrs. Sams' commands and insistence, some of which he described, and that she had often told him if he did not do it she would have her husband kill him. She had suggested that he leave the pistol by his side to make it appear that Sams had killed himself, and said she would have the radio operating so loud the children would not hear the shot. He testified also she had lately told him of Sams' threats to "whip hell out of me"; that he had come there to talk with Sams to get him to stop cursing and talking about him and that he killed Sams in self-defense when he assaulted him with a plank. If he had not attacked him he would not have shot him.

Russell's testimony clearly brought the defendant within the class of an accessory before the fact, which is defined at common law, and not changed by the statute, to be one who was not present, actually or constructively, when the crime was committed, but who counseled, incited, instigated, procured or commanded the one who did the act to do it. The offender is distinguishable from an aider and abettor by the fact that the latter must be present at the commission of the offense. Roberson's Kentucky Criminal Law, Sec. 188; 14 Am.Jur., Criminal Law, Secs. 96, 101; 22 C.J.S., Criminal Law, § 90; Schleeter v. Commonwealth, 218 Ky. 72, 290 S.W. 1075; Shelton v. Commonwealth, 261 Ky. 18, 86 S.W.2d 1054. Perhaps the more fundamental distinction is that the guilt of an aider and abettor is determinable by his motives and actual participation, while the guilt of an accessory before the fact is determinable by his influence over the actual perpetrator of the offense. See Fuson v. Commonwealth, 199 Ky. 804, 251 S.W. 995.

Section 241 of the Criminal Code of Practice prohibits a conviction upon the testimony of an accomplice "unless corroborated by other evidence tending to connect the defendant with the commission of the offense." Section 242 provides that in all cases where corroborating testimony is requisite to a conviction, if there is none, the court shall instruct the jury to render a verdict of acquittal. Intermediate of our earlier construction of these statutes and Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609, it was sometimes said that the corroborative evidence must itself have been sufficient to establish the guilt of the accused independent or exclusive of the accomplice's testimony. In that case the court reviewed the rationale of the rule requiring corroboration and our previous decisions and held that construction was too strict and that it is sufficient if there be any evidence corroborating the accomplice's testimony tending to connect the defendant on the trial with the offense, although in testing the corroborative evidence the accomplice's testimony must be disregarded. Miller v. Commonwealth, 285 Ky. 251, 147 S.W.2d 394. Proof of a culpable admission by the defendant or acts inconsistent with innocence, or other circumstances, may be sufficient to meet the terms of the statute in respect to corroboration. Anderson v. Commonwealth, 203 Ky. 681, 262 S.W. 1105; Goodin v. Commonwealth, 256 Ky. 1, 75 S.W.2d 567; Clift v. Commonwealth, 268 Ky. 573, 105 S.W.2d 557.

With the foregoing guide before us, we examine the testimony which may be regarded as "tending to connect the defendant with the commission of the offense," namely, the commission of the offense of an accessory before the fact of murder.

Sams was killed with his own pistol. It had been kept in "the quilt box" which apparently was in the custody of his wife. It was lying by the side of the wounded man where the accomplice testified she had suggested it should be placed to give the impression of suicide. Russell testified that he found it that morning in the barn loft at his home. When she and her daughters heard the shots and the call of the wounded man, they ran to the barn. Mrs. Sams went directly to the loft. The girls found their father at the back of the barn lying in the mud. When a neighbor took the pistol to the house she told him to put it in the quilt box, and asked "would they use the pistol in the trial." This tended to show a knowledge that somebody was guilty of killing her husband and would come to trial. A babbling and somewhat cryptic love letter from Russell, apparently written after the killing, was found among her effects after she had been arrested. That morning the radio was being operated so loud as almost to drown out the sound of the shots, but one of the girls testified her father had turned it on while her mother was cooking breakfast. All the facts testified to by the defendant on her trial respecting Russell's threats had been concealed from the neighbors and officers on the morning of the killing and had not been fully disclosed at a court of inquiry conducted a few days later. She then believed, as she testified, that her husband had committed suicide as he had threatened to do, it appearing that he had been injured in his head in an automobile accident sometime before and felt himself "gone haywire," as he put it. On that judicial investigation of the homicide the widow was advised of her constitutional immunity and right to decline to testify. Nevertheless, she did so and revealed the illicit relations with Russell and that Russell had threatened to kill her husband if she did not quit him and marry. Russell. She admitted that she talked about marrying him if he did kill her husband. Asked what the plan was, she responded "I would be supposed to find him dead some morning." From what her husband had said, she knew there were no shells in his pistol, but Russell had said that he would get some. The implications of these admissions are apparent. It is fair to say that the appellant on the court of inquiry qualified her testimony in a degree by saying that it was based upon what Russell had said he was going to do and denied any participation in the killing. Her explanation on the trial is substantially the same.

The defendant denied having suggested, counseled or procured Russell to kill her husband or that she had any agreement with him to do so. Upon two occasions, after she and her husband had become reconciled, she had told Russell that they were getting along all right and for him to leave her alone and stay away from her. But there are some implications contained in the defendant's testimony before the jury. There are admissions that Russell had been infatuated with her for several years and she had been freely yielding herself to him for seven or eight months during her husband's absence. He had repeatedly threatened to shoot and kill her husband if she did not leave him. He had several times said that he would shoot him some morning at the barn. On Saturday before he was killed on the following Tuesday she had met up with Russell at a store in town, where she had gone with her husband, and warned Russell that her husband had threatened to have him arrested, and he had replied, with an oath, that he had better not put his hands on him. At one place in her testimony she said that she had told her husband about Russell's threats, but he had laughed and said "the boy hasn't got the guts to do it." At another place she testified that she had told her mother and she had told her husband. Russell had come to the house one day after the killing and Mrs. Sams admitted having remonstrated with her ...