Tate v. Commonwealth

• Citation: 258 Ky. 685,80 S.W.2d 817
• Parties: TATE v. COMMONWEALTH.
• Decision Date: 01 March 1935
• Court: Kentucky Court of Appeals

80 S.W.2d 817

258 Ky. 685

TATE v. COMMONWEALTH.

Court of Appeals of Kentucky

March 1, 1935

Rehearing Denied April 26, 1935.

Appeal from Circuit Court, Jefferson County, Criminal Division.

Calvin Tate was convicted of murder, and he appeals.

Affirmed.

C. J Wilson, of Louisville, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

THOMAS Justice.

At the trial in the criminal branch of the Jefferson circuit court of an indictment accusing him of murdering Cecil Carter on June 15, 1934, the appellant and defendant there in was convicted and punished by death. His motion for a new trial was overruled and he prosecutes this appeal, insisting through his counsel that the court erred in committing a long list of complaints discussed in brief, but which are readily condensable into these grounds: (1) Error of the court in overruling defendant's motion for a continuance; (2) in overruling his motion for a change of venue; (3) in refusing to excuse jurors for having read newspaper accounts of the murder; (4) in the court making a remark during the progress of the trial that "the killing had been proven" (5) in permitting guards to stand at the door of the courtroom during the trial; (6) erroneous remarks of prosecuting counsel in his argument to the jury; and (7) error in the failure of the court to give an instruction on intoxication of defendant.

Before taking them up for determination separately, a statement of the substantial facts should be made. The scene of the killing was at or near the junction of Cypress and Woodland streets in that portion of the city of Louisville, Ky. known as "Parkland." In one corner (or near thereto) of that junction was a filling station operated by a man named Schroering. About 9 o'clock that night the proof uncontradictedly shows that two men entered that station, one of whom was low and heavy set, and the other slim and much taller, the latter of whom was and is the defendant. A housewife sitting upon her porch opposite the station saw the two men make their entry and saw the proprietor go back with them into a rear partitioned room and the taller one then came back into the front room and emptied the cash drawer or depository, and, while doing so, or immediately thereafter, some shots were fired in the rear room when the other member of the invading couple emerged from that room and the two shortly thereafter departed from the station. But just preceding that, Mr. Carter and his wife had passed by or near to the station and had reached another part of the junction when defendant (the taller one) deliberately aimed in his direction and fired some shots, one of which fatally wounded Carter, who died shortly thereafter. In the meantime, and just before Carter was shot, surrounding dwellers, who had heard the shooting in the back room of the filling station, rapidly started for the scene, all of which imperilled the safety of escape by the two participants, and no doubt the shot that killed Carter was fired for the purpose of checking the onrushing crowd and to thereby enable the two participants to escape safely.

The low heavy set man was Willard Hall, who killed Schroering in the back room of the station, and he, according to the evidence, likewise killed another neighbor by the name of Horine as he was making his escape from the scene of his first depredation. So that, three innocent persons lost their lives as a result of the robbery of the filling station. The housewife, who testified to what we have related, positively identified defendant as the one who shot Carter. Other witnesses who testified for the commonwealth, and who were present on the occasion, corroborated her to some extent as to the shooting and a number of them corroborated her as to the taller one of the two being defendant. A description of the manner and extent of such corroboration is deemed unnecessary to state, especially so, since defendant admitted on the stand when testifying in his behalf that he was present at the time and place of the fatal occasion and also admitted the shooting of the proprietor of the station in its back room by Hall, and which fact he claimed frightened him so that he sought to make his escape along with his companion, but he denied that he shot Carter or that he fired his pistol at any time, although he previously admitted it in his proven confession.

Before going to the scene, and at about 6:30 of the same evening, appellant, Hall, Gilbert Gibbs, and Leo J. Tesner started out on what he describes as an aimless joy ride about over the city in the car of Tesner, who was driving it, and who has but one arm. He stated that the other three first suggested to him that they make a trip to Bowling Green, but for what purpose he did not state. It was abandoned, however, because appellant had to report for the work in which he was engaged at 10 o'clock that night and they substituted the city joy ride for the Bowling Green trip. While engaged in it, they stopped at a number of restaurants where appellant says they took some beer and he likewise drank some whisky that he claims the other three had when he entered the car. According to defendant, just before going to the filling station, the car was stopped two blocks away from the scene of the killing and that he was thirsty and wanted a drink of water. Hall said he had some business down the street at an unnamed place and at which appellant's thirst could be quenched, and in order to do that he went along with Hall, who as they were entering the door of the filling station gave him a .38-caliber pistol, but which he claims he never fired. Hall had a .45-caliber pistol and the testimony showed that the wound inflicted on Carter was made by a 38 rather than by a 45 size bullet.

Some hour or more after the killings and the robbery, defendant and others of his companions were arrested, but Hall, although with them at the time, made his escape and was later apprehended. At the time of his arrest defendant denied any connection with any of the criminal acts and stated that he was not present at the time. However, when confronted with an identifying letter found on the floor of the filling station he made a confession which was in writing and was subscribed and sworn to by him, in which he admitted everything, and which was and is in these words: "About two weeks ago, I met a white man named Bill (Tesner) who has his right arm off about his elbow and a white man named Joe at 6th & Oak Sts. on the corner by the drug store. And Bill had a Chevrolet sedan 1931 model. I got in the car with them and we went to Central Park and sit in the Park till 9:30, and they asked me if I was ever in any trouble and I told them no. They brought me back to 427 S. 3rd St. Where I work and let me out of the car. About four days later I met them at Pap Logan's Place at Preston & Chestnut Sts. This was about 7 P. M. And they left about 8:30 P. M., and I left about 9:30 P. M., and about two days later I met them at Pap's Place again about 7:30 P. M. and went riding in the car with them and we picked up three girls at 2nd and Jefferson Sts. We then went to Jacobs Park and parked on the hill. We stayed there awhile and they took me home first. June 15, 1934, about 6:45 P. M. I was at 427 S. 3rd St. At the Transit Bureau where I worked and Bill and Joe came by and picked me up, and they said they were going to Bowling Green and asked me if I wanted to go, and I asked Clarence Cook, my foreman, if I could go and he said I had to be in at 10 o'clock. I got in the car with them and drove to the west end of the town. Bill told me they were going to stick up an oil station in the west end. Bill was driving the car and he stopped the car about a square from a filling station, and me and Bivens (Hall) got out of the car, and I had my gun in my bosom which was a .38 S. & W. squeeze-handle nickel plated. Bivens walked into the filling station with his .45 caliber pistol in his hand, and there was no one in there but the attendant, and I heard Bivens say: 'Stick 'em up.' The man started to put his hands up and Bivens shot at him twice. I then ran out the front door and Bivens followed me, hollering: 'Get out of the way people.' Bivens fired at the people who were running towards the filling station and I fired once or twice at the people running toward the filling station. Bivens and I ran over to where we had parked the car, and the car was gone, and Bivens and I caught a cab at 18th & Hale Sts. and we went to 3rd and Broadway. We got out of the cab and walked up 3rd St. to Chestnut St. and out Chestnut to Preston St. and went to the Happy Day Cafe on Preston St. between Gray & Chestnut, Sts. and we both had a glass of beer. We were sitting at a table when two men came in who I later learned were detectives and they called me outside and left Bivens sitting at the table, and the detectives asked me who was with me. I told them that man in there, meaning Bivens, was with me and they started after him and he was gone. The detectives brought me down to Detective Headquarters. I had only two drinks of whiskey and four glasses of beer before the holdup. This gun I used in the holdup and fired at these men was given to me by Bill, the one-armed man, who drove the car, while we were on the way to the west end."

That confession was made to some of the policemen of the city, but the substance of it was also made to a couple of newspaper reporters after defendant had been lodged in jail and which they, or at least one of them, took down in shorthand. Defendant admitted the confession made to the policemen, but claimed that it was done under duress and in violation of our statute known as the "Anti Sweating Act (Ky. St. § 1649b-1 et seq....