Triplett v. Commonwealth

• Decision Date: 18 January 1938
• Citation: 272 Ky. 714,114 S.W.2d 1108
• Parties: TRIPLETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

114 S.W.2d 1108

272 Ky. 714

TRIPLETT v. COMMONWEALTH.

Court of Appeals of Kentucky

January 18, 1938

Rehearing Denied April 19, 1938.

Appeal from Circuit Court, Letcher County.

Troy Triplett was convicted of murder, and he appeals.

Affirmed.

John D W. Collins, of Whitesburg, for appellant.

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

REES Justice.

Troy Triplett has appealed from a judgment convicting him of the crime of murder, and sentencing him to death.He seeks a reversal of the judgment on two grounds: (1) The punishment is excessive; and (2)the trial court erred in permitting the Commonwealth to introduce evidence in chief after it had closed its case and the defendant had testified.

Appellant shot and killed Dolphy Hall in Letcher countyJuly 16, 1937.Hall was 13 years of age.When appellant was arraigned, he entered a plea of "not guilty," but, when the case was called for trial, he withdrew this plea and entered a plea of "guilty" to the indictment charging him with the crime of murder; thus leaving to the jury only the duty of fixing his punishment at life imprisonment or death.The Commonwealth, as it had a right to do, introduced evidence showing the circumstances attending the killing in order to enable the jury to fix the punishment intelligently.Cornelison v. Com.,84 Ky. 583, 2 S.W. 235, 8 Ky.Law Rep. 793;Holtman v. Com.,129 Ky. 710, 112 S.W 851.John Henry Addington, the first witness introduced by the Commonwealth, testified that on the day of the homicide he, Dolphy Hall, and Paul Akeman crossed the mountain to pick huckleberries, but found the berries were not ripe and returned to the foot of the mountain, where they were joined by Troy Triplett, Homer Rose, and Harrison Spurgeon.Triplett was angry because the Hall boy had testified against him in some court proceeding, and, in the presence of the witness, said, in substance, that he was going to kill Hall.Triplett, Hall, and the others walked down the road to a point where a path led across the hill.Hall, Addington, and Akeman turned into the path, and Triplett ran up to them and said: "You are going down the road."They turned and accompanied Triplett and Rose to Brack Quillen's home, where Addington and Akeman turned and started back.Triplett again ran up to them and said: "You are going with us."They continued down the road to the mouth of Webb branch, and then to the home of Arlie Vanover.Addington told Triplett he wanted a drink of water, and Triplett said he would go in the house and get it.While he was absent, Dolphy Hall walked into the house, but Triplett took hold of his arm and led him back to the road.When Triplett gave the water to Addington, he said: "Take a good cold drink, that is all you will need until you get one in Hell."They continued down the road, appellant complaining all the while because Dolphy Hall had testified against him.He threatened several times to kill the Hall boy.Addington testified as follows concerning what Triplett said and did when whey reached the place where the killing took place:

"He said 'Damn him I am going to bump him off' and I begged him up there before we started not to bother him, not to hurt him, and we come on down there a little farther and he said that he didn't aim to leave no evidence and I says to him, 'You wouldn't hurt that little harmless boy would you.'He said 'How old are you son?' and he said 'I am thirteen' and he turned to me and said, 'I was in the pen by the time I was as big as he is'.And he said 'I don't aim to leave any evidence, him nor none of you.'We got on down to the mouth of the branch and he kindly showed Dolphy how to set down, there was a little bank there, just a small bank and Dolphy set down and placed his face down in his hands, and he says 'Let's talk some'.Troy did, and just as he said that he commenced backing backwards and pulling his gun and I commenced backing away up the road, I backed up the road, I backed two or three steps while he was that way and that throwed us some little distance apart, well--

"The Court: Who was it drew the gun and backed up?A. Triplett.Troy Triplett, then he drew his gun and shot the way the little boy was riding the mule the first shot and the mule then wheeled and made a circle around, it hit the mule and as she come around she knocked me over against the plank fence kindly, about six feet and he shot one more shot in the ground under me as I fell or about the time I fell and then he went right back by the back of Dolphy Hall and shot into him three shots in his side next to him in the right side and then by that time I got up there where that fence was and took up through on my hands and feet where I hurt my leg and he shot--about the time he loaded his gun up, he was working the gun about the time I started and then he shot *** there around about the same place six more shots.Troy told him to set down and motioned to him --And he set down on a little bank and when he set down he put his hands down that way and his head was something like this and saying something, I don't know what it was, and he never did raise up no more that I seen of."

Paul Akeman, a boy 13 years of age, testified to substantially the same facts except that he did not see the whole transaction as he ran when the first shot was fired.The only other witness introduced by the Commonwealth was Jesse Holbrook.He reached the scene of the killing about thirty minutes after it occurred, and found the mule lying in the road and Dolphy Hall on the bank by the side of the...