Underwood v. Commonwealth

• Decision Date: 09 October 1936
• Citation: 99 S.W.2d 467,266 Ky. 613
• Parties: UNDERWOOD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

99 S.W.2d 467

266 Ky. 613

UNDERWOOD v. COMMONWEALTH.

Court of Appeals of Kentucky

October 9, 1936

Rehearing Denied Jan. 15, 1937.

Appeal from Circuit Court, Bullitt County.

George Underwood was convicted of murder, and he appeals.

Affirmed.

C. M C. Porter, of Shepherdsville, for appellant.

B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

MORRIS Commissioner.

Tried under an indictment which charged him with murder, appellant was found guilty and given the death penalty. Motion for a new trial was overruled, judgment entered in accord with the verdict, from which this appeal is prosecuted.

The homicide occurred early in the morning of April 29, 1936. The man killed was Wallace Van Fleet, proprietor of a railroad restaurant in Lebanon Junction, in which place the homicide took place. Deceased was also the night marshal of the town.

On the day immediately preceding the killing, Jasper Metcalfe operating a truck, his son, and Underwood went to Louisville. Metcalfe testifies that on his return he had some empty drums to deliver to some one in Lebanon Junction. Before he got there he had trouble with his truck and went for a wrecker. He left appellant with his truck, but when he came back he was gone, but came up in about 15 minutes with a man named Brashear. They then went on to Lebanon Junction, parked the truck, and proceeded to the railroad restaurant, as witness says, to get something to eat. They went into the restaurant and appellant drank a glass of beer, then walked back to the kitchen, "but didn't stay long." It seems that he went into the kitchen a second time and when he came out Charlie Hall, a clerk, ordered him out, telling him that he was not allowed in the kitchen, "it was against the rules," and an argument arose between Hall and appellant. At this point some one went outside and told Van Fleet of the argument, and he came in and told appellant that "they couldn't allow him back in the kitchen; they had a town ordinance against it." Appellant then said "Well"; walked out on the steps of the restaurant and asked, "Is this all right?" and Van Fleet replied, "That's all right with me." On the outside appellant then began to say "some pretty rough things about the boy who was working in there." The boy picked up two or three empty Coca-Cola bottles, walked to the door and stopped. Appellant tried to get him to come outside, but he went back in and behind the counter. Witness also says that some time during the argument Van Fleet advised him to take appellant home, else he would be compelled to arrest him, and finally witness persuaded appellant to leave, and he took him as far as his (the witness') home on his truck.

On the way out appellant said, "Now Wallace Van Fleet has run over me as long as I'm going to let him; I am going home and get my gun and load it and coming back down here to-night, and me or Wallace Van Fleet one will die tonight." He was advised to "forget it" and go home and go to sleep, but said, "No, I am going to do what I said and you'll hear about it in the morning." Witness says that appellant had been drinking beer at several places during the day and night. He estimates the time he let him out at his home to have been between 10 and 11 o'clock, and says that at that time "he could walk all right and had a very good memory." He did not see any gun on or about appellant, but several times during the day he saw "two .32 cartridges."

Charlie Hall the only witness who saw what occurred just prior and up to the time the shot was fired that killed Van Fleet, testified in substance to what had occurred in the restaurant up to the time when appellant left, as was recounted by Metcalfe. Witness says that about 10 minutes after 12 o'clock appellant came back in a car, drove up and parked back of the restaurant, and Van Fleet came in the front door and stopped by the counter. Appellant came in and ordered a "big beer" and Hall turned to draw it for him, and the "next thing I heard George Underwood said, 'stick 'em up Wallace."' I looked around and George had a pistol, and he walked around to the end of the counter and repeated his command, and appellant had a gun in each hand and shot Van Fleet in the arm. Hall, believing as he said, that appellant would shoot him, turned and ran through the kitchen door and as he got halfway through the kitchen he heard another shot. The witness jumped off the back porch, hid in a field and remained there until a car passed going away from the restaurant, which he recognized as the one in which appellant had driven up and parked. A few minutes thereafter he went back to the restaurant and called Van Fleet; receiving no answer he went and got a neighbor and they went back. They found Van Fleet dead on the floor, eight or ten feet away from where he had been standing when the first shot was fired. He had been shot twice, one charge taking effect in the arm and the other in the head. Witness says that at the time when Van Fleet came into the place he had a piece of fishing pole in his hand. He did not see Van Fleet have, draw, or attempt to draw any weapon. When his body was removed, the undertaker found a pistol in the holster on Van Fleet's left side, and a blackjack in his hip pocket.

The telegraph operator at the railroad station says he saw Van Fleet shortly before midnight; that he had on a zipper sweater-jacket and had a revolver in the holster on his left side. He went over to the restaurant about 10 minutes after the shooting and saw his pistol in the holster just as he had seen it before 12 o'clock. The sheriff was apprised of the tragedy shortly after midnight, and latter some woman called over the phone and said that appellant was at her home and wanted to surrender. The sheriff went to the place and appellant surrendered. He had two pistols on his person. One was fully loaded and the other had three empty shells in it.

Virgil Underwood, a brother of appellant, said that he was living with appellant; that, after 11 o'clock on the night of the homicide, appellant came home "crying and cussing" and wanted witness to go to town with him and he did start back with him, but before they got to town witness jumped out of the car and "ran off and left him." He says that appellant lit a lamp when he came in, and said he was going to get his gun and go back to Lebanon Junction; that he got two guns, and said he was going back to shoot Wallace Van Fleet. "He carried one gun in his hand and one in his pocket." The boy said appellant had the appearance of having had "plenty of whiskey."

Appellant testified for himself and given in detail testimony as to what occurred during the day on the trip with Metcalfe, particularly on the return trip, and it was substantially as Metcalfe had testified, except he says that during the day he had taken several glasses of beer and two or three drinks of whisky out of a half-pint bottle. Coming to the point of time when he, Metcalfe, and Brashear went into the restaurant, he says he drank a beer and one of the party had something to eat. After drinking his beer, he went back into the kitchen. He was under the belief that "they had been selling whiskey in the back of the restaurant. I wanted to buy a half pint of whiskey to give Brashear to get rid of him." He says the boy ordered him out of the restaurant, saying, "That's the orders I got." Van Fleet then came along, and appellant says that he told him that he and Metcalfe wanted to go home and asked Van Fleet to keep Brashear in conversation "until we get away," and that Van Fleet replied, "It don't make any difference whether he goes home or not." Appellant then left the restaurant, but came back and bought some cigars, and started out of the restaurant, when Van Fleet said, "I thought I told you to go home." Appellant says he then started home and had "got out on the crossing about half way," and stopped "to take the wrapper off my cigar," and was lighting it when Van Fleet came up and grabbed him by the arm and said, "I told you to go home, and when I told you to go home I meant for you to go." He says that Van Fleet aimed to strike him on the head with a black-jack, but he "ducked" and that blow struck him on the shoulder, and "he struck me on the head, and from that lick I remember staggering on; outside of that I don't remember anything else that happened except through a haze, until I come to my senses in Hardin County." He says he did not remember riding with his brother in the car. He then relates that it "seems to me I wanted a glass of beer and I went back to the restaurant"; that Van Fleet was leaning over the counter. He ordered the beer and Van Fleet turned around and said, "Why did you come back down here," and I said, "I came back down here to get me some beer." Van Fleet then said, "Didn't I run you home while ago," and I said, "Yes sir, and I went home." Van Fleet "walked around the corner mumbling something and when he got around the counter and said, 'G. D you I am going to let you have something,' I said wait a minute, and he reached for his gun; I told him to keep his hands off his gun, and I started to tell him I would go on home and he cursed me again, the best I remember, and I told him to keep his hands off his gun and to keep away and it didn't seem to me that he did what I told him, but he just kept coming and reaching for his gun, and I remember firing through a haze. Outside of that, that's all I remember."

He says that after that he had a headache, "just commenced walking and turned up at some house and asked a man to call the sheriff." The sheriff came, and, as appellant says found him with two guns. He says that ever since he received the lick on the head he has had headaches and earache. On...