Whitfield v. Commonwealth

• Decision Date: 20 October 1936
• Citation: 265 Ky. 640,97 S.W.2d 565
• Parties: WHITFIELD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

97 S.W.2d 565

265 Ky. 640

WHITFIELD v. COMMONWEALTH.

Court of Appeals of Kentucky

October 20, 1936

Appeal from Circuit Court, Campbell County.

David Whitfield was convicted of the crime of willful murder, and he appeals.

Reversed and remanded.

Blakely & Murphy, of Covington, for appellant.

B. M Vincent, Atty. Gen., and J. J. Leary, Asst. Atty. Gen., for the Commonwealth.

RICHARDSON Justice.

David Whitfield, Sidney Diehm, and Edwin Sanford Garrison were jointly indicted for the crime of willful murder, committed by setting on fire a house and burning to death Mary Lou Rardin, an infant. Diehm entered a plea of guilty. The jury fixed his punishment at confinement in the State Reformatory for life. Garrison, on a plea of not guilty, was convicted by the jury and given the same. Later, Whitfield on a trial before a jury was given the same. Whitfield is appealing insisting the evidence is insufficient to sustain the verdict of the jury, the court admitted incompetent evidence and erroneously instructed the jury.

Whitfield was engaged in conducting a saloon at Newport, Ky. with a license to sell beer and soft drinks. Diehm and Garrison were his associates and customers. Garrison lived at a boarding house situated near Whitfield's place of business. Diehm's residence is not identified by the evidence. Peter Schmidt conducted the Glenn Hotel about opposite Whitfield's place of business. His mother and other members of her family owned a place on the Alexandria Turnpike. It was in charge of the son, Peter Schmidt. He kept there, livestock, horses, mules, and milch cows. He employed Carl J. Fillhardt to live in the second story of the residence, do the garden work and care for the livestock and milk the cows. Fillhardt with his wife and Mary Lou Rardin occupied and used four rooms on the second floor. In connection with this residence, Peter Schmidt used for his exclusive, private purposes a portion of this residence Fillhardt had no access to that portion of it. Just exactly what it was used for is not disclosed by the evidence. There was a furnace in the cellar of the residence. On the evening before the child was burned to death, Fillhardt and his wife, with it, left home about 5 o'clock p. m. to visit relatives. About 1 o'clock a. m. that night, they returned, and as he drove his car into the garage an automobile pulled up to the garage. There were two men on the front seat and "a man looking out the side of the back." This machine was a Chevrolet or a Plymouth. As it pulled up to the garage Mrs. Fillhardt stepped to the garage door, then the car turned around at a lane that went into a pasture just at the top of a hill. There it turned around and went back down the hill. It was a closed car. She and her husband and the child went into their home, she prepared for bed and her husband went down in the basement to look after the furnace. After she retired and had gone to sleep, she was awakened by the sound of breaking glass. She called to her husband, and after shaking him, he awoke. She heard the dining room door crash, and at the same time heard voices in their kitchen. She turned on the electric light, and about the time she did so an explosion occurred downstairs. The door to their room flew open, knocking the husband back. He pushed the screen out of the window and helped his wife through it to the ground. When she looked up to the room which she had left, it was filled with fire. The husband, on account of the fire, was unable to see the infant in its bed. He grabbed it and dropped it out of the window onto a bank of snow which had been piled up by the side of the house; then he jumped out of the window. Fillhardt testified that his wife closed up, and he locked, the downstairs before he went upstairs. As soon as his wife woke him he went to the window and looked out. "A machine was setting there and a man walking into the house," when he heard quite a bit of noise. "A man came out of the house, carrying something in front of him and put it in the machine." He returned from the machine directly to the house and knocked on the door when he (Fillhardt) heard a voice saying: "Did you get the door open?" He heard something pounding in the sink or on a porcelain table downstairs; a man started up the stairway and came up about four steps, when Mrs. Fillhardt turned the light on. The man ran back down the steps and about the time he reached the bottom an explosion occurred. He recognized and positively identified Diehm and Garrison. The fire immediately followed the explosion. The automobile was parked at a point that led up to the pasture gate in sight of the window through which Fillhardt escaped. It was a light night and snow was on the ground. About the time Fillhardt reached the ground Diehm reached the automobile, and while driving it away he was looking back at Fillhardt. While so operating it, it ran into a post, knocking it down, and, of course, momentarily stopping the automobile. Although Fillhardt sprained one ankle and broke the other in his jump from the window, he chased after the man in the automobile about 15 feet when he fell. His neck, face, hands, and arms up to his elbows were burned while he was getting the child out of the bed. He saw Garrison going down the stairs right opposite which the automobile was parked. A few moments after the child was dropped on the pile of snow it was taken to the hospital, where it remained until it died shortly afterward.

On the night of the fire Whitfield was at his place of business. Diehm and Garrison were there, and the three drank beer. Whitfield left his place of business about 10:30 or between 10 and 11 o'clock; went to the place of business of Dave Leften and inquired of Leften if he had in stock 5-gallon cans. He purchased three of them at the price of 15 cents each. He stated to Leften: "He wanted them, three 5-gallon cans to get gasoline to take it out in the country." He left with them in a machine. The cans were square, encased in corrugated paste-board jackets. James M. Wood, a probation officer of the county, after the fire, was at Peter Schmidt's place on the Alexandria Pike and in company with detectives made a thorough search of the ruins of the fire. They found a 5-gallon can about three or four feet from a pile of coal in the basement. It was face down, under stones and débris. About two-thirds of it was covered up. It was examined and identified by him while testifying. The Fillhardts used a gasoline stove at their home for cooking purposes. The gasoline for immediate use was in a glass jug. Fillhardt testified that the can which Wood identified was not at his home before the fire; that he did not own or use it or one like it. About the time the explosion occurred, Mr. and Mrs. Hurd were on the highway traveling in an automobile when they observed the fire, stopped and witnessed it for a few moments. They testified that the fire was burning brightly and Mrs. Hurd testified that she saw three men running from the fire to an automobile. One count of the indictment charged the three as principals, and another with aiding and abetting, "but that which one of them so actually set fire to said building *** and which one of them so actually counseled, advised, aided and abetted therein, was to the Grand Jury unknown." It should be noted that the indictment does not charge a conspiracy. Whitfield's defense was an alibi. The testimony discloses three men in the act of running to the automobile. Leften's testimony, together with the testimony of Wood and the Fillhardts concerning the 5-gallon can, very strongly tends to connect Whitfield with the commission of the crime. But we are not prepared to say that altogether it is sufficient to identify Whitfield as one of the men present and described by Mrs. Hurd and the Fillhardts.

Shortly after the fire Whitfield admits that from Covington he called a doctor to attend Garrison. They secured the services of Dr Edward J. Nestley. Whitfield and Garrison thereupon appeared at the office of Dr. Nestley. Garrison was suffering with gasoline burns on both legs and on the right wrist. The doctor treated him, for which Whitfield paid him $10. In giving, in the presence of Whitfield, the history of his burns to the doctor, he said he had sustained them in an...