Whitfield v. Commonwealth

• Decision Date: 17 March 1939
• Citation: 278 Ky. 111,128 S.W.2d 208
• Parties: WHITFIELD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

128 S.W.2d 208

278 Ky. 111

WHITFIELD v. COMMONWEALTH.

Court of Appeals of Kentucky

March 17, 1939

Rehearing Denied May 26, 1939.

Appeal from Circuit Court, Campbell County; A. M. Caldwell, Judge.

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

Affirmed.

Charles E. Lester, Jr., of Newport, and Stephens L. Blakely, of Covington, for appellant.

Hubert Meredith, Atty. Gen., and William Hayes, Asst. Atty. Gen for the Commonwealth.

SIMS Commissioner.

The appellant, David Whitfield, was indicted jointly with Sidney Diehm and Edward Garrison for the crime of wilful murder by setting fire to a house and burning to death a child, Mary Lou Rardin. On a plea of guilty Diehm's punishment was fixed at life imprisonment in the penitentiary. Whitfield and Garrison were tried separately, were convicted and the punishment of each was fixed at life imprisonment in the penitentiary. From that conviction Whitfield prosecuted an appeal and the judgment was reversed. As the facts appear in the opinion on the first appeal reported in 265 Ky. 640, 97 S.W.2d 565, it is not necessary to set them out here.

Upon his second trial he was again convicted and given a sentence of life imprisonment in the penitentiary and this is the second appeal of the case. In the opinion written on the first appeal we held there was sufficient evidence to take the case to the jury. The judgment was reversed because the trial court erred in giving an instruction that Whitfield might be convicted as an aider and abettor when the evidence showed he was not present, or near enough to aid and abet in the crime, at the time the house was burned. We held the court should have omitted the instruction on aiding and abetting and should have given one on conspiracy. This the court did on the second trial.

Four errors are assigned by appellant for the reversal of the judgment entered on the second trial. First, there was not sufficient evidence to take the case to the jury and the court should have peremptorily instructed the jury to acquit him. Second, the court erred in submitting to the jury in the first instruction whether or not Whitfield, alone, or together with Garrison and Diehm, or either of them, killed Mary Lou Rardin by maliciously burning a house in which Mary Lou Rardin was an occupant and thereby produced her death from burns. Third, that the court erred in not submitting to the jury the question of whether the killing of the child was the natural consequence of the burning of the house and therefore within the purpose of the conspiracy. Fourth, the court should have instructed on voluntary manslaughter; the contention of appellant being, if the jury found the death of the child was not the necessary consequence of burning the house, then the appellant would be guilty only of manslaughter by reason of producing an unintended death in doing the unlawful act of conspiring to burn the house. We will take up these four questions and discuss them in the order named.

Appellant states in his brief there is a material and substantial difference between the evidence introduced on the first trial and the evidence introduced on the second trial. Therefore the former opinion is not the law of the case, and the holding by this court therein that there was sufficient evidence to take the case to the jury is not binding on us on this appeal. But at no place in an exhaustive and well prepared brief filed by his able counsel does appellant point out to us wherein the evidence on the second trial materially and substantially differs from that heard by the court and jury on the first trial. The opinion on the first appeal contains the following, 265 Ky. on page 646, 97 S.W.2d on page 568: "There is no evidence tending to show even an acquaintance of Diehm and Garrison with Peter Schmidt, much less evidence that they had any ill feelings toward him or any motive for setting fire to and burning his property. The feelings of Whitfield, as established by the testimony of Schmidt, tend to show a motive on his part to set fire to and burn Schmidt's property."

On the second trial appellee introduced Garrison and Diehm as witnesses in his behalf. Garrison testified Schmidt was a gambler and operated a resort or two in and around Newport Kentucky; that he (Garrison) was a racketeer, and to force Schmidt to share with him the profits from such illegal enterprises he called Schmidt by telephone early in January before the fire on February 2nd, and told Schmidt he would burn his place. Schmidt then and there replied to the threat that he was able to take care of himself. Garrison further testified he told Diehm of this threat and to make same good, and to establish himself as a racketeer in the Newport community, he and Diehm on the night of Feb. 2, 1936, went to Schmidt's place (known as Beverly Hills), and burned the house; that Whitfield had no connection with the fire and he and Diehm did not agree, or enter into a conspiracy, with Whitfield to burn this house. Diehm's testimony corroborated Garrison and he likewise exonerated Whitfield from any and all connection with the fire.

The transcript of the evidence introduced on the second trial contains more than 900 pages and the testimony introduced on the first trial was also voluminous. Garrison, Diehm and Whitfield are all ex-convicts, and many of the witnesses testifying for both the Commonwealth and the appellant have criminal records. The evidence introduced in behalf of appellant on his second trial, to show motive on the part of Garrison and Diehm to burn this house, was not sufficient, in our judgment, to warrant the trial court to give a peremptory instruction to the jury to acquit appellant. Such testimony is merely cumulative and does not make such a material and substantial change in the evidence as to...