Whitney v. Commonwealth

• Decision Date: 20 May 1903
• Citation: Whitney v. Commonwealth, 74 S. W. 257 (Ky. Ct. App. 1903)
• Parties: WHITNEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

74 S.W. 257

WHITNEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 20, 1903

Appeal from Circuit Court, Fayette County.

"Not to be officially reported."

Earl Whitney was convicted of murder, and he appeals. Affirmed.

B. T Southgate and Chas. Kerr, for appellant.

C.J Pratt and M. R. Todd, for appellee.

SETTLE J.

The appellant, Earl Whitney, together with Claude O'Brien was indicted, tried, and convicted in the Fayette circuit court for the murder of A. B. Chinn, a Lexington merchant. His trial was separate from that of his alleged accomplice O'Brien, and his plea, like that of the latter, was "Not guilty"; but by the verdict of the jury his punishment was fixed, as was that of O'Brien, at death. From the judgment of conviction, and the refusal of the lower court to grant him a new trial, he prosecutes this appeal.

It is not deemed necessary to here enter upon a recital of the facts and circumstances connected with the revolting crime of which he, as one of the perpetrators, stands convicted, as they are minutely set forth and exhaustively discussed in the opinion of this court in the case against Claude O'Brien (74 S.W. 666), this day handed down, to which opinion reference is here made. It is sufficient to say that the evidence heard upon the trial of appellant shows beyond doubt that A. B. Chinn was foully assassinated in his bedroom on the morning of October 11, 1902, while it was yet dark, by a pistol shot received at the hand of either the appellant, Earl Whitney, or his accomplice, Claude O'Brien, both of whom were present at the time, armed with pistols; having shortly theretofore entered the dwelling house of Chinn upon a mission of theft and robbery. The only question of doubt in the case is as to which of the accused fired the shot that killed Chinn. The only persons able to name the one by whom the fatal shot was fired are Whitney and O'Brien, each of whom claims that it was done by the other. But be that as it may, both are, under the evidence, guilty, because they were accomplices, each aiding and abetting the other in the assassination, as in the lawless enterprise which led to that act. O'Brien, though introduced by appellant's counsel in this case, refused to testify; but proof of a conversation that occurred between him and appellant after the latter's confession to the officers was made in this case, which did not differ materially from the testimony given by O'Brien upon his own trial.

It is contended by counsel for appellant that the judgment of conviction should be reversed for the reasons, first, that it was error to admit upon the trial evidence of the burglary of the houses of Slade and Mrs. McConathy; second, to admit as evidence the confessions of appellant; third, to allow the commonwealth's attorney to make certain alleged statements in argument which were not supported by evidence.

The question raised by the first of the foregoing grounds we have already decided in the case of Claude O'Brien v. Commonwealth, supra, which decision is against the contention of appellant's counsel, and we are still of opinion that it was competent to admit proof of the burglaries committed by appellant and O'Brien just previous to the homicide, first, as showing the motive with which they entered the house of Chinn; and, second, for the purpose of identifying the parties who committed the previous burglaries as the slayers of Chinn. In this case, as in that of O'Brien, the trial judge carefully instructed the jury that evidence of the burglaries committed by the appellant and O'Brien before entering the house of Chinn could be considered by them only for the purpose of showing the motive with which they entered the Chinn residence, and should not be considered for any other purpose.

We are likewise of the opinion that no error was committed by the lower court in admitting the confession of appellant. It is shown by the evidence that one Irvine, a Nashville detective, who seems to have known appellant in Nashville, interviewed him after his arrest, and, among other things, said to him: "Earl, it looks like they have a strong case against you. You are in bad. The truth won't hurt"--and that, as a result of these statements, appellant expressed his willingness to make a confession, which he did after others had been called in by Irvine to hear it.

The confession was made in the presence of four persons--one a stenographer. It was reduced to writing and signed by appellant, and this written confession was read upon the trial; it being admitted by counsel for appellant that those who heard the confession would testify that it was made as contained in the writing.

A confession of the accused out of court is competent evidence against him, although it may have been procured by deception but is incompetent if procured by promises, threats,...