Reversing.
For the murder of his paramour, Mary Willie Davis, the appellant, Ben Cass, colored, has been condemned to death. They had lived together for over a year in an alley in Louisville.
The evidence introduced by the commonwealth was in substance that on Sunday a week before the death of the Davis woman, the parties had quarreled over the loss of some money by her and she had left him. On Tuesday he sent her a message to return and clean up the room and help him sell some whisky. She came back on Friday evening, and that night he began beating and abusing her and declared he would kill her. It appears that he had accused the Davis woman of staying with another man during the week of her absence from him. There is no evidence as to further trouble until Sunday afternoon, when, it was testified, the accused renewed his cruelty and kept it up intermittently during the day and night. There are positive statements that defendant struck her across the head with a piece of a broom handle introduced in evidence. About 2 o'clock on Monday morning, Cass and the Divis woman came to a nearby house and, knocking on the door, wanted to know if a man named "Charlie" was there. They aroused Ben Logan, and when he opened the door the woman fell, and Cass cursed and kicked her violently and in this way knocked out some of her teeth. He declared that he would kill her and would make her prove if she had stayed where she had claimed. He snatched her down the steps and took her towards Tenth street. Between 5 and 7 o'clock that morning he was seen in and about the alley by different persons who testified that the defendant knocked her down and beat and kicked her. He also continued his threats to kill her.
After dark on Monday the accused called a neighbor woman in, saying that Mary Willie was drunk and sick. *Page 464 The woman was found unconscious lying across the bed with bruises on her face and bleeding at the mouth. It appeared that blood had been wiped off her face and the room was in disorder. Cass was drinking, but the neighbor detected no alcoholic odors about the woman. She and Cass went for a doctor, to whom he reported that the woman was drunk and very sick. When the doctor called he found the conditions described. He realized it was a hospital case and made only a superficial examination. He stated that she ought to be taken to the hospital and the alcohol pumped out of her. An ambulance was called and Cass accompanied the woman to the City Hospital, where she died some time during the night.
Dr. Carter, the coroner, testified he had made a careful examination and that her head and body were bruised and lacerated, and that her death was due to a fracture of the top of the skull which had caused internal hemorrhages on both sides of the brain. He expressed the opinion it could have been caused by the stick introduced on the trial. A police officer who had examined the body in the morgue testified that it was badly bruised, especially about the head, and that two of her teeth had been recently removed, but whether they had been knocked out or regularly extracted he could not say.
The defendant denied categorically all the evidence respecting the mistreatment of the woman, and stated that they had never had any serious quarrels and he had never struck her. He said that she had been drinking and had had several spells of a similar nature, and he had found her in a stupor Monday evening and sent for a doctor. He admitted having served a term in the penitentiary.
The evidence of a doctor at the hospital medical ward, to which the woman was sent, was in substance that she was in a deep coma and had the odor of alcohol on her breath; that he made a routine examination of her, and his clinical diagnosis was acute alcoholism, oedema of the lungs and minor abrasions; that she had no "external evidence of a fracture from a clinical standpoint." He stated that "from a clinical standpoint" it was his impression the cause of the woman's death was acute alcoholism and pulmonary oedema. It would seem that the doctor's impression was gained more from the "provisional diagnosis" made in the receiving ward and that he really did not make such an examination of the patient as would enable him to know whether or not she *Page 465 died from physical injuries. Oedema of the lungs, he explained, was caused by retarded circulation which could have been caused from hemorrhages of the brain, and from his findings it could have been possible the woman had suffered the fracture of her skull.
Appellant's counsel submit that the court erred in forcing a trial on the day of their appointment to defend the accused. The record shows that the woman died on November 4th; the indictment against the defendant was returned on November 25th, and on the 26th he was brought into court, "and comes his attorney." He waived arraignment and entered a plea of not guilty and the case was set for trial December 19th. When the case was called for trial on that day, according to the bill of exceptions, present counsel were appointed and the defendant "forced to immediate trial," to which the defendant excepted.
We may assume that the waiving of arraignment was formal and that the defendant really had no attorney to prepare his case until the day of trial. At least counsel who represented him on the trial were not appointed until that day, and then, according to the certification of the judge, they wereforced to proceed. It is true there is no affidavit in the record supporting the apparently verbal request for a continuance. Because of their so recent appointment perhaps counsel were not aware of any ground they might have stated in an affidavit. They were not in position to know whether there were or were not witnesses other than those present who knew of the facts of the case. At any rate, the record discloses a judgment of death as the result of a trial forced upon the accused with counsel just appointed who were not given an opportunity to prepare his case. The cause of the woman's death is really a matter of opinion. While the evidence of the extreme brutal treatment she received at the hands of the defendant, according to witnesses introduced for the commonwealth, tends strongly to support the opinion of the coroner that she died as the result of a fractured skull, there was evidence tending to prove that there was no fracture and that her death was due to alcoholic poison. Sufficient time would have enabled the defendant's counsel to investigate this most important matter and perhaps to establish very definitely that the coroner's conclusion was erroneous.
It is the inviolate right of freemen — whether chief and wealthy citizens or destitute black men with unsavory *Page 466 reputations — to have the assistance of counsel when being prosecuted for the commission of a crime. United States Constitution, Sixth Amendment; Constitution of Kentucky, section 11. There may be unusual circumstances where the court need not appoint counsel for the accused, but in cases like this it is the court's duty to do so. Williams v. Commonwealth, 33 Ky. Law Rep. 330, 110 S.W. 339. Having properly given the defendant counsel, the court should not have forced him into a trial before reasonable opportunity was given them to prepare his defence. This is not a technical ground of reversal, but goes to the very foundation of justice — the right of a man to have counsel who have had opportunity to present his defense. This salutary and fair rule is considered fully in McDaniel v. Commonwealth, 181 Ky. 766, 205 S.W. 915; and Miller v. Commonwealth, 197 Ky. 703, 247 S.W. 956. Other subsequent cases are Piercy v. Commonwealth, 195 Ky. 725, 244 S.W. 52; Gillis v. Commonwealth, 202 Ky. 821, 261 S.W. 591; Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W.2d 823. There are many cases where the refusal to continue the trial because of the want of time for preparation, either real or claimed, could not be deemed prejudicial error, and others where the record failed affirmatively to show the exercise of diligence on the part of the defendant. But here we have involved the life of a man, and the majority of the court concludes, under all the circumstances, that the judgment should be reversed and the defendant granted a new trial.
Judgment reversed.
Whole court sitting.
Chief Justice THOMAS and Judges DIETZMAN and REES dissenting.