Affirming.
The appellant, Ernest Addington, was convicted of the crime of rape and sentenced to death.
Nora Coleman, the prosecuting witness, testified that her home is at Kings Mountain in Lincoln County; that she is nineteen years of age, and that for some time prior to December 19, 1942, she had been working in Cincinnati, Ohio; that during the afternoon of that date, she left Cincinnati by bus and arrived at Kings Mountain road where she got off the bus about 9 o'clock p. m.; that appellant, with whom she was acquainted, and one Oran Jones whom she did not then know, got on the bus at Stanford; that Addington, Jones, and Crit Coleman, to whom she was not related, and a man whom she did not know, got off the bus when she did; that all of them walked along Kings Mountain road toward her home *Page 277 which was some two miles distant; that the man whose name she did not know turned off into a side road; and that after they had walked about a mile and a half, Oran Jones, who was behind her, caught her around the neck, pressed something into her back which he said was a gun, took her purse from under her arm, and, to quote her testimony, "at the same time Jones was doing this Addington walked around in front of Crit Coleman with a knife on his chest and told him to stop and to give him his money, and he says 'I don't have any money', and he says, 'Yes, you do', and he put his hand in his overall pocket up here and took a billfold out and took his money out of the billfold, and he had two pieces of white paper, and he says, 'I'll give this back to you'. I don't know what it was, but anyway he gave it back to him — and he told him — they told us they was going to kill both of us, and so Addington took — walked down the road and Jones took me up the road a few steps and told me that he was going to kill me. I — and we were begging and crying, we told him they had their money so why didn't they let us go, and they said they was going to kill both of us." The prosecuting witness then related how Jones had made her "walk over in the field just a little ways", and attempted to assault her; that "just as I started to run Ernest (the appellant) came up and caught me", whereupon, with each holding one of her arms, "they pulled me down through a field and shoved me through a fence, and I was crying and begging to let me go, but they said they wasn't — they said they was going to kill me, and one time they said they was taking me to Tennessee with them, and they said they was going to take me over there in the field or woods and kill me, and I begged — I kept begging them all the way, and they pulled me down through the other field, and that was down through almost two fields, and Jones shoved me down on the ground and Addington held the knife on me —" while Jones raped her, after which appellant raped her while Jones held a knife at her throat.
Crit Coleman fled as soon as he had been robbed, and hence did not witness what occurred in the field, but in relating what took place on the road immediately preceding the rape, he testified:
"Well, sir, we was all going walking along out the road, coming out this side of the underground church house, there was a little road that turned off to the left. *Page 278 Well, right back this side of that little road there was another one turned to the right. Well, this fellow with this suitcase, Prewitt, he set the suitcase down and stopped off there at that little road that turned to the left, and so we just kept walking along on out the road, and these boys kept coming on out, that is, Jones and Addington, and I was walling on one side of the road and Nora was walking on the other, walking along saying nothing to nobody, so this Addington boy walked up pretty close to me right just — oh, just on the yon side of the underground church just a little, why, he come right — right up — him and the Jones boy — right up between the — me and Nora, she was walking on the left and me on the right of the church, and just — just come walking right in front of us, and Addington said, 'I'll take care of him and you take care of her', and he just made a grab then and grabbed her around the waist, so Mr. Addington run right around in front of me with a pocket knife and said, 'Stick them up, you God d__n son of a b____, you, 'and so I — just like anybody else — I stuck them up, this hand (indicating), and this hand (ind.) — I had my groceries on my back, holding my groceries with this hand, so then I just let this hand down and took this hand and held my groceries and held this hand up. 'Well,' he said, 'give your money up'. I said, 'I ain't got no money, Mister'. He said, 'You are a d__n son of a b____ and liar, you have got money'. I says, 'No I haven't got no money'. He said, 'Yes, you have', he said 'Give that money up', he says, 'I'll gouge this knife through your heart'. I said, 'Big boy, I haven't got no money', and so he just went to unbuttoning my jacket down here (ind.) with one hand and held the knife on me with the other, and so he just went right on in this pocket with his hand and begin to rake the money out. Well, I had $60.00 in this pocket —
"The Court: There is no use going into that. Get to this other matter, Mr. Rankin.
"Q. Well now, after that where did you go to? A. Well —
"Q. Did you hear him and Jones make any threats to your life and to her life? A. Yes, sir.
"Q. What did they say? A. Well, Addington there said that he was going to kill us both and put us in the underground church house, that dead bodies wouldn't tell nothing." *Page 279
At the conclusion of Coleman's direct examination, the Court, without being requested to do so, admonished the jury as follow: "Now, gentlemen, the Court wishes to remind the jury of this: That you are not trying the defendant here on the charge of robbery. You are trying him on the charge of rape. The testimony here with regard to the defendant taking money either from Nora Coleman or Crit Coleman is competent for you to consider only in connection with the other charge, that of rape, in the event that you think it has any bearing on whether or not that other occurrence took place as Nora Coleman claims it did."
It is insisted by appellant that so much of the foregoing testimony as related to the robbery of the prosecuting witness and Crit Coleman was incompetent under the rule that proof of crimes other than that for which the accused is being tried is inadmissible, and that if admissible as an exception to the general rule, the Court's admonition to the jury as to the purpose for which it might be considered was erroneous. One of the exceptions to the rule prohibiting the proof of other crimes is that the exclusion does not extend to crimes, so interwoven with the offense for which the accused is being tried that the evidence of the two acts cannot be separated (Conley v. Commonwealth, 273 Ky. 486, 117 S.W.2d 189); and we are of the opinion that the testimony complained of was within that exception. Farley v. Commonwealth, 263 Ky. 769,93 S.W.2d 858. In any event, the appellant failed to object to the testimony complained of, or to request any admonition limiting its effect. In the case of Farley v. Commonwealth, supra, it was expressly held that the failure of the accused to request an admonition from the Court as to the purpose for which similar testimony might be considered, although the accused had objected to its admission, waived any right he might otherwise have had to such an admonition. Therefore, even if we were convinced that the admonition required when such proof is admitted to establish motive, identity, etc., is essential in cases such as this where the reason for its admission is that the offenses are so closely related in point of time as to render it impracticable to fully prove the offense charged without proving the others, we would not be warranted in holding that the right to the admonition was not waived by a failure to request it. The admonition which the Court gave may accordingly be regarded as a gratuity, which, although it *Page 280 did not specifically inform the jury why the testimony referred to was admitted, nevertheless warned them that the appellant was being tried for the offense of rape alone, and, from whatever standpoint viewed, cannot be said to have prejudiced any of appellant's substantial rights.
The other major ground on which appellant seeks a reversal is that the county attorney who prosecuted the case said to the jury in his closing argument: "We are asking you to render a death penalty in this case, and if you should convict this man and send him to the penitentiary for 20 years, it would do him no good. If he should serve a sentence of 20 years he would be then about 40 years old and he would be the same bad man when he reached 40 as he is now, and further, Gentlemen, whenever a twig is bent one way it is going to stay that way and have a knot on it even at the end of 20 years. And, further, Gentlemen, Mr. Baker and Mr. Huguely both know that this man is guilty in spite of all of their efforts in this case."
In justice to the County Attorney it should be said that his affidavit discloses that the statements which he made were: "Gentlemen, the twig is already bent and set. By the end of twenty years it will be hardened into a knot." And "I believe Gentlemen of the jury that both Mr. Huguely and Mr. Baker believe their client is guilty because neither of them have made any serious argument as to his innocence, the major portion of their argument being devoted to a plea for mercy."
But the bill of exceptions recites that the County Attorney "in substance" made the statement first quoted and we are bound by the bill which further shows that appellant objected to the quoted argument, and that his objection was overruled. We must therefore determine whether the argument was improper, and if so, whether it was prejudicial to appellant's substantial rights.
As to that portion of the argument relating to the noneffectiveness of a penitentiary sentence in this particular case, we have no hesitancy in concluding that it was but a presentation of a permissible deduction which the jurors, from their knowledge of human character in general, might themselves have reasonably drawn from the facts shown by the evidence.
Conceding the impropriety of the County Attorney's *Page 281 statement that appellant's counsel knew that their client was guilty, we think that it can properly be said to have prejudiced appellant's substantial rights only in the event that it was susceptible to the interpretation that appellant had confessed his guilt to his attorneys. It can, of course, be argued that appellant's attorneys could not have known that he was guilty unless he had confessed, but, on its face, such a construction is a strained one. Especially does it appear strained when it is considered that the words were spoken in a court room where it is customary for lawyers to declaim that what they contend for is so clear that all who have heard the case must know the truth of their contention. We therefore think that the proper interpretation of the objectionable language, and the one which a jury would certainly place upon it, is that because of the evidence introduced the accused's attorneys must know that he is guilty. So interpreted, the argument expressed a deduction which could have been drawn from the persuasiveness of the Commonwealth's evidence. Hence, we would not be justified in holding that it was prejudicial to appellant's substantial rights. Music v. Commonwealth, 186 Ky. 45, 216 S.W. 116; Underwood v. Commonwealth, 266 Ky. 613,99 S.W.2d 467.
The defense was an alibi wholly insufficient to justify the belief that any intelligent jury would accept it in the face of the Commonwealth's clear and uncontradicted proof that the crimes were committed at the time and place testified to by the prosecuting witness, and that appellant perpetrated the offense with which he was charged. It is stated in the briefs that Jones, who was equally guilty, was given a sentence of only 20 years after two juries had been unable to agree; that appellant did not have sufficient time or the means with which to prepare his defense, and that hearsay testimony was admitted against him. But the record fails to disclose that appellant's counsel requested further time, or that they could have better prepared appellant's defense had it been granted; and the testimony of which they complain was admitted without objection. Why it was more difficult to convict Jones, or why he was given a lighter penalty we are, of course, unable to say; but it does appear from the record before us that the prosecuting witness and Crit Coleman could not have been mistaken in their identification of appellant since they had known him previously, whereas, they had never seen Jones, a *Page 282 visitor in the neighborhood, until the day the crime was committed.
Judgment affirmed.
Whole Court sitting.