FULTON, Chief Justice. Thomas Bass, a negro, appeals from a sentence of death following his conviction of the murder of John Brown. Grounds urged for reversal are:
(1) Error in failing to require the jury to decide whether a confession of the accused was obtained by duress or by plying with questions,
(2) Improper argument by the attorney for the commonwealth and
(3) Error in failing to instruct on the whole law of the case.
John Brown, the deceased, a 60 year old negro, rented a house in Louisville and subrented rooms. The appellant, a soldier stationed at Bowman Field, came to Louisville on June 13, 1942, and took a room at Brown's house, occupying it with two girl friends. Brown occupied one room in the house. The room adjoining his was occupied by a blind man and his daughter, Bessie Mae Young, and this room was between Brown's room and the one occupied by the appellant. Brown and the appellant did some drinking together for a day or so. The appellant testified that on June 17, the day of the killing while he was standing on the porch, Brown and a fellow workman approached the house in company with Bessie Mae Young, who had a knife in her hand and was arguing with Brown's companion. The appellant says he quieted the woman and handed to Brown a pistol which had been dropped by his companion. Shortly after this, the appellant says, he saw Brown and Bessie Mae in bed together and after this Brown was complaining that the girl had stolen $3 from him.
Later in the afternoon appellant was invited into Brown's room. There is no controversy in the evidence except as to what happened at this time. Bessie Mae Young testified that Brown and the appellant were talking in a friendly manner when they entered the room. Shortly thereafter she heard something like a lick and Brown said, 'Aw, don't hit me,' and then she heard him gasp. The appellant came out of the room and left. Brown had been struck in the head and was bleeding profusely and did not know anything. He was taken to the hospital and died during the night. He had been struck with a heavy hammer kept in his room for breaking up coal. The hammer was later found in the weeds near the house. Brown's pocketbook was found in his room behind the wood box and had been torn. The appellant left the house and was arrested shortly afterwards while in company with the two girls with whom he was rooming. He had $10 in bills and some change wadded up in his pocket and also had a pint of whiskey. Apparently he had spent little, if any, money before the killing.
The commonwealth introduced a confession signed and sworn to by the appellant before a notary public, containing several typewritten pages. In this confession the appellant told in detail everything done by him from the time he left Bowman Field. The material part of the confession follows: 'We sat down on the side of the bed and talked for about five or ten minutes. I knew that Brown had some money and as I got up to leave I saw a hammer laying on the shelf by the door. When I saw the hammer I decided to get it and hit Brown with it and get his money. I picked up the hammer and walked back over to the bed where Brown was sitting and I hit him on the left side of his head. He fell back on the bed and I reached in his hind pocket and got his bill fold. I held it in my hand and as I went out of the house I threw the hammer down. After I got outside I opened the bill fold and got eleven or twelve dollars out of it. I put the money in my pocket and throwed the bill fold down. Then I went on up to the corner and went in the Drug Store where Frankie Bell and Gertrude was. I bought a pint of whiskey in there with the money that I had gotten from Brown. I didn't tell the girls what had happened and we walked on back down to the house. I stood out on the steps and the girls went inside. They were only in there for a a few minutes and they came out and Gertrude wanted to go up to her sister's house. We started up there and the police stopped us and arrested us. When I took Brown's money out of his pocket book I ripped it before I threw it down'.
The confession was made in the presence of six police officers at police headquarters. No objection was made to its introduction in evidence but the appellant repudiated the material portion of it and testified that when he admitted to the officers that he had struck Brown with the hammer one of the officers hit him with a black jack and compelled him to admit that his motive was robbery. Thereupon the court, on his own motion, heard proof on this question in chambers and found that the confession was voluntarily made. Each of the police officers denied that force or threats were used, stating that the only thing said to him was by Capt. Pate, who told him 'The best thing you could do is to tell what you know about it, it is for your own good'. ...