Omer v. Commonwealth

• Citation: 95 Ky. 353,25 S.W. 594
• Parties: OMER v. COMMONWEALTH.
• Decision Date: 08 March 1894
• Court: Court of Appeals of Kentucky

25 S.W. 594

95 Ky. 353

OMER v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 8, 1894

Appeal from circuit court, Union county.

"To be officially reported."

William Omer, convicted of murder, appeals. Reversed.

P. B Miller and Yeaman & Lockett, for appellant.

J. W Hendrick, for the Commonwealth.

HAZELRIGG J.

In the village of Sturgis, in Union county, at about 10 o'clock at night on the 4th day of April, 1893, Taylor Oliver and his wife, each well armed, entered the place of business of Henry Delaney, and demanded that he go at once with them and marry their daughter Abbie, whose ruin they charged he had accomplished. He denied the charge, but, upon being threatened with instant death, he gave up his pistol, and proceeded with the Olivers to a surrey a short distance away in which the daughter was waiting. During this time, some three or four shots were fired by the Olivers. The parties at once drove to Morganfield, some 12 miles away, where the county clerk was aroused, and a marriage license procured. The county judge, found some two miles distant, was awakened and asked to marry the couple, but, upon Delaney detailing the circumstances of his capture and his unwillingness to marry the girl the officer refused to perform the ceremony. Quite a scene ensued, and the prisoner was told that he would be given one more chance, but that, if he made any objection to the next officer approached, they would instantly kill him. A minister was then found who performed the rites while the parties remained in the carriage. They then started back, and, upon reaching the Young hill, some two miles from Morganfield, at about 2 o'clock on the morning of the 5th, they were met by a party of Delaney's friends, when a sudden firing began, in which Abbie Oliver was killed, and her father seriously shot in the arm and face. At the July term of the Union circuit court the appellant and some eight others were jointly indicted for the murder of the girl, and, upon the trial of the accused at the November term, he was found guilty, and his punishment fixed at confinement in the penitentiary for life.

Upon this appeal he insists that certain instructions given the jury were misleading and otherwise prejudicial to him; that much testimony for the state was admitted which was incompetent, and some offered by him was excluded which was competent.

For the purposes now at hand, it will be necessary only to review briefly the appellant's connection with this tragedy. He appears to have been entirely friendly with the Olivers, and was a friend of young Henry Delaney, and, prior to the night of the latter's capture, was seen with him and other friends at various times. On that night he was engaged in doctoring a sick horse, and went to the drug store at which Delaney was employed, for medicine. He there learned of the kidnapping, and, after a consultation with other friends, it was decided not to apprise the relatives of young Delaney of the occurrence; but upon reflection, and after leaving the excited crowd, the accused and Tate agreed that they ought to let Holt, the brother-in-law of Delaney, know of his peril. They walked over to Holt's, about a mile out of town, and told him of the trouble. It was then agreed that George Delaney, Henry's brother, should know the facts. In a short while, some eight or ten of the neighbors and friends of Henry Delaney, including the accused and the relatives named and others, gathered in the village, and it was agreed that they would go over to Morganfield to find out what had become of the parties. At this point the accused thus testifies: "They were my neighbors, and I thought I would go with them to Morganfield, get breakfast, see what they had done with Henry Delaney, and get back by dinner. We started to Morganfield. I didn't see Holt and Thomason until I got to Elijah Hughes'. We didn't think that they could go to Morganfield and be married that night, as it was 12 miles to that place, and late at night when they left Sturgis. Tate and I rode together, and were behind all the parties until Thomason got out of the buggy at the Young hill, when we rode past them. I did not expect to meet the Olivers on the road. Frank Holt and Louis Land were in front and George Delaney and Carter next, Tate and I were some distance behind. Just as Tate and I got to the top of the Young hill, I saw the surrey coming, meeting us at the foot of the hill. George Delaney, Land, Frank Holt, and Carter were some distance in front of us, and, as they met the surrey, I heard a pistol shot. Don't know who fired it. The second shot was over the horses, came from right to left across the surrey, and was a pistol shot. I was some 40 or 45 yards behind, and couldn't tell who fired it, but think it was fired from the surrey. Some seven or eight other shots were then fired. I had a 32-caliber pistol, but never fired it that night," etc. Taylor Oliver, as to the occurrences at the hill, testified as follows: "When about half way up Young hill, two miles from Morganfield, four men rode up on horseback, and Frank Holt said 'Hold up,' or 'Hold on there,' and immediately began firing. Some 14 or 16 shots, in all, were fired. Frank Holt and another went on the right, and George Henry and George Delaney on the left, side of the surrey. I was shot first in the arm, with a shotgun, by Frank Holt. As I turned my head to look behind me, I was shot in the right jaw by a 32-caliber pistol. I don't know who shot me in the face," etc. Mrs. Oliver testified thus as to the meeting: "At the Young hill, about half way up, I was driving, when four men abreast met us, two going on each side. I was on the left side, and Abbie immediately behind me. George Henry and George Delaney were the men on my side. Some one said, 'Hold up there,' and immediately the firing began. George Henry shot at me with a pistol, and George Delaney rode behind and shot Abbie. He was right at the surrey. He rode a gray horse. Positive that both George...