Dale v. Commonwealth

• Decision Date: 16 January 1920
• Citation: 186 Ky. 510,217 S.W. 363
• Parties: DALE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

217 S.W. 363

186 Ky. 510

DALE v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 16, 1920

Appeal from Circuit Court, Perry County.

James Dale was convicted of murder, and appeals. Affirmed.

H. C Eversole, of Annville, and Morgan & Nuckols, of Hazard, for appellant.

C. H Morris, Atty. Gen., and Beverly M. Vincent, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

Upon his trial under an indictment in the Perry circuit court charging him with murdering Odell Petrey, the appellant James Dale, was convicted, and his punishment fixed at confinement in the penitentiary during his life, and to reverse that judgment he prosecutes this appeal.

A brief statement of the substantial facts is: That appellant was arrested by one Leonard Ketchum, a deputy sheriff, on Sunday night before the killing on Monday night, for the offense of having in his possession whisky for the purpose of sale, contrary to law, at which time the deputy sheriff found in appellant's possession 64 pints of whisky. Shortly after the arrest the appellant escaped from the custody of the officer, and the latter, with a summoned posse, made search for him until about 12 o'clock that night, which search was resumed the next (Monday) morning and continued until between 7 and 8 o'clock that night, when the officer with the deceased, who had been summoned by him, came upon the appellant in the mining town of Typo, and in endeavoring to arrest him he shot and killed the deceased with a shotgun. The appellant was found behind a box car, and the officer, according to his testimony, said to him, "Stop there! Halt!" to which appellant gave no heed, and ran about the distance of 1 1/2 car lengths, when deceased threw a flash light upon him, immediately after which the fatal shot was fired, resulting in the almost instantaneous death of deceased. As to what occurred at this time appellant testified as follows:

"I come on down to Typo. I kept watching for them to come the other way, from up the creek, and I stopped at this car there and leaned up against the car and rolled a cigarette, and when I lit the cigarette I heard Leonard Ketchum say, 'There's the son of a bitch; kill him,' and when he said that I stepped around the corner of the car and started to run down the track, and when I come up to these other cars there the light flashed up in front of me, and I wheeled around, and as I wheeled around he had his gun up like that (shows), and when I seen that, as I come around, I had my gun in my hand, and I just raised it up and pulled the trigger."

He said that the deceased said nothing at the time, and that he did not know the person with the flash light and at whom he fired the shot.

Appellant had not been living in that vicinity but a short while, and it is shown without contradiction or objection that he had engaged in the unlawful business of selling whisky almost from the time he came into that community from the state of Montana. He is about 35 years of age, and the greater part of his life has been spent in wandering through the different states of the West.

According to the testimony of the appellant, he procured the gun with which he did the killing from an unknown person whom he designates as "Tennessee," and he states that this unknown friend, whom he did not produce or attempt to produce at the trial gave him the gun between the time of his escape and the time of the killing so that he might protect himself against threats which he claims the officers made against him.

A witness for the commonwealth testified that on Monday afternoon and the early part of the evening he saw appellant with the gun, and he stated that "a feller that works up at Hazard Junior to-day wouldn't work there to-morrow." Another witness testified that appellant on the same day made the statement that he was "going down the road and...