Dority v. Commonwealth

Decision Date11 June 1937
Citation269 Ky. 201
PartiesDority v. Commonwealth.
CourtSupreme Court of Kentucky

Appeal from McCreary Circuit Court.

G.W. HATFIELD for appellant.

HUBERT MEREDITH, Attorney General, and J.M. CAMPBELL, Assistant Attorney General, for appellee.



The appellant, Leslie Dority, upon his trial under an indictment of the McCreary county grand jury, charging him with the murder of George Ross, was convicted of manslaughter and his punishment fixed at fifteen years' imprisonment.

Numerous assignments of errors, alleged committed upon the trial, were set out by appellant in his motion and grounds for a new trial, which was overruled, and four or five of which are here presented and insisted upon by his appeal for a reversal of the judgment.

The facts as disclosed by the record, and as very fairly stated in appellant's brief, are that the deceased, George Ross, and the defendant, Leslie Dority (here appellant), were miners, and in addition to such occupation the deceased, Ross, had for some time been also operating a liquor store at his home near the mines at Worley, McCreary county, Ky.

It appears further that at the time of the defendant's admitted shooting and killing of the deceased, Ross, he, together with one or two of his small children, had been living and boarding at the home of the deceased, who was his first cousin and brother-in-law and who it also appears had been his intimate and long-time friend.

The evidence is further that on the evening and night before the defendant's admitted shooting and killing of the deceased, Ross, on the morning of December 7, 1936, Ross and his wife, together with the defendant and others, had gone over to a fair at Oneida, Tenn., returning therefrom about midnight. It appears that they all had been drinking somewhat during the evening, and that upon their return, the defendant retired, but that the deceased, together with a friend, Hasting Watters, left the house and went together in a truck over to Worley to make a "night of it," where it appears he continued to drink and returned home in an intoxicated condition about 7 or 8 o'clock the next morning; also, that when on their way back home, and shortly before reaching it, the deceased had drawn his pistol on his companion, Watters, because the latter had suffered the truck to strike a rut in the road, which resulted in somewhat jolting him; that upon the deceased's arrival at his home, he found his wife and children and the defendant, Dority, there and his wife preparing breakfast for the family, during which time the deceased sat in the living room with them, it is stated, in somewhat of a drunken stupor and quarrelsome mood, when he drew his pistol and fired it into the ceiling and his son's room above, thereby scaring his wife and children, who fled from the house to the refuge of the surrounding hills, where she found hiding. The deceased, when asked if his pistol had been accidentally discharged, replied: "Hell no, I did it on purpose."

It appears, further, that the deceased, soon realizing that his wife and children had run away, began to search for them, going to the homes of the nearby neighbors, and to the mining camp at Worley some two miles away, to look for and inquire about them. It appears that the negative replies of some of the parties inquired of angered the deceased and somewhat aroused his suspicion that they were misleading him, prompting his threat that "whoever lied to him was going to get hurt and get hurt bad;" that he soon returned to his home, not having found them, when he began, the defendant testified, to talk abusively to his son, Alva, who had not run away with his mother and the smaller children, and "ordered him to go and bring them back in fifteen minutes or he would come and kick him all the way back." Also, it appears that when Ross, in this alleged condition, had driven away in his truck in search of his wife, the defendant, apprehensive for his safety, lest in his drunken condition he would drive off a cliff and be hurt, followed in the course he had gone, asking as to his whereabouts, and that, failing to overtake him, he returned to the house and entered its whiskey room.

Next following this, it appears, according to the testimony of defendant, the only eyewitness, the deceased came from the living room into the whisky room, where the defendant was standing, and asked him: "Where in the hell are they at?" To which he answered: "I don't know where they are at. They are around somewhere I guess." To which the deceased answered: "God damn you, you know where they are at. You are the cause of them leaving." To which the defendant states he again answered: "George, you know I am not the cause of them leaving;" that deceased then said, "Damn you, you are the cause of them leaving and I am going to kill you," and drew his gun on him and started through the partition wall door, and commenced punching him; also, that after striking at him with a gun, he hit at him with his gun, "glancing him upon the neck"; that just as deceased hit at him, he reeled around and staggered over towards him and threw his gun in the defendant's face, when defendant drew out his own gun and began shooting. Defendant states that the deceased had said he was going to kill him and that he shot to save his own life; that after shooting him five times, each shot striking him, one going through the head, he then went out on the porch and threw the shells out of his gun, after which, as the deceased was laying in the room on his face "kindly struggling," he went back to him and took him by the shoulder and pulled him over on his back; that he did not pick up deceased's gun or change it, or do anything to it at all, but left it as it fell, lying near his hand and body. Also, it was testified by an officer that there was found in the deceased's pistol barrel...

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