Hoffman v. Commonwealth
| Decision Date | 06 October 1909 |
| Citation | 134 Ky. 726 |
| Parties | Hoffman v. Commonwealth |
| Court | Kentucky Court of Appeals |
Appeal from Estill Circuit Court.
Defendant convicted and appeals. — Affirmed.
GOURLEY, REDWINE & GOURLEY for appellant.
JAS. BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for Commonwealth.
The appellant, John Hoffman, with one shot from a musket loaded with leaden slugs, killed Simon Gross and Bert Flinchem. The double homicide occurred at night near the homes of all the parties, in Estill county. Appellant and his wife, Ritta Hoffman, were jointly indicted for the killing of Gross; the crime charged being murder. Appellant, at the instance of the Commonwealth's Attorney, over his objection, had a separate trial, which resulted in his conviction; the jury returning a verdict finding him guilty of murder and fixing his punishment at confinement in the penitentiary for life, upon which verdict judgment was duly entered. Appellant was refused a new trial in the circuit court, and by this appeal seeks a reversal of the judgment of conviction.
It does not appear from the record whether appellant or his wife was indicted for killing Flinchem, or whether she has been tried under the joint indictment charging her and appellant with the murder of Gross. Appellant lived near and was on friendly terms with both Gross and Flinchem, had worked a good deal for the former, and was at the time of the killing in the employ of the latter as a hauler of railroad ties. According to appellant's own testimony, about a month before the homicide his house was rocked, and this indignity was followed down to the time of the homicide by repeated throwing of rocks at his person when he would be returning home at night after his work. The persons who thus assaulted his house and person were unknown to appellant, but when the rocks were thrown at his house he saw two men running from the premises, one of whom he thought was Gross; but, upon mentioning the matter to Gross the next day, the latter denied that he rocked his house, and claimed to know nothing about it. Appellant also testified that he informed Bert Flinchem of the rock throwing, and Flinchem gave him some powder and cartridges, and advised him to load his musket and shoot the wrongdoers, if again rocked. Whereupon appellant made slugs of some of the cartridge balls, and with them and the powder loaded his musket. According to all the evidence, on the day of the homicide, and shortly before its occurrence, appellant's wife sent their son, Algin Hoffman, a boy 12 years of age, to the house of Gross for the return of some coal oil which Mrs. Gross had borrowed of her. The boy failing to return to his own home, his mother about night went to Gross' house after him, but upon arriving there claimed to have discovered that Gross had the boy in his house and refused to let him go home. Thereupon Mrs. Hoffman became very angry, and got into an altercation of words with Gross and his wife during which she said to Mrs. Gross that, if her husband did not release Algin and permit him to return with her, she (Mrs. Gross) would be a widow before morning. About that time appellant appeared on the scene, and at once demanded that Gross release his son and let him go home. This demand was ignored by Gross. At any rate, the boy did not leave his house. Mrs. Gross testified, however, that her husband did not detain appellant's son, but that the boy refused to leave the house, and gave as a reason therefor that he was afraid, if he returned home, his father would whip him. Finding that his demand for his son was not complied with, appellant claimed to have directed his wife to go home, and that he said to her he "would get him (meaning his son) if he had to remain until morning for that purpose."
Mrs. Gross testified that appellant, after ordering his wife home, threatened to take the life of her husband, saying, if Gross did not release his son, he would shoot him; that, when this threat was made by appellant, her husband went to the house of David Flinchem, the father of Bert Flinchem, and there got a gun, with which, and in company with Bert Flinchem, he was returning to his own home when he was met in the road by appellant, who then fired the shot, which killed both Gross and Finchem.
Appellant admitted that while at Gross' home he had his gun with him, but said, when he heard the quarreling between his wife and Gross, he started toward them without the gun, but before getting to them rocks were thrown at him by persons whom he could not see; that one of the rocks struck and seriously wounded his leg, which caused him to return to his home and get the gun for his protection. His version of the killing was that, after directing his wife to go home, he again demanded of Gross the release of his son, at the same time telling him, if the boy had done anything that was wrong, he (appellant) would whip him, or, if Gross wished it, take him to Irvine next day for trial. This proposition doubtless had reference to the charge, later brought out by the evidence, that appellant's son had that day, or a short time previously, taken some corn (roasting ears) from the field of Gross. It was, however, claimed by appellant that Gross, instead of acceding to the proposition made him, threatened to kill appellant, and went at once to David Flinchem's and got a gun, with which he was returning to his own home in company with another person, when they met appellant, who, seeing Gross had a gun pointed toward him, told them to stand back, that he was going to shoot; but, as they continued to advance, he fired the shot which resulted in their death.
One of the younger Flinchems, standing a short distance from Gross and Bert Flinchem when they were killed, testified that Gross had his gun on his shoulder when appellant fired at him, and that he (the witness), upon seeing Gross and Bert Flinchem fall, shot twice at appellant with a pistol, and that the latter thereupon fled. Other witnesses testified, however, that Gross did not have the gun at his shoulder or pointed at appellant. When arrested by a deputy sheriff, appellant confessed he killed Gross, and that he intended to do so, believing it necessary to save his own life, for Gross was then pointing a gun at him and about to shoot, but he (appellant) did not intend to shoot Bert Flinchem, or know that he was with Gross.
It is proper to say that Mrs. Gross was strongly corroborated as to what occurred...
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