Martin v. Commonwealth

• Decision Date: 15 December 1922
• Parties: MARTIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

245 S.W. 869

197 Ky. 43

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Clay County.

Stephen Martin was convicted of voluntary manslaughter, and he appeals. Reversed.

T. H Webb, of Manchester, Lewis & Lewis, of London, and C. B Lyttle, of Manchester, for appellant.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., C. R. Luker, of London, and J. C. Cloyd, of Manchester, for the Commonwealth.

SETTLE J.

The grand jury of the Clay circuit court on September 22, 1920, returned an indictment accusing Stephen Martin of the crime of willful murder committed by killing Woodson Benge on September 21, 1920. Immediately after the homicide Martin fled the jurisdiction of the court. Some months later he returned and surrendered himself to the custody of the jailer. His bond was fixed at $6,000, whereupon he executed same and was released. The case being set for trial was passed from day to day and finally at the September term was continued to the 9th day of the next regular term of that court. On the calling of the case for trial at the next term of court, the commonwealth announced ready, but the defendant announced not ready and asked a continuance of the case to the next term of court, and in support thereof appellant filed his affidavit showing the absence of several witnesses material to his defense, and also setting forth facts showing that at that time, as well as for some weeks previous thereto, there existed in Clay county such a state of lawlessness and violence that it was difficult for appellant to see or consult with his witnesses or to prepare his case in any wise.

In his affidavit he set forth that in the district where he lived, which includes Little Goose Creek, Portersburg, and Dripping Springs, certain acts of lawlessness and violence started with the burning of a stock barn of one Joel Ponder, and the burning of certain live stock and other property at the same time, which was followed by the shooting at and into defendant's dwelling house, and also of shooting at persons from ambush and other acts of violence and terrorism, and the banding and confederating together of different persons and factions, and that, notwithstanding the fact appellant had absolutely nothing to do with any of these things, it was circulated and had been circulated throughout Clay and adjoining counties and throughout the state, through the medium of the public press, that all these acts of violence grew out of the killing of which this appellant is now convicted, when as a matter of fact none of these things grew out of or had any connection with the charge in the indictment against him. The affidavit is long, and sets forth in detail many facts more or less relevant in support of the motion for a continuance.

This motion was overruled by the court, and most of the witnesses mentioned in the affidavit were arrested and brought into court and testified in behalf of appellant while the affidavit as to the others was read as the deposition of such persons. We therefore conclude that the failure of the trial court to grant appellant a continuance, a matter within his sound discretion, was not such prejudicial error as to warrant a reversal of the judgment of this case. As the case must be reversed for other reasons, we assume that no such question will arise upon another trial.

The trial being had, appellant was found guilty of voluntary manslaughter, and his punishment fixed at 21 years in the state penitentiary. From this judgment he appeals.

In addition to the alleged error of the court in failing to grant him a continuance upon his motion and affidavit above mentioned, appellant complains upon this appeal that the trial court erred to his prejudice in the admission and rejection of evidence; that the verdict of the jury is palpably and flagrantly against the evidence; the court erred in instructing the jury, and in failing to properly and fully instruct the jury.

With respect to the admission of incompetent evidence, appellant in his brief says: "The court erred in permitting the attorney for the commonwealth to introduce and prove that the defendant had been heretofore indicted and tried and convicted for shooting on the public highway." This evidence was introduced over defendant's objection. The court also erred to the prejudice of defendant "in refusing to permit the defendant, when testifying, to explain to the jury fully why he left his home and went to the state of Oklahoma immediately after the killing." It appears from the record that appellant Martin and his victim, Benge, were brothers-in-law and lived in the same neighborhood in Clay county. For some time previous to the homicide they had not been upon friendly terms, and along in May had a difficulty in which they threatened to do violence to each other. At that time there was some shooting, not at each other but as a matter of intimidation. For some time after the dispute in May appellant and deceased were not on speaking terms, but later they began to speak when they met upon the highway.

On the morning of the day of the homicide, appellant, Martin, and his brother Sam Martin and one Bledsoe left their homes to go to a farm not far distant to get some cattle to take to their home. In doing so they passed the home of deceased, Benge. Some time in the afternoon appellant and Bledsoe rode up the creek, passing the home of deceased, and when they were some two or three hundred yards distance up a hill above the house in the road, two shots were fired and immediately the deceased, who was near his home, went up the road in the direction of the shooting and fired off his pistol two or three times. He had seen appellant pass. Later, with this pistol, a 45, buckled around him, deceased did some chores about the house and then had supper with his family, composed of his wife, two or three daughters, and a son. About dark that evening, while the family were sitting in the kitchen at the Benge home, one of the daughters saw appellant riding his horse along the public road in front of their home. She immediately said to her father, "There he goes now," whereupon deceased with his pistol buckled around him on the outside arose and went out into the yard in the direction of where appellant was passing. Up to this point there is little controversy about the facts, but the story told by appellant differs very widely from that told by the members of deceased's family as to what took place after deceased went into the yard.

The Benge family all testifying say, in substance, that when the deceased was informed appellant was riding past...