Martin v. Commonwealth

• Citation: 178 Ky. 540,199 S.W. 603
• Parties: MARTIN v. COMMONWEALTH.
• Decision Date: 21 December 1917
• Court: Kentucky Court of Appeals

199 S.W. 603

178 Ky. 540

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 21, 1917

Appeal from Circuit Court, Calloway County.

Lube Martin was convicted of murder, and he appeals. Affirmed.

J. P Holt and A. D. Thompson, both of Murray, and Bennett H Young, of Louisville, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

HURT J.

On the 9th day of December, 1916, the appellant, Lube Martin, with a pistol, shot and mortally wounded Guthrie Diuguid, in Curd street in the town of Murray in Calloway county. The shooting took place at about 12 o'clock on Saturday, and the wounded man died on the following day at about 4:30 p. m. At the time of his death Diuguid was a deputy constable, and previous to that time, it seems, had been a deputy marshal of the town of Murray, and for several days previous to the shooting he had been employed in superintending the labors of certain prisoners in the county jail who had been adjudged to work at hard labor upon the roads in satisfaction of their fines; and on the morning of the day upon which he was shot the judge of the county court had requested him over the telephone to come to the courthouse for the purpose of receiving instructions in regard to the working of the prisoners, and as he was proceeding from his home along the sidewalk upon the east side of Curd street, going in the direction of the county courthouse, he was met by the appellant, Lube Martin, who was accompanied by his brothers, Sylvester Martin and "Ann" Martin, and one Ed Jordan. Upon their meeting with Diuguid the shooting took place which resulted in his death on the following day. Two bullets penetrated the body, one entering his body upon the right side an inch and one-half below the nipple and a half inch from a direct line through the nipple, and striking a rib, took a downward course and lodged in the body three inches below its entrance and about five inches from the back bone, from which place the bullet was removed by the surgeon. The other bullet penetrated his left shoulder, directly upon its top, and taking a downward course, in the opinion of the surgeon, lodged somewhere near the base of his heart, as the surgeon, after his death, followed the course of the bullet with a probe from its entrance at the top of his shoulder down to the point where the second rib attaches to the breastbone. Diuguid was a white man, about 50 years of age, and the appellant is a colored man, about 32 years of age.

The theory of the prosecution is that, when the appellant and his brothers and Jordan met with Diuguid that an altercation started between them, when Sylvester and "Ann" Martin seized Diuguid and were holding him, when the appellant shot him with his pistol. The theory of the prosecution is supported by the dying declaration of the deceased, which was to the effect that "Ann" and Sylvester Martin were holding and beating him, and while they were so engaged the appellant fired the fatal shot. A lady testified that she saw the parties from her door when they met, and as soon as they met about three of the colored men seized Diuguid, and "they tussled around there a few minutes, and Diuguid jerked loose and walked on two or three steps, when they huddled around him and commenced shooting," and after four or five shots were fired the parties attacking Diuguid, ran off, and Diuguid then continued in the direction he was pursuing when he met appellant. Another lady saw the difficulty after having heard the first two shots, and her testimony was to the effect that the parties were huddled up and apparently "scuffling and pushing each other," and appellant fired three or four shots after she came to her window where she could see them. A boy who resided in a house on the opposite side of the street from where the altercation took place testified to having seen Diuguid and the other parties standing near to each other, and apparently talking, when the appellant drew a pistol and fired four shots at Diuguid, when the witness turned away and two more shots were fired thereafter, and that just as appellant drew his pistol Diuguid stepped back from him, and the three parties with appellant at the same time stepped off the sidewalk and came across to the other side of the street.

The evidence, as a whole, is somewhat conflicting as to what transpired when Diuguid and appellant met upon the sidewalk, arising in part from the fact that the attention of the witnesses were attracted to the difficulty at different periods of its continuance, and hence some of them detail circumstances which others do not. The evidence introduced by the prosecution shows, without very much doubt, that six shots were fired, and that all of them were fired by appellant. The proof for the prosecution also shows that while the deceased at least at the time the rencounter ended had a pistol in his hand, but there is no witness for either the commonwealth or for the appellant who undertakes to say that Diuguid's pistol was discharged, and it is proven without contradiction by several witnesses that after the altercation that there were six loaded cartridges in the pistol which Diuguid had, and which was the number which it would contain, and that neither one of them showed any evidence of an attempt having been made to discharge the pistol; and, furthermore, that from the time the appellant ceased to fire upon Diuguid and ran, that the pistol was not unbreeched or reloaded, and such of the witnesses for the prosecution who saw the pistol in his hand while he was being fired upon prove that it was not visible until after the appellant had commenced to shoot, and one of the witnesses describes Diuguid, while the shooting was being done by the appellant, as standing with his pistol hanging down in his hand. The commonwealth's attorney also proved by two or three witnesses that prior to the shooting of Diuguid that appellant had made threats that he would kill or harm him, and to one witness exhibited a shotgun, with which he said that he intended to shoot Diuguid, and that certain parties had told him to shoot him.

The theory of the defense is that Diuguid bore a deadly animosity against the appellant, and had on a number of occasions threatened to take his life, and had assaulted him with a pistol, and, furthermore, had claimed that appellant had been attempting to kill him, and had made a charge of some kind against him before the town council, and on account of which he threatened that the appellant should not be permitted to live or stay in Murray, unless he withdrew the charge against him. Appellant furthermore claims that, being afraid of Diuguid, he left the town of Murray in March, and went to the state of Tennessee, where he remained until the time Diuguid was killed, and that such occasion was the fourth time that he had been in the town of Murray since in the month of March; that he returned in June and in September, and on another occasion, the time of which is not given, but on these occasions that he avoided meeting with Diuguid, and would leave as quickly as possible, and that he came to Murray on account of being sick on Wednesday previous to the altercation on Saturday, and that at the time of the shooting that he and his brothers and Jordan were going from the house of a relative to their father's house for the purpose of taking dinner, and that upon meeting with Diuguid, Diuguid said, "Lube, I thought I told you to come up yonder," and that appellant answered, "I had to go off, but I will go with you now or any time you want me to," and that in reply to that Diuguid answered with an oath, and said, "You don't have to go anywhere, but I will fix you right now," and immediately drew his revolver, when appellant, for the purpose of saving his life, drew his pistol and began to shoot at Diuguid, and after having shot four times that he fled, and immediately leaving the town took to the woods, and proceeded into the state of Tennessee, where he was thereafter apprehended. It is claimed by the defense also that neither appellant nor any of those with him took hold of Diuguid or attempted to do so, but instead when the pistols were drawn or previous thereto ran to the other side of the street and fled. "Ann" Martin and Sylvester Martin corroborated the appellant as to what transpired up to that time; that they state that the deceased said "that he would fix" the appellant, and thrust his right hand toward his left side, changing his walking cane from his right hand into his left, when they immediately ran to the other side of the street and did not see a weapon in the hand of either Diuguid or appellant, and did not see any one shoot; and appellant only says that he thought that Diuguid shot Ed Jordan, who was one of the party, and gives the following version of the affair: He states that when appellant and "Ann" and Sylvester Martin and he met Diuguid, that the appellant passed him a few feet when Diuguid, turning partially around and resting with both hands upon his walking cane, said to appellant, in substance, "I thought I told you to come up to the council," and that appellant replied "that he had to go off, but that he would go with him now," and immediately drew his pistol and commenced to shoot; that Diuguid, at that time, did not have a weapon drawn, nor had made any attempt to draw a pistol, when Jordan also ran to the other side of the street.

The appellant was indicted and charged with the crime of willful murder, and upon a trial was found guilty by the jury, as charged in the indictment, and the penalty fixed at death. The court thereupon entered a judgment in accordance with the verdict. The appellant filed grounds and moved the court to set aside the verdict...