Martin v. Commonwealth

• Decision Date: 18 December 1917
• Parties: MARTIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

198 S.W. 1158

178 Ky. 439

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 18, 1917

Appeal from Circuit Court, Spencer County.

Ashton Martin was convicted, and appeals. Affirmed.

Willis Todd & Bond, of Shelbyville, for appellant.

Charles H. Morris, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

CARROLL J.

The appellant, Ashton Martin, who is shown by uncontradicted evidence to be a man of bad character, was found guilty under an indictment charging him with the murder of Frank Dulin and his punishment fixed at imprisonment in the state penitentiary for 10 years. On this appeal it is urged as grounds for reversal: (1) That the verdict of the jury was flagrantly against the evidence; (2) that the deputy sheriff in charge of the jury was guilty of misconduct; and (3) that the jury, or at least some of them, were guilty of misconduct.

The evidence shows substantially the following facts: The sheriff of Spencer county had warrants for the arrest of one Tom Snider and Minor Martin, a brother of Ashton Martin, who were charged with shooting the father-in-law of Minor Martin. Under these warrants the sheriff arrested Snider, and it further appears that after this he or some of his deputies attempted on one or more occasions to find Minor Martin, but did not do so.

After the warrant for the arrest of Minor Martin had been in the hands of the sheriff for some time, he gave it to Frank Dulin, one of his deputies, to execute, and when Dulin went to the house of Martin to arrest him, he found Martin at home, who, when he discovered Dulin, ran out of the house and after going a short distance fell and Dulin caught him, but before he took him in custody Dulin fired one shot from his pistol while Martin was running. After arresting Martin, and while he had him in custody and was on his way with him to a public road, the appellant, Ashton Martin, who says that he was out squirrel hunting on this very dry day soon after dinner, appeared upon the scene.

Ashton Martin tells what then happened in this way:

"I went right back down the same way. I went down the hollow, down the road, and when I got up to the corner of the orchard my little sister and brother met me there. They was just playing down the road. They was talking coming right down at the house; just about the upper edge of the house; best I recollect it was about the upper edge of the house. I seen some fellow looking up out there. He fired a pistol there. He had the pistol this way and jumped around and he fired again. Q. When he fired that shot, did you know who he was? A. No, sir; I didn't; not at that time. I knew it afterwards. Q. Who was with this man that fired? A. My brother. Q. Minor? A. Yes, sir. Q. Well, then, go ahead. A. So I dropped my gun and finally stooped down. Q. You say he fired? In what direction did he fire? A. Fired at me. The first shot went through my breeches, come out down here, and burnt my leg. That is what caused me to drop the gun; it scared me; I didn't know what it meant. He fired the second shot. As he fired the second shot I reached down and grabbed the gun, and as I come up with it he fired again. He fired the third shot. The third one went right by my ear and played a tune. Q. What did you do? A. When he fired the third shot, then I fired. Q. Then what happened? A. Then he turned around in an opposite position and fired as he went around and staggered off towards the creek, when he fell."

Minor Martin describes the tragedy as follows:

"We had gotten down in front of my father's, crossed the creek there by that sycamore tree, up above it about four or five feet, right on a little rise; just above the little sycamore tree this man (Dulin) jumped out in front of me and shot; then I jumped back, and he turned me loose. Q. When he jumped out in front of you and began shooting, did you know what he was shooting at; did you see anybody? A. Yes, sir; just as he jumped out in front of me I saw my brother over the fence there. Q. Where was he? A. Over in the road. Q. Was there a fence between where you and Mr. Dulin was standing and where your brother was? A. Yes, sir. Q. What kind of a fence? A. Wire fence. Q. Now how far would you say your brother was from Mr. Dulin at the time Mr. Dulin jumped out, as you have indicated, and began shooting? A. My best judgment he was about 35 or 40 feet; maybe 45 feet. Q. Just tell who shot first and how many shots were fired. A. Mr. Dulin shot first; and he shot three times before my brother raised and shot him. Q. Just tell what occurred after the first shot. A. My brother looked like he dropped down; looked like he dropped his gun; kinder dropped back. Q. Then what happened? A. Well, he shot twice more, and my brother raised and shot him. The man kinder turned around. I was standing on this side of him. The man come around--just say he was standing this way, just down below me when my brother shot him, and he was standing this way with the gun pointing toward my brother, when he was shooting at him--he come around on this side that way. Just as he come around he evidently fell and staggered toward the creek."

The evidence of these witnesses is substantially corroborated by Gilbert Martin, a brother, and Mrs. Snider, an aunt of ...