Martin v. Commonwealth

• Decision Date: 12 May 1892
• Parties: Martin v. Commonwealth.
• Court: Kentucky Court of Appeals

19 S.W. 580

93 Ky. 189

Martin v. Commonwealth.

Court of Appeals of Kentucky.

May 12, 1892

Appeal from circuit court, Metcalfe county.

"To be officially reported."

W. H Martin was convicted of murder, and appeals. Reversed.

PRYOR J.

The appellant has been convicted and sentenced to confinement in the state penitentiary for life for the murder of John Burk. He has appealed to this court, and the grounds for a reversal are (1) the admission of incompetent testimony; (2) an error in an instruction given at the instance of the state.

It is made manifest from the testimony that the accused and the dead man had been so hostile towards each other for months prior to the killing that each was ready to slay the other upon the slightest provocation, and such was the bad feeling between them that when seen on the highway they had as their choice weapons either a double-barreled shotgun or a Winchester rifle. The origin of the difficulty between the two seems to have been caused by the willingness of the appellant and his family to give shelter to the wife of Burk who had left him and gone to the house of the appellant. The cause of the separation is not shown from the testimony. The dead man, however, made inquiry as to where his wife and Martin were, and threatened then to kill them both, and solely for the reason that, when Mrs. Burk left her husband she had gone to Martin's house; for there is not the slightest proof of any improper conduct on the part of Mrs Burk. After this threat it seems that Martin claimed that Burk was indebted to him for services rendered, (having doubtless made friends, in appearance, at least,) and that Burk would not pay him. Martin, to collect his debt, used a shotgun, and compelled Burk, against his will, to pay him and for this conduct Burk had Martin indicted in the Barren circuit court for robbery. From that time on the parties were threatening to take each other's life, and were armed whenever seen. On the day of the killing Burk had gone to the county seat of Metcalfe, and passed a grocery store that was located on the highway leading to his destination. He had gone in the morning, and, returning in the evening, was shot from the front of this grocery store by the appellant with a double-barreled gun loaded with large squirrel shot. At the time he was shot Burk was in his buggy on the highway, and had with him his rifle. There were no eyewitnesses to the shooting but the appellant and one Johnson. They each state that Burk first presented his rifle at the appellant, and Johnson cried out to the appellant, "Look, he is going to shoot!" when the latter immediately fired both barrels of his shotgun, the contents entering the back of the deceased under the shoulder, from the effects of which he died in a few minutes. That appellant knew that Burk passed the grocery that morning is...