Martin v. Commonwealth

• Decision Date: 04 June 1937
• Citation: 269 Ky. 688,108 S.W.2d 665
• Parties: MARTIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

108 S.W.2d 665

269 Ky. 688

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky

June 4, 1937

Rehearing Denied Oct. 1, 1937.

Appeal from Circuit Court, Laurel County.

Dan Martin was convicted for manslaughter, and he appeals.

Affirmed.

C. R Luker, of London, and A. T. W. Manning, of Manchester, for appellant.

Hubert Meredith, Atty. Gen., and Jesse K. Lewis, Asst. Atty. Gen for the Commonwealth.

MORRIS Commissioner.

The grand jury of Laurel county returned a true bill charging Dan Martin and his wife with the murder of Charley Benge. The indictment is out of the ordinary, since it charges the shooting occurred in Clay county, but that after the mortal wounds were inflicted Benge died, as a result thereof in Laurel county. Upon a separate trial appellant was found guilty of manslaughter and his punishment fixed at confinement in the penitentiary for twenty-one years. He appeals.

The shooting occurred in Clay county not far from the Laurel county line, shortly after dark on Saturday, May 30, 1936. On that afternoon, according to appellant's testimony, two or three of appellant's boys had gone to a meeting at the cemetery down the creek from his home. They were delayed in getting home, and his wife and granddaughter had gone down the road to look for them. About a half hour after the two had left, appellant says he heard some shooting from the direction in which they had gone. He went to a rack, procured an automatic shotgun, and, after seeing that there were loaded shells in the magazine, started down the creek. The shells were loaded with buckshot, or a large size shot. As he proceeded, he says he heard more shooting and could hear some one begging, and a voice or voices telling some one to go back up the road or die. As he got nearer, he saw his wife coming up the road and behind her two boys on a mule, driving her up the road. He watched for several moments, the boys on the mule still driving her, and occasionally shooting around her. As they got nearer to where he was, in the road or in a field just off the road, he said to the boys, "Go on down the road and let this old woman alone," and at this time they began to shoot at him.

Appellant admits that he then fired two shots from his shotgun; saw the mule drop. He says that he recognized Benge, but did not know who was with him. He also says that he did not know that Benge was down the road that night, and that he had theretofore had no trouble with him or Cupp, who was one of Benge's companions. It was admitted by appellant that he had theretofore been actively interested in the prosecution of a brother of deceased for the killing of appellant's son-in-law. His testimony, in the main, was substantiated by his grandchild, who was with his wife.

It was shown by the commonwealth that deceased and Dan Cupp were riding a mule, Raymond Cornett on another mule, accompanying them, down the creek. They came to where appellant's wife and Ollie Hammond were standing on the right side of the road. The three eyewitnesses say that the following conversation took place: "She (Mrs. Martin) said 'Where are you going? and Benge told her he was going to Bob Houses,' and she said, 'You had better go back up that road,' and Benge said, 'No, we have started to Bob's house."' At this point the witnesses say that appellant, who was in the field just off the road, spoke up and said, "You better go back up that road," and the wife said, "Kill them," and appellant at once fired. His first shot missed, and he then fired two other shots which took effect mainly on Benge and the mule. Cupp received one buckshot wound. The mule, which was also killed, went down throwing Benge on his back. Cupp says he then fired in appellant's direction five or six times, and Benge who was lying on his back fired several times in the air. Cornett and Cupp left Benge lying on the ground and went to a neighbor's home seeking aid for him.

The only other evidence which tended to throw any light on the occurrence was that of persons living in the neighborhood who heard the sounds made by the firing of the weapons. A number testified for the commonwealth and were positive from the reports that the shotgun was fired first; some say two and others three times, and that the pistol shots came afterwards, thus bearing out the testimony of the commonwealth's eyewitnesses. Others--and the numbers are about equal--testify that the pistol shots came first, then the shotgun, and then more pistol shots. The testimony of the witnesses for the commonwealth appears to have been more direct and positive.

On motion for a new trial, a number of grounds were urged in support, and in brief few if any are abandoned. It is first urged that the case did not stand for trial on the day it was tried. Counsel says (and the record shows) that appellant and his wife were indicted on June 10, 1936, on which day a bench warrant was issued, with bond indorsed at $3,000. The sheriff executed the bench warrant on July 3, and took bond. It is argued that the bond did not fix any time or place when appellant should appear, and there had been no order of court assigning the case for trial. The bench warrant directed the accused to answer an indictment in the Laurel circuit court, the bond obligating the appellant to appear before the court, and therein stated the time and place to answer said charge. On October 27, the case was called for trial and the commonwealth answered "ready" and the defendant "not ready" and moved for a continuance, filing in support thereof his affidavit.

The affidavit, as far as we observe, made no reference to any alleged defect in the bench warrant, bond, or to any omission of an order fixing the date of trial. The affidavit set out the fact that appellant's wife was a necessary witness and that she was ill at the time and could not appear. He also named other witnesses who would truly testify to facts showing his innocence, and says that the proper effect of their testimony could not be had without their presence. The court overruled the motion for a continuance, and we think properly so, first on the ground that on appellant's separate trial the wife could not testify, and that the affidavit as to what she, or other named witnesses would testify, disclosed nothing more than conclusions, without any attempt to detail facts.

As said, the motion did not raise any question of improper or illegal procedure, nor did the affidavit make any reference thereto. The procedure here was in strict conformity with sections 186 and 187 of the Criminal Code of Practice, and opinions construing same. Breeding v. Com., 190 Ky. 207, 227 S.W. 151. Aside from this, appellant was present in court when his case was called, and he had from July 3 to October 27, to make preparation for his trial. We conclude that there was no error in respect to the matter urged.

2. It is contended that the court did not have jurisdiction to try appellant because the deceased was "shot and killed in Clay county," the argument being that there was not sufficient proof that Benge died in Laurel county. As disclosed by the evidence, the shooting occurred in Clay county near the Laurel line. One Cornett procured a truck and placed Benge in same for the purpose of taking him to a hospital in London. At the time he placed him in the truck, Benge could be heard breathing; as witness proceeded on his way, he says: "He moved his arm before we got to Johnson hill, lifted his arm up." On being asked "Whereabouts did he die, in Clay county or Laurel county?" he answered, "He died in Laurel county," "Q. As a matter of fact do you know he was in Laurel county before he died? A. Yes sir."

Section 1147, Kentucky Statutes, provides: "If a mortal wound or other violence or injury be inflicted *** in one county *** and death ensues in another, the offense may be prosecuted in either." The appellant was indicted and arrested in Laurel county, and without seeming objection executed bond and subjected himself to the jurisdiction of that court. The case cited by appellant Com. v. Apkins, 148 Ky. 207, 146 S.W. 431, 39 L.R.A.(N.S.) 822, Ann.Cas.1913E, 465, is not applicable here. More nearly applicable and conclusive of the contention are Spradlin v. Com., 221 Ky. 372, 298 S.W. 952; Clemons v. Stoll, 197 Ky. 208, 246 S.W. 810. The unequivocal statement of the witness was to the effect that Benge died in Laurel county. No contrary proof was offered.

3. This ground is that after trial had proceeded the court should have continued the case to another day, and in support appellant filed affidavit, in which he shows that Laura Benge had been subpoenaed, and had failed to appear, through no fault on his part. It was claimed that this witness would say that the day after the shooting Dan Cupp, who was an eyewitness to the homicide, had stated in her presence that at the time appellant shot and killed Benge he (Benge) was shooting over the head of appellant's wife, and cursing her. This was said to have been important, because appellant had no other witnesses by whom he could prove these facts.

It will be noted that this affidavit was filed after the trial had progressed for some time. A warrant of arrest had issued against Laura Benge and had been served, bond being taken for her appearance, but she tailed to appear. Appellant called Dan Cupp, a witness for the commonwealth, and he was asked out of the hearing of the jury if he had made the statement attributed to him by Laura Benge. He denied this. Here the evidence to be procured was not of substantive nature. The purpose of procuring the attendance of Laura Benge or of reading her affidavit was to impeach the witness Cupp. It is in the discretion of the court to allow continuance, or reading the affidavit of an...