Massie v. Commonwealth

• Decision Date: 16 June 1896
• Citation: 36 S.W. 550
• Parties: MASSIE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

36 S.W. 550

MASSIE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 16, 1896

Appeal from circuit court, Owen county.

"Not to be officially reported."

J. L Massie was convicted of murder, and appeals. Affirmed.

For former reports, see 20 S.W. 704, 24 S.W. 611, and 29 S.W 871.

Lindsay & Botts, E. E. Settle, and James Andrew Scott, for appellant.

W. S Taylor, for the Commonwealth.

PAYNTER J.

This is the fourth appeal from judgments sentencing the accused to confinement in the penitentiary for life. His case is entitled to the same patient, earnest, and conscientious consideration on this as he received on the former appeals. Juries are triers of the facts, but until they have been permitted to hear such competent testimony which the commonwealth offers to establish his guilt, and such as he may offer for his own exculpation, and have been properly instructed by the court as to the law applicable to the state of facts presented, it cannot be said that the accused has had a fair trial,-such a trial as is guarantied him by the constitution and laws of the land. The facts presented by this record (and by which, on this appeal, he must be judged) differ very materially from those appearing in the records on former appeals. When this court decides that instructions should or should not be given, as the case may be, it does so upon the facts then under consideration. The accused failed to testify on this trial. He did not, therefore, prove on this, as on former trials, the purpose for which he sought the accused with his gun; nor did he make it appear that he was in real or apparent danger of the loss of his life or suffering bodily harm at the hands of the deceased when the fatal shot was fired; neither was he heard to say that Honaker did not deny the slanderous words imputed to him, nor did he say that "it was not my intention to shoot him when I met him, until the shot was fired." Neither does the record show that Richardson, as on former appeals testified that "just before the shot Honaker turned in his saddle, and placed his left hand behind him, and said you *** something," etc. He testifies that he did not give such evidence on former trials, and he is not contradicted.

The facts preceding and attending the killing as disclosed by the record are about as follows: Massie was a reputable physician in Owen county, and his reputation as a peaceable and well-behaved citizen was established by all the witnesses who were interrogated as to it. Massie had a wife and several children. He and the deceased lived in the same neighborhood. James Hanna was his tenant, and on the 10th of October 1891, between 3 and 4 o'clock p.m., Hanna informed Massie, in substance, that Honaker had on the previous day told him that he (Massie) had the previous year sustained improper relations with two of his cousins (who were young ladies, and had been teachers in the neighborhood the year before, and had stayed at Massie's house); that he had kept a regular house, and that Massie was bringing one of them back for the purpose of again having illicit relation with her. On receipt of this news the accused became very much excited, told Hanna to go to his house, and stay there until he came. The accused armed himself with a gun, mounted his horse, started rapidly down the road in the direction of Honaker's. He arrived there about 4 o'clock p. m. on the day named; asked Mrs. Honaker where her husband was. She informed him that her husband had gone to Monteray. On receiving this information the accused replied: "You will never see the damned son of a bitch alive again. I am going to kill him. *** I intend to kill him if I have to waylay the road to do it." He then rode rapidly, with his gun in his right hand, towards Monteray. After riding three or four miles, he met Honaker and his brother-in-law, John Richardson, in the road, who were returning from Monteray. What occurred may be best told in the language of Richardson, who said: "I saw a man coming down the road, riding pretty fast. When he got in a short distance of us, he drew his gun on Honaker, and said: 'God damn you, I've got you now. I intend to kill you.' Jess [Honaker's given name] said: 'Hold on, doctor. What is the matter?' Massie said, 'You have been talking about me and mine.' Jess said, 'No, I havn't, doctor;' and Massie said, 'You won't face Jim Hanna and say it;' and Jess said: 'Hanna is a liar, and I will face him or anybody else, I can prove by Alex Williams that I did not say a word disrespectful of you and your family.' When Massie first came up, he rode around Honaker, and got on the left side of him, and a little behind him. I jumped off my horse, and tried to get hold of Massie's bridle, and told him to hold on. He said, 'Hold on, hell and damnation.' They rode up the road, Massie cursing all the time, and holding his gun in a position to shoot him all the way. He held the breech of the gun in his left hand, and the muzzle of the gun across the pummel of the saddle or across his right hand, the hand he held the bridle with. My horse got away, and I followed them on until I got within 20 yards of Charley Stevens' house. Saw three men in the yard. And I then turned back to get my horse. I caught my horse, and started to overtake them. At Stevens' fence I saw Massie raise his gun as though he was going to shoot. He said, 'Go on, God damn you; I will have your heart's blood before you go a mile.' I followed on, and overtook them at Stevens' barn. Massie was cursing all the time like a wild man. Jess asked him what it was he said, and Massie said, 'You told Jim Hanna, yesterday, I had been having intercourse with my cousins.' Honaker said, 'Hanna is a liar.' Massie told him he would have to face Jim Hanna, and Jess said he...