Massie v. Commonwealth

• Decision Date: 02 March 1895
• Citation: 29 S.W. 871
• Parties: MASSIE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

29 S.W. 871

MASSIE v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 2, 1895

Appeal from circuit court, Owen county.

"Not to be officially reported."

J. L Massie, convicted of murder, appeals. Reversed.

For reports on former appeals, see 20 S.W. 704, and 24 S.W. 611.

E. E Settle and J. C. S. Blackburn, for appellant.

Lindsay & Botts, J. A. Scott, and Wm. J. Hendrick, for the Commonwealth.

LEWIS J.

This is the third appeal by J. L. Massie from a judgment of conviction for murder of Jesse E. Honaker. After the jury had been sworn, appellant moved for continuance on account of absence of a witness, who, if present, would, as stated in the affidavit filed, testify that no long before the homicide deceased endeavored to hire witness, offering him money, to assassinate appellant. Although that evidence was material and important for the defense, appellant had not used proper diligence either to procure attendance of the witness or ascertain before going to trial his absence; and was therefore, not entitled to a continuance. But he further stated in the affidavit that the witness had promised and would have been present, except for threats of violence to his person if he did attend, made by relatives of deceased and there was some evidence tending to support that statement. Besides, he had been confined in the jail of another county, and did not have full opportunity to procure attendance of his witnesses. It seems to us, therefore the lower court, having refused continuance, ought to have sustained the motion of appellant to read his affidavit as a deposition, especially as the bill of exceptions and evidence made and enrolled at the previous trial showed the witness, being then present, had testified to the same facts.

It appears that prior to the homicide two unmarried females, cousins of appellant, had boarded at his house while teaching school in the neighborhood, and he, expecting the arrival of one of them at Frankfort on return from her home in Indiana, to again engage in that occupation, sent James Hanna, his tenant, with a vehicle, to meet and bring her to his house. After Hanna came back, and on the day of killing, he informed appellant that on his way to Frankfort he was met by Honaker, who, upon being told the object of the journey, took the occasion to voluntarily introduce the subject, and say that appellant had sexual intercourse with his cousins, was keeping a whorehouse, and his wife was assisting him. Immediately after hearing that communication, appellant, seizing his gun, got on his horse, and in a state of great rage and excitement went in search of Honaker, riding at a rapid rate of speed, first to his house, a short distance from his own, thence several miles beyond before meeting him. Though, after meeting, they rode together about 500 yards before the fatal shot was fired, their conversation was, on part of appellant, excited and angry, and by Honaker defiant, and altogether unsatisfactory in regard to the charge, for he did not explicitly deny making it to Hanna, nor withdraw or explain it. The evidence further shows that Honaker, though appellant was his family physician, had, without apparent cause, been hostile to him, and more than once spoken of him threateningly and abusively.

According to the testimony of appellant, the killing was done in self-defense. But whether it was or not, if he was informed by Hanna, as they both testify, and believed, as evidently he did, that Honaker had spoken of him, his cousins, and wife in the manner mentioned, it is plain he was guilty, if at all of manslaughter, not murder; for not only is it hard to conceive of a charge more likely to provoke ungovernable passion and anger, but the evidence is convincing that appellant was, from the moment...