Maulding v. Commonwealth

• Decision Date: 23 November 1916
• Parties: MAULDING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

189 S.W. 251

172 Ky. 370

MAULDING v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 23, 1916

Appeal from Circuit Court, Monroe County.

Isaac Maulding was convicted of murder, and he appeals. Affirmed.

Jackson & Denham and Sherman Spear, all of Tompkinsville, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

Under an indictment charging him with the murder of Barney Nickols the appellant Maulding was found guilty, and his punishment fixed at imprisonment for life. The chief, and in fact only, substantial ground upon which a reversal is asked is that the court committed prejudicial error in failing to give instructions on involuntary manslaughter and insanity.

The correctness of the instructions given must be tested by the evidence, and so before setting out the instructions given and taking up the question as to others that counsel urge should have been given, we will look to the evidence, which is substantially as follows:

Maulding, a married man about 37 years old, strong and healthy, was living at the time of the homicide at the house of Cate Nickols, the father of Barney Nickols, who was killed. On Sunday evening about dark Maulding and Barney Nickols left the house to go after a cow, and Cate Nickols, who was sitting on his porch a short distance from the yard gate which opened on the public road, said that he saw Maulding jerk Barney through the gate and out into the road, and presently saw Maulding stamping and beating him; that he was crippled and not able to go out to the road where his boy was being killed; that there were rocks and rails and pieces of wood out in the road around where Maulding and Barney were; that Barney was a delicate man, and a humpback. This witness further testified that, although he knew Maulding was beating his son, he did not know he had killed him until a little while after the assault; that in the meantime and before he found out that his son had been killed, Maulding came back in the house, and soon afterwards, in company with his wife and children, left the premises.

Barney Wheat, who drove by, saw Barney Nickols lying on the side of the road, but did not know that he was dead. He also met Maulding a short distance from Barney, and observed that his hands were bloody, but did not have any conversation with him.

Frank England, who appeared on the scene a little while after Wheat had left, found Barney lying on the side of the road dead. His face and head and ears were horribly mashed and bruised. This witness did not know what kind of an instrument the wounds on the head and face were inflicted with, but said that from their appearane the wounds were caused by striking him with a club, or stamping him with the heel of a shoe.

Other witnesses also testified as to the mutilated condition of Nickols. Leonard Wheat testified that some time before this Maulding told him that Barney had been in the habit of getting drunk, and that "he was going to put a stop to it one way or another," and that "if he could not do it one way, he would do it in another and kill him."

John Wheat also testified that about a month before the killing he heard Maulding threaten to kill Barney Nickols, saying that "if he did not quit his cutting up, he would stamp his head off," and also told him that "he had knocked Barney Nickols down, and he had a notion of stamping his head off then."

Irvin Hall, another witness, said that the day after the killing he heard Maulding say that "he had hit Barney three times, knocked him down, and laid him on the other side of the road."

S. T. Hagan, sheriff of the county, said that the day following the killing Maulding told him he did not know anything about it; that he did not do it; that he further told him that "they had had some trouble or short words, and agreed to disagree, and he decided to move away and leave them."

W. G. Strode, the jailer, said that he had talked a good many times with Maulding in jail, and noticed him closely, and in an answer to the question, "I will ask you if he is a man of ordinary sense," he replied, "I don't think he is." He further said that he did not know whether his conduct in jail was real or assumed, that sometimes he would be in a rage and then again very humble. Asked if he was not afflicted with melancholia, he answered, "Seems like he is a little that way."

Maulding, in his own behalf, after testifying that he lived at Cate Nickols' house, was asked:

"Did you have a difficulty with Barney Nickols in which you killed him? A. Yes, sir; he had a difficulty with me. Q. Did he raise a difficulty with you? A. Yes, sir. Q. Tell the jury what you hit him with. A. My fist. Q. How many times? A. Three or four times. Q. Did you hit him with a stick or rock or fence rail or stamp him? A. No, sir. Q. What was his condition? A. About half drunk. Q. I will ask you if you know of any trouble that occurred between your wife and Barney Nickols in the kitchen there that evening? A. Yes, sir; he said that if she did not do what he wanted her to do, he would tear every rag of her clothes off. Q. Did he do that? A. Yes, sir. Q. How did you know that? A. My wife told me that evening. Q. Had he ever made any indecent proposals to her before that? A. Yes, sir. Q. Who told you that? A. She did. Q. How long was that before this? A. Two weeks. Q. Where was Barney when you started after your cow? A. He was right behind me, hitting me in the back and calling me all kinds of s____s of b____s. Q. What was he hitting you with? A. His fist. Q. How far did he follow you? A. Through three rooms and down the road about 30 steps before I hit him. He said, 'You G___ d___ s___ of a b___, I will take my knife and kill you,' and he run his hand in his pocket, and I knocked him down and hit him three or four times. Q. Did you know at that time that you had killed him? A. No, sir. Q. Did you pick him up and lay him out of the road? A. I moved his feet out of the road. Q. Where did you go? A. I went after my cow, and my wife went with me. Q. Tell the jury whether or not you had a lightning stroke, or was shocked by lightning some years ago. A. Yes, sir; 17 years ago. Q. How did that affect you? A. I didn't know anything for three days and three nights. I have not been right since, and still feel the effects of it. Q. Did you feel the effects of it the day you killed Barney? A. I do all the time. There are times I don't know much. Q. You killed Barney Nickols? A. I don't know whether I did or not. If I did, I did not aim to do it. Q. You knocked him down the first time you hit him? A. Yes, sir; I stooped over and hit him again. Q. What did you hit him the second time for? A. I was mad. I didn't know what I was doing. Q. How do you know you did not kick him? A. I know I didn't. Q. How long before you knocked him down did your wife tell you that he had assaulted her? A. About 20 minutes. Q. What did you hit him for? A. Because he insulted my wife and called me all kinds of s____s of b____s and got his knife nearly out."

Beckham Maulding, his son, also testified that he saw Barney slapping his father out at the gate, and also saw him put his hand in his pocket just before his father hit him.

John Jackson said that he knew Maulding.

"Q. Tell his actions generally. A. I have seen smarter people than him. Q. From your observation of him, would you regard him as being a man of sound or unsound mind? A. I never thought him to be exactly right by his actions."

He also said that he examined the wounds on the face and head of Barney, and discovered the print of a shoe heel with tacks in it.

John Owens was asked:

"Q. Have you seen him and been with him and observed his talk and actions and conduct generally to such an extent that you could tell the jury whether you regarded him as a man of sound or unsound mind. A. He did not seem right to me."

Bob Fish testified that he was acquainted with Ike Maulding, and lived about a mile from him at the time he killed Barney Nickols. Asked if he was sufficiently acquainted with him, his acts, conduct, and talk so as to tell the jury whether he was a man of sound or unsound mind, he answered:

"Yes, sir; I didn't regard him as a man of sound mind. Q. What actions have you seen that would lead you to believe that he was not a man of sound mind? A. He would work a little and then look around and not act right. Q. What would he do when you would talk with him? A. Sometimes he would talk, and sometimes he would not. Q. What else have you seen him do to indicate that he was a feebleminded man? A. He never looked right. Q. He had sense enough to kill Barney Nickols? A. I guess he did. Q. He knows right from wrong? A. Yes, sir. Q. Could you tell whether he was mean or feeble-minded? A. I could not."

Dr. Walden was introduced as an expert and expressed the opinion that, if a person received a shock from lightning, it would affect his nervous system, and in answer to a hypothetical question said that he "would not consider him to be thoroughly at himself." Asked if he was an alienist, he answered:

"I don't know what you mean. Q. You are not an expert in any line? A. No, sir."

Upon this evidence the court instructed the jury that if they believed beyond a reasonable doubt that Maulding "with his malice aforethought willfully and unlawfully struck with his fists, rocks, clubs, or other weapon, or weapons, and mortally wounded Barney Nickols, from which striking and wounding said Nickols died within a year and a day," they should find the defendant guilty of murder and fix his punishment at confinement in the penitentiary for life or at death, in their discretion.

In another instruction they were told, that if they believed Maulding "in sudden affray, or in...