Saltsman v. Commonwealth

• Decision Date: 20 March 1936
• Citation: 92 S.W.2d 378,263 Ky. 400
• Parties: SALTSMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

92 S.W.2d 378

263 Ky. 400

SALTSMAN v. COMMONWEALTH.

Court of Appeals of Kentucky

March 20, 1936

Appeal from Circuit Court, Edmonson County.

Dillard Saltsman was convicted of manslaughter, and he appeals.

Affirmed.

Charles E. Whittle, of Brownsville, for appellant.

Roscoe Vincent, J. J. Leary, and Guy H. Herdman, Asst. Attys. Gen for the Commonwealth.

CLAY Chief Justice.

Dillard Saltsman appeals from a five-year sentence for manslaughter.

It is first insisted that the court erred in not instructing the jury to find appellant not guilty on the ground of self-defense. This contention requires a review of the evidence. The homicide occurred Sunday night, December 9 1934. Eddie Carroll, Coy Meredith, and Hubert Carroll gathered at Earl Carroll's store at Prosperity, in Edmonson county. All of them were drinking, and about 11 o'clock Earl Carroll asked the others present to take Eddie Carroll home. Appellant lived in the other direction but went along with Eddie in company with Hubert and Coy. When they got in front of the home of Marion Napper, the following occurred, according to Claude Napper, who was in the house in bed:

"A. And someone said, 'I'm going to stop here.' That was all I could understand. I couldn't understand all they were saying. The windows was closed. Somebody said he was going to stop. Somebody said he was going to shoot, and he said, 'God damn you, do it and then talk about it,' and then a gun fired and someone hollered and says, 'Oh, you've shot me'; and then someone says, 'I can't help it'; and he says 'God damn you, you could have helped it.' Then he hollered, 'Oh, you've shot me."'

According to Hubert Carroll, he had some trouble with Eddie five minutes before the killing. Either Eddie or somebody used a knife on him and cut his coat. His account of the difficulty is as follows:

"A. Well, we was going out the road there with him, taking him home, and we got right there by Marion Napper's and he said he was going in there, and I told him he'd better come on and go on home, and him and Dillard kind of got into it some way or other. I wasn't up very close to them. I don't know what was said--whether anything much or not. Dillard had Eddie backed in a ditch, but he wasn't up in that close of him (indicating with his hands)."

Again he said: "Eddie kind of staggered back over in the ditch, and Dillard walked up and had his gun throwed on him, and I told him to put it in his pocket."

Later on he said: "Yes, sir, I believe it was pointed mighty near at him. I told him to put it in his pocket, he was liable to shoot somebody, and he did; and we walked back up in the road and they got into it some way or other, and he shot him."

He further testified that he was within eight or ten feet of Eddie and did not see Eddie with anything. Coy Meredith testified that he saw Eddie with a knife right before. Eddie walked back to him and told him to go back out to the store, and he told him to put his knife in his pocket and he would go on. Eddie then went up where they were. Witness also said: "He said, 'Don't do that' or something. Anyhow he was there with his knife, and he said he was going in at Marion's, and he says, 'No, let's go on up the road, and if you do I'll shoot you."' Witness also said: "He was there with his knife and Dillard--he said, 'I'm going in at Marion's,' and Dillard told him, 'No, let's go on up the road,' and he went towards Dillard, and he says, 'I'll shoot you."' The witness was impeached by an affidavit made shortly after the difficulty, which contained no reference to any knife. Marion Napper, who left his home and went out into the road after the shooting, heard appellant say that he and Ed were in a tussle over the gun, and the old gun went off and shot him. At that time Eddie was lying in the ditch by the side of the road.

On the other hand, appellant testified as follows: He went with the boys up the road because Earl asked him to help Hubert...