Wooton v. Commonwealth

• Decision Date: 23 October 1923
• Citation: 200 Ky. 588,255 S.W. 153
• Parties: WOOTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

255 S.W. 153

200 Ky. 588

WOOTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 23, 1923

Appeal from Circuit Court, Perry County.

Malcolm Wooton was convicted of murder, and appeals. Reversed, and remanded for new trial.

Jesse Morgan and F. J. Eversole, both of Hazard, for appellant.

T. B McGregor, Atty. Gen., and C. W. Napier, Commonwealth's Atty., of Hazard, for the Commonwealth.

CLAY J.

Malcolm Wooton and Charles Wooton were jointly indicted and tried for the murder of Alfred Holland. Charles was acquitted while Malcolm was found guilty, and his punishment fixed at 10 years' confinement in the State Reformatory. He appeals.

According to the evidence for the commonwealth, Tom Davidson and the deceased, Alfred Holland, were members of the police force of the city of Hazard. On the night of the homicide, they were trying to find out who had fired certain pistol shots which they had heard. On going to the vicinity of the home of Malcolm Wooton, they saw him and his brother, Charley, and a man by the name of Elam, standing on the sidewalk. They asked Malcolm if he had heard some shooting. He replied that he had. Malcolm asked if they thought that he did it, and began to curse in the presence of the officers. Holland said "We ought to arrest that fellow, or do something with him, for cursing us that way." Thereupon Malcolm, after calling them vile names, told them that, if they came back there, he would kill them. Thereupon the officers started towards him. Davidson said, "Malcolm, wait there a minute." By that time they had gotten to the door of Malcolm's home. After jumping in the door, he and Charley both drew their pistols and fired. Holland then fired. During the difficulty, Holland received the fatal wound. He was afterwards carried to the hospital, where an operation was performed. He died about 72 hours thereafter.

According to appellant and his witnesses, he and his brother were in the house. The policemen came to the house and called him to the door. Tom Davidson inquired where the shooting was. Appellant said that he did not know. Thereupon Davidson jerked out his pistol. Appellant said something about the shooting being at the far end of the bridge, and having begun in the far end of the city. Davidson either said to Holland or to appellant that he was a d____ liar. The policemen then ran towards the front door with their pistols out, and appellant said, "Don't come in here." The first shot which Holland fired struck him. Another shot struck his wife, and a third shot struck his brother.

The complaint of the admission of Holland's dying declaration is not well founded. On the whole, the evidence showed that...