24 Ky.L.Rptr. 255
Court of Appeals of Kentucky.
May 21, 1902.
ACTION: Affirmed.

Appeal from circuit court, Whitley county.
"Not to be officially reported."
Paris Shotwell was convicted of murder, and he appeals.

Appellant, Paris Shotwell, was indicted and convicted of the murder of Hiram Baker, and sentenced to the penitentiary for life. The facts shown by the evidence are as follows: The deceased, Baker, in company with Joel Mitchell and Quincy Moore, was in Corbin, Ky., and started to go to his home, in Knox county, about dusk. As they went along the street they were making some noise, and one of them shot his pistol into the ground. When they got opposite the house at which Mrs. Hartford lived, some words passed, and a shot was fired from the street, which struck a pillar of the porch. Thomas Hartford was standing on the porch, and ran out to the gate. There he was joined by George Hartford, who came out of the adjoining lot, and they began shooting down the street at the three men who had passed. Mitchell, who, it seems, had fired the shot, shot back at them, and then ran, and was pursued by Thomas Hartford, who ran after him until he crossed the bridge and got into Knox county. George Hartford overtook the deceased, Baker, who did not run away with Mitchell, and brought him back up the street. Here the defendant, Paris Shotwell, came up to them. Hartford said to him, "He has got a gun on him." Baker put his hand on the fence and said, "Boys, you don't want to take me to the calaboose, for I haven't done anything." Hartford answered, "I will let you know that I am an officer, and you have got to go where I say." Baker replied, "I am not going, for I haven't done anything at all." Hartford then, according to the testimony for the commonwealth, said to Shotwell, "Shoot him! Shoot him! Shoot his damned heart out!" and Shotwell shot him in rapid succession three times. Baker fell back against the fence and said, "I am shot all to pieces, for nothing that I have done to be killed for." The testimony for the defense is that Baker drew his pistol, and was aiming to kill Shotwell, when Shotwell drew his pistol and fired the fatal shots. But several wholly disinterested witnesses who saw the occurrence testified to the facts as above stated for the commonwealth, and their testimony is confirmed by a number of circumstances. Hartford denied professing to be an officer, but this, too, is pretty clearly established. Baker had submitted to arrest. Hartford had him by the arm. Shotwell was right by him. They had him in custody. He had made no attempt to shoot Hartford, though alone when he came up to him and arrested him. After all this, it is hard to see that there could have been any necessity for shooting him after he was in custody and both of them had hold of him, and this is confirmed by the subsequent conduct of Hartford and Shotwell.

As the two Hartfords came out to the gate and began shooting, one of them said: "Kill him! Kill him! Don't let him get away!" This proof was competent against Shotwell, although not then present, as it was part of the res gestae, and served to illustrate the purposes of the parties, and their frame of mind in pursuit of the men. So proof that Baker was leaning against the fence when shot, and fell back on it, saying, "I am shot all to pieces, for nothing that I have done to be killed for," was also competent as res gestae. There was proof that Hartford said just after the shooting, when a man was striking a match to see who was killed: "Do not do that. It is a G-- d--sectionman from Gray's." And Shotwell added: "I killed the d-- s-- of b--, and I done what I intended to do." Hartford replied: "One man's life is just as good as another's." This conversation was all competent, as it took place in the presence of the defendant, and what he said would not be properly understood unless the proof was admitted of that to which he was responding.

The court properly instructed the jury, and, on the whole case, we see no error in the record to the substantial prejudice of the accused.

Judgment affirmed.

Ky.App. 1902.
68 S.W. 403, 24 Ky.L.Rptr. 255

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