
    Martin v. Commonwealth.
    (Decided Feb. 1, 1935.)
    
      C. B. WHEELER, C. P. STEPHENS and H. H. SMITH for appellant.
    BAILEY P. WOOTTON, Attorney General, and RAY L. MURPHY, Assistant Attorney General, for appellee.
   Opinion op the Court by

Drury, Commissioner

Reversing.

On Monday, October 2, 1933, Orville Gearheart was shot by a sheriff’s posse and he died therefrom on the following Sunday. For this Allen Martin, Parris Hays, and Monroe Combs were indicted for murder. Upon his separate trial Martin was found guilty, and his punishment fixed at life imprisonment, and he has appealed.

About 3 o’clock this Monday afternoon a fight occurred near Newland’s store in the city of Hindman. Ola Gearheart and his cousin Sid Gearheart were fighting. There is evidence Ola was using steel .knucks, and had knocked down and was beating Sid with these knucks, when Green Gearheart, the father of Sid, attempted to pull Ola off his son, whereupon Orville Gearheart, a brother of Ola, punched his uncle Green with a pistol and compelled him to stand back. Metallic knucks are deadly weapons. See 8 R. C. L. p. 289, sec. 310. If Ola were using metallic knucks on Sid with malicious intent to wound or kill Sid, then Ola was committing a felony, and Orville, by using his pistol to protect Ola, shared in the commission of that felony. See section 1166, Ky. Stats. Word of this reached the sheriff’s office, and some of the deputy sheriffs came out and arrested several of these boys and put them in jail. Allen Martin was one of this posse, and he says there were several men fighting. “I saw two or three men with pistols in their hands and I saw two men with knives open and I saw one man pull someone off of a boy that was bloody all over, and about that time two or three boys ran up the creek way and one of those had a pistol in his hand at that time.” Farris Hays, the sheriff, his deputy, Allen' Martin, and Monroe Combs started after some of the boys who were not arrested by the first party, and on their way word was brought to the sheriff, and by him communicated to Martin, that there were two boys up at the school armed with pistols; that they had scared the ladies who ran the dining hall; that they said they had killed two men and intended to kill two more; and that the boys who brought this word to the sheriff had been sent down to get some one to come up and get them. The sheriff and these men now went to the school. Allen Martin saw Orville Gearheart and told him to put down his gun and consider himself under arrest. Martin was' then about 75 feet from him. He started toward him, and Gearheart ran, Martin followed after him, calling to him to stop, but the boy was more fleet of foot than the officers, and it soon appeared he was going to get away, and the officers began shooting at him, and finally a shot claimed to have been fired by Allen Martin when he was 252 feet from the boy struck him, and from that he died.

Martin’s Duty.

Martin had seen the fight we have described, he had seen Sid Gearheart with his bloody face and shirt and the large place cut in his head, he knew the report of the two boys running amuck at the settlement school, and he certainly had reasonable grounds to believe a felony had been committed; then it became his duty, even without a warrant, to arrest the suspected felon. He told Orville to consider himself under arrest, but instead of submitting Orville ran. It then became the duty of Martin and the officers with him to use such force as was necessary to effect his arrest, and it was their duty not to allow him to escape, and when, because of his greater fleetness, his escape appeared probable, these officers were authorized to kill him rather than let him escape, and the killing of this boy as and when shown by this evidence was justifiable; therefore the court erred when it overruled Martin’s motion for a directed acquittal.

Judgment reversed.  