Wednesday, March 28, 2018

Hanna vs Commonwealth

In this case the Commonwealth prosecuted Mark Hanna for the murder of Sherman Bellamy. The case was heard by a jury in Hartford and Hanna was found guilty of voluntary manslaughter. He appealed citing two errors by the trial court. His conviction was affirmed.  These men (Hanna and Bellamy) were neighbors. The facts that led up to the killing revolved around a crude roadway (thru a creek bed) that both used for access to their respective property.

242 Ky. 584
Hanna v. Commonwealth.
Court of Appeals of Kentucky.
Decided February 26, 1932.

                Appeal from Ohio Circuit Court.

        BARNES & SMITH for appellant.

        BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.



        On a day in the latter part of February, 1931, at about noon, the appellant and defendant below, Mark Hanna, shot and killed Sherman Bellamy in Ohio county. He was later indicted by the grand jury of that county and charged with murder. At his trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for five years. His motion for a new trial was overruled, and from the verdict and judgment pronounced thereon he prosecutes this appeal. In his motion for a new trial numerous alleged errors were relied on, but on this appeal his counsel abandoned all of them except two, and which are: (1) Error in the admission and rejection of testimony, and (2) improper argument of prosecuting counsel. Before taking them up for discussion and determination, it might be proper to state that none of the grounds contained in the motion, and not argued on this appeal, are meritorious; but, since they are not relied on in brief for appellant, we will neither mention nor discuss them, but will at once proceed to a consideration of the two alleged errors above mentioned and dispose of them in the order named.

        1. The disposition of error 1 calls for a statement of the substance of the material facts developed by the testimony. The deceased, Sherman Bellamy, his brother John Bellamy, and the defendant were neighbors; the first two owning farms through which or along which ran east and west a public road. A creek separated the farms of the two brothers on the south of that road and it ran for some distance from the road almost due south and at practically right angles to it. Less than half a mile south of the road was another country road somewhat parallel to the public one, and not far from that point the defendant resided on a farm bordering on or near to the creek. For a great number of years the public had traveled the bed of that creek as far as the public road, and up to about 1910 the county authorities did some work on it in the way of repairing it; but there was never any court order opening any public road along and over the bed of the creek, the bottom of which was practically covered with gravel, and we conclude from the testimony that the passway over the bed of the creek was nothing more than a neighborhood road. But whether that be true or not is not material, as will become apparent in the course of this opinion.

        The creek where it formed the line between the farms of the deceased and his brother, John, became filled with gravel due to washings and floods until it became greatly impaired as a natural drainage, and the two Bellamys determined to clean it out so that it would carry away the water of ordinary rains and prevent the overflow of their contiguous farms. Pursuant thereto they did lower the bed of the creek by removing accumulated gravel at points and which greatly enraged defendant, who claimed the right to travel the creek bed as a road, even contending that it was a public one, but that his right to travel it existed whether or not it was a public one, and he determined to take steps looking to the enforcement of such rights. The first one was the swearing out of a warrant against the two Bellamys, which of course was upon the theory that the creek bed was a public road and that the two persons whom he sought to have arrested were guilty of unlawfully obstructing it. Notwithstanding such criminal proceedings, defendant conceived the idea that he had the right to restore the bed of the creek by filling in the excavations that the two Bellamys had made, and on the morning of the fatal day he took his team and necessary implements for that purpose and began the work of restoration. He carried along with him his automobile, his wife, and his five-year-old daughter, together with a shotgun and a number of shells.

        The deceased, whose residence was about 400 yards away, and upgrade from the spot where defendant was so engaged, when he returned from his work on the farm for the noon meal discovered the location of defendant, and also what he was doing, and went into his house and procured a pistol and started across his field to where defendant was; but the two eyewitnesses to the transaction introduced by the commonwealth testified that he put his pistol in his pocket and never drew it therefrom until after he was shot the first time by defendant. Those witnesses stated that about halfway from where defendant was, and the residence of deceased, was a cross-fence, and the part of the separated field contiguous to the creek was ploughed; that when deceased crossed the fence he was discovered by defendant, who went to his nearby automobile and procured his shotgun and then returned to the creek and stationed himself therein so as to be partially obscured by undergrowth, and when deceased got within about 30 yards of him he shot deceased in the breast and front part of his body; and that the latter did not have his pistol drawn nor had he taken it from his pocket. Upon being shot the witnesses stated that he did then draw his pistol, but the cylinder fell from it and he never fired a shot, although he pointed it towards defendant, who shot the second time, and deceased turned with his back to defendant and started away, when the latter shot him the third time, taking effect in his back.

        The physician witness testified that both the wounds in the front and in the rear were sufficient to produce his death, but which did not occur until the next day. Defendant testified that when he saw deceased cross the fence coming toward him, he released his team from the implement he was using to fill up the creek and went to his automobile with the intention and purpose of departing from the scene, but that he was so excited he could not start it. Whereupon he took his gun from it, and the shells he had carried along, and returned to the creek; that deceased on arriving in speaking distance of him cursed him, and that "he acted like he was going to draw the gun on me and I shot up in the tree top"; that deceased then came closer to the creek and again cursed him and began snapping his pistol at defendant, who then fired the first shot at him; that deceased then fell behind a tree but arose and again snapped his pistol, and defendant fired his third shot, and which the commonwealth's witnesses stated was while deceased was running away, and defendant did not in terms contradict that testimony. There was abundant proof of bad feeling between defendant and the Bellamys growing out of the latter cleaning out the creek and thereby, as defendant contended, obstructing his right to pass over it from his residence to the public road. There was proof of some threats made by deceased as to what he would do if defendant attempted to restore the bed of the creek, and the latter knew of such threats, and which, no doubt, explains the presence of his shotgun at the place and upon the occasion of the killing. In fact, one of the complaints made under error 1 is the refusal of the court to allow defendant and some county officers to testify that defendant asked them if he had the right to restore the creek as he attempted, and that he was informed that he did possess such right, but at the same time he was also warned, in substance, that if he attempted it he had better prepare for trouble, since the Bellamys were determined to prevent it.

        It is seriously contended that the court erred in excluding such testimony offered to be given by not only defendant himself, but also by the officers whom he consulted. The argument is that the court has the right to be placed in the situation of the parties and that the advice attempted to be proven bore on defendant's good faith as well as showing his peaceable and law-abiding disposition. It is furthermore claimed that it tended to destroy any illegal motive on the part of defendant in repairing to the scene of the homicide and engaging in the work he was doing. Whether that would be true if defendant had peaceably engaged in the work he was doing as would become a bona fide peaceable individual, i.e., without arms and implements of war, is a question that is not presented to us, since the fact of the warning that he attempted to prove, and his preparation therefor by going armed and providing himself with the necessary implements of war, indisputably establishes that "Barkis was willing," and that he intended, and actually attempted, to enforce his supposed rights by sheer force and without resorting to peaceable legal remedies, conceding, of course, that he possessed the right to travel the creek as a passway, and to require any obstructions thereto removed — a question that it is not necessary to determine in this case.

        Voluntary manslaughter, as is everywhere held, may be committed where one willingly enters into a "mutual combat" with his antagonist, and while so engaged kills him. The homicide in such case is voluntary manslaughter, unless there is a good-faith abandonment, although the deceased may have first inflicted upon the defendant, or attempted to inflict upon him, bodily harm. It is made so in such circumstances upon the ground that defendant voluntarily entered into the affray and willingly engaged in the fight which would not be one unwillingly thrust upon him by deceased or by the wounded one if he was not killed. It is entirely unnecessary that we should cite cases from this and other courts or text-writers in substantiation of that principle of criminal homicide, since it is everywhere recognized and nowhere denied. Therefore, the evidence above referred to, if it had been admitted by the court, would have been more prejudicial to defendant than in his favor, and in such circumstances it would be unreasonable to contend that its exclusion operated to his prejudice. With it in the record, plus the proven threats of the deceased and the established ill feeling between the two combatants, it is perfectly clear that defendant made up his mind to undo the work that had been performed by the two Bellamys in the bed of the creek, even if it brought about a personal encounter, and he carried along with him a weapon capable of inflicting death, and which he employed for that purpose. The whole engagement was thus voluntarily entered into on his part and was but the natural result of his purpose on that fatal morning and against which he was warned through the rejected testimony he offered to introduce and of which ruling he now complains. In the circumstances it is our conclusion that the court did not err in rejecting it; but if we were incorrect in that conclusion, then the rejected testimony was against defendant and his rights were not prejudiced by its exclusion.

        In further support of this error it is also argued that the court should have permitted defendant to prove, as he offered to do, that after he had procured the warrant of arrest hereinbefore referred to, he made a statement that if the creek bed was restored to its former condition he would recommend that the prosecution be dismissed; but just what relevancy that statement, made by defendant in his own favor, could have on the merits of this prosecution, it is impossible for us to see. At any rate, no such proposition was accepted and defendant voluntarily undertook to redress his supposed wrongs in a manner that he knew would be calculated to bring on a combat which he prepared himself to prosecute by carrying along his gun. Of course, if the creek road should be restored, all of his preparation and activities looking to that end would become useless, but, after all, the essence of the inquiry is not what defendant desired to accomplish, but the method he employed to accomplish it and his intention and purpose to bring about that result at any cost, that constitutes the guilty facts in the case.

        Neither did the court err in disallowing John Bellamy to testify to a threat that he had made against defendant. Not only is that true for the reasons we have already discussed, but for the additional one that there is no testimony connecting the deceased with any such threats made by his brother in his absence. It is, however, argued that the testimony was sufficient to show a conspiracy between John Bellamy and the deceased, and for that reason the threat made by the former was competent and admissible; but we do not so construe the testimony. If, however, it was otherwise and a conspiracy was proven which had for its purpose the cleaning out of the creek by the two brothers, there is no testimony to show any conspiracy to prevent defendant, or any other person from restoring it.

        It is also argued in support of this error that the court erred in refusing to permit John Bellamy to testify that he and his deceased brother had consulted the justice of the peace of the district as to whether they had the right to clean out the creek and that the officer declined to give permission for them to do so. Just why the court so ruled is not explained, since the officer was introduced and he testified fully on the subject, and stated that "I told him I hardly thought the Governor of the state could let him dig a ditch down the public road." So that, defendant got the full benefit of that testimony whether competent or incompetent. We believe that the foregoing discussion disposes of all of the rulings covered by error 1, but if not those overlooked are of the same unprejudicial nature and equally unmeritorious.

        2. Scott Minton, an eyewitness to the homicide, and who testified for the commonwealth, was asked on cross-examination if he had not since the killing made a statement to Alfred Fitzgerald and his wife at their home that, "If Hanna would give you $250.00 you could clear the boy and would not have to swear a lie to do it." The answer was: "No, but they told me I could have got that out of him." No objection was made to that answer, but on re-examination of that witness on that subject the commonwealth's attorney sought to have him repeat it, but the court sustained defendant's objection thereto. The commonwealth's attorney in his closing argument in commenting on that testimony said:

        "Scott Minton never thought of such a thing as taking money from the defendant. It was Fitzgerald and not Minton who suggested that Minton could get money out of Hanna if Minton would testify to Hanna's advantage."

        The attorney also in his argument in discussing the testimony to prove malice on the part of defendant referred to the fact that he had procured the prosecution against deceased but had not instigated one against his brother, John Bellamy, when the fact was that the prosecution inaugurated by defendant was against both. The same attorney in his closing argument characterized the killing of the deceased as an assassination and said:

        "Talk about him being a peaceable boy! Mr. Barnes (defendant's counsel) knows what we could show about this defendant's general reputation if they had opened it up, but they dare not open it up. We could not show it unless they first tried to show it was good. We had plenty of witnesses, any number of them. Some of them his kinspeople and we could show plenty, but they dare not let us do it. This defendant, this boy, as Mr. Barnes called him, is no angel. He has sprouted no wings."

        It is contended in support of error 2 that all of the remarks of counsel referred to were improper and sufficiently prejudicial to authorize a reversal of the judgment, but we do not think so. The only argument referred to that could possibly be classified as improper is the one relating to defendant's reputation. Strictly construed it did not in terms charge defendant with a bad reputation. Moreover, the bill of exceptions points out that those remarks were made in response to an argument made by counsel for defendant in which he extolled the good reputation of his client whom he characterized as a "peaceable boy." If the language of prosecuting counsel had been sufficiently explicit to charge defendant with possessing a bad reputation, it was improper and the court should have excluded it.

        However, section 340 of our Criminal Code of Practice prescribes, in substance, that a judgment of conviction in a felony case should not be reversed for any error committed at the trial, unless this court is satisfied "that the substantial rights of the defendant have been prejudiced thereby." That section of the Code is eminently proper and possibly has been disregarded in some cases to which it was intended to apply. In the trial of a case it is almost impossible for it to be conducted exactly in accordance with prescribed and approved rules of procedure, a departure from which creates a technical error. and if a reversal should be ordered in every such case it would be practically impossible to enforce the punishment imposed for infractions of the criminal laws. The members of the jury are not mere automatons, since they are presumed to be, and usually are, men of experience and intelligence. In this case they were defendant's fellow countians, and some of whom were perhaps, his acquaintances.

            They also knew, as the court so instructed them, that they should try the case upon the evidence adduced at the trial; and to hold that under the facts of this case a reversal should be ordered solely because of the improper statement of counsel now under consideration would be but little short of making a mockery of the administration of the criminal laws. On the other hand, we think the case is one to which the provisions of section 340 of the code, supra, were intended to apply.

        The other arguments referred to are plainly without merit, and upon the whole case it is our conclusion that defendant did what he purposed to do and what he had prepared himself to do if the occasion arose requiring it, and to the arising of which he was more or less indifferent. He extinguished a human life, which is the most sacred right that his victim possessed. He went prepared to do it, and if his rejected evidence had been admitted it proved that he had been previously warned as to the probabilities, and he accordingly prepared himself for it. Human life would be cheap if in such circumstances the excuses here offered for taking it were upheld, and the errors relied on for a reversal should be given that effect by this court.

        We, therefore, conclude that upon the whole case the substantial rights of defendant were not prejudiced at his trial, and for which reason the judgment is affirmed.

Sunday, March 25, 2018


JOHN P. MORTON, Ohio County, is a son of Jesse andoct Sally (Paxton) Morton; the
former was born in Ohio County about 1815, and died in 1845; the latter was born in
1820, reared in Ohio County, and died in 1843. Both grandparents, Thomas Morton and
Sally Paxton, were natives of Virginia, and immigrated at an early day to Ohio County.
John P. Morton was brought up by his uncle, Richard L. Morton. His early advantages for
securing an education were limited, but by his own indefatigable efforts, he has placed
himself among the solid men of the county. He enlisted in Company B, Seventeenth
Kentucky Federal Infantry, and served his country faithfully three years. He was engaged
in the battles of Fort Donelson, Shiloh, Missionary Ridge, Chickamauga and many
others. He was always with his regiment, and always ready for duty; an honorable,
trustworthy and gallant soldier. After leaving the army, May 20, 1866, he was married to
Ella Austin, youngest daughter of Thomas O. Austin. She was born in Hartford Precinct,
January 31, 1850. They have seven children: Thomas J., Jasper, Luelva, Lida, Berta,
Laura, and Fannie. Mr. Morton owns 135 acres of good land, on which is located a coal
mine. He is justice of the peace, a member of the Methodist Episcopal Church, a stanch
Republican, and an intelligent and influential citizen.

Source: J. H. BATTLE, W. H. PERRIN, and G. C. KNIFFIN 1895

Note: John Paxton Morton was born 17 Sep 1841 in Ohio County and died 16 Oct 1901 in Ohio County; burial at Oakwood Cemetery, Hartford.

 John Paxton Morton

Wednesday, March 21, 2018


ROBERT Y. MOREHEAD was born in Muhlenburgh (sic) County, Ky., November 19, 1858, and is a son of John W. Morehead, Jr., who was also born in Muhlenburgh County, Ky., in 1831. He was a practicing physician for some twenty-eight years, and was also engaged in agricultural pursuits. He married Mary E., daughter of J. M. D. and Sarah A. (Roark) Martin, of Greenville, Ky., who was born in 1837, and is yet living. To this union were born. Robert Y., Sarah A. (Stokes), Alfred H., Nannie E. (deceased), and Minnie.  Dr. John W. Morehead, Jr., departed this life June 27, 1882. His father, John W. Morehead, Sr., was born in Virginia in 1801, and removed to Kentucky when a young man, where he died in 1831. He was the son of Henry Morehead, a native of Ireland. Robert Y. Morehead received a good business education in youth. He grew to manhood in his native county, and in 1880 removed to Rockport, Ohio County, where he has since resided. In 1882 he embarked in the hotel business at Rockport, in which he has met with encouraging success. To this he has recently added the grocery trade, at which he is also doing a flourishing business. He married Bettie, daughter of Jacob A. and Sue W. (Martin) Anthony, of Ohio County, Ky.; she was born May 26, 1861. One daughter gladdens their home — Ora Belle. Mr. Morehead is a member of the K. of  H., and in politics a Democrat.

Source: J. H. BATTLE, W. H. PERRIN, & G. C. KNIFFIN 1895

Note:  Dr. Robert Yost Morehead died 30 Sep 1927 in Sumner County, TN, and is buried in Mitchellville Cemetery, Mitchellville, Sumner County, TN.

Sunday, March 18, 2018

Hamilton vs. Howard

In this case the Plaintiff, Lorenzo Hamilton, sued Clarence Howard for damages resulting from being shot by Howard. Hamilton lost in the trial court and appealed. The Court of Appeals reversed and sent the case back to the trial court; the Court of Appeals saying the trial judge did not give the jury the proper instructions. But why did Howard shoot Hamilton?  The Court of Appeals gives us a summary of the testimony, which you will find interesting.  (I do not know what happened when the case was retried.)

234 Ky. 321
Hamilton v. Howard.
Court of Appeals of Kentucky.
Decided May 13, 1930.

        Appeal from Ohio Circuit Court.

        HEAVRIN & MARTIN and GLOVER H. CARY for appellant.
        KIRK & BARTLETT for appellee.



        In this action for assault and battery by Lorenzo Hamilton against Clarence Howard the jury found for Howard, and Hamilton appeals.

        The petition aptly charges that on December 17, 1927, the defendant wrongfully, intentionally, maliciously, and willfully shot and wounded plaintiff with a pistol, and thereby inflicted on him serious and permanent injury by reason of which he has been damaged in the sum of $10,000. Howard answered in two paragraphs. In the first paragraph he denied certain allegations of the petition. The second paragraph is as follows:

        "Pleading further, the defendant says that at the place and at the time mentioned in the petition wherein it is alleged that the defendant shot the plaintiff, as described in the petition the plaintiff assaulted this defendant and was in the act of attacking the defendant, and, as the defendant verily believed, the plaintiff was about to inflict serious bodily injuries to the defendant or probably take defendant's life, and that in acting as the defendant did he did no more than was necessary to protect himself from the assault and the threatened attack by the plaintiff.

        "The defendant further states that just before the occasion mentioned and set out in the plaintiff's petition the plaintiff had wrongfully and without right invaded the defendant's home and had made overtures to the defendant's wife, and had sought to ingratiate himself into the affections of defendant's wife and to alienate her affections from this defendant and had suddenly run from defendant's house where he had attempted association with the defendant's wife for the purpose aforesaid, and, as defendant believed, was going to stay nearby in order that he might re-invade the defendant's home for the purpose aforesaid in defendant's absence. Whereupon to preserve the peace and to protect defendant's home from invasion as aforesaid and to protect the defendant's wife from plaintiff's efforts to alienate her affections as aforesaid, the defendant modestly spoke to the plaintiff and requested that he desist such invasion of the defendant's home and such attentions to defendant's wife. Because of which protestations by the defendant, the plaintiff was about to attack the defendant and with great or serious injury to the defendant, when the defendant, to protect himself and in his necessary self-defense as aforesaid and for the purpose of protecting his home and his wife and preventing further invasion of his home as aforesaid fired his pistol and this is the shooting mentioned and referred to in plaintiff's petition."

        The facts are these: Howard, who was 26 years of age at the time of the trial, and Hamilton, who was 29, were both married and lived a few miles from Hartford. Howard was related to Hamilton's wife, and he and Hamilton had been in business together and on friendly terms. There was some talk in the neighborhood concerning the frequency of Hamilton's visits to Howard's home, and the impropriety of the relations between Hamilton and Mrs. Howard. Howard learned of this and claims to have observed that Hamilton was paying undue attention to his wife. He says that Hamilton frequently came to his home, and, instead of joining him, would go around the premises with Mrs. Howard. Hamilton would go to the field where Mrs. Howard was at work, and if she were plowing he would follow her up and down the rows as she plowed while Howard worked in other parts of the field. For a while Hamilton and Howard were engaged in cutting logs together. Howard would go by Hamilton's home and accompany him to work. Though they would start off together Hamilton would return to the Howard home to leave his keys with Mrs. Howard. Though he would generally join the other workmen later, it is claimed that on one occasion he never showed up at all after returning to Mrs. Howard's house under the pretext of taking his keys back to the house. On the day of the shooting Howard said that he found Hamilton's keys at his house on the bed. Howard also said that, if Mrs. Howard was getting breakfast, Hamilton would go to the kitchen where she was; that, if she was milking, he would go out to the cow lot; that, if she were gearing the mules, he would go to the barn where she was engaged. Howard says that at first he was not disturbed by Hamilton's attentions to his wife, but after Hamilton got her picture and went to telling that he was "having fun with that woman," and that he (Howard) was going to live with her only until the child got big enough to work, that caused trouble in his home. Howard then talked to Hamilton on several occasions and told him that the neighbors were talking about the matter. He asked Hamilton to stay away from his house. Hamilton "just laughed," and said he guessed he could. Hamilton did not stay away, but kept up his attentions to Mrs. Howard. Howard again remonstrated and warned him to stay away. After that they would not work together. Howard's father, who had observed Hamilton's attentions to Howard's wife, warned and advised Hamilton to stay away. Howard told Hamilton he was going to hurt him if he did not stay away. Howard describes the difficulty in the following language:

        "I had been hauling coal for my brother and got in just a little before sundown and I was coming up the road and I seen my wife get a load of wood and go back in the house and just about that time he come out the same door she went in and he taken up through the woods and orchard circling for E.K. Moseley's, and I went up and got my gun and went toward where he was at, and I walked up and asked him if I hadn't told him to stay away, and talked to him and cried and begged him to stay away, and then I cursed him and told him to stay away, he acknowledged I had, and I told him I had talked every way I could to get him to stay away and I had another remedy I would try to see if that would do.
        "Q. Did you tell him you were going to kill him? A. No, sir, I told him I didn't aim to kill him and he need not think it.
        "Q. What did he say? A. He didn't say anything.
        "Q. I mean when you told him you had asked him to stay away? A. He finally murmured out, after I asked the second time, once.
        "Q. Did you ask him on more than one occasion to stay away? A. Several times, more than once.
        "Q. But he said `once'? A. Yes, he acknowledged once.
        "Q. Then you did shoot him? A. Yes, sir.
        "Q. What occurred after that? A. Well, after the shooting occurred, the first thing he said was that he said `Go call the doctor, Lige,' and I started for the doctor, and I asked him if he wanted me to take him in the house and he said yes, and I asked him if he wanted me to take him home and he said no, and I said all right then, and in a minute or so he said yes, you can take me home if you want to and I went down to the house and got the wagon and spring seat and hauled him home."

        Mrs. Ethel Howard, a sister-in-law of Clarence Howard, testified that about 5:30 or 6:00 o'clock on the evening of December 17, 1927, as she approached Howard's home, she saw a fellow she took to be Hamilton at the back of the house. E.K. Moseley, who lived about 250 yards from Howard, and on whose premises the shooting occurred, testified that he was at the chip yard engaged in chopping some stove wood when Hamilton came up, and gives the following account of the shooting:
        "Yes, sir, he came down the back way and told me not to let the dog bite him, and I told him to come ahead, and he come and set down on a pile of wood and he had been there four or five minutes when I looked up and seen Clarence coming up with his revolver and I never said anything, and he said, `Lo, I caught you this time' and he said I have begged and persuaded you to stay away from my house and I am going to try another plan.

        "Q. Did he tell him he had agreed — A. Yes, sir, he said he had begged and cried —
        "Q. What did Hamilton say when Howard told him he had told him to stay away from his home? A. He said he might have told him once. He denied being there.
        "Q. He shot him three times? A. He shot three times, reckon he hit him every time."

        On cross-examination Moseley stated that Hamilton had been there something like three, four, or five minutes, when the shooting occurred. Hamilton told Howard that he had not been to his house. When shot Hamilton was sitting on a block of wood at the wood pile and did not undertake to do a thing in the world, "and made no move like he would."

        On the other hand, Hamilton testified that he had a wife and three children, and had known Howard all of his life. He had been in the habit of going to Howard's home to see all of them, and not particularly to see Mrs. Howard any more than Mr. Howard. His particular business in going there was to buy white mule from Clarence. Clarence had told him to go there whether Clarence was there or not, and he would go there some two or three times a week. On the occasion in question he started up to Lige Moseley's and passed through Clarence Howard's lot. He had to go that way. Clarence's wife was standing in the door. He inquired where was Clarence, and she said he had gone to the coal bank and would be back about 4 o'clock. It was then a little after 4, and she said he ought to be there by that time. He said, "I am going up to Lige's." He then went through the apple orchard and looked at some saplings. He did not stop at Clarence's house, or go in the house. He did not run out the back door or through the woods. On reaching Moseley's he found Moseley chopping wood and told him not to let the dog bite him. Moseley said he would not, and he sat down by Moseley and engaged in conversation about a hog. While sitting there with his feet crossed Clarence Howard came up and said something. He said to Clarence, "What do you mean?" and Clarence commenced shooting. He was shot in each knee, and one shot penetrated his leg higher up. He suffered a great deal from his wounds, and was still suffering. His knees were stiff and were not getting any better. Never at any time did Clarence talk to him about not going to his house, or accuse him of being too intimate with his wife. He did see Clarence Howard's father, Clarence, and his wife, in the cornfield. She was not plowing at all. He walked around a while and talked to all of them. Estill Howard never called him off or advised him not to go to Clarence's place. Estill Howard did ask him what he had come for, and he told him he had come to get a quart of liquor. On several occasions he went with different parties to Clarence's home to get liquor. Brownlow Gossett never told him to stay away. On the occasion when he was shot he never attempted to do anything to Howard. He never tried to hurt him in any way. On cross-examination he testified that on the evening of the shooting he just passed by Howard's premises, and stopped and talked to his wife for a minute. It was cold that afternoon. He did not have any whisky with him, and had not been drinking that day. Sometimes he drank right smart. He could drink a quart a day. He did not get any whisky on that occasion. When he was at the home he judged it was about 4 o'clock. He thought he would see Clarence if he was there. It made no particular difference whether he saw him that day or not. His wife said that Clarence might be there pretty soon and might not be there until after dark. He did not wait for Clarence. He wanted to see Lige. He did not hear the wagon coming. At the time of his talking to Clarence's wife he was about 20 steps from the big road. He aimed to see Clarence as he came back by home. He aimed to come back that night and see him about the splicing as soon as Lige told him whether he would buy the hog or not. Dr. I.J. Hoover deposed that Hamilton was shot twice in one leg and once in the other. He had been shot through both knees. Such injuries as he saw produced pain and suffering. Both legs were X-rayed, the bullets removed from the knee joints and the joints irrigated with ether and closed. Such wounds do not usually give any permanent injury unless infected, and no infection followed the operation. In his opinion the injury was not permanent. In rebuttal Howard testified he never saw a quart of whisky on the day they were plowing or at any other time. Estill Howard testified that on the occasion when Hamilton came into the cornfield there was no talk about whisky.

        Over the objection of plaintiff the court instructed the jury as follows:

        "I. The court instructs the jury that you should find for the plaintiff and award him in damages such sum as you may believe from the evidence will fairly and reasonably compensate him for any impairment of his power to labor and earn money resulting directly from the shooting and wounding described to you in evidence, and for the pain and suffering which was caused to him by such shooting, unless you believe as set out in Instruction No. II, but if you believe as in Instruction No. II you will find for the defendant.

        "II. The defendant had the right to protect his home from intrusion or invasion and if you believe from the evidence that before the occasion on which the plaintiff was shot by defendant, as described to you in evidence, the plaintiff had invaded the defendant's home or had made overtures to the defendant's wife or had sought to ingratiate himself into the affections of defendant's wife or to alienate her affections from the defendant and that the defendant had requested the plaintiff not to go to the defendant's home or to stay away from defendant's home or to desist his attentions to defendant's wife, and if you believe from the evidence plaintiff failed to heed said warnings, if any were given him, and if you believe from the evidence that in shooting and wounding the plaintiff, as described to you in the evidence, the defendant used only such force as was reasonably necessary to prevent the plaintiff from further invading the defendant's home or paying attention to the defendant's wife, then you should find for the defendant.

        "III. If you find for the plaintiff you may award him such sum by compensatory damages as you may believe from the evidence will compensate him for any physical or mental suffering which he endured, or for any impairment of his power to earn money as you may believe would be the proximate and necessary result of his injury, if any. And if you believe from the evidence that the defendant, not in the necessary or to him apparently necessary defense of himself or his home, as supposed to you in Instruction No. II, wantonly and maliciously assaulted and shot the plaintiff, you may award the plaintiff punitive damages, but the entire amount that you may allow to the plaintiff shall not exceed the sum of $10,563.00, the amount claimed in the petition."

        The argument in support of the defense pleaded in paragraph 2 of the answer and of instruction No. 2 given by the court may be summarized as follows: Hamilton was paying undue and improper attention to Howard's wife, and was endeavoring to win his way into her affections. Though warned by Howard and others to stay away from his home, Hamilton did not stay away, but persisted in his attentions and intrusions. The immediate act of Hamilton in running away from the Howard home was not the cause of the shooting. It was merely the straw that broke the camel's back. It was but one of a long series of oft-repeated and recurring offenses. Patience had ceased to be a virtue. Numerous warnings and commands had proved ineffective. The time had come when Howard was compelled to use some force or stand by and see Hamilton continue to invade his home and impose himself upon his wife. "If there was a drop of red-blooded manhood about Howard; if he cared a whit for his home and family; if he was any part of a man at all, it was time for him to act and to act with force and effectiveness, in the protection of his castle and those in it who were dependent upon him. Whether Howard was trying to prevent Hamilton from stealing his wife's affections, thus breaking up his home, or was trying to protect his wife from undue influence and embarrassment and protect his home from the tongue of evil report and bad repute in the community, he had the right to protect his home against invasion for either purpose, and since the force he used was patently necessary and undeniably effective, and actually resulted in but little temporary damage, the verdict of the jury in favor of Howard should not be set aside. Though the rule contended for is ably and plausibly presented, and though it may strike a popular chord and find some support in the views of many people, it is not the law and cannot be sanctioned by the courts. The right to act in defense of one's home is confined to cases of attempted forcible entry for the purpose of committing a felony or of inflicting great bodily harm or offering personal violence to a person dwelling or being therein, and to cases of attack or attempted attack on the home with firearms for any one of such purposes. It has never been applied where the person wounded or killed was off the premises, and was not then engaged in any kind of attack on the home. It matters not that Hamilton's conduct was reprehensible, or that Howard's provocation was very great. Howard could not follow Hamilton off his premises and to the premises of another 250 yards distant and shoot and wound him while he was quietly talking to another and making no attempt to attack the Howard home in any manner whatsoever, and justify on the ground that he acted in defense of his home. Though the situation was a trying one, and calculated to arouse one's sympathy, after all it is simply a case where Howard took the law in his own hands and shot and wounded Hamilton to punish him for what he had done, and to deter him from future attentions to his wife. In the circumstances, the facts relied on, even if Howard's theory of the case be accepted, constituted no defense so far as compensatory damages were concerned, and instruction No. 2 submitting the defense of home should not have been given.

        However, the facts pleaded and proved are admissible for another purpose. It was the rule at common law that the defendant could not give in evidence in mitigation of damages the acts or declarations of the plaintiff at a different time, or any antecedent acts which were not fairly to be considered a part of one and the same transaction, though they may have been ever so irritating or provoking. Recognizing the harshness of this rule, the Legislature in the year 1906 enacted what is now section 73a-1, Kentucky Statutes, reading as follows: "In all civil actions for damages inflicted by an assault, or by an assault and battery, the defendant shall have the right to plead as a defense to the claim for punitive damages, and to introduce in evidence in mitigation of damages, any matter of provocation which preceded the assault or assault and battery. If the matter of provocation prompted the assault or assault and battery, and was of a nature as to cause a person of ordinary prudence and judgment to take the action taken by the defendant."

        The statute has been construed in several cases, and it uniformly has been held that matters of provocation preceding the assault and battery may be pleaded and proved in mitigation of punitive damages, but not of compensatory damages. We think the provocation relied on by Howard falls within the statute, and could be proved in mitigation of punitive damages.

        Though pleaded and sought in the petition, the court did not authorize a finding for reasonable medical and hospital bills incurred. It is insisted that this was proper, because the bills were paid by Hamilton's father and not by him. The evidence, however, discloses that Hamilton's father paid the hospital and medical bills of $153 for his son, and that his son said he would pay him. The case being one where the father may sue and recover from the son, there can be no doubt that the son may recover from him who caused the injury.

        There is no substantial evidence in the record that Hamilton's injuries are permanent. That being true, he is not entitled to recover for the permanent impairment of his power to earn money, but only for the temporary impairment thereof during such time as the jury may believe from the evidence such impairment has continued.

        On the return of the case the court will instruct the jury as follows:

        "1. You will find for plaintiff and award him such sum in damages as you may believe from the evidence will fairly compensate him for his reasonable hospital and medical bills, if any, not exceeding the sum of $153.00; for his mental and physical suffering, if any, directly resulting from the injuries inflicted by defendant, and for the temporary impairment, if any, of his power to earn money directly resulting from his injuries during such time as you may believe from the evidence such impairment, if any, has continued, but not exceeding in all the sum of $10,153.00, the amount claimed in the petition."

        "2. If you believe that defendant wantonly and maliciously shot and wounded and injured plaintiff, you may in addition to compensatory damages award plaintiff punitive damages, not exceeding in all the sum of $10,000.00. If, however, you believe from the evidence that plaintiff gave to the defendant such provocation to assault and injure plaintiff as would cause an ordinarily prudent man under like or similar circumstances so to assault and injure plaintiff, and that such provocation, if any, did prompt defendant to assault and injure plaintiff, you may consider such provocation, if any, in mitigation of the punitive damages, if any, which you may find for plaintiff."

        Judgment reversed, and cause remanded for a new trial consistent with this opinion.

Saturday, March 10, 2018


JOHN WILSON MOORE was born January 15, 1839, in Morgantown, Butler Co., Ky. The parents of our subject were natives of Virginia, and were of Irish descent. The mother died in 1861, leaving a family of eight children, our subject being the third. The father survived until 1866, and died in Butler County. John W. Moore had no advantages of early education until the age of eighteen; he assisted in the farm work at home during the summer season, spending a short time at such schools as the county afforded in the winter months. At eighteen he engaged as clerk in a dry goods store, where he remained for several years, and at the beginning of the civil war in 1861, joined the army; enlisted in Company C, Eleventh Kentucky Volunteers; after a service of eight months was discharged by reason of general disability for the service; came home and resumed farming, which he continued until 1881; then took a mail route between Beaver Dam, Ohio County, and Rochester, Butler County, which has held for four years, in which time he has failed on but four trips and never was behind time. He superintends his farm, which is operated by his son. His first purchase of land was in 1867; sold out in 1878, and settled on the farm of 100 acres where he now resides, forty acres of which are under cultivation, and improved with good fencing, dwelling, barns and orchard. April 6, 1863, he married Eliza Jane Brown, of Ohio County; to their union eight children have been born, six of whom are living: James L., Mary A., Kittie A., Julia B., Minnie, and Anna L.  Those deceased are Maggie J. and Gabrielle T., the second and fifth. Mr. and Mrs. Moore are active and consistent members of the Christian Church. The son, James L., is a member of the Methodist Episcopal Church South. Mr. Moore is a Republican.

Source: J. H. BATTLE, W. H. PERRIN, & G. C. KNIFFIN 1895

Note: Mr. Moore died 12 Feb 1908 and is buried in Taylortown Cemetery, Ohio County.

Wednesday, March 7, 2018

Susan Elizabeth Whitescarver

Susan Elizabeth Whitescarver applied for a widow’s pension based on her husband’s military service with the Confederate Army during the Civil War.  Susan was born 27 Aug 1848 in Ohio County and her maiden name was Ambrose. Her husband was George William Whitescarver, born 21 mar 1843 and died 30 Jun 1907 in Ohio County. Susan died 16 Oct 1926 in Ohio County and is buried in Taylortown Cemetery.

s pension based on her
s military service with the Confederate Army during the Civil War.
Susan was born 27 Aug 1848 in Ohio County and her maiden name was Ambrose.
Her husband was George William Whitescarver, born 21 mar 1843 and died 30
Jun 1907 in Ohio County. Susan died 16 Oct 1926 in Ohio County and is buried
Taylortown Cemetery.Susan Elizabeth Whitescarver applied for a widow
s pension based on her
s military service with the Confederate Army during the Civil War.
Susan was born 27 Aug 1848 in Ohio County and her maiden name was Ambrose.
Her husband was George William Whitescarver, born 21 mar 1843 and died 30
Jun 1907 in Ohio County. Susan died 16 Oct 1926 in Ohio County and is buried
Taylortown Cemetery.

Saturday, March 3, 2018

George Rowe


By:  Patricia Ann Brooks
Copyright 1984 

Chapter One - George Rowe

            George Rowe was born in Virginia, Circa 1753, during the years of the French War, where he inherited the knowledge of war and fighting for freedom. Naturally, when George Rowe was of age he became a soldier. He served as a private from Virginia during the Revolutionary War. It is believed that the Rowe family is of German descent and that George's father was also named George however, we as yet have no proof of that fact.

            As did many soldiers after the war years, George Rowe and his entire family of nine children and wife Rachel, traveled to what is now the state of Kentucky. This part of the land was often held for land grants to soldiers and their families. George Rowe bought virgin lands in the present Ohio County, Kentucky and together with his wife Rachel cultivated and farmed his land until his death in 1827. George and Rachel are both buried at the Walton's Creek Cemetery in Ohio County Kentucky with other members of their family. The children of George and Rachel Rowe, listed by ages, were:

1. Edmund Rowe born in Virginia in 1782.
2. Ana Rowe born in Virginia.
3. Thomas Rowe born in Virginia.
4. George Rowe Jr. born in Virginia in 1788.
5. Nancy Rowe horn in Virginia in 1791.
6. Elizabeth Rowe born in Virginia on September 4, 1792.
7. Sally Rowe born in Virginia in 1793.
8. Robert Rowe born in
9. Juda or Judy Rowe born in Virginia in 1797.

Child 1 - Edmund Rowe

Edmund Rowe, the son of George Rowe, Sr. and his wife Rachel, was born in Virginia in 1782. Edmund made his way to Kentucky with his parents and family in 1806.At the age of 29 he married Mary Phipps the daughter of Thomas Phipps. The ceremony was performed in Ohio County, Kentucky by Loderic Davis on January 30, 1811. After they wed, Edmund became a farmer and he and Mary had seven children. Mary was born on December 18, 1785 and died on May 10, 1863. Edmund died on October 10, 1854. Both Edmund and Mary are buried at the West Providence Cemetery in Ohio County, Kentucky. The children of Edmund and Mary (Phipps) Rowe were:

a. George Rowe, son of Edmund and Mary Phipps Rowe, married Sallie Render on March 15, 1841. The ceremony was performed in Ohio County, Kentucky by the minister Thomas Davis. George and Sallie Render Rowe's children were:

•William L. Rowe who was listed as age 18 in the 1860 census of Ohio County, Kentucky. William married Sallie H. Austin.

•Enoc D. (Enas) Rowe was listed as age 13 in the 1860 census of Ohio County, Kentucky.

•Edward H. (Edmund) Rowe was listed as age 12 in the 1860 census of Ohio County, Kentucky. Edward H. Rowe married Miss Martha (Hattie) DeHaven on October 25, 1881. They had one child named Etta Mae Rowe. Etta Mae Rowe was born in 1888 and died on January 3, 1954. Etta Mae married Will Ed Ashby in 1908, in Ohio County, Kentucky. Will Ed Ashby was the son of Henderson and Sally (Iglesheart) Ashby. He was born in 1886, and died August 1, 1954. Both Etta Mae (Rowe) and Will Ed Ashby are buried at the Centertown Cemetery, Ohio County, Kentucky.

•Joshua Wilson Rowe the son of George Rowe and Sallie (Render) Rowe was listed at age 9 in the 1860 census of Ohio County, Kentucky. He married Nannie E. Moore on May 31, 1877.

•Alney (Abney) Lee Rowe was the son of George Rowe and Sallie (Render) Rowe who was listed at age one year in the 1860 census of Ohio County, Kentucky.

b. Amelia Rowe, the daughter of Edmund and Mary (Phipps) Rowe, was born in 1812 and died in 1858. She married Alney Tichenor, a farmer, on October 7. 1834. He was the son of Jared and Martha (Bennett) Tichenor. Alney was born in 1813 and died in 1858, the same year as his wife Amelia. The children of Amelia (Rowe) and Alney Tichenor were:

•Frank Tichenor who married Margaret J. Wade on July 13, 1861.

•William Berry Tichenor married Mary Owen Wade on September 24, 1862 in Ohio County, Kentucky.

•Lavega Worth Tichenor who married Martha S. Lindley.

•Zelma Tichenor who married first to John Richard Wade on October 16, 1868 and second to the Rev. John T. Casebier, her sister Cemantha's widowed husband, on September 5, 1882.

•Cemantha Tichenor married the Rev. John T. Casebier on November 9, 1865. Cemantha (Tichenor) Rowe was born on March 8, 1844 and died on January 10, 1882. Their marriage took place during the days of the Civil war; John T. Casebier had just returned from a trip to the south with Dr. Pendleton's Company and was not yet an ordained minister.

•Lucinda Ann Tichenor who married first to Daniel Tichenor on October 23, 1862 and second to Benjamin Igleheart on November 22, 1876.

•Matilda (Martha) Tichenor married Aaron Tichenor on February 27, 1868.

•Maria Tichenor married Squire Wade Tichenor on December the 13th, 1874. Squire Wade Tichenor was the son of Sanford Tichenor and his wife Nancy J. (Sarah J.) Wade Tichenor. Nancy and Sanford were married in Butler County in 1843. This Tichenor family lived in the Mount Pleasant District of Ohio County, Kentucky. Nancy Wade Tichenor was the daughter of Mary (Polly) Wade, who was listed at the age of 79 in the 1860 census, widowed and living with Sanford and Nancy Wade Tichenor. Their children were:

•Mary Tichenor, who married William P. Render on February 11, 1864.
•John W. Tichenor who was listed as age 13 in the 1860 census of Ohio County, Kentucky.
•Squire Wade Tichenor listed at age 10 in the 1860 census of Ohio County, Kentucky. Married the daughter of Amelia Rowe and Alney Tichenor. She was Maria Tichenor, married on December 13, 1874.
•Warren G. Tichenor the son of Sanford and Nancy (Wade) Tichenor was listed as age 8 in the 1860 census of Ohio County, Kentucky.
•Ardena A. Tichenor the daughter of Sanford and Nancy (Wade) Tichenor was listed in Ohio County Marriages as married on October 27, 1870 to Thomas J. Everly.
•Martha P. Tichenor the daughter of Sanford and Nancy (Wade) Tichenor was married twice. First to Dr. Alonzo Tatum on May 6, l879 and second to W. P. Render on October 12, 1893.
•Alney H. Tichenor the youngest son of Sanford and Nancy (Wade) Tichenor was listed at age 5 in the 1860 census of Ohio County, Kentucky.

c. William Phipps Rowe the son of Edmund and Mary Phipps Rowe, was born on November 28, 1822 and died on June 19, 1890. William married Emmaline Render in 1843. Emmaline was born on March 22, 1824, and died on September 12, 1891. Both William and Emmaline (Render) Rowe are buried at the Centertown Cemetery, Ohio County, Kentucky. Their children were:

•Alfonzo G. Rowe age 13 in the 1860 Census of Ohio County.
•Martin H. Rowe age 12 in the 1860 Census of Ohio County.
•William C. Rowe age 1 in the 1860 Census of Ohio County.
•Amanda H. Rowe age 11 in the 1860 Census of Ohio County.
•Mary Alice Rowe age 4 in the 1860 Census. Married L. C. Horton on October 18, 1873 in Ohio County, Kentucky.
•Laure Rowe was born sometime after the 1860 census was taken.

d. Joshua Rowe the son of Edmund and Mary (Phipps) Rowe, was a merchant in Hartford, Kentucky. He married a young lady by the name of Mary E. Barrett in Ohio County, Kentucky in 1853. The author learned they had two daughters, but their names are not available.

e. Elijah Rowe was the son of Edmund and Mary (Phipps) Rowe. Elijah Rowe never married.

f. Cynthia Rowe was the daughter of Edmund and Mary (Phipps) Rowe. She married a farmer by the name of Charles Hocker. Cynthia Rowe and Charles Hocker had seven children who were:

•Phillip E. Hocker who married Fannie H. Sowders on July 25, 1878 in Ohio County, Kentucky.
•Mary Ann Hocker
•Marthena Hocker
•Sarah Hocker who was listed at age 17 in the 1860 Census of Ohio County, Kentucky.
•Cordia Hocker (Zero C.) who married William M. Tichenor in 1869 in Ohio County, Kentucky.
•Dorcas Hocker (Darcus) married Bryant Tichenor in Ohio County, Kentucky on August 19, 1869. Dorcas was born on June 12, 1847 and died November 6, 1917. She is buried at the Goshen Cemetery. Her husband Bryant was a farmer, he was born on October 26 , 1835 and died on May 4, 1872.. He is buried at the Walton's Creek Cemetery in Ohio County, Kentucky. Bryant was the son of the Rev. Thomas Tichenor.
•Elvira Jeannette Hocker the daughter of Cynthia (Rowe) Hocker and Charles Hocker was born on July 12, 1845 and died on December 19, 1922. On March 9, 1865 she married James Purd Tichenor, the son of Rev. Thomas Tichenor. He was born on December 26, 1844, and died on April 15, 1918. Both Elvira Jeannette (Hocker) and James Purd Tichenor are buried at the Walton's Creek Cemetery, Ohio County, Kentucky.

g. Mansfield Rowe was the son of Edmund and Mary (Phipps) Rowe. Mansfield Rowe married Mattie Embler. He was listed at age 32 in the 1860 census of Ohio County, Kentucky. His occupation was given as a tavern keeper in Ohio County.

Thursday, March 1, 2018

Nancy E. (Leach) Montague

MRS. NANCY E. MONTAGUE, Ohio County, is the widow of Archibald P. Montague, who was born in Granville County, N. C, February 1, 1831; removed to Kentucky at the age of twenty years, and passed the remainder of his life in Warren, Logan, and Ohio Counties of this State. Prior to his death, which occurred in April, 1881, he was a leading merchant of Cromwell. He was an intelligent, enterprising and thorough business man, and was an extensive dealer and farmer. Mrs. Montague is the youngest daughter of Joseph and Altah (Miller) Leach, both sincere and devout Christians; her father was a Methodist class leader, and stood high in the community. He was a native of Maryland, born in 1796, and died in 1864. Her mother was born in 1795, and died August 11, 1865. Mrs. Montague was born in Cromwell Precinct, December 7, 1832, and was educated in the common school of that place. She is blessed with six children: Charles C., a merchant of Delaware, Daviess County; Aralta, wife of Cicero Sutton, of Fordsville, now editor of the Breckinridge News; Joseph Samuel, in business with his brother at Delaware; Archibald A.; Edwin Asbury; and Willie Cartwright. Mrs. Montague owns a beautiful home in the town of Cromwell, overlooking the Green River. She is a consistent member of the Baptist Church, as was also her husband, he having been a deacon in the same church.

Source: J. H. BATTLE, W. H. PERRIN, & G. C. KNIFFIN 1895