John C. Day, the then acting Sheriff of Rowan County, was charged with the shooting and wounding of Sizemore.
The first blood had now been spilt; more was bound to follow. Even the most hopeful became convinced that a long and bloody conflict could no longer be averted. Those best acquainted with the state of affairs knew, and rightly predicted, that the law would not be invoked to settle the trouble and punish the offenders. “A life for a life” was the motto that henceforth governed the factions, now arrayed against each other in open, desperate warfare.
The wounding of Martin by Floyd Tolliver placed the latter and his friends and relatives in a dangerous position. They knew the Martins would not pass lightly over the matter. Their numbers and influence made them dangerous adversaries. Floyd Tolliver lived at Farmers, a small village on the Licking river, a station of the Chesapeake & Ohio Railway, which traverses the county and passes through Morehead. The Tollivers also were a large family. Floyd, believing himself in danger, now turned to his relatives and friends for assistance. They responded promptly, armed and organized. The Martins, the Sizemores and the Days did likewise, thus dividing the county into four factions, composed of determined, courageous and desperate men.
During the Circuit Court following the murder of Bradley the grand jury returned indictments against John Martin, Floyd Tolliver and Sheriff John C. Day for malicious shooting and wounding and murder. Bail was granted, bonds were readily executed and the cases continued until the next term of court.
In December following the fight of August, 1884, Floyd Tolliver and John Martin, who had recovered from his wounds, came for the first time face to face outside of the court room and when not in custody of the officers, since their fight. They met in a barroom, a place never suitable for enemies to meet. Had both men been duly sober trouble might have been averted. But, flushed with liquor, the old grudge soon got in its work, a dispute arose, their hands reached for their pistols, the shining weapons flashed for a moment, then belched forth fire and flame,—a cry, the dull thud of a falling body—Floyd Tolliver lay prostrate upon the floor—dead.
Martin was immediately arrested and conveyed to the county jail. To his friends the killing was a shock. They were fully convinced that Craig Tolliver and the other brothers of Floyd Tolliver would seek summary vengeance. Grave fears were entertained for the safety of John Martin in the old jail. Rumors of the organization of a large Tolliver mob increased anxiety and apprehension with each fleeting hour. But, as much as the Tollivers were feared, and the more they threatened, Martin’s friends bravely prepared to protect him at all hazards. Thus the aggressiveness of the Tollivers was counteracted by the bold defiance of the Martins.
The County Attorney, Mr. Young, was one of the ablest and most fearless Commonwealth lawyers in Kentucky. By his enemies, and they were numerous, he was regarded as wholly unscrupulous. They refused to credit him with even one pure thought, or action, emanating from a noble impulse. But unbiased investigation of the facts of this matter clearly shows that Mr. Young did his duty in this particular. He was perfectly acquainted with the character of the men arrayed against Martin, and was not the man to be deluded by their repeated declarations that the law would be permitted to take its course. At the risk of antagonizing the Tolliver faction against himself Mr. Young promptly directed the removal of John Martin to the Clark County jail at Winchester for safekeeping. County Judge Stewart saw the wisdom of it and issued the order for the removal, which was accomplished without mishap.
As soon as it became known that their intended victim had escaped them, the Tollivers, furious and raging, gathered in large force, spreading terror wherever they appeared. “We can wait—” they said, “there is another day coming. John Martin must be brought back to Morehead for trial and then—just wait.”
December 10th, 1884, was the day set for the examining trial before County Judge Stewart at Morehead. Before that day arrived, the unusual activity of the Tollivers, the ominous collection of all the members and friends of that family, the frequent but secret meetings, had been quietly, but nevertheless keenly observed by Judge Stewart. He was convinced that if Martin were brought back to Rowan County at this time of ferment and excitement he would suffer a violent death at the hands of his enemies, and that any attempt on the part of the officers and friends of the prisoner would precipitate a conflict the magnitude of which could not be foretold.
In this opinion Judge Stewart was sustained by Attorney Young. After a careful investigation of the state of affairs the court decided on an indefinite postponement of the trial. The order to the jailer of Clark County, directing him to deliver Martin to officers of Rowan County, was suspended on the 9th day of December, but unfortunately (fateful neglect!) the order of suspension was not communicated to the Clark County jailer. The wife of John Martin had been advised of the postponement of the trial. The faithful woman who had already suffered untold anxiety and fear for the safety of her husband, felt relieved and hastened to Winchester to inform him of the action of the Court of Rowan County.