199 S.W.2d 453 | Ky. Ct. App. | 1947
Reversing.
The appeal is by Daniel Allen from a conviction of voluntary manslaughter and judgment of five years' imprisonment for the killing of Edgar Begley. The conviction of his brother, Ramey Allen, for the murder of Begley has been affirmed. Allen v. Commonwealth,
When George Begley, the father of the man killed, and Ed Todd, the driver of the automobile, described in the other opinion, quickly left the car, the deceased, Edgar Begley, was on the back seat between Ramey and Daniel Allen. When they had gone perhaps 100 yards they heard three shots fired in quick succession. George Begley testified that he had not heard any threat and had not seen Daniel doing anything wrong during the ride or when he left the car. Todd testified that Edgar *785 and Ramey had "ahold of each other, wrestling;" that Daniel was not drunk and had "ahold of nobody;" that he was saying and doing nothing when he and George left the car. He testified that after hearing the shots Ramey "came down" (he does not say where) and told them Edgar was shot; that he went back to the car and found Daniel on the seat with the wounded man. Ramey got back in the car. The defendant had not been with the other men when they were gambling, but was invited by Edgar Begley to ride down the road with them a short distance, saying that they would be back in time for the train which Daniel expected to meet. Edgar's wife testified that the next day, Sunday, he said, "I can't get well; I can't live;" and further, "He said Daniel and Ramey Allen shot him and took his money." His brother, Earl, who had arrived at 4 o'clock the next morning, testified that he asked Edgar "who done this?" and he answered: "The Allen boys, Daniel and Ramey shot me and took my money." His widow also related this second statement. This is the entire testimony of the Commonwealth connecting the defendant, Daniel Allen, with the killing.
The defendant testified that as they were going down the road: "Ramey and Edgar got into it. I don't know what they got into it over. I tried to get out and couldn't." Todd stopped the car and the three of them jumped out; Ramey and Begley were quarreling, but he did not know what about. They "had ahold of one another." He had told them to quit "a time or two."
He saw Edgar Begley with a razor but did not see any pistol. He followed Todd and George Begley down the road, saying "they was going fast and I was right behind them." Ramey came down the road after the shots were fired "hollering for George Begley." Ramey went back to the car with the witness and Todd. He contradicted Todd's testimony that he was in the car when Todd returned. On recall, Todd testified the defendant did not go down the road with or close to himself and George. Both the defendant and his brother accompanied the wounded man in Todd's car when they left the scene, but got out at their respective homes along the way to the deceased's home.
Ramey Allen testified that he shot Edgar because he *786 was attacking him with a razor; that Daniel had done nothing at all and was not involved in the killing in any way.
The defendant established by a number of witnesses that he had a good moral reputation.
The question is whether this evidence is sufficient to support the verdict or, under our present practice, to have authorized the court to submit the case to the jury. It is obvious that mere presence when a crime is committed is not evidence that one committed it or aided in the commission. English v. Commonwealth,
The sole evidence tending to prove the defendant guilty is the dying declaration. It is only that the deceased said, "The Allen boys, Daniel and Ramey" had shot him. The question is whether that is enough. Without that dying declaration there is no sort of evidence that the defendant had any part in the homicide.
Some courts regard a dying declaration as of less value and weight than ordinary testimony, and under the practice in some jurisdictions it is proper for the court to instruct or advise the jury that it should be received with caution and considered with the greatest deliberation in the light of all the evidence in the case. 40 C.J.S., Homicide, sec. 304; 26 Am. Jur., Homicide, Sec. 426; Annotations, 52 L.R.A., N.S., 155, Ann. Cas. 1914C, 222. But we accept the declaration as the testimony of the person killed and regard it as of the same character as if given on the witness stand. It is no more sacred and may be contradicted or discredited in the same way as testimony of a living witness. Roberson's Ky. Crim. Law, Secs. 456, 470; Commonwealth v. Lawson,
When the court comes to appraise the probative worth of a dying declaration, we realize that, as an exception to the hearsay rule, the statement of a victim who expects to die is received on the ground of necessity in order to protect the innocent and prevent murder going unpunished (though it is received also when the exigencies do not make it necessary, Fuqua v. Commonwealth, 73 S.W. 782, 24 Ky. Law Rep. 2204), and because temptation to falsehood is presumably absent. Yet we know that a dying man sometimes retains his passions and prejudices, his motives of malice and revenge, which may pervert his perception or affect the trustworthiness of his accusations. And the same influence, as well as sympathy and fallibility of memory and disposition to tell truly what he remembers, may also affect the witness in relating the statement. Above all, especially in a case where the statement is so general, the absence of opportunity for cross-examination by the defendant must be taken into consideration in testing the probative value of a dying declaration as a matter of law. Lucas v. Commonwealth,
The declaration in this case is only as to the identification of the person or persons who shot the deceased. In our evaluation we remember that in other cases a similar statement proved not to be primary knowledge of the declarant but merely his opinion or belief because it was developed he was not in position to know. Roberson, Sec. 441; Green v. Commonwealth, supra; Stewart v. Commonwealth,
In People v. Ludkowitz,
In O'Neal v. State, Miss.,
The deceased's general and broad declaration that "The Allen boys, Ramey and Daniel" had shot him is inherently weak. It is meager and incomplete. Cf. Daughters v. Commonwealth,
There must be more than a scintilla or sparkle of evidence when all is considered to sustain any verdict, especially in a prosecution for crime where the rule of reasonable doubt continues throughout the proceeding to the end. Carpenter v. Commonwealth,
Wherefore the judgment is reversed. *789