118 Ky. 637 | Ky. Ct. App. | 1904
Opinion op the court by
Affirming.
Ulysses Hicks was indicted by the grand jury of Graves county, charged with being accessory before the fact to the self murder, or suicide, of one Chris Haggard. A trial resulted in the court’s sustaining a motion of the accused for a peremptory instruction to find him not guilty, made at the close of the Commonwealth’s testimony. To review this judgment this appeal is prosecuted under section 337 of the Criminal Code.
The evidence for the Commonwealth was substantially as follows: Tom Sears testified that he was standing at the corner of Hunt’s drug store, when Hicks came along, and smiled, and said: “I have got to go to the drug store, and get Chris Haggard a quarter’s worth of morphine. Í reckon he’s going to kill himself.” Shortly afterwards, he met the accused, who told him that he had obtained the morphine, and also that he had delivered it to Haggard. After the death of Haggard, Hicks told the witness of a conversation which took place between himself, Haggard, and one Amett, on the Saturday night before the purchase of the morphine, in which Haggard said that would be the last night that they would ever be together. Mrs. Lizzie Hicks, a sister of Haggard, and a relative by marriage of the accused, testified that, on Wednesday preceding the death of Haggard,
The crime with which the accused stoodi charged is, we believe, a somewhat novel one, certainly in Kentucky. Blackstone, in lus Commentaries (volume á, p. 189), says: “Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one-self, or another man. Self-murder, the pretended heroism, but real cowardice, of the Stoic philosophers, who. destroyed themselves to avoid, those ills-which they had not the fortitude to endure, though the attempting it seems, to be countenanced by the civil law, yet was punished by the Athenian law with cutting off the hand which committed the desperate deed. And also the law of England wisely and religiously considers that no' man hath a power to destroy life, but by commission from God, the author of it;.and as the suicide is guilty of a double offense — one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the King, who hath an interest in the preservation of all his subjects — the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one’s self. And this .admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the advisor is guilty of murder.”
Section 1128, Ky. St., 1903, provides: “In all felonies, the accessories before the fact shall be liable to the same punishment as the principal, and may be prosecuted jointly with the principal, or severally, though the principal be not taken or tried, unless otherwise provided in this chapter.” Robertson, in his work on Kentucky Criminal Law and Procedure (section 185), says: “Suicide, or self-murder, is a felony at the common law. It has therefore been held that, if one kills himself upon the advice of another, the adviser, if present when the act is done, is guilty of murder as a principal in the second degree. If the adviser is absent at the time of the suicide, he can not be punished at the common law, because, being an accessory before the fact the principal must first be convicted; but by statute' in this State, as we have seen, accessories before the fact may be arrested and tried, although the principal has not been taken or tried, and the rule of the common law does not, therefore, apply. So where two persons agree to .commit suicide, and only one of them kills himself, the survivor is a principal in the murder of the other.” It can not be said that an accessory before the fact in self-murder is not liable to punishment under the terms of the statute because, his principal being of necessity dead, he can not be punished by any earthly sentence for his crime. We have seen that ■suicide at the common law is murder, and our statute (section 1149, Ky. Sts.) fixes the punishment of wilful murder
It remains, then, to ascertain whether or not the Commonwealth’s evidence authorized,' if uncontradicted, the conviction of the accused in this case. Section 240 of the Criminal Code is as follows: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.” Examining the evidence in the light of this provision of the Code, what do we find? Nearly all the evidence consists of the admissions out of court of the defendant. Leaving out the statements of the accused, there is this testimony, and nothing more: Hurt said that, on the Monday preceding the death of Haggard, he sold Hicks half a drachm of morphine. Mrs. Lucy Hicks testified to a conversation between Haggard, Arnett, and the accused on the Wednesday preceding the suicide, in which, as the party was about to break up, the accused asked Haggard what night he should come again? Whereupon Haggard said: “Friday.” The accused said: “Put it off, I can’t come Friday.” Then replied Haggard (substantially) : “I
We are of opinion that an analysis of the evidence, and the enforcement of the provisions of the Code on the subject of confessions, warranted the trial judge in giving the peremptory instruction to find the defendant not guilty, -of which the Commonwealth complains. And this conclusion ■is certified to the circuit court.