119 Ky. 765 | Ky. Ct. App. | 1904
Opinion of the court by
The appellee, Nev. Lawson, was indicted by the grand jury of Whitley county, charged with the wilful murder of Josh Faulkner. The tragedy took place at a dance at the house of appellee. Upon the trial, appellee admitted that he had a difficulty with the deceased, but denied the shooting. The identity of the murderer was the real issue in the case. The Commonwealth introduced John W. Faulkner, an uncle of deceased, who testified as follows: “Josh Faulkner was my nephew. He was shot along about 2 o’clock at night, and died the next night of the gunshot wound. About two hours after he was shot, I went to Nev.
There can be no question that the testimony of John W. Faulkner fully established that condition of mind in the dying man which authorized the admission of his declaration as to the manner of his taking off. The rule is that declarations must be made under the sanction of a full realization that the party stands in the presence of immediate dissolution. In the case of Kehoe v. Commonwealth, 85 Pa., 127, the testimony was as follows: “Bill, it’s all up with me. I will never' get over it.” The declarant died two days thereafter. The declaration was admitted. We fully recognize that the question of the admission of such declarations is primarily for the determination of the court (Greenleaf on Evidence, § 160; Roseoe’s Criminal Evidence [8th Ed.] page 37; Roten v. State, 31 Fla., 520, 12 South., 910, and Maine v. people, 9 Hun., 116), but this only relates to the question of the admissibility of the evidence; in other
We are of the opinion that the court erred in excluding the dying declaration of Josh Faulkner, as testified to by his uncle, John W. Faulkner, and we therefore certify our conclusion to the trial court for future guidance.