89 Ky. 287 | Ky. Ct. App. | 1889
delivered the orinion of the court.
William Matthews was tried upon the charge oí manslaughter for killing Henry Alves by shooting
It is claimed that the statute gives the right, and for the reason that the law may not only be properly •administered in this, but other cases. It is clear that •a defendant can only appeal from a final judgment. Is this true of the Commonwealth? Section 335 of the Criminal Code provides: “An appeal shall only be taken on a final judgment, except on behalf of the Commonwealth. An appeal by the Commonwealth from a decision of the circuit court shall not suspend the proceedings in the case. The decision of the Court of Appeals shall be obligatory on the circuit courts as being the correct exposition of the law.”
Whatever may be thought of the policy’ of the rule, this provision plainly gives to the State the right to •an appeal from any decision of the trial court, although it be not of a final character. Wherever the Criminal Code speaks of an appeal by the defendant it is from “ a judgment,” and when by the Commonwealth it is from “ a decision.” Moreover, it is expressly provided that an appeal by the Commonwealth “shall not suspend the proceedings in the case,” as may be done where the defendant appeals; and section 337 of the Criminal Code declares that the Attorney-General may take the appeal, if satisfied “that ■error has been committed to the prejudice of the Com
We must not be understood, however, as intimating that this statutory rule is without reason. It is supported by it. When a final judgment is rendered* against a defendant, he may, upon appeal, get the benefit of any error which has, at any time during the progress of the case, been committed against him, save those errors to which, by the Code, no exception can be taken. In short, he can not be injured by'the denial of the right to appeal, save from a final judgment. Upon the other hand, if a defendant be tried and acquitted, he can not, of course, be again tried,, although his release may free a guilty man, and be the result of erroneous decisions of legal questions by the trial court. The injury bo the State and the public is then beyond cure as to that particular case.. Owing to this fact, doubtless, the Legislature saw proper to give to the Commonwealth t the right to an appeal from a decision of the trial court, although not final in character. It gives no advantage to the State over the accused. He is amply protected, as we have already seen, by the right to appeal from a final judgment. It is indeed only fair to the public, a,nd proper for its protection, because otherwise the guilty might escape by an acquittal resulting Horn legal errors. (Commonwealth v. Cain, 14 Bush, 525.)
If it be urged that the case now stands as if no trial had ever taken place; that the rulings of the court then made are now nullities, and that, therefore, the idea of an appeal from them is absurd, the answer
As the case is yet pending, we shall not detail the circumstances of the tragedy as we gather them from the evidence, further than is absolutely necessary to the consideration of the questions presented..
It is contended by the Commonwealth that the shooting was intentional, or, if not, that it was the result of such a reckless and careless use of the gun as to be criminal; while the accused claims that it was accidental, and occurred under such circumstances that, although the act was careless in itself, yet he had the right to suppose no injury could result.
The general rule is, that one who causes death by his negligence is responsible, whether he was at the time engaged in legal or illegal business. If the business be in character felonious, then he is guilty of murder. If legal, and homicide result from negligence in the discharge of it, it is manslaughter. This rule is, however, subject to exception when, for instance, the act, although careless in itself, be done under such circumstances that it could not reasonably be supposed injury' would result. (Chrystal v. Commonwealth, 9 Bush, 669; York v. Commonwealth, 82 Ky., 360.)
Upon the trial the Commonwealth offered to prove that the accused had, about two weeks before the killing, said that his father had killed his man, and that he intended to do so soon. This evidence was rejected.
The accused was allowed, over the objection of the Commonwealth, to prove as a dying declaration what the injured party said after the shooting as to the circumstances of it. It is urged that the proper foundation was not laid for its introduction, and that the statement was in itself incompetent. It was proven that about fifteen minutes after he was shot the deceased, when lying upon the ground bleeding and suffering, said that he hoped he would live long enough to take the gun home, and that he died in about twenty minutes. The witness says that he did not say whether he believed he would die or recover, and that he (the witness) did not know whether he was conscious or not when he made the statement.
It is well settled that a statement to be admissible as a dying declaration must be made when the party is in extremis, and has given up all hope of this life ; but whether this be so or not may be determined not only by what he may say, but by his evident danger and all the surrounding circumstances. The injured party need not, in express words, declare that he knows he is about to die, or make use of equivalent language. (Peoples v. Commonwealth, 87 Ky., 487.)
Tested by this rule, we think the statement in this .instance was made under a sense of impending death,
To be competent as a dying declaration, the statement must not only relate to the immediate circumstances of the transaction resulting in the injury, but it must detail facts, and not the opinion of the declarant. In our opinion, the statement in this instance conforms to this rule. It is unlike the case where the injured party declared that he had been killed for nothing. This was purely his opinion and inference. Here the injured man said that he and the accused were engaged in- play, and that the shooting was an accident. This, in our opinion, was the statement of a fact, more than the giving of an opinion, and the court properly permitted it to be proven.
The instruction as to involuntary manslaughter, given at the request of the defendant, is too general in terms and expression. The jury, upon this question, should, in substance, have been told that if they believed from the evidence the accused had reasonable grounds to believe, ana did believe, there was no danger in handling the gun as he did, and that it was done without any purpose of harm upon his part, but further believed from the evidence, to the exclusion of a reasonable doubt, that the killing resulted from the careless use of the weapon, then they should find him guilty of involuntary manslaughter, and fix his punishment at fine and imprisonment in the county jail, in their discretion; but if they believed from the evidence
This opinion is ordered to be certified to the lower court.