| Ky. Ct. App. | Jun 13, 1868
delivered the opinion oe the court:
Sentenced to the penitentiary for two years on an indictment for tlie arson of a church, the ippellant seeks
After the constable, who apprehended him, had testified that he freely confessed his guilt, his counsel, for the sole purpose, as avowed, of showing that witness’s self-contradiction or frailty of memory, offered his own written statement of his testimony before the examining court which he had subscribed after the examining trial; to which the prosecuting attorney objected; but the court admitted it; and thereupon, said that “the defendant's attorney had let down the fence, and that all is now before the jury"
This voluntary declaration was ultra-judicial and misleading. It erroneously implied not only that the written statement was evidence of all the facts'contained in it, but also that it was the more impressive as proof offered by the accused himself.
Now, while that written statement was certainly competent for the purpose for which it was read, it was as certainly incompetent as evidence of the truth of the facts it recited; and, therefore, this unnecessary and significantly illustrative interference by the circuit judge was an error in law, and waS probably the more misleading as indicating that it was stamped with the appellant’s own recognition of the truth of the facts so stated.
We cannot speculate on the actual effect of this blunder. It is sufficient for this court to know that it was wrong, and may have operated to the prejudice of the appellant. Moreover, the declaration, which was a virtual instruction, was merely oral, and was therefore illegal, according to the Criminal Code of Practice.
Wherefore, the judgment of conviction is reversed, and the cause remanded for a new trial.