122 Ky. 781 | Ky. Ct. App. | 1906
OPINION op the Court by
— Reversing.
The appellant appeals from a judgment of conviction, sentencing him to confinement in the penitentiary for 17.years for killing one Hubert Riddle. The appellant and Riddle were brothers-in-law; Riddle having'married appellant’s sister. It appears from the evidence that Riddle had rented the farm-, and half of the house, of Mrs. Coyle, the mother of appellant, for the year 1905. -She with her family occupied the other half of the dwelling. The appellant had been absent for several months, and returned to his mothers the day previous to the killing, with a broken or injured rib, and was lying on the bed in his mother’s room, on the morning of the difficulty, when Riddle entered witn a wagon spoke, drawing it upon the appelant, and commanding him to leave the house at once, and then left with the statement: “If you are not gone when I get back I will kill you.”
Mrs. Riddle testified: i£I am1 the widow of Hubert Riddle, the deceased, and also the sister of Thomas Coyle, the defendant. "We had been married about eight months. My husband had rented my mother’s, Mrs. Coyle’s, farm, and also one-half of the house; my mother reserving one room up stairs and one room down stairs. My husband did not like Tom Coyle, and told my mother he did not want Tom lying around there. Tom Coyle, the defendant, had been away from home for some time, and had only returned the day before the shooting. On the morning of the shooting, I, in company with my mother 'and sister, Spieey, left home for a little place called Nead Moore, and my husband went the other way to Holland’s MSill. After my husband had left, Tom Coyle came around the house where my mother, my sister, and I were, and he had my father’s gun, and said that Hubert had ordered him away, but that he would take that gun and kill the d — n son óf a b-h. In the afternoon my sister Spieey and I were át a neighbors when we heard the shot at home, and when we got there I found my husband shot in the arm about four inches below the shoulder. This occurred in Madison county and on the 18th- day of April, 1905. We sent for a doctor immediately, but the doctor did not arrive until the following day, about noon. On the day after the shooting between the hours of 7 and 8 in the morning, my husband told me that he believed he was going to die, and made the following statement: 'My husband told me that he
Charlie Riddle, brother of the deceased, testified as follows: “I am the brother of Hubert Riddle, deceased, and was in the room with my sister-in-law on the morning of March 18, 1905, between the hours of 7 and 8, and heard my brother’s dying statement, which was: He said he believed he was going to die; that he had been to mill, and as he came home wlalked around the house with his meal to> the meal-room, and finding it locked, went to Mrs. .Coyle’s room to- get the key, and upon stepping inside Thomas Coyle wa,s there with his gun leveled at him, and fired before he could move. It seemed to me .that the doctor was a long time coming, and-I got my horse and went to meet the doctor, but took the wrong road
G-eorge Herd, introduced by the Commonwealth, testified as follows: ‘ ‘ I live near where Hubert Riddle was shot, and went to the house of the deceased early the next moaning after he whs shot. I asked the deceased, Riddle, who shot him, and he replied that Tom Coyle had shot him. I asked him how Coyle had shot him, and he replied that he had been to mill, and walked around the house with his meal, and threw it down, and went to Mrs. Coyle’s room; when Tom Coyle was standing there with his gun, and shot him before he could move.” The appellee obtained this conviction solely upon the alleged dying declarations of the deceased. Upon this question, the defense introduced three witnesses as follows:
Spieey Coyle, who testified: “I am a sister of the defendant, and on the morning the shooting occurred my mother and sistei', Mrs. Riddle, went with me to Nead Mioore, and as we were leaving home Hubert Riddle, deceased, and husband of my sister, Mrs. Riddle, asked my mother to go to the house and tell Tom Coyle, her son, that he had to leave; but my' mother declined to do so; whereupon Riddle said he would do it himself. My mother, sister and myself went to Nead Moore, and returned home about 1 o’clock, and Tom Coyle said Hubert Riddle had drawn a wagon standard on him, and told him he had to leave, and Tom had a gun in his hand, and said he guessed he could keep> Riddle off him with this gun. My mother and I went to a neighbor’s^ Mr. Willis, and my sistei', Mrs. Riddle, went to meet her husband.
Merrill Willis was next introduced for the defense, and testified as follows: “Mjrs. Coyle and Spicey were at my house when we heal'd the gmi shot at Mrs. Coyle’s house, and I went up there with them When I went into, the room where Hubert Riddle' was T asked Mm if -he knew Tom Coyle had a gun, and he "aid ‘yes’; then I asked him why he went on him, ¡md be said, ‘I thought he was too d-n big a coward to shoot.’ ”
Robert Freeman was introduced by the defense, and testified-as follows: “I was at the house where Hubert Riddle was nearly all the time after he was shot, and I did not hear him make any dying statement of any kind, but, on the contrary, he expressed hopes that he would soon be well.”
The court gave the usual instructions in such cases, and, in addition, gave the following: “As to' the statements testified to by some of the witnesses, as having
The real question is, did the court err in permitting these alleged dying declarations to1 gu to the jury as evidence? Were these facts and circumstances shown to the judge of the court sufficient to authorize him to determine that the deceased, when he made the declaration to his wife and brother, was in extremis, that every hope of this world was gone, and chat every motive to falsehood or revenge was silenced? In considering this question, we must take the record as presented, although apparently imperfect and incomplete, or the parties were negligent in eliciting all the facts and circumstances that might-have shed light upon the question. The substance of the evidence upon this point was that Riddle at about 7 or 8 o 'clock in tire morning of the day after he was shot said to his wife and. brother he believed he was going to die, and after stating how diseased said he received the shot, the wife stated, hut which was not corroborated by the brother, that he said “he was going h> die,” and gave as the reason the shot passed through his arm so near a joint. Neither of these witnesses professed to have heard the deceased say anything further on the subject at any time before his death.
In view of these authorities,' and others, it is difficult
For these reasons the judgment of the lower court is reversed, and remanded for another trial in conformity with this opinion.