102 Ky. 241 | Ky. Ct. App. | 1897
delivered the opinion of the court:
The appellant, John Dugan, was indicted for the murder oí John C. Colson, was found guilty of manslaughter and sentenced to the penitentiary folr twenty-one years. On June 1, 1897, between seven and eight o’clock p. m., Colson was shot and killed in the city of Middlesborough. The testimony in the case is too voluminous to be given here. According to the testimony offered by the Commonwealth, Dugan shot and killed Colson.' Dugan and William Miller had some trouble in front of what is known as the “Colson Block.” Col-son was the peacemaker; he disarmed Dugan by taking from, him, in a friendly way, his revolver. The parties separated, ’Dugan went to his house, procured a forty-four Remington and in a few minutes returned to a place near where the difficulty and separation had taken place. There was a
Emma White was introduced by the Commonwealth in chief, and testified that she was standing in Dugan’s back yard when the shots were fired; that she saw a man raise a pistol to fire, but she did not know who it was, as she
Under section 224, Criminal Code of Practice, after the defendant has closed, the Commonwealth may offer rebutting evidence, and for a good reason and in furtherance of justice may be permitted to offer evidence upon her original case. We think this testimony was properly offered in rebuttal. The defendant had introduced evidence by which it was attempted to show that the ball which was taken from the body of Colson was not a forty-four; then the Commonwealth offered Dr. Caldwell as an expert, to show that a ball might be reduced, even more than twenty-four grains, by passing' through bones and tissues of the human body. Experts acquire knowledge through actual experience, and by their study of certain subjects. They in that manner qualify themselves to give opinions on certain subjects of which they have such special knowledge, and it is competent for them to do so within certain limitations. We think that Dr. Caldwell’s experience, and the knowledge which he had acquired by the study of books relating to his profession and the subject under investigation, rendered him competent to give an opinion as to the effect on a ball which passed through bones and tissues of the human body. It is contended that the confession or admissions of the defendant were made under such circumstances as rendered
This is a well-settled rule. The testimony shows that none of the causes stated existed for rejecting the testimony, but it is claimed that the confessions were made because the defendant was afraid of one William Miller and his friends; that he was afraid to state the facts with reference to the shooting as he claimed them to exist; that they would have implicated Miller, and thus imperiled the life of the defendant. Although the defendant claimed on the'trial of this case that Miller attempted to shoot him and he shot in self-defense, and if he shot Colson it went wide of the mark, because he was shooting at Miller. Yet, at the time of the admissions which the Commonwealth proved, he never intimated that he shot at Miller. He admitted to'the officer in charge that he had shot Colson; he did this before Miller had appeared on the scene. After the shooting he went so far as to give the reasons for shooting Colson, and the testimony strongly tends to prove that the first shot which was fired was the fatal one, and Dugan admits that he fired it, although he contends that he fired it at Miller. It is wholly inexplicable to us why Dugan was afraid to admit on the night of his arrest that he had shot at Miller as he did not hit Miller, and, as he contends, it was done in self-defense, yet
We think the court properly permitted the evidence of the confessions or admissions to go to the jury. The jury heard all the evidence relating to, the circumstances under which they were made, and they were the judges as to the weight which should be given them.
It is contended that the court should have given the jury the instructions which would in effect have allowed the jury to determine whether it was proper for them to consider the admissibility of the confessions as evidence. This court has uniformly held that the court is the judge as to the admissibility of the confessions as evidence. We deem it unnecessary to cite authority on this question, as the rule we have stated *has always been recognized by this court as the correct one.
Section 240, Criminal Code of Practice, reads as follows: “A confession of a defendant, unless made in open court, will not warrant a convictio* unjess accompanied with other proof that such an offense was committed.” It is contended that the court erred in not giving the jury an instruction on the subject as to the effect of a confession not made in open court.
In the case of Cunningham v. Commonwealth, 9 Bush, 149, it was ruled that, besides proof of any confession a defendant*
Patterson v. Commonwealth, 86 Ky., 313, accords with' titile view. In that case the court said, if the confession is accompanied with proof that such an offense was committed, i. e., with proof of the corpus delicti, it will warrant a conviction. The court in that case also held in effect that section 240 was a legislative declaration of a rule that had previously existed.
Wigginton, &c. v. Commonwealth, 92 Ky., 282, reaffirmed the interpretation which had been made, of section 240 in the Patterson ease. These cases gave an entirely different meaning' to section 240 to that which had been given by the court in the Cunningham case. While the court did not in these cases in terms overrule the Cunningham case, yet in effect did say so. We adhere, to the doctrine of the Patterson and Wigginton cases and overrule the Cunningham case.
We do not say that a case may not arise in which it would be proper for the court to tell the jury the effect of extra judicial confessions, but we are of The opinion that in this •case it was not necessary to’-'da so. The corpus delicti was abundantly proven as shown by the facts that we have heretofore -given, independent of the confession or admissions of the defendant out of court, hence it was unnecessary for the court to give the instruction in question. This view is in accord with Bush v. Commonwealth, 13 Ky. Law Rep., 425.
The judgment is affirmed.