84 S.W.2d 58 | Ky. Ct. App. | 1935
Reversing.
Charley Hansel appeals from a judgment of five years' imprisonment upon conviction of carnally knowing a female under sixteen years of age. Section 1155, Ky. Stats., as amended by Acts 1930, c. 18.
The record discloses that the girl, a few days after her sixteenth birthday, in April, 1934, gave birth to a child. A doctor was not called until a week or more later, and he found her suffering with puerperal septicemia or, in the vernacular, bed fever arising from child birth. *149
To her father and other witnesses, the girl stated that she was going to die and that Charley Hansel was the cause of it. She also said to her father, under a sense of impending death, that the child "belonged to Charley Hansel and that no other man knowed of her but him, but that he would deny it." The mother testified the defendant had called three times to see her daughter as his sweetheart.
The defendant, a widower, whose age is only indirectly shown to be over twenty-one years, denied having more than a casual acquaintance with the girl. He denied having gone to see her and having had carnal knowledge of her. By himself and other witnesses, he proved, or undertook to prove, that from June 22d until some time in October, 1933 (during which the child was conceived), he was not in the community except on August 6th, when he came home to vote, and then that he immediately went back to his work, some twenty miles away.
The statements of the girl were admitted over the vigorous objections of the defendant. At the close of the evidence, the court withdrew from the consideration of the jury the testimony that she said she was going to die and that the accused was the cause of it. He admonished the jury as to the charge upon which the defendant was being tried, and directed that the fact that a child had been born to the girl was not to be regarded, except in so far as it tended to prove that she had had intercourse with the defendant, if in the jury's judgment it did so; that the gist of the prosecution was not the birth of the child, but the fact that the defendant had had intercourse with her.
At early common law, dying declarations were admitted in all cases, civil and criminal. It was later held that they should be received only in prosecutions for homicide, and then only where the death of the declarant was the subject of the charge and the circumstances of the death were the subject of the declaration. This rule has been observed in this country practically from the beginning. 1 Greenfield, Evidence (16th Ed.) sec. 156 A; 16 C. J. 640; 22 C. J. 258; Underhill, Criminal Evidence, sec. 175; Clark v. State,
The court should have excluded not only the statements of the deceased as to the defendant having caused her death, but likewise have excluded entirely her statement that he was the only man who had carnally known her, and was the father of the child. It is apparent that, with this excluded, the evidence was not sufficient to take the case to the jury, and the court should have directed a verdict of acquittal.
Judgment reversed.
Whole court sitting. *151