90 Ky. 64 | Ky. Ct. App. | 1890
delivered the-opinion of the court.
Whether the accused was in fault as to the homicide for which he was 'tried was a question for the jury. They were tire' triers of ,1Ms issue, and they have found against him, under instructions from the court not open to objection, and which were .fully, as favorable to him as he had a right to -demand. 'The only ground urged
Another party, who was with the deceased just before the notary came to take the statement, testified that just before the coming of that officer the deceased .said there was no hope for him; that he was then dying, and would not live out the day. This party remained and heard the statement made by the deceased to the notary as to the circumstances of the killing; and the written statement having been excluded by the court as incompetent, this by-stander was permitted to prove what the deceased then said to the notary
It is clear that the two statements of the deceased, as proven by the witnesses, were made under the conditions upon the part of the declarant as to life or death which warrant the admission of such statements as dying declarations. There is no question as to their competency upon this score. Neither can there be as to the circumstances detailed, because they constituted the res gestae of the homicide. The authorities are not altogether in harmony, whether, if a dying declaration, when made, be reduced to writing, parol evidence may be given as to the declaration, although the writing be within the power of production by the party offering the oral evidence. Wharton says, however: “If the declaration of the deceased, at the time of his making it, be reduced into writing, the written document must be given in evidence, and no parol testimony respecting its contents can be admitted; and if a declaration in articulo mortis be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive parol evidence of the declaration.” (1 Wharton’s Crim. Law, section 679.)
Russell says: “If the statement of the deceased was committed to writing, and signed ley him at the time it was made, it has been held essential that the writing should be produced if existing, and that neither a copy nor parol evidence of the declaration could be admitted to supply the omission.” (2 Russell on Crimes, page 762.)
In Russell on Crimes, page 763, it is said: “It is no objection to the admission of a dying declaration that the deceased made a subsequent statement to a magistrate, which was taken down in writing, and is not produced.”
In the case of Rex v. Reason, 1 Strange, 499, three several declarations had been made by the deceased in the course of the same day at the successive in
Judgment affirmed.