189 Ky. 68 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The appellant, charged with the murder of Ed. Dixon, was convicted of manslaughter and his punishment fixed at eight years’ confinement in the penitentiary.
For reversal of that judgment he urges but one error, the admission of the dying declaration of Dixon.
Decedent was shot by appellant on December 18, 1919, in Oldham county, taken to the hospital in Louisville on December 19th and died from peritonitis as a result of his wounds, at the home of his mother in Louisville on January 22, 1920. Dr. R. B. Pryor was called to see deceased shortly after the shooting; visited him at the hospital on December 26 and again on January 19th.
“Q. Doctor Pryor, on December the twenty-sixth, 1919, I believe yon have stated that you saw Mr. Ed. Dixon at the hospital in Louisville? A. Yes, sir. Q. Just state what passed between you and Mr. Dixon, at that time, with reference to his condition? A. I told Mr. Dixon that I thought he was going to die in a short while. Q. Did Mr. Dixon make any statement to you, at that time, as to his belief concerning Ms physical condition. A. Yes, sir. Q. What did he say? A. He said he didn’t think he was going to get well. Q. Just describe to the jury just what was his condition at that time? A. He had very little vitality in his body, he was suffering from peritonitis and was very weak, just as weak as a man could be to be living when I saw him that day. Q. ' What results from peritonitis could you notice? A. The abdomen was swelled up from here way down to here, puffed up as tight as it could be. Q. After this conversation between you and Mr. Dixon, state to the jury whether or not he described to you the manner in which the trouble occurred .between him and Mr. Jackson the defendant in which he received these wounds? A. Yes, sir. Q. Just state what Mr. Dixon said with reference to the facts of this difficulty? A. He said that he was hitching up a mule or putting some harness on a mule at this place where he lived, and that the first thing that he knew of Mr. Jackson being on the place was when he came around the house and says what in the hell are you doing here and shot me through the arm right above the elbow, between the elbow and the shoulder on the right; he said. he started towards him and he said he next shot Mm as he was going through the fence, this shot that went through here and he came on into the yard and I think clinched with Mr. Jackson. Q. Did he say what happened after they clmched? A. I don’t remember about what he said, but I inferred that they had quite a-By the court. Just tell what he said. A. I don’t remember. Q. You mean you don’t remember his exact words? A. No, sir. Q. Can you state the substance of what he said happened after they clinched? A. I don’t remember of him saying very much about it after that, I know he spoke about having a fight. Q. I believe you stated you saw him again on January the nineteenth, 1920? A. Yes, sir. Q'. Who was present besides you at that time? A. Mrs. Dixon and Ms mother were there. Q. Whose mother? A. Mr.
The test of admissibility as a dying declaration is that the ■ statement was made under a consciousness of impending death, and this may be determined not only by what decedent said but also by his evident danger and by all the surrounding circumstances. Arnett v. Commonwealth, 114 Ky. 593; Commonwealth v. Griffith, 149 Ky. 405; Begley v. Commonwealth, 154 Ky. 30; Daniels v. Commonwealth, 154 Ky. 601; Eversole v. Commonwealth, 157 Ky. 478; Alsop v. Commonwealth, 164 Ky. 171; Cavanaugh v. Commonwealth, 172 Ky. 799; Postell v. Commonwealth, 174 Ky. 272.
By this test it does not seem to us that there can be any doubt of the competency of the statement of December 26th, entirely independent of what occurred on January 19th.
The mere fact that twenty-seven days intervened before death, would not, as urged by counsel for defendant, necessarily render it incompetent, since, as said in 1
We need not, however, rest our decision alone on what occurred on December 26th since we think it is clear that decedent reaffirmed the statement on January 19th, just three days before his death and when clearly he had no hope whatever of recovery.
He then had been informed by both his physicians he had but a few hours to live; had asked to be taken to his mother’s home to die and told Dr. Pryor, to whom he had made the statement of December 26th, that he had nothing to add to that statement as to how the difficulty occurred between him and the defendant, clearly identifying the statement he was reaffirming.
As said in the note on page 702 of 27 L. R. A. (N. S.): “With a single possible exception, there seems to be no dissent from the general proposition that a statement inadmissible at its first utterance may become admissible as a dying declaration where reaffirmed under a sense of impending death, provided the previous statements are identified with such clearness as to amount to a practical reiteration.”
Supporting this statement, in addition to many authorities from other jurisdictions cited, are the following Kentucky cases: Young v. Commonwealth, 6 Bush 312; Mockabee v. Commonwealth, 78 Ky. 380; Peoples v. Commonwealth, 87 Ky. 487; Smith v. Commonwealth, 113 Ky. 19, 67 S. W. 32; Million v. Commonwealth, 16 Ky. Law Rep. 17, 25 S. W. 1059; Wilson v. Commonwealth, 22 Ky. Law Rep. 1251, 60 S. W. 400. See also 56 L. R. A. note beginning at page 353.
Counsel for defendant contend that the later statement cannot be accepted as a reaffirmance of the first one because there is no proof' that decedent was conscious at that time; that the evidence of his extreme physical debility is sufficient at least to create a doubt as to his being conscious and render it error to admit the statement. It is true no witness says in so many words that
It is next urged that it was error to admit the statement in the absence of proof that decedpnt was not without hope of recovery during the time that intervened until death. This, however, is not necessary under any authority we have seen, and counsel cite none, or under the reasons that sustain the admission of such evidence. Especially is the contention without merit here where there is no evidence whatever that deceased ever after the first statement had any hope of recovery.
It is also insisted that the statement is incompetent because not decedent’s entire statement. This contention is based upon the fact that Doctor Pryor said he could not remember what decedent said occurred after he and appellant clinched, but an examination of the doctor’s testimony as given above makes it apparent that he did give the substance of the whole declaration and that he only meant that he did not remember the exact words of the latter part thereof.
For the reasons indicated, judgment affirmed.