36 S.W.2d 346 | Ky. Ct. App. | 1931
Affirming.
On Friday night, April 12, 1929, the deceased was in the store of appellant at Disney, Ky. He procured the appellant to cash a check for him for $17. In order to cash the check, appellant went to his residence to get his pocketbook in which he kept his money. He returned to the store and cashed the check. He removed his coat in which he had his pocketbook, and laid it on the ice box. The deceased called for a "dope" (Coca-Cola) and waited on himself by going to the ice box and getting it. He then left the store. After the deceased left, appellant put on his coat, and discovered his pocketbook and money were missing. Appellant then went home and spent the night. The next morning while he was in the garden setting tomato plants Cal Thomas came by and requested him to go to the store to get him some tobacco. After obtaining the tobacco, Thomas departed, *705 when deceased came to the store. On arriving, he explained to appellant his intention of going to Tennessee to look after the estate of his wife. Deceased further stated that he had been discharged and was without employment and was without funds with which to support his family while in Tennessee. The appellant explained to him that he was not selling his goods on credit, and that he could not afford to credit the deceased, and followed up this statement by saying that he had lost all of his money. The deceased then asked the appellant: "How did you lose it? I heard something about that. You don't think I got it?" The appellant responded, "No, I am not accusing any one of getting it," when deceased remarked, "I would not take anything you had." During this conversation deceased was whittling on a piece of wood, and picking at the flap on his coat pocket, when appellant observed the strings of his pocketbook hanging out of the pocket of deceased's coat. He reached and jerked the pocketbook from the pocket of deceased, and deceased began to cut appellant with his knife. Appellant shoved him away, and, in the scuffle obtained his pistol and shot deceased. At the time deceased was shot he was trying to cut appellant and had cut him with his knife in two different places.
The witnesses Wright, Wynn, and Short were present or near the place of the difficulty. Each gave his version of the occurrence. Short corroborates appellant as to the use of the knife. The appellant was indicted, tried, and convicted by a jury, and by their verdict, his punishment was fixed at confinement in the penitentiary for seven years. Judgment was accordingly rendered, from which he now appeals. He insists that he is entitled to a reversal on the grounds of (1) the admission of incompetent evidence; (2) failure of the court to give an instruction on the right of appellant to defend himself and property while in his own store.
The evidence of a dying declaration of deceased is contained in a paper signed in the presence of, and sworn to, by him, before a notary public. The testimony of the notary establishes that the paper was read to and understood by the deceased before and at the time it was sworn to by him; that deceased understood the statements therein contained. The first part of the statement is written in the third person, and the latter part in the first person. Even with this appearing, it is shown without contradiction that it is the statements of *706
deceased. The statements therein described the physical condition of deceased at the time, and contained a statement showing that he was in extremis, and that he was conscious thereof. His death followed a few hours after the paper was signed by him. We have often held that dying declarations, when reduced to writing and signed by the person making the same, are competent in such cases. Hendrickson v. Corn., 73 S.W. 764, 24 Ky. Law Rep. 2173; Fuqua v. Com., 73 S.W. 782, 24 Ky. Law Rep. 2204; Sailsberry v. Com., 107 S.W. 774, 32 Ky. Law Rep. 1085; Lucas v. Com.,
The next complaint of appellant is that the court failed to instruct the jury as to his right of self-defense in defending himself and his property while within his own store. The evidence shows that the shooting of deceased by appellant was solely in defense of his person and to rid himself of impending danger at the hands of the deceased. No evidence was offered or heard showing or tending to show the right of self-defense on the ground that he was protecting his property or to rid his premises of the presence of deceased. In the absence of such evidence, the court did not err in failing to give the instruction. Slaven v. Com.,
Moreover the self-defense instruction given by the court is in the usual form and authorized the jury to acquit the appellant if it believed he shot and killed deceased in order to protect himself from danger, real or to appellant apparent.
Wherefore the judgment is affirmed.