178 Ky. 540 | Ky. Ct. App. | 1917
Opinion of the Court ey
Affirming.
On the 9th day of December, 1916, the appellant, Tjiibe Martin, with a pistol, shot and mortally wounded •Outhrie Diuguid, in Curd street, in the town of Murray, ■ in Calloway county. The shooting took place at about •twelve o ’clock, on Saturday, and the wounded- man died on the following day, at about 4:30 p. m. At the time of his death, Diuguid was a deputy constable, and pre
, The theory of the defense is, that Diuguid bore a deadly animosity against the appellant, and had on a number of occasions threatened to take his life, and had assaulted him with a pistol, and, furthermore, had claimed that appellant had been attempting to kill him, and had made a charge of some kind against him before the town ■ council, and on account of which, he threatened, that the appellant should not be permitted to live or stay in Murray, unless he withdrew the charge against him. Appellant, furthermore, claims, that being afraid of Diuguid, he left the town of Murray, in March, and went to the state of Tennessee, where he remained, until the time Diuguid was killed, and .that such occasion was the fourth time, that he had been in the town of Murray, since in the month of March; that he returned in June and in September, and on another occasion, the time of which is not given, but, on these occasions, that he avoided meeting with Diuguid, and would leave as-quickly as possible, and that he came to Murray on-account of being sick, on Wednesday previous to the altercation on Saturday, and. that at the time of the shooting, that he and* his brothers and Jordan were going from the house of a relative i;o. their father’s house .for the purpose of taking dinner, and that upon, meeting with Diuguid, Diuguid said, “Lube,. I thought I told you to come up yonder,” and that appellant answered,, “I had to go off, but I will go with you now or any time you want me to,” and that in reply to that, Diuguiclanswered with an oath, and said, “You don’t have to-go anywhere, but I will fix you right now,’.’ and immediately drew his revolver, when appellant, for the purpose of saving his life, drew his pistol and began to shoot at Diuguid, and after having shot four times, that he fled and, immediately, leaving the town, took to the
The appellant was indicted and charged with the' crime of wilful murder, and upon a trial was found' guilty'by the jury, as charged in the indictment, and the. penalty fixed at death. The court thereupon entered a judgment in accordance with the verdict. The appellant filed grounds and moved the court to set aside the verdict of the jury and judgment of the court, and to grant him a new trial. This motion was overruled, and hence the appeal to this court.
The grounds relied upon for a reversal are: (1) The court erred in the admission of incompetent evidence, prejudicial to the appellant; (2) the court erred in excluding from the consideration of the jury evidence offered by the appellant; (3) the court erred in overruling the demurrer to the indictment; (4) the court erred, in instructing the jury and refusing to properly instruct the jury; (5) the verdict of the jury is against the evi
(a) The 3rd, 4th, 5th, 6th, and 7th grounds seem to be merely formal, as no criticism is made of the indictment, and no defect in it is observable. The instructions seem to be as favorable to the appellant as he was entitled to have, and substantially present all the issues of the cause for decision by the jury, and no failure is observable, to properly protect all the rights of the. appellant, in the instructions given by the court to the jury. The instructions defining the crime of wilful murder and defining the crime of voluntary manslaughter are the usual ones given in such cases. The third instruction advises the jury, that if it believes, beyond a. reasonable doubt, that the accused is proven-to be guilty of either wilful murder or voluntary mam slaughter, but has a reasonable doubt of which offense,' he is proven guilty, it should find him guilty of the lesser offense, that of voluntary' manslaughter. The fourth instruction, in substance, directs the jury, that, although, it may believe, beyond a reasonable doubt, that the accused did shoot and kill the deceased, yet, if it believes from the evidence, that at the time, he did so, he had reasonable grounds to believe and did in good faith believe, that he was in danger of losing his life or suffering great bodily harm, at the hands of the deceased, whether the danger was real or to the accused apparent, that the accused had a right to use such force as was necessary, or to him appeared to be necessary,to protect his life or person from bodily harm at the hands of the deceased, and if the jury believed that the accused used no more force than was necessary or to-him appeared tó be necessary, for the purpose of protecting his life and person, it' should find him not guilty, upon the ground of self-defense. By a fifth instruction, the jury was advised that it could not convict the accused upon the testimony of Ed Jordan, alone, but there must be other corroborating evidence, which' tended to establish the guilt of the accused, and this instruction seems to be more favorable to the accused than he was entitled to, as there was no evidence of the1 fact that Jordan was an accessory to the crime of which the appellant was accused. By a sixth instruction, the jury was advised, that the law presumed the accused to
(b) It is, however, seriously insisted, that the court erred in admitting, in the evidence, over appellant’s objection, the alleged dying declaration of the deceased. This declaration, as testified to, was, “They had’ hold of me, and was beating me and Lube shot me,” and the further statement, that Sylvester Martin and “Ann” Martin were the parties, whom the deceased said had hold of him, and were beating him, when the accused shot him. It is not insisted, that the statements made by the deceased, in regard to whom, it was, that shot him and the manner in which he was shot and killed, are not competent evidence, if the deceased, at the time he made the declarations, had such consciousness of impending death and immediate dissolution, as would put him in that frame of mind, in which the law requires the wounded person to be, before his declaration can be accepted as evidence, without the solemnity of an oath, and the privilege of cross-examination. It is, however, seriously insisted, that the facts, as proven, did'not justify the court in arriving at the conclusion, that the deceased, when he made the declaration, was then under the belief of impending dissolution, and had given up all hope of recovery. The evidence discloses, that the deceased was wounded about noon on Saturday, and immediately requested the driver of a wagon, who. was nearby, to take him, in the wagon, to the office of a physician, which was done; and upon his arrival at the office of the physician, the deceased was suffering from the wounds to such an extent, that the physician administered an opiate to ease the suffering. Deceased was then removed to a nearby hospital, where he died on the following afternoon, at half after four o’clock. He was wounded, as heretofore described. The surgeon was of the opinion, that one of the bullets extended its course from the top of his left shoulder to about the base of his heart, and that his condition was very ser
(e.) The appellant, on the trial, offered to prove, by Dr. Mason, Suddie Brooks, Robert Foster and Dr. Keys, certain statements, which he had made to them prior to the 'death of Diuguid, to the effect, that he did not live in Murray, and was residing in Tennessee, because of fear of deceased doing him injury, and that deceased had threatened to take his life, and the court excluded the offered testimony and of this appellant complains. These statements were not made in the presence of deceased, and were clearly self-serving declarations, which are not admissible as evidence upon any ground known to the law. The same may be said of the alleged statements of the appellant, which were offered to be proven by Judge Langston. To admit such declarations as these, as evidence, would be to enable the person to manufacture a defense for himself, which had no real basis, in fact, as the declarations offered to be proven were all made, at a time, when there was no interested party able or had opportunity to controvert them. 21 Cyc. 971; 12 Cyc. 426; Walling v. Commonwealth, 18 R. 812; 38 S. W. 429.
(d.) After proving that a letter had been written to him by his mother prior to the homicide, the appellant offered the letter in evidence, and upon objection, it was excluded. The ground upon which it is insisted, that the letter should have been admitted, as evidence, is,'that it communicated a threat, which deceased had made against the life of appellant. An examination of the letter, however,' shows, that it did not contain a statement to the effect, that the deceased, Diuguid, had made any threat against appellant. The evidence does not disclose, that appellant’s mother ever had any information to the effect, that Diuguid had made a threat of any kind against the appellant, and hence, it can not be assumed that the party to whom the letter makes reference, as having made a threat of violence against the accused, was the deceased, Diuguid. A threat made by some one, other than deceased, and communicated to accused, would not be any ground for the accused apprehending danger from the deceased. The letter refers to the party, who made the threat as that “old man.” This
(e.) The clothing worn by the deceased, at the time he was shot and wounded, was admitted as evidence, over the objection of the accused. The record shows, that the clothing was admitted, upon proof, by the daughter of the deceased, that they were the same worn by deceased, at the time he was shot by the accused. The bill of exceptions contains no further information in regard to the clothing, and the bare fact is presented, that they were admitted. There is nothing before us to show for what purpose the clothing was used on the trial, if at all, or what they conduced to prove. It can be assumed, that the clothing showed, where the bullets penetrated the body of the deceased, and if they failed to show the location of the wounds clearly, or were used for any other purpose or were in a changed condition, there is no showing of such facts, if they were facts. If the Commonwealth’s attorney made use of them, in his argument, in an improper way, or argued that they proved things, which were not facts, there was no objection made, and neither was the bill of exceptions made to show such improper use of them or any use, at all. The clothing worn by the victim of a homicide, when he is found dead, or when he received the mortal wounds, may properly be shown, as evidence, tov,shed whatever light they may upon the cause and manner of his death, if they tend to show such facts, but.it is error to permit their introduction, as evidence until it is shown that they are in the same condition as 'when the
(f.) During the examination of the appellant, as a witness for himself, in chief, he was asked if Henry Pool ever told him anything about Diuguid- making a threat against him. Upon objection, the court refused to permit the witness to answer, and this is complained of as error. There was no avowal made, as to what answer the appellant would give, if permitted to do so. Hence, it can not be held, that the- refusal to permit him to answer the question was prejudicial. The time to which the question related was not confined to a time, previous to the shooting of Diuguid, which was probably the ground of the court’s ruling. Henry Pool was called as a witness for appellant, and while he testified -to having heard the deceased utter a threat against the appellant, he stated that he never, at any time, communicated it to appellant.
(g.) Appellant was, also, asked, upon his direct examination, if his father, Alex Martin, had, during the months of March or April, 1916, communicated to him a threat against his life made by the deceased. This was objected to and the court sustained the objection. An avowal was made, that, if permitted to answer, the appellant would state, that Alex Martin came to him about the time mentioned and said to him, that the deceased had said to him (Alex Martin) that he (deceased) expected to kill appellant, “unless he came up and straightened out those matters between them.” Just previous to the asking of the above question, the appellant had stated, that in the latter part of the month of March, his father had communicated a threat made against him by the deceased, and the ruling of the court was, doubtless, based upon the'idea, that the question and proposed answer thereto AArere only a reiteration of what had already been asked and answered. Technically, the ruling of the court was error, but it could, in
(h.) It is, also, insisted, that the court erred to appellant’s prejudice in a ruling made by it, in reference to the introduction of threats of violence alleged to have been made by deceased, against the life of appellant, and applying to all such threats, to the effect, that the appellant would be permitted to testify to the fact of the threats having been communicated to him, but that he would not be permitted to testify, as to what the threats were, or in other words, could not state what the parties, communicating with him, said to him, that the deceased had said concerning him, until it was first proven, that the deceased had made the threats, which were communicated. The decision of this question is, however, unnecessary, as its discussion, in the light of the facts presented by the record, would be merely academic. While appellant stated, that threats, made by deceased against him, were communicated to him by different persons, before the tragedy, he does not name, nor attempt to name, any person, who communicated to him a threat against him, except his father, Alex Martin. He does not pretend or show by anything, in the record, or otherwise, that any person ever communicated a threat to him, except his father, or that any witness was in existence anywhere, or then dead, who heard a threat
(i.) Two further rulings of the court are complained of, with reference to the rejection of testimony offered by the appellant, when testifying in his own behalf. One of them relates to the exclusion of the
“A judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby. ’ ’
In Arnett v. Com., 156 Ky. 803, it was said:
“Pew cases are tried without the commission of some error on the part of the court or jury, but section 340, Criminal Code, only authorizes a reversal for an error of' law appearing in the record, if, upon consideration of the whole case, the court is satisfied, that the substantial rights of the accused have been prejudiced thereby.”
In Cavanaugh v. Com., 172 Ky. 807, it was said:
“To authorize the reversal of a judgment of a con-, viction of felony upon the ground of rejection of evidence offered on the part of the defendant, it is not sufficient, that the rejected evidence be shown to have been merely pertinent or relevant or technically admissible. It must always be important for the defendant, in view of the whole case, as presented.”
To the same effect are Champ v. Com., 2 Met. 16; Collett v. Com., 121 S. W. 426; Hargiss v. Com.,135 Ky. 578 Reed v. Com., 138 Ky. 568; Parrish v. Com., 136 Ky. 11, It is impossible to see, when the number of threats are considered, which appellant testified, that the deceased-made to him, how the failure to admit the one rejected,, could be important to his defense, or that it would, in .anywise, have caused a different result of the trial, and especially, when the rejected threat was proved by other uncontroverted testimony, that it was made by deceased to appellant. The evidence, if believed, was abundantly sufficient to have caused the belief that appellant had! reasonable grounds for apprehending danger at the hands of the deceased, and the only apparent reason for its rejection by the jury, which is the judge of the credibility of the witness, is, that the jury, in its province as' the trier of the facts, disbelieved the testimony offered for appellant, when weighed against the evidence offered for the Commonwealth. The evidence was abundantly sufficient to sustain the verdict, and we cannot invade the.’ province of the jury to hold, that a different verdict should have been rendered. Hence, there seems to be no' error of law appearing upon the record, which was prejudicial'to appellant’s substantial rights.
Hence, the judgment is affirmed.