118 Ky. 870 | Ky. Ct. App. | 1904
Opinion on the court by
Reversing.
Appellant, Frank Merriweather, and eight others, including George Holland and Dick Carney, all negroes, were indicted for the willful murder of an unknown white man committed in Christian county on November 14, 1903. The murdered man was a stranger in that community. He appeared in a saloon in the town of Pembroke “after dark on the 14th. of November, 1903 — Saturday night — and bought some whisky. In paying for it he exhibited some money, and besides got some silver exchanged for paper money, which he added to a roll of bills, also exhibited in the saloon. Dick Carney is shown by the evidence in this case to have seen the occurrence above narrated, and to have followed the stranger out. There were a number of people in and about the saloon at the time, and others went out directly after the stranger. Persons passing through Chilton woods about iy2 miles from Pembroke, some hour or so later, discovered a fire built near a tree, and a man having the appearance of this stranger sitting alone by it. On the following Tuesday
1. Appellant suggested in his-motion for new trial filed in the circuit court that the jury, and the venire from which it was selected, were all white men, and that his race was discriminated against in its selection, which he claimed was in violation of his rights under the fourteenth amendment to the Constitution of the United States. It is sufficient for the purpose of this case to say that there is nothing in the record showing the race of any of the jurors. Nor is there anything showing what race or races the venire included. Nor was there objection in the circuit court at the time to the jury. On the contrary, the record shows that it was accepted by the defendant without objection.
2. Evidence was admitted to the jury which is claimed to be in the nature of admissions by the defendant. By a number of witnesses it was proved that directly after appellant’s arrest he, in company with several others of those indicted with him, was being taken from Pembroke to Hopkinsville, the county seat. The eight prisoners were chained to each other, but in two groups of four each. They were standing in the waiting room at the depot, gathered about the stove. A number of persons, officers and others, were in the room and without. A crowd had gathered about the depot, but were in the main kept from the room by a guard- placed at the door. Under these circumstances, some of the spectator’s or officers asked several of the prisoners whether they had killed the stranger. George Holland, and others of them,
The general rule is that what another said about the transaction under investigation is not relevant as evidence. It is called hearsay. There are, however, numerous exceptions to that general rule. Sometimes classed among these exceptions is where one recited facts in the hearing of the person to be charged, and he assents to their truthfulness. This is allowed, upon the ground that such statements by the assent of the person whom it is sought to bind by them
One of the earliest and most thoroughly considered cases bearing upon this subject, and one which is a leading casa
The question whether the statement sought to be introduced was voluntarily made, and under such circumstances as to constitute it evidence against the accused, is one primarily for the court (Commonwealth v. Kenney, supra; Hudson v. Commonwealth, 2 Duv., 531), which, if admitted, then becomes matter to be weighed by the jury. In this State it has been twice before held that silence of one accused under such or similar circumstances is not evidence of guilt. Jackson v. Commonwealth, 100 Ky., 239, 18 R., 795, 38 S. W., 422, 1091, 60 Am. St. Rep., 336; Porter v. Commonwealth, 61 S. W., 16, 22 Ky. Law Rep., 1657. Other cases in other jurisdictions which show the law to be as herein stated are Lawson v. State, 20 Ala., 65, 56 Am. Dec., 182; Wilkins v. Stidger, 22 Cal., 231, 83 Am. Dec., 64; Pierce v. Goldsberry, 35 Ind., 317; Whitney v. Houghton, 127 Mass., 527; Com. v. Walker, 13 Allen (Mass.), 570.
3. T'he instructions as given by" the court, except the one bearing on the statements above discussed, and which we hold were improperly admitted, seem to fairly embrace all the law applicable to this case. But for the reasons indicated the judgment of the circuit- court must be reversed, and cause remanded for a new trial not inconsistent herewith.