78 Ky. 380 | Ky. Ct. App. | 1880
delivered the opinion of the court.
Appellant was jointly indicted with Geo. Howard for the murder of James L. Young, city marshal of Mt. Sterling,., and sentenced to the penitentiary for two years. From that conviction this appeal is taken, and the principal error complained of is the admission of what is claimed to be the dying declaration of Young.
The evidence is that the statement was made by Young some two hours before he died, and when he expressed the opinion that he would recover. It was reduced to writing at the dictation of Young and, at the time, read over to and approved by him. A few minutes before the death of Young the witness who had reduced the statement to writing returned to his bedside and found him speechless. The witness rubbed his hands and temples, and in a few minutes-Young recovered his speech and said to the witness: “Jim, I’ll die in a few minutes,” to which the witness replied “Yes, you will,” and then said, presenting the written statement, “Jim, I have in my hand the statement you made awhile ago of how you were killed. I now want to know whether it is true.” To this Young responded, “It is.” The witness then said, “Shall I sign it for you?” to which Young nodded assent, and the paper was signed in his presence. Immediately after this Young called for some insurance policies and made disposition of some personal property. The evidence shows that he was entirely conscious at the time of this last interview, and although the written statement was not re-read to him at that time, there is nothing to indicate that he did not fully understand its import and did not fully reaffirm the statement contained in it. It being perfectly manifest that the mind of the deceased was clear at the time of this last conversation, and that he understood the
The evidence as to the statements of William Howard, made about the close of the difficulty, was competent as a part of the res gestee. They were sufficiently near,- both as to time and place, to illustrate the character of the transactions- But if they were not competent we would not reverse on account of their admission alone, because it does not appear that they were prejudicial to appellant.
The controlling instructions are as follows:
“ 1. The court instructs the jury that the city marshal of Mt. Sterling had the right and it was his duty by law to be on the streets of said city, and to arrest any person who in his presence by boisterous or disorderly conduct, wrangles, quarrels, or profane language disturbs the peace, quiet or .good order within said city, and he had the right to use such force as was necessary to make such arrest, to secure the custody of the offender and to suppress s.uch disturbance.
“2. If the jury believe from the evidence, beyond a rea.sonable doubt, that Jas. L. Young was the city marshal of Mt. Sterling, in Montgomery county, Kentucky, and as such officer and in discharge of his official duties as defined in instruction No. 1, arrested or attempted to arrest George Howard or William Howard in said city and county, before the finding of the indictment, and while so engaged said George Howard refused to be arrested by him or with force resisted such arrest or attempted arrest of himself or William Howard, and with a pistol then and there wilfully and knowingly'shot and killed said Young, and they further believe from the evidence, beyond a reasonable doubt, that the defendant, Henry Mockabee, knew or had notice that said Young was marshal as aforesaid, or acting as such, and was ■present or near enough to give assistance during the contest in which said Young was killed, and did then and there wil:fully and knowingly take part in said contest by either aid
“3. If the jury believe from the evidence, beyond a reasonable doubt, that James L. Young was the marshal of Mt. Sterling, in Montgomery county, Kentucky, and as such officer and in the discharge of his official duties, as defined, in instruction No. 1, arrested or attempted to arrest George-Howard or William Howard, in said city and county, before the finding of the indictment, and while so engaged said George Howard refused to be arrested by him, or with force-resisted such arrest or attempted arrest of himself or of Win. Howard, and with a pistol then and there knowingly and wilfully shot and killed said Young, and they further believe from the evidence, beyond a reasonable doubt, that the defendant, Henry Mockabee, was present, ornear enough to give assistance during the contest in which said Young was killed, and did then and there wilfully take part in such contest, by either aiding, abetting, assisting, advising, inciting, or encouraging said Howards, or either of them, in making such resistance, but that he did not at the time know or have notice that said Young was said marshal, or acting as such, or that he did not know the origin and purpose-of such resistance, they should find him guilty of manslaughter, and fix his punishment at confinement in the state penitentiary for not less than two nor more than twenty-one years.”
There is a sacredness attaching to and surrounding the person of a conservator of the peace, while engaged in the discharge of his duty, that should not be lost sight of. He
In Blackstone, b. 4, chapter 14, page 201, it is said that it is murder “if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants, endeavoring to conserve the peace, or any private person endeavoring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes.”
' In East’s Pleas of the Crown, volume 1, page 303, it is said: “A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray; and if he or any of his assistants, whether coitímándéd' of not, be killed, it will be murder in all who take part in the resistance; there being implied or express notification of the character in which he interposes. ”
When there is no notification of the character in which the person killed is acting, the killing will be manslaughter only. (East’s Pleas of the Crown, vol. 1, page 314; Wharton’s Criminal Law, sec. 1041.)
As bearing upon these questions see also Wharton’s Criminal Law, sec. 1030; Bishop on Criminal Law, vol. 2, sec. 654; Russell on Crimes, vol. 1, page 535; Hale’s Pleas of the Crown, vol. 1, page 446; Wharton on the Law of Homicide, page 54.
Judgment affirmed.