89 Ky. 204 | Ky. Ct. App. | 1889
delivered the opinion of the court.
While attending an election at the precinct where he voted in November, 1888, Calvin Pace was shot and killed by his consin, the appellant, Francis Pace. The deceased' was engaged in a quarrel with one Bay, which appears to have been provoked by the latter. Just as it ended, the appellant appeared in the road, coming toward the parties with his gnn. When he got within about five steps of the deceased, and without a word being said by either of them, he shot him. He died the next day. It is satisfactorily proven that the deceased was, at the time, standing quietly with a small pocket knife in his hand, whittling, probably, and making no demonstration toward the appellant or any one. Indeed, it is probable he did not see the appellant when he shot him, and. had
The wound upon the deceased was not upon the front of his body, but. in the side, and his dying statement was that he had not said or done any thing to the appellant, and did not see him when he-shot him. It is evident the killing was needless and without excuse. The appellant asks a reversal of his conviction for murder upon several grounds.
Several witnesses stated that the deceased was a peaceable man. There was no objection or exception to this testimony, however, and the appellant can not, therefore, now complain upon this score. He was indicted, and also tried, at the March, 1889, term of' court.
He asked a continuance upon his affidavit because-of the absence of several witnesses. The presence of all of them was obtained, however, save William Hall, by whom the accused claimed he would prove certain threats by the deceased aga inst his life. The affidavit disclosed that the proposed witness had been arrested and taken away by the United States authorities upon some charge, and no circumstances were stated showing a likelihood of obtaining his presence as a witness at the next or airy future term of the court. But aside from this, the statements of the affidavit as to
Section 189 of the Criminal Code provides: “The provisions of the Code'of Practice in civil actions in regard to postponement of the trial of actions shall apply to the postponement of prosecutions on application of the defendant, except that when the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit ns to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the Commonwealth admit upon the trial that the facts are true.” •
In 1886 our Legislature passed an act providing, in substance, that after the indictment term, the attorney for the Commonwealth, in order to prevent a continuance on account of an absent witness, should not be compelled, unless the court thought it proper, to admit the truth of what the affidavit of the accused might state he would prove by him, but only that he would so testify, if present, and that the accused could, upon the trial, read the affidavit as the deposition of the absent witness, subject to exception for incompetency, or contradiction by other evidence, or impeachment of the witness. (Crim. Code, sec. 189.)
It is urged that this enactment is in violation of the constitutional provision which guarantees to the accused “compulsory process for obtaining witnesses in his favor,” and. is, therefore, void. No such question, however, arises. The statements of the affidavit were read to the jury as admitted facts.
While the wisdom of' the practice has been doubted, and it has often been said that it is not to be encouraged, yet the decided current of authority is that it is not error to refuse a continuance to a defendant in a ■criminal cause where the State admits that the statements in his affidavit of what he will prove by the absent witness are facts. It is true that this was denied in the case of Goodman v. The State, Meigs’ Reports, 195, but it has been affirmed in Browning v. The State, 33 Miss., 47; Van Meter, &c., v. The People, 60 Ill., 168; The People v. Vermilzea, 7 Cowen, 369; Wassels v. The State, 26 Ind., 30; The People v. Diaz, 6 Cal., 248, and other cases.
In such a case the truth of the statements go to the
It does not appear that the Commonwealth was permitted, upon the trial, to impeach, either directly or indirectly, the truth of the statements in the affidavit as to what the absent witness would, if he had been present, have proven. - It is true a witness of that name was impeached, but the record shows that another person of the same name testified in the case, and we must presume the impeachment related to him.
The accused testified for himself. He thereby placed himself in the attitude of any other witness in the case. He was then liable to contradiction or impeachment, and it can not properly be said that the testimony impeaching him contradicted, either directly or indirectly, what the Commonwealth had admitted to be true. (Lockard v. The Commonwealth, 87 Ky., 201.) It is true the accused had sworn to the affidavit as to what the absent witness would prove, but the attorney for the State had admitted the statements thereof as facts.
The foundation for the admission of the statements of Calvin Pace as a dying declaration was sufficiently laid. It is well settled that it is inadmissible as such unless made in extremis, and under a sense of impend-
The statement, in substance, was, that when he was shot he was not doing any thing ; did not then see the-accused, and that he was shot for nothing.
A dying declaration must relate to the circumstances attending the injury. Only so much of it is competent as details the manner of it. So much of the statement as declared “he was shot for nothing” was incompetent, but it merely stated what was otherwise satisfactorily proven. Its non-introduction could not have produced a different result, and it can not, therefore, be said that the accused was prejudiced by it.
Even-if the killing occurred as the accused says it did, yet it is plain he could have avoided taking the life of his relative. The latter had a small pocket knife is his hand. He was distant from the acmised five or six steps, and even if he did advance toward the appellant two or three • steps — and the evidence shows this to be untrue — yet the accused could undoubtedly have gotten out of his way without endangering himself.
The jury were properly instructed as to the law of murder and voluntary manslaughter. The accused was given the benefit of the reasonable doubt, and the. jury were informed that if they found him guilty beyond a
In our opinion the fourth instruction is not open to the objections raised to it. After telling the jury that they should acquit the defendant upon the ground of self-defense and apparent necessity, if thejr believed from the evidence that when he shot the deceased (if he did so) he believed, and had reasonable grounds to believe, that he or Daniel Day was then in immediate danger ,of great bodily harm at the hands of the deceased, and that, in the exercise of a reasonable judgment, it was necessary, or apparently necessary, to shoot him to avert such danger, real or apparent, this qualification was added to the instruction: “Unless, by his own wrongful act, or the wrongful act of said Day, made the harm to himself or Day, or both, necessary or excusable on the part of said Calvin Pace.” This does not assume that any act of the accused or Day was wrongful, and it only tells the jury in substance that the appellant had no right to shoot the deceased to protect Day, if the latter was in fault. This is undoubted law;.
It is also urged, that the instruction should have incorporated the idea of reasonable doubt; that the jury should have been told that before they could act upon the qualification they must believe, to the exclusion of a reasonable doubt, that some wrongful act of the accused or Day made the harm necessary or excusable upon the part of the deceased. This would have been proper, but it was substantially done. The succeeding instruction applied the reasonable doubt in
The appellant has been fairly tried by his neighbors, and must suffer the consequences of his cruel and needless act.
Judgment affirmed.