96 Ky. 212 | Ky. Ct. App. | 1894
DELIVERED THE OPINION OP THE COURT.
Appellant was convicted of the crime of murder and sentenced to death. Beside himself and the deceased
It appears that in 1876 he removed from Scott county, Kentucky, where he was bom and raised, to the State of Kansas, and in June, 1888, returned to visit the family of his father and brothers and sisters. On Sunday night next before Monday, when the killing was done, he heard from relatives who had attended church that deceased, S. T. Connellee, Jr., and who was a constable, had some sort of legal process against him, which he seemed to suppose was a warrant of arrest. And the next day, before noon, he had an interview with his brother-in-law Penn, during which he asked whether Connellee was a man who would be likely to shoot him if he ran in order to avoid arrest, and was told he had better not attempt it. But Penn, at the same time, suggested it was not a warrant of arrest Connellee had, but simply a summons in a civil action brought by a certain firm against him for debt. Whereupon he replied, if that was all, he did not care about the process, as he was able and would upon his return to Kentucky, in August, settle the debt.
His version of the homicide as stated on the witness stand is, that after parting from his sister, who left their father’s house for her own home, he took an old shot-gun, supposed from the caps being in place to be loaded, for the purpose of' killing a
The principal ground for reversal is incompetent-testimony, which, at instance of the Commonwealth, and over objection of defendant, the lower court permitted to go to the jury.
The particular testimony complained of is that of Mrs. Connellee, widow of the man killed, who stated her husband had, while hunting for accused, a pistol at home, a small pistol, and in her words, “he didn’t carry this pistol (exhibiting it to the jury) during the week he was looking for Parker;” also that of S. T. Connellee, Sr., his father, who stated his son was not in the habit of carrying pistols. Besides the testimony of these two witnesses, which was given in chief, two others were permitted to state in rebuttal that they never saw deceased have a pistol. If deceased did have a pistol at the time and place he was killed, the testimony of accused is consistent and reasonable; besides, there are circumstances tending to corroborate it. Although deceased had the summons in his hands a week, there appears no satisfactory reason why he did not or could not sooner execute it; for there is no evidence accused attempted to conceal himself or otherwise prevent service. Indeed, he did not know, nor, so far as the evidence shows, have any reason to believe deceased had the-summons until his relatives returned from church and informed him Sunday night. It appears that deceased was twice, during Friday or Saturday prior to the homicide, at the house of the father of accused, and actually took dinner there, yet made no-
But if deceased did not draw or have a pistol when shot the testimony of accused was false, and the killing inexcusable. Therefore, if the evidence in question be incompetent, he was substantially prejudiced thereby.
As the record stands, the testimony of Mrs. Connellee was incompetent and misleading,' because she stated simply her husband did not have the particular pistol she exhibited to the jury, which proved nothing.
The statement of S. T. Connellee, Sr., if treated as evidence bearing upon the question of fact, whether deceased had a pistol when killed, is too remote to be admitted, serving only to mislead. And the same
It seems to ns if such indefinite statements conld be regarded pertinent or proper for any purpose, it would be as evidence of general character of deceased. But that was not attacked or put in issue by accused, and, consequently, the Commonwealth, as is well-settled, had no right to introduce testimony to sustain it; and especially was it error to admit as evidence of general - character a statement of a witness that deceased was not in the habit of carrying pistols, and of two others they never knew of his doing so.
Wherefore the judgment is reversed and case remanded for a new trial consistent with this opinion.