205 Ky. 636 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
The judgment of conviction, to reverse which this appeal is prosecuted, was the second one in this case. The first one was reversed in an opinion of the same style case reported in 195 Ky. 555, and the reason for the reversal, as well as the facts as testified to by the'witnesses for both the Commonwealth and the defendant, are all fully set out in that opinion. It will, therefore, he unnecessary to restate the testimony of the witnesses as given on the last trial, since it was practically the same for both sides as it was on the first one.
The only ground upon which the first conviction was reversed was the erroneous admission in evidence of a
“In those cases the statements were made as dying declarations, but in each case it was pointed out that dying declarations are competent only insofar as they would be competent were they made by a living witness, and that it would not have been competent for a living witness to say, ‘He shot me for nothing,’ since such a statement in its essence is a mere expression of the opinion or conclusion of the witness. This rule of evidence is elementary and,*638 where it is repeatedly violated on a vital issue in the case, prejudicial effect may he presumed. But in this case it can be seen at once that the testimony was prejudicial, for it was reiterated many times in the course of the trial and as repeated by each witness carried the added weight of a solemn declaration of one who conceived himself to be fatally wounded. For this reason the judgment must be reversed.”
It was only because of the wrongful admission of the statements made by the deceased that the first judgment was reversed.
The trial judge seems to have misinterpreted that opinion aná to have construed it as upholding* the admissibility as well as competency of all such statements as come within the res gestae rule, and that, since a number of the witnesses testified to such statements made under such circumstances as in the opinion of the court constituted them as parts of the res gastae, they were admitted over the objections and exceptions of defendant, who also at the close of the testimony moved the court “to exclude from the jury all statements of the witnesses, who made the statement that Powell said he was shot for nothing.” In response to that motion the court ruled: “The court being of the opinion that only such declarations of this character as were made immediately after the shooting, and therefore part of the res gestae, have been permitted to go to the jury. The motion is overruled, to which defendant reserved exceptions.”
If the court so interpreted the opinion and for that reason admitted the statements, it was clearly in error as will be seen from the excerpts we have taken therefrom. They clearly point out, notwithstanding the evidence was admissible under any rule permitting its introduction, yet it was incompetent as expressive only of a conclusion of the one making the statement, and which conclusion, under the sharp issue made by the evidence in this case, we then held was prejudicial to the rights of the defendant for the reason explicitly stated in the opinion, and to which we may here add that the issue of guilt or innocence of the defendant was dependent upon whether or not he shot the deceased in his necessary self-defense. There was a sharp conflict of testimony upon that issue, and the jury had testimony before it to support a finding either way. It will, therefore, be seen that an incompetent conclusion of the deceased as to the groundless ac
We very much dislike to repeatedly reverse judgments rendered in íhe same case, but where our rulings and directions on the first appeal are for any reason not followed on a subsequent trial, and those rulings are upon material points, so as to render their nonobservance prejudicial, we have no other alternative but to again reverse the judgment with the hope that the error will not again occur. Upon another trial the court will sustain objections to any statements made by the deceased expressive of his conclusion as to why or the reasons for defendant shooting him; nor should the attorney inquire as to such statements, and if, perchance, a witness should so testify before objection entered the court will promptly exclude them from the consideration of the jury--
For the reasons stated, the judgment is reversed with directions to grant the new trial and for proceedings consistent herewith.