104 Ky. 760 | Ky. Ct. App. | 1898
DF.IJVICRF.n the opinion of the court.
The jury found the defendant guilty of the murder of M. Gross, and fixed his punishment at confinement in the penitentiary for life.' He seeks a reversal because — First, the court overruled his motion for a continuance; second, in admitting as evidence statements of the deceased as his
He denied that he did the shooting which resulted in •the death of Gross, and so testified. The testimony for the Commonwealth tends to show that whilst the deceased was working in his cornfield the accused shot him in the back. There is no pretense or claim that the shooting was done in self-defense; neither was the slightest evidence offered, or a circumstance proven, to indicate that such was the case. The court did not give, and should not have given, an instruction on the law of self-defense. It instructed the jury on the subjects of murder and reasonable doubt, which were all the instructions that should have been given.
To prove that the deceased was laboring under a sense of impending dissolution when he made the statements claimed to be a dying declaration, John Gross, his father, was introduced as a witness. He testified that: “When 3 first went to him, he said: ‘Pap, I am killed this time. I want you to get George Bailey and write my affidavit, but I am afraid you can not get him here in time.’ ” He lived about five hours after he was shot. It is contended that the evidence does not sufficiently show that the deceased was laboring under a sense of impending dissolution, and, therefore, the statements were inadmissible as a dying declaration. He said that he was “killed,” and wanted to make an affidavit, but was afraid that the amanuensis could not be procured in time to take his statement before he died. We think this testimony is sufficient to show that he had no hope of recovery, and felt that he must certainly die soon.
Isom [Sullivan, who was present at the time of the fatal
The evidence is abundant to establish the guilt of the accused, and, under proper instructions of the court, the jury found him guilty. We do not think that his substantial rights have been prejudiced by any error occurring at the trial. Therefore the judgment is affirmed.