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clined to favor the reception of declarations made under such circumstances, as tending to
explain the manner in which the possession was acquired."

But declarations of the accused at the time of voluntarily surrendering himself, from
one to three hours after the homicide, were held to be incompetent. 13 Busk, 610.

3. Declarations of the accused in his own favor are not admissible except as part of
res gestce (1 Met,, II); and proof that the accused, a short time before the homicide, told
the Commonwealth's attorney that his (the accused's) life was threatened (not, however, by
the deceased), and asked whether, under the circumstance, he had right to carry arms, was.
incompetent in behalf of the accused; though, if the Commonwealth had proved that the
accused was armed when he so talked to the attorney, the statements of the accused would
probably have been admissible as part of the res geste. 13 Bush, 252, 253,

4. Upon indictment for assault and battery, a physician's testimony as to the condition
of the assaulted man after the injury, and as to the manner in which he was affected, is ad-
missible for the Commonwealth, though the recital as to the symptoms came from the in-
jured man. 84 Ay., 593.

5. The prosecution having proved that the accused had compromised bastardy proceed-
ings instituted at the instance of the deceased, who charged the accused with having
seduced his daughter, accused had a right to prove that he said, at the time, that he did
not compromise because he was guilty, but did' so for another reason which he stated. 92
Ky., 612.

V. Confessions and conversations.

1. In Becker v. Crew, 7 Bush, 198, the court said : "Judge Trimble, in Myers v. Baker,
£rv., Hard., 544, states the rule correctly, with the reasons therefor, when he says: « Proof
of confessions of a party in the presence of the witness only, or of him and the adverse
party, although certainly competent testimony, ought to be weighed with caution, because
it is impossible for the party to counteract it by other testimony, because the expressions
used are easily misunderstood or perverted, either through mistake or design, and because
not the whole conversation but only parts of it are generally detailed by the witness. I.
is the most dangerous species of testimony held competent by the law; and unless the
story told is probable in its nature, or is corroborated by circumstances, very little weight
is due to it.' "

But, threats on the part of the deceased having been proved by the concurrent testi-
mony of several witnesses, the court held that the following instruction was properly re-
fused : "The statements of witnesses as to threats and declarations of Becker against Glass,
in the absence of all persons except the deceased and the witnesses so testifying, is the
weakest of all evidence known to the law, and should be received and weighed by the
jury with great caution." Becker, <5rV., v. Crow, supra.

And an instruction, asked for by prisoner, that unless the jury "are satisfied of the
honesty and veracity of the witnesses by whom confessions are attempted to be proved,
then such evidence is the weakest and most unsatisfactory held competent in law," was
properly refused. 12 Bush, 186.

2. Upon an indictment for assault and battery, the Commonwealth, to aggravate the
punishment, may prove the defendant's reasons, subsequently alleged, for making the
assault, and that they were without foundation. 84 Ky., 593.

3. Proof of declarations made by the accused several weeks before the homicide is com-
petent for the purpose of proving his malice against the deceased, although the witness
may not have heard all the conversation; but proof that the accused said that the deceased
"ordered me out of his office because I was not armed," or said "he was afraid to order
me out of his office because I was armed," is not competent, as in the former case the



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CHAP. VI.] TRIAL. 71

deceased would have been in fault, while in the latter the accused would have been in
fault. 13 Busk, 252.

4. " If the witness called to prove the confessions of the prisoner says he does not
remember all the conversation, and that a great many things were said in the conversation
which he did not remember, and is still permitted to testify without even stating that
he remembers the substance of all that he said at the time on the subject," his testimony
should be excluded. 10 Bush, 1 5.

And, if a witness for the Commonwealth should testify as to part of the conversation
of the accused, he has a right to prove the entire conversation by the testimony of other
witnesses; but a judgment of conviction will not be reversed on account of the exclusion
of such testimony, unless the bill of exceptions show that the witness was introduced by
the Commonwealth. 10 Bush, 15.

5. Where a witness for the prosecution remembered a part only of the declaration of
the accused relative to the homicide, the accused had the right to introduce other wit-
nesses, who heard the entire conversation, to prove the whole, unless he himself drew
forth the statement from the witness as to the declaration. 10 Bush, 495.

6. Upon the trial of a woman for the murder of her husband, as an accessory before the
fact, proof of letters from her to the man charged with the murder as principal, revealing
a guilty love for him, was held to be competent. 83 Ky., 566.

7. Proof of statements of the accused as to why his wife, who was a sister of the
deceased, had left him, was incompetent. 89 Ky., 313.

8. Section 240 of the Criminal Code, which is the same as \ 238 of the Criminal Code
of 1854, declares that "a confession of a defendant, unless made in open court, will not
warrant a conviction, unless accompanied with other proof that such an offence was com-
mitted ;" for decisions concerning which, see 86 Ky., 321 ; and 92 Id. % 289, in which an in-
struction in the language of } 240 was held to he sufficient. See notes to \ 240, Appendix.

9. Proof of confessions of guilt, or of exculpatory statements, made by prisoner, under
the influence of hope or fear is inadmissible against him (2 Met., 30, 387; 8 Bush, 366; 2
Duv., 531; 80 Ky., 470); aliter, as to confessions procured by deception. 92 Ky., 287.
And a confession by a prisoner of feeble mind, in the presence of a tumultuous and
threatening crowd, is not convincing testimony of his guilt. 2 Duv., 435. But proof of
a fact, the discovery of which is made by means of an extorted confession, is admissible
against the prisoner; as, the discovery of a hidden vial which had contained poison,
charged to have been administered by the accused to the deceased. 2 Met., 30 ; 80 Ky., 470.

10. Whether, in view of all the facts and circumstances attending a confession, it was
voluntary or induced by duress, is a question of law for the court. 2 Duv., 532.

VI. Statements of co-defendants.

No act or declaration of one of several defendants jointly indicted, made or com-
mitted subsequently to the commission of the offence charged, is competent evidence
against the other defendants. I Met., 13 ; 2 Duv., 531.

VII. Statements of persons in combination.

1. Statements of persons who had agreed to act with the accused, in any hostile meet-
ing between him and the deceased, as to such contemplated meeting, are competent evi-
dence for the Commonwealth ; and, if any such statement be brought out by the prosecu-
tion, the whole of the conversation at the time is competent evidence for the accused; but
not statements made at other times, though during the same day. 15 B. M., 539.

2. Upon trial of an indictment for shooting with intent to kill, it was held that the
court erred in refusing to permit the accused to prove that a son of the person wounded,
who was in the store when his father and the accused entered it, and who immediately ran
up stairs, and returned with a pistol which he snapped at the accused, had loaded it a few
days before, then making a contingent threat to shoot the accused; of which the accused
was notified before the shooting. 14 B. M., 614.

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72 TRIAL. [title vi.

3. But proof of the statements of one, after the commission of the offence, is not admis-
sible against another. 78 Ky. t 15; 91 /</., 563.

VIII. Guilty knowledge.

Upon the trial of an indictment for receiving certain goods, knowing them to hate
been stolen, evidence that other stolen goods were found in the possession of the defend-
ant is admissible for the purpose of showing guilty knowledge on his part that the goods,
for receiving which he is indicted, were stolen. 3 Met., 417.

And the fact that defendant had, about the same time, tendered another altered bill,
similar in the character of the alteration to the bill for the tendering of which he is prose-
cuted, is competent evidence to prove guilty knowledge. 1 Duv. $ 90.

IX. Dying declarations.

1. The admission of proof of dying declarations is not an infringement of the consti-
tutional right of the accused to confront the witnesses against him face to face. 16 B. M. y 15.

2. To be admissible, the declaration must be made in extremis, and under a solemn sense
of impending dissolution. Id,

3. Where a wounded man stated " that he was a ruined and a dead man unless he got
speedy relief," and died in about twenty minutes, the court inclined to the opinion that lie
was not under such a sense of impending dissolution as to make evidence of his declara-
tions admissible. 17 B. M., 317.

And a person's statement that "he believed he would have to die," was not a dying
declaration. 86 Ky., 434.

But the statement of a person, about fifteen minutes after he was shot and about twenty
minutes before he died, that "he hoped he would live long enough to take the gun home,"
made other statements of his admissible as dying declarations. 89 Ky., 292; and see 87
A>., 493 to 500.

The deceased, after being shot, told a witness that the accused had shot him, and stated
the circumstances which attended the shooting; but said he did not believe that he would
die. About an hour afterward, he re-affirmed said statements, about the shooting, to an-
other witness (his father), and told him that he had made said statements to the first named
witness, and had told him that he did not believe that he would die; but that he then be-
lieved and still believed that he would die ; and had said that he did not believe it, because
a man in the neighborhood, after saying that he believed he would die, had got well and
been disgraced; and he was afraid it would be a reproach to him if he should get well:
held, that his statements were admissible as dying declarations. 6 Bus A, 312.

4. Dying declarations are only admissible in evidence where the death of the deceased
is the subject of the charge, and the circumstances* of the death the subject of the dying
declaration. (16 B. M. t 34). Evidence of dying declarations should be restricted to the
act of killing and the circumstances immediately attending it and forming a part of the
res gesta. The circuit court erred by -admitting evidence which purported to disclose
former and distinct transactions not relating to the particular facts constituting the sub-
ject-matter of the charge or the identification of the defendant, from which the jury might
have inferred the existence of malice on the part of the defendant toward the deceased.
9 Busk, 11.

And expressions or ejaculations not connected with any statement antecedent or subse-
quent, and not responsive to any inquiries or suggestions of any one, were not admissible
as dying declarations (12 Bus A, 6); and so as to statements that the accused "killed me for
nothing: I never carried anything to hurt anyone." (12 Bush, 271). But statements of
the deceased that "he was wholly to blame for the difficulty and brought on the trouble
himself and did not want the accused prosecuted," were held to be admissible (92 Ky. y
183); and the deceased having made the following statement with reference to the accused:
" He followed me to my office armed, and insulted me about some questions I had asked.
I was sitting at my desk writing when he insulted me grossly. I ordered him to leave the



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CHAP. VI.] TRIAL. 73

room, but he refused to go. I then undertook to put him out, when he drew his pistol
and tried to shoot me. I tried to prevent him. He got the advantage of me and shot me
in the abdomen" — it was held that all said statements, except, perhaps, the words "he fol-
lowed me to my office armed, " were admissible as dying declarations (13 Bush, 259); and
statements of the deceased, in substance, that "when he was shot he was not doing any-
thing; did not then see the accused, and that he was shot for nothing," were held to be
admissible, except the words "that he was shot for nothing" (89 Ky., 210); and the state-
ment of the deceased, concerning the shooting of him by the accused, "that he and the
accused were playing, and that it was an accident," was held to be admissible. 89 Ky,, 293.

5. Oral proof of dying declarations is admissible unless it appears that the declarations
were reduced to writing (91 Ky., 203); and, if reduced to writing, the writing should be
produced if possible; but, whether read to the jury or not, it does not prevent proof of
other declarations not reduced to writing (90 Ky., 64). And statements of the deceased
having been reduced to writing when he believed he would recover, about two hours after-
ward, believing that he would die, he, referring to that statement, said it was true; and it
was held to be competent. 78 Ky., 380.

6. Dying declarations of third persons are inadmissible: thus, on the trial of A for
murdering 6, C's death-bed declaration that he murdered B is not competent. Davis v.
Com., 15 Ky. L. R., 396.

X. Opinions of experts and other witnesses.

1 . Opinions of experts.

The opinions of experts upon questions of art or science, to be admissible as evidence,
must always be predicated upon and relate to the facts established by the proof in the case.
Mere professional opinions upon abstract questions of science, having no proper relation
to the facts upon which the jury are to pass, tend to lead their minds away from the true
and real points of inquiry, and should therefore always be excluded. 2 Met,, 17; 14
Bush, 398.

As to what constitutes an expert concerning insanity, see 88 Ay., 512.

2. Opinions of other witnesses,

(1) On a trial for murder, evidence of previous threats of the accused was given, the
witness stating that the name of the deceased was not called, but that witness took it that
accused was talking about deceased: held, error to admit this testimony against defendant's
objection. 9 Bush, 224.

But it was competent for defendants to prove a threat made by the deceased just before
he was killed, though it was not, in terms, directed at them, as all the circumstances showed
that it referred to them. 89 Ky., 644.

(2) The opinions of a non-professional witness, as to the sanity of the accused, may be
admitted, if the court be satisfied that the witness had an opportunity, by association and
observation, to form an opinion as to his sanity. (14 Bush, 398). But the court properly
excluded testimony that the accused was of a weak mind, and properly refused to instruct
the- jury as to insanity, the evidence showing no more than that the accused was an ignor-
ant, illiterate, and passionate man. 81 Ky., 357.

(3) A defendant charged with murder may testify that he believed he was in danger.
90 Ky., 598.

(4) When an attending physician was called on to testify long after the birth of a child
as to whether it was born alive, his opinion then formed from actual observation and ex-
amination, and distinctly stated by him as a witness, ought not to be rejected, although
the reasons given by him for that opinion may not be entirely convincing. 91 Ky., 303.

XI. Secondary and hearsay evidence.

I. The statements of a witness as to the rules of the code duello, in relation to sending
and accepting challenges, upon an indictment against a party for sending a challenge, are
inadmissible. The code itself should have been produced. 4 Met., 1.



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74 TRIAL. [title VI.

2. See, in the case last cited, a statement of circumstances under which a copy of the
correspondence between duelists was held to be competent evidence.

3. Hearsay evidence is incompetent; such as proof of the statements of a witness be-
fore an examining court, it not being shown that his personal attendance could not be
procured (3 Bush, 3) ; or proof of exclamations of persons witnessing a homicide. 10 Busk,
576; but see note IV, ante, p. 69.

4. An error in admitting such testimony was not cured by instructing the jury to dis-
regard it, "except so far as it harmonized with facts afterwards developed." 3 Bush, 3.

XII. Character of the accused and of his co-defendants.

1. Evidence of the good character of the prisoner, up to the time of the discovery of
the offence (80 Ay., 484), is admissible; on the ground that an individual who has main-
tained an unblemished character up to the time that he is charged with the crime may
avail himself of that fact as some evidence that he did not commit it; but unless he has
testified for himself, the prosecution is not allowed to call witnesses to his bad character,
unless to rebut evidence of good character adduced by him; and the evidence, when ad-
missible, must be restricted to the trait of character which is in issue, or ought to bear
some analogy and reference to the nature of the charge (6 Bush, 312); and, a fortiori,
proof of the bad character of the prisoner's mother or brother is inadmissible. 81 Ky.,
450.

2. Upon the trial of a defendant jointly indicted with others for murder, he has no
right to prove that they are of good character. Omer v. Com., 15 Ky. L. R., 694.

XIII. Character of the deceased.

a. In Payne v. Commonwealth, 1 Met., 370, approved in Riley v. Commonwealth, 15 Ky.
L. R. 9 47, the accused was permitted to prove that the deceased "was a man of violent,
cruel, and blood-thirsty temper and disposition ; that he was in the constant habit of car-
rying concealed deadly weapons, and was scarcely ever known to be out of his house with-
out them ;" and see 14 Bush, 352.

XIV. Character of witness.

i. Section 599 of the Civil Code forbids evidence of the good character of a witness,
unless his general reputation has been impeached ; and that rule was held to be applicable
in criminal cases. 87 Ky., 40, 41.

2. Evidence of particular facts as affecting the credibility of a witness is inadmissible.
In impeaching the credit of a witness the examination must be confined to his general
moral character or his general character for truth and veracity at the time of trial (18 B. M. f
792; $ Bush, 511; 6 Id., 316; 87 Ky., 201; 89 Id., 313); and according to Mitchell r.
Com., 78 Ky., 219, evidence of the character of the witness three years before the time of
trial would be admissible if there was other evidence of his bad character at that time, and
not otherwise; but in Davis v. Com., 15 Ky. L. R., 396, such evidence was held to be
admissible as to the character of the witness two years before the trial, apparently with-
out reference to any other evidence on the subject.

3. The foregoing rules apply to a prisoner who has testified for himself. 86 Ky., 13;
87 Id., 201 ; 89 Id., 209; Crump v. Com., 14 Ky. L. R., 450.

4. The reputation of a witness may be impeached without reference to the materiality
of his testimony. Davis v. Com., supra.

5. Statements that the witness knows the prosecuting witness, knows her neighbors,
and knows her character from rumor, do not qualify him to testify as to her general moral
character or character for truth. 14 Bush, 182.

6. See further, as to impeaching the credibility of a witness, Civil Code, f} 596 to 598.

XV. Contradiction of witness.

I. As a general rule, a witness can not be examined as to any collateral fact, merely for
the purpose of contradicting him by other evidence concerning that fact, and thereby to



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CHAP. VI.] TRIAL. 75

discredit him; and his answers to such questions can not be contradicted by the party who
Asks them. 15 B. M. t 539; 14 Bush, 340; 80 Ky., 511 ; 82 Id., 164.

But that rule does not apply to a defendant's questions as to the feelings of the witness
toward him. 15 B. M., 545; 14 Bush, 357.

2. A witness who denies the existence of a fact which is favorable to the party intro-
ducing him can not be contradicted by proving that he had previously admitted the exist-
ence of such fact; but if he state a fact prejudicial to such party, the latter has a right to
prove that he had made statements to others inconsistent with his present testimony, or to
prove by other evidence that his statement is untrue. 2 Met., 17; 12 Bush, 181.

3. Before evidence can be adduced to impeach a witness by proof of statements con-
tradictory of what he has testified, he must be inquired of as to such statements, with cir-
cumstances of time, place, and persons present; and the fact that the witness sought to be
impeached is dead does not alter that rule. 81 Ay., 250.

4. Evidence which tended, though not conclusively, to show that the witness had testi-
fied falsely, was held to be admissible. 89 Ky., 312.

5. Upon an indictment for murder, the deceased having been killed by pistol shots in
an affray among many persons, a witness testified that the accused had no pistol on that
occasion; and it was held to be a prejudicial error to allow a former grand juryman to
testify that the witness had stated to the grand jury that he saw the accused shoot the
deceased, without an instruction that this was only to be considered as being contradictory
of defendant's witness. 91 Ky., 233-34.

XVI. Threats.

1. If it be proved that the deceased made threats against the prisoner, which were com-
municated to him, proof of other threats not communicated is admissible. 15 B. M., 539.

2. Proof, for the accused, that his mother's life had been threatened by the deceased,
was competent for the purpose of weakening the testimony of a witness that the families
were on amicable terms. 13 Bush, 610.

3. There being a conflict of evidence upon the question whether A or the accused
killed the deceased, the accused had a right to prove that A had threatened to kill him.
14 Bush, 106.

4. Proof of threats by the deceased, though not communicated to the accused, is ad-
missible upon the question whether he or the deceased began the difficulty. 85 Ky., 77;
89 Id., 648, 657.

5. Upon the trial of an indictment for shooting with intent to kill, the accused having
had a previous difficulty with the person wounded, evidence that a son of the latter had,
several days before the shooting, loaded a pistol, and then made a contingent threat to
shoot the accused, which was communicated to him, was competent evidence in his behalf.
14 B. M,, 614.

6. In Carico v. Commonwealth, 7 Bush, 129, evidence was offered that a man named
Offert, then dead, had told the accused that the deceased had armed himself with a shot-
gun to kill him: held, that, though "what Offert said was not legal evidence of Smith's
arming himself to kill appellant, it was competent to prove that the appellant had so heard
and may have had a right so to believe, and to that extent, and for that purpose, it was
admissible."

XVII. Circumstantial evidence.

1. Circumstantial evidence, when competent, should be left to the jury, like other evi-
dence, without caution or suggestion by the court as to its value or the necessity of scru-
tinizing it closely. 11 Bush, 282.

2. Death of a person charged to have been murdered may be established by circum-
stantial evidence. 81 Ky., 327.

3. Evidence is admissible to show that the accused procured the absence of witnesses
against him (12 Bush, 272); or that he feigned insanity. 87 Ky., 440.



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j6 TRIAL. [title vi.

4. On an indictment for forgery, by altering a check, proof that it had been delivered
to the accused, and that he got the money on it, should have been submitted to the jury
as evidence that he altered it. Com. v. Hide, 15 Ky, L, R., 264.

5. Upon the trial of L for murdering O, who was killed by L in the street soon after
leaving L's house, it appeared that two or three shots had been heard in the house and
that L's wife had been wounded ; and proof of L's admission, that he fired the shot which
wounded her, was held to be admissible, to rebut any presumption which might otherwise



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 127 of 142)