Hines v. Commonwealth , 90 Ky. 64 ( 1890 )

JUDGE HOLT

delivered the-opinion of the court.

Whether the accused was in fault as to the homicide for which he was 'tried was a question for the jury. They were tire' triers of ,1Ms issue, and they have found against him, under instructions from the court not open to objection, and which were .fully, as favorable to him as he had a right to -demand. 'The only ground urged by his counsel for .a reversal is, that testimony detailing statements of the deceased as to the circumstances attending the difficulty in which he was shot by the .accused, and which was offered as proving dying declarations, was incompetent. The record shows that the ■Commonwealth first introduced a witness who, after proving that the accused made the statement when he was in extremis, and under a sense' of impending death, detailed it to the jury, the accused objecting because his statement as to how the difficulty occurred, made at another time and to another party, had been reduced to writing by a notary and sworn to by the deceased. 'The statement made to this first- witness was not reduced to writing. It related to the immediate ■circumstances attending the tragedy. Subsequently the State introduced the notary, but he was unable to prove that the deceased made the statement which he had reduced .to writing, under a belief of impending death. He testifies that the deceased said nothing upon this subject in his presence. The accused objected to the introduction of the writing, and at Ms instance it was excluded.

Another party, who was with the deceased just before the notary came to take the statement, testified that just before the coming of that officer the deceased .said there was no hope for him; that he was then dying, and would not live out the day. This party remained and heard the statement made by the deceased to the notary as to the circumstances of the killing; and the written statement having been excluded by the court as incompetent, this by-stander was permitted to prove what the deceased then said to the notary relative to the killing. The evidence of this last witness was not excepted to by the accused; but if it had been, he could not, in our opinion, be heard to complain of its introduction.

It is clear that the two statements of the deceased, as proven by the witnesses, were made under the conditions upon the part of the declarant as to life or death which warrant the admission of such statements as dying declarations. There is no question as to their competency upon this score. Neither can there be as to the circumstances detailed, because they constituted the res gestae of the homicide. The authorities are not altogether in harmony, whether, if a dying declaration, when made, be reduced to writing, parol evidence may be given as to the declaration, although the writing be within the power of production by the party offering the oral evidence. Wharton says, however: “If the declaration of the deceased, at the time of his making it, be reduced into writing, the written document must be given in evidence, and no parol testimony respecting its contents can be admitted; and if a declaration in articulo mortis be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive parol evidence of the declaration.” (1 Wharton’s Crim. Law, section 679.)

Russell says: “If the statement of the deceased was committed to writing, and signed ley him at the time it was made, it has been held essential that the writing should be produced if existing, and that neither a copy nor parol evidence of the declaration could be admitted to supply the omission.” (2 Russell on Crimes, page 762.)

It seems to us that where a dying declaration is made and reduced to writing, and sworn to by the declarant, as in this instance, it, under the rule that the best evidence the case admits of must • be produced, should, if within the power of the party, be produced. But where the accused, for any reason, procures the rejection of the writing, as he did in this case, it does not lie in his mouth to object to oral testimony detailing what the deceased then said, provided it be shown that the statement was made under the conditions necessary to render a statement admissible as a dying declaration. The statement proven by the first witness and that by the last one were substantially the same. The accused was not, therefore, prejudiced by proving both; but, in any event, we think both were competent. The first one was not reduced to writing, and where an injured party makes statements at different times, we see no reason why all may not be proven, if all be made under a sense of impending death. If in accord, they serve to show the truth of the statement; and if not, then the accused will be benefited by the contradiction. In either case they aid to elucidate the truth.

In Russell on Crimes, page 763, it is said: “It is no objection to the admission of a dying declaration that the deceased made a subsequent statement to a magistrate, which was taken down in writing, and is not produced.”

In the case of Rex v. Reason, 1 Strange, 499, three several declarations had been made by the deceased in the course of the same day at the successive intervals of an hour each; the second had beén made before a magistrate, and reduced into writing, but the others had not; the original written statement taken before the magistrate was not produced, and a copy. of it was rejected. A question then arose whether the first and third declarations could be received; and Pratt, C. J., was of opinion that they could not, since he considered all three statements as parts of the same narrative, of which the written examination was the best proof; but the other judges held that the three declarations were three distinct facts, and that the inability to prove the second did not exclude the first and third; and evidence of those declarations was accordingly admitted.

Judgment affirmed.