Bright v. Com.

• Decision Date: 13 April 1905
• Citation: 120 Ky. 298,86 S.W. 527
• Parties: BRIGHT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

86 S.W. 527

120 Ky. 298

BRIGHT v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 13, 1905

Appeal from Circuit Court, Marion County.

"To be officially reported."

W. P Bright was convicted of manslaughter, and appeals. Affirmed.

Ben Spalding, W. H. Sweeny, and S. A. Russell, for appellant.

N. B Hays and Chas. H. Morris, for the Commonwealth.

O'REAR J.

Appellant appeals from a judgment upon a verdict convicting him of manslaughter. There were no objections to the instructions of the court to the jury, nor do they appear to us to have been objectionable from appellant's point of interest. The instructions offered by appellant, and rejected by the court except one to the jury to peremptorily find him not guilty, were embodied in those actually given. There was evidence of appellant's guilt, and it would therefore have been improper to have given the peremptory instruction.

There are but two questions presented in the brief for appellant, which seem to be the only two relied upon in the grounds for a new trial that are reviewable by this court on the state of the record. These are questions of evidence. The first is an objection to the testimony of Mrs. Stayton, the widow of the murdered man. No eyewitness testified in the case except appellant. Stayton, whom appellant killed, was stabbed mortally by appellant, and died within a few minutes thereafter. Before his death he stated to his wife that he was dying, and that appellant and his son had killed him. This statement was not admitted as part of the res gestæ, as seems to be assumed in argument, but as proof of a dying declaration. That the wounded man was then under a sense of his impending death is evident, as well as that he made the statement to his wife of the manner in which he had received his fatal wounds, in contemplation of that immediate event. We held in the case of Arnett v. Commonwealth, 114 Ky. 593, 71 S.W. 635, 24 Ky. Law Rep. 1440, that the wife of a declarant was a competent witness to prove his dying declaration under such circumstances.

The other question is as to the competency of the witness Tommy Ewing, a lad 12 years of age. The point is made that he was too immature to know the binding obligation of an oath, and that consequently he was incompetent as a witness. By the Civil Code, every person is competent to testify for himself or another, subject to certain exceptions not material in this inquiry, unless he be found by the court incapable of understanding the facts concerning which his testimony is offered. The Criminal Code contains no such provision. Indeed, it is silent on this point, which leaves in force in this state as to...