Collins v. Commonwealth

• Decision Date: 15 September 1876
• Citation: Collins v. Commonwealth, 75 Ky. 271, 12 Bush 271 (Ky. Ct. App. 1876)
• Parties: Collins v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 271

75 Ky. 271

Collins v.Commonwealth.

Court of Appeals of Kentucky.

September 15, 1876.

APPEAL FROM FAYETTE CIRCUIT COURT.

FRANK WATERS, HUSTON & MULLIGAN, W. C. P. BRECKINRIDGE, For Appellant.

THOS. E. MOSS, Attorney General, For Appellee.

CHIEF JUSTICE LINDSAY DELIVERED THE OPINION OF THE COURT.

It is by no means clear that the deceased made the statements allowed to be proved as dying declarations under a sense of impending dissolution.But if they were provable in that regard they ought to have been excluded from the jury for another reason.They were in substance, "That Michael Collins killed me, and killed me for nothing;" that "I never carried any thing to hurt any one."

In the case of Leiber v. The Commonwealth(9 Bush, 11)this court held the decided weight of authority to be, that it is a general rule that 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 declarations, and that such evidence should be admitted only upon the ground of necessity and public policy, and should be restricted to the act of killing, and the circumstances immediately attending it, and forming part of the res gestæ.

In this case it was unnecessary to prove the declarations of the deceased to establish the fact that the killing was done by the accused.That fact was abundantly proved by several uncontradicted witnesses, and was virtually admitted by the line of defense adopted.The statement that Collins killed the deceased "for nothing" was but the expression of an opinion, and was clearly inadmissible.(1 Taylor on Evidence, p. 644.)

The statement that he(the deceased)"had never carried any thing to hurt any one" did not relate directly to the act of killing, and was not a circumstance immediately connected with it.Proof of this statement was therefore inadmissible.Neither of the two statements proved any thing forming part of the res gestæ.They were each incompetent, and they each tended to prejudice the rights of the accused.

We can not say the court below erred in permitting the prosecution to prove that the appellant had participated in making arrangements for one of the commonwealth's witnesses to leave the place at which the trial was in progress.That fact was a circumstance the jury might consider, just as in similar cases the flight of the accused may be considered.(Wharton's Am. Crim. Law, 714, 722.)

The appellant can...