Commonwealth v. Hoskins

• Decision Date: 21 April 1896
• Citation: 35 S.W. 284
• Parties: COMMONWEALTH v. HOSKINS.
• Court: Kentucky Court of Appeals

35 S.W. 284

COMMONWEALTH v. HOSKINS.

Court of Appeals of Kentucky.

April 21, 1896

Appeal from circuit court, Bell county.

"Not to be officially reported."

Levi Hoskins was indicted for murder, the jury disagreed, and the case, at the instance of the state, certified for correction of errors occurring on the trial.

W. S Taylor, Atty. Gen., for the Commonwealth.

LANDES J.

The appellee was indicted by the grand jury of Bell county for the crime of murder. On the trial of the case the jury hung and the case is brought here for the correction of several alleged errors committed by the court below during the progress of the trial, and in failing to instruct the jury upon the whole law of the case.

1. Shuman Meridith was introduced, and testified as a witness for the accused. He stated that he was acquainted with the reputation of the deceased in the neighborhood where he resided at the time of his death, and that, from what his neighbors and acquaintances said of him, his reputation was bad. The attorney for the commonweath objected to this testimony, but it was admitted by the court over his objections, and the court overruled his motion to exclude it from the jury, to all of which proper exceptions were taken. The court erred in permitting this testimony to go to the jury. The effect or tendency of the testimony that "the reputation of the deceased was bad" was not to show that he was a violent and dangerous man, but that he was a man of bad moral character. In cases of homicide, testimony going to show the violent character of the deceased is admissible where it is shown that the deceased had assaulted, or had threatened and was about to assault, the accused, in order to repel the imputation of malice as the motive for the perpetration of the alleged criminal act, and in support of the plea of self-defense. But in cases of this kind the mere moral character of the deceased is not involved, and, if bad, could not in any way affect the guilt of the accused. Therefore, testimony on the subject ought not to be admitted on the trial of the accused. 3 Am. & Eng. Enc. Law, p. 111.

2. Over the objection of the attorney for the commonwealth, the court permitted W. A. Fur, another witness for the accused, to testify that, a week or 10 days before the killing, he was at a place where the deceased was selling whisky without license, and that he heard the deceased say that he was going to the school election (at which the killing afterwards occurred), and that, if things did not go his way, "he would kill some son of a bitch." This was likewise error. The evidence in the case established the fact that the accused was not acquainted with the deceased, and did not know him on sight. Under the circumstances, if this testimony had been that the deceased threatened to kill the accused, it would not have been admissible, unless communicated before the killing to the...