Madden v. Commonwealth

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Judge Richardson
• Citation: 237 Ky. 703
• Parties: Madden v. Commonwealth.
• Decision Date: 03 March 1931

237 Ky. 703 Madden
v.
Commonwealth. Court of Appeals of Kentucky. Decided March 3, 1931.

1. Homicide. — To render statements admissible as dying declarations, it must be shown that deceased was in extremis and had given up all hope of recovery.

2. Homicide. — That dying declarant's statement is reduced to writing and signed by declarant does not render it incompetent.

3. Homicide. — Dying declarations, to be competent, must be made when declarant has given up hope of living, and declaration must not spring from motive to fabricate or serve declarant.

4. Homicide. — Written statements constituting dying declarations are not incompetent because they also contain statements of declarant showing declarant's state of extremis and declarant's consciousness thereof.

5. Homicide. — Written statements showing consciousness of impending death, signed by declarant, held competent as dying declaration.

The paper containing the statements was signed in the presence of and sworn to by the declarant before a notary public. The notary testified that the paper was read to and understood by the declarant before and at the time it was sworn to by him. The first part of the statement was written in the third person and the latter part in the first person, but

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it was shown without contradiction that all the statements contained therein were made by declarant. The statements therein described the physical condition of the declarant at the time, and contained a statement showing that he was in extremis and that he was conscious thereof. His death followed a few hours after the paper was signed by him.

6. Criminal Law. — Accused. who objected to admission of dying declaration as whole, could not complain of admission of incompetent sentence, not specifically objected to.

7. Criminal Law. — Objection to introduction of evidence, to be available, must be specifically directed to portion which is incompetent.

8. Criminal Law. — Objection to evidence as whole, if part of evidence is competent and part incompetent, should be overruled.

9. Homicide. — In homicide prosecution, failure to instruct on right to defend property, where there was no evidence showing such right, was not error.

The evidence showed that the shooting of the deceased by accused was solely in defense of his person, and to rid himself of impending danger at the hands of deceased.

10. Homicide. — Even if deceased was endeavoring to interrupt accused's possession of accused's property, without force or violence endangering his life or threatening him with great bodily harm, accused was unjustified in killing deceased.

Appeal from Harlan Circuit Court.

F.M. JONES and J.G. FOSTER for appellant.

J.W. CAMMACK, Attorney General, and DOUGLAS C. VEST for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

On Friday night, April 12, 1929, the deceased was in the store of appellant at Disney, Ky. He procured the appellant to cash a check for him for $17. In order to cash the check, appellant went to his residence to get his pocketbook in which he kept his money. He returned to the store and cashed the check. He removed his coat in which he had his pocketbook, and laid it on the ice box. The deceased called for a "dope" (Coca-Cola) and waited on himself by going to the ice box and getting it. He then left the store. After the deceased left, appellant put on his coat, and discovered his pocket-book and money were missing. Appellant then went home and spent the night. The next morning while he was in the garden setting tomato plants Cal Thomas came by and requested him to go to the store to get him some tobacco. After obtaining the tobacco, Thomas departed,

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when deceased came to the store. On arriving, he explained to appellant his intention of going to Tennessee to look after the estate of his wife. Deceased further stated that he had been discharged and was without employment and was without funds with which to support his family while in Tennessee. The appellant explained to him that he was not selling his goods on credit, and that he could not afford to credit the deceased, and followed up this statement by saying that he had lost all of his money. The deceased then asked the appellant: "How did you lose it? I heard something about that. You don't think I got it?" The appellant responded, "No, I am not accusing any one of getting it," when deceased remarked, "I would not take anything you had." During this conversation deceased was whittling on a piece of wood, and picking at the flap on his coat pocket, when appellant observed the strings of his pocketbook hanging out of the pocket of deceased's coat. He reached and jerked the pocketbook from the pocket of deceased, and deceased began to cut appellant with his knife. Appellant shoved him away, and, in the scuffle obtained his pistol and shot deceased. At the time deceased was shot he was trying to cut appellant and had cut him with his knife in two different places.

The witnesses Wright, Wynn, and Short were present or near the place of the difficulty. Each gave his version of the...