Martin v. Commonwealth

• Citation: 78 S.W. 1104
• Parties: MARTIN v. COMMONWEALTH.
• Decision Date: 04 March 1904
• Court: Kentucky Court of Appeals

78 S.W. 1104

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 4, 1904

Appeal from Circuit Court, Whitley County.

"Not to be officially reported."

Len Martin was convicted of voluntary manslaughter, and appeals. Reversed.

C. W Lester, for appellant.

N. B Hays and Loraine Mix, for appellee.

NUNN J.

The appellant was indicted by the grand jury of Whitley county in the month of August, 1903, charged with the offense of murder of one Wesley Woods by shooting him with a pistol. A trial was had at the January term, 1904, which resulted in the conviction of appellant for the crime of voluntary manslaughter, and he was sentenced to a term of 10 years in the penitentiary, from which judgment this appeal is prosecuted.

The appellant relies upon several errors committed by the lower court to his prejudice. He claims, first, that the lower court erred in permitting a statement to be read to the jury purporting to be the dying declaration of the deceased Wesley Woods; second, that the court erred to his prejudice in giving instructions to the jury; third, it erred in permitting, on behalf of the commonwealth, incompetent testimony, and rejecting competent testimony offered by him.

As to the first error, the appellant claims that the proof did not show that the professed dying declaration was made under a solemn sense of impending dissolution. The proof showed that he was shot in the stomach, thigh, and arm; that the wound in his stomach produced his death within five days. In his dying declaration the deceased used this language: "He says that he believes that he is going to die from the effects of said wounds, and desires to make a statement as to how and why he was shot;" and then proceeded with his statement and closed with the following words: "I do not believe that there is any chance for me to get well, and I make all the aforesaid statements believing that I am going to die from the effects of said wounds." His mother made the following statement: "Before he made his dying declaration, he said he believed he was going to die, and never said anything else, but said all the time that he was going to die." While the question is a close one, and doubtful as to whether the declaration was made in extremis we do not feel inclined to decide that it was incompetent as evidence. This court, in the case of Baker v. Commonwealth (Ky.) 50 S.W. 57, used this language: "It may be possible that we should have reached a different conclusion from the trial court as to the admissibility of these statements of the deceased as dying declarations, but it was necessary for the judge of that court to first determine the question of fact, viz., whether at the time the declarations were made they were made under a sense of impending dissolution, and when all hope of this world was gone, before he could decide the legal question of their admissibility. The question of fact is bound up in and is a part of the question of law. We should therefore give some weight to the finding of the trial judge upon this question, as he heard the witnesses testify, and was perhaps in a better position to estimate the value of their testimony than this court can be from the bald record of the words they used; and, as the question in the...