Mockabee v. The Commonwealth

• Decision Date: 10 March 1880
• Citation: 78 Ky. 380
• Parties: Mockabee v. The Commonwealth.
• Court: Kentucky Court of Appeals

Page 380

78 Ky. 380

Mockabee v. The Commonwealth.

Court of Appeals of Kentucky.

March 10, 1880.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

W. H. HOLT FOR APPELLANT.

TYLER & HAZELRIGG AND REID & STONE FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellant was jointly indicted with Geo. Howard for the murder of James L. Young, city marshal of Mt. Sterling, and sentenced to the penitentiary for two years. From that conviction this appeal is taken, and the principal error complained of is the admission of what is claimed to be the dying declaration of Young.

The evidence is that the statement was made by Young some two hours before he died, and when he expressed the opinion that he would recover. It was reduced to writing at the dictation of Young and, at the time, read over to and approved by him. A few minutes before the death of Young the witness who had reduced the statement to writing returned to his bedside and found him speechless. The witness rubbed his hands and temples, and in a few minutes Young recovered his speech and said to the witness: "Jim, I'll die in a few minutes," to which the witness replied "Yes, you will," and then said, presenting the written statement, "Jim, I have in my hand the statement you made awhile ago of how you were killed. I now want to know whether it is true." To this Young responded, "It is." The witness then said, "Shall I sign it for you?" to which Young nodded assent, and the paper was signed in his presence. Immediately after this Young called for some insurance policies and made disposition of some personal property. The evidence shows that he was entirely conscious at the time of this last interview, and although the written statement was not re-read to him at that time, there is nothing to indicate that he did not fully understand its import and did not fully reaffirm the statement contained in it. It being perfectly manifest that the mind of the deceased was clear at the time of this last conversation, and that he understood the contents of the paper containing a statement of the circumstances of the wounding, there appears no reason for excluding this evidence simply because the paper was not re-read to him at the time the assent to its correctness was given. The only purpose to be accomplished by re-reading the paper to the deceased would have been to refresh his memory and to make it sure that the deceased, at this solemn moment, in the very presence of death, and with an understanding mind, bore testimony to the truth of the statement made without the sanction of the knowledge of impending dissolution. The restatement or reaffirmation gives the sanction without which the declarations would not be admissible, and when that sanction is added, the evidence is competent as it would be if made then for the first time. Dying declarations are not necessarily either written or spoken. Any method of communication between mind and mind may be adopted that will develop the thought, as the pressure of the hand, a nod of the head, or a glance of the eye. In this instance the evidence of those who were present at the bedside of the dying man, as well as the manner in which he bore himself, show conclusively that his mind was clear and that he remembered what he had previously stated. There can be no doubt that the court ruled correctly in admitting the written statement in evidence.

The evidence as to the statements of William Howard, made about the close of the difficulty, was competent as a part of the res gestæ. They were sufficiently near, both as to time and place, to illustrate the character of the transactions. But if they were not competent we would not reverse on account of their admission alone, because it does not appear that they were prejudicial to appellant.

The objections by counsel to the instructions given, although not well taken, will...