Pace v. Commonwealth

• Decision Date: 17 October 1889
• Citation: 89 Ky. 204,12 S.W. 271
• Parties: PACE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W. 271

89 Ky. 204

PACE v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 17, 1889

Appeal from circuit court, Harlan county.

"Not to be officially reported."

J. D Black and N. B. Hays, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

HOLT J.

While attending an election at the precinct where he voted, in November, 1888, Calvin Pace was shot and killed by his cousin, the appellant, Francis Pace. The deceased was engaged in a quarrel with one Day, which appears to have been provoked by the latter. Just as it ended, the appellant appeared in the road coming towards where the parties were with his gun. When he got within about five steps of the deceased, and without a word being said by either of them, he shot him. He died the next day. It is satisfactorily proven that the deceased was at the time standing quietly with a small pocket-knife in his hand, whittling, probably, and making no demonstration towards the appellant or any one. Indeed, it is probable he did not see the appellant when he shot him, and had no warning of his danger. It is true, the accused testified that the deceased advanced towards him two or three steps with the knife in his hand, and that he then shot him. He is supported in this statement by two other witnesses, one of whom says he was drunk at the time; and all three are not only contradicted in their statements by numerous witnesses, but impeached as to character. The wound upon the deceased was not upon the front of his body, but in the side; and his dying statement was that he had not said or done anything to the appellant, and did not see him, when he shot him. It is evident the killing was needless, and without excuse.

The appellant asks a reversal of his conviction for murder upon several grounds. Several witnesses stated that the deceased was a peaceable man. There was no objection or exception to this testimony, however, and the appellant cannot therefore now complain upon this score. He was indicted, and also tried, at the March, 1889, term of court. He asked a continuance upon his affidavit because of the absence of several witnesses. The presence of all of them was obtained however, save William Hall, by whom the accused claimed he would prove certain threats by the deceased against his life. The affidavit disclosed that the proposed witness had been arrested and taken away by the United States authorities upon some charge, and no circumstances were stated showing a likelihood of obtaining his presence as a witness at the next or any future term of the court. But, aside from this, the statements of the affidavit as to what he would prove were admitted by the attorney for the commonwealth to be true; and, the application for the continuance having been refused, they were so read to the jury upon the trial.

Section 189 of the Criminal Code provides: "The provisions of the Code of Practice, in civil actions, in regard to postponement of the trial of actions, shall apply to the postponement of prosecutions on application of the defendant except that when the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the commonwealth admit upon the trial that the facts are true." In 1886, our legislature passed an act providing, in substance, that after the indictment term the attorney for the commonwealth, in order to prevent a continuance on account of an absent witness, should not be compelled, unless the court thought it proper, to admit the truth of what the affidavit of the accused might state he would prove by him, but only that he would so testify if present; and that the accused could upon the trial read the affidavit as the deposition of the absent witness, subject to exception for incompetency, or contradiction by other evidence, or impeachment of the witness. Crim. Code, § 189. It is urged that this enactment is in violation of the constitutional provision, which guaranties to the accused "compulsory process for obtaining witnesses in his favor," and is therefore void. No such question, however, arises. The statements of the affidavit were read to the jury as admitted facts. This practice has been criticised, and has grown up within comparatively late years. The common-law practice required a witness in a criminal case to testify in open court. We recognize the fact that the production of the witness in court is more likely to lead to the fair administration of justice. The truth or falsity of his statement is then the more likely to be ascertained; and, while the speedy administration of the law is highly important to both the accused and the public, yet the great end of a court is to administer justice. This is undoubtedly more apt to be attained by the personal presence of the witness; and this has been the general policy of the law from the date of magna charta to the present. It subserves public policy, and guards individual right. If the manner of a witness adds weight to his testimony, the...