Postell v. Commonwealth
| Decision Date | 27 February 1917 |
| Citation | 174 Ky. 272,192 S.W. 39 |
| Parties | POSTELL v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Christian County.
Frank Postell was convicted of murder, and he appeals. Reversed and remanded.
W. O Soyars and L. K. Wood, both of Hopkinsville, for appellant.
M. M Logan, Atty. Gen., and Charles H. Morris, Asst. Atty. Gen for the Commonwealth.
The appellant, Frank Postell, prosecutes this appeal from a judgment of the Christian circuit court sentencing him to death for the murder of J. J. Robertson by striking, beating, and wounding the deceased with a stick, stone, or other blunt, deadly instrument, from which he died within a few days thereafter. The crime was committed some time in the afternoon of February 11, 1916, a short distance out of the city of Hopkinsville, and on or near the track of the Illinois Central Railroad.
Several errors are complained of on this appeal, but only two are really urged by counsel for appellant, and, as we conceive it, are the only ones demanding a consideration at our hands. They are: (1) That the court erred in admitting as evidence before the jury the alleged dying statement of the deceased, Robertson; and (2) error of the court in giving to the jury, upon its own motion, at the close of the testimony of the witness who told of the dying declaration, this admonition or instruction:
"The court will say to the jury that you will consider the evidence of Mr. Duncan as to what the deceased, J. J. Robertson, said as to the identification, and the statements made by him as to how it happened, how the trouble happened; you will take that as the evidence of the deceased, Robertson, as though he were present and testifying."
To understand the points raised it is necessary that we give a brief statement of the facts as shown upon the trial by the common-wealth. The appellant had been staying in and around Hopkinsville since about the 1st of January, 1916. Up to that time it appears that he was a stranger in that community, and it is not shown what business, if any, he followed. He was reared in the southern part of Christian county or just across the line in Tennessee, where his mother lives, and, as far as we can gather, during his stay in Hopkinsville he frequented saloons, and, no doubt, indulged in considerable drinking. At any rate, on the morning of February 11th, or a day or two prior thereto, the deceased, Robertson, appeared in the city and made it known that he either wanted to rent a farm or to purchase one, and was making inquiry of different ones in regard to these matters. He lived in Tennessee, but it does not appear that the appellant ever met him before or knew him. Some time about 8 o'clock on the morning of the day upon which the crime was committed the deceased went into a saloon at Hopkinsville, and the appellant either went into it with him or was immediately thereafter in the saloon when deceased was buying drinks for both himself and appellant, and there appeared to be a degree of familiarity existing between them. This, at stated intervals, continued until up to and perhaps past 10 o'clock. In the meantime the deceased had purchased a half pint or a pint of whisky. Some time while they were in the saloon the appellant, who is colored, spoke to another colored man or boy in the saloon and said to him that the old man (deceased) had a roll of money on him, and that he (appellant) was going to get it or take it away from him, or something to that effect, and he wanted the other colored man or boy to assist him in getting possession of the money, but he declined to join in the undertaking. After the deceased and appellant had left the saloon, ostensibly for the purpose of going out in the country and looking at some land which appellant professed to know about, the two were seen together in another part of the city by the same colored person who was approached by appellant for the purpose of enlisting assistance in procuring the money of deceased. At the time appellant and deceased were seen on the streets after leaving the saloon the appellant was pointing his finger in the direction of different roads or pikes leading into the city, but the witness who testified about this occurrence was not near enough to hear what was being said. This is the last seen or heard of either the deceased or appellant until some time between 2 and 3 o'clock that afternoon, when a farmer was coming to town, walking upon the track of the Illinois Central Railroad, and a mile and a half or more from town near a trestle he saw the deceased and appellant sitting upon the ties of the track on opposite sides. Some few words were passed, but they are not material, and the witness came on to town, seeing no more of the parties. About 3:30 of the same afternoon another farmer and his son who were at work near by burning a plant bed saw the deceased wandering around, apparently lost, and also apparently insane or partially demented, and upon going to him they found that instead of having a bandana handkerchief over his head, as they thought, it was bloody, and he was wet all over, as though he had been submerged in a pool of water. He was very much chilled, and the witnesses carried him to the house of a neighbor, where, after being warmed and attended to for awhile, he was carried to the city of Hopkinsville and delivered to the police of that city. The city physician treated him for three or four days, and he was then carried to the Jennie Stewart Hospital, located in the city, and which is in charge of Dr. J. G. Gaither. Shortly after being carried to the hospital, the skull of the deceased having been fractured and crushed just above the left temple by the blow which he received from his assailant, he was subjected to a trephining operation by Dr. Gaither. There were other bruises upon his head, but not necessarily fatal ones.
The deceased, who was a white man, lived two or three days after the operation, but was unconscious from the time he was found wandering around in the field until some ten hours or more after the operation. There was removed from the brain by the operation a considerable amount of pus, or yellow matter, and the physicians say that his death was produced by the blow he received, and that it was almost necessarily fatal; the operation having more for its purpose the restoration of the deceased to his normal mental condition than to effect a final cure. Something like a day and a half after the mental condition of the deceased was restored he continued in that condition, but again relapsed into a state of unconsciousness from which he never recovered. It was during the lucid interval just mentioned that he made the statement which was admitted as a dying declaration, and of which complaint is made.
There are other circumstances found in the record tending to establish the guilt of appellant, but not bearing upon the questions in hand, and with which we will not incumber this opinion.
When the deceased was taken to the hospital he was put in the same room with the witness Duncan, who testified to the alleged dying declaration. He remained in the room with Mr. Duncan all the time, except when he was operated on, and was returned to that room after the operation. For the sake of brevity we will not insert the testimony of the witness Duncan bearing upon the condition of the deceased, and showing his sense of impending death and upon which his declaration was admitted, but will say that it shows substantially these facts: That after the operation the two remained in the room some two or three days, and during that time, after the deceased regained consciousness, the parties engaged in several conversations. The witness says that the deceased was apparently sane and rational, as did Dr. Gaither, also, and that after emerging from the effects of the anæsthetic the witness asked the deceased how he was feeling, and he said, "Very sore," whereupon he was told that he would feel better after a while. Witness then asked him where he was, and he replied that he was upstairs in some sort of a shack, but this was corrected, and he was told that he was in a hospital. The deceased then said that he knew he was in a hospital, and that the doctors and nurses were trying to put him in good shape, but he was afraid they were not going to do it, and then said that he would fix the fellow who had wounded him. After this there was another conversation in which he again informed the witness that he did not believe the doctors would pull him through; that he did not believe he would get well, although he did not say that he believed he was going to die. After making these statements the appellant was brought by the police to the room occupied by deceased, and was identified by him as being the man who had assaulted him; but before this identification, and after the conversation above related, he made the statement which the court permitted to be introduced before the jury, and which statement is as follows:
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