Rogers v. Commonwealth

• Citation: 171 S.W. 464,161 Ky. 754
• Parties: ROGERS v. COMMONWEALTH.
• Decision Date: 18 December 1914
• Court: Court of Appeals of Kentucky

171 S.W. 464

161 Ky. 754

ROGERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 18, 1914

Appeal from Circuit Court, Nelson County.

Ike Rogers was convicted of manslaughter, and appeals. Affirmed.

Nat W Halstead, E. N. Fulton, and Osso W. Stanley, all of Bardstown, for appellant.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

NUNN J.

The appellant was indicted, charged with the murder of Charles Howard. He was convicted of manslaughter, and adjudged to serve a term of from 2 to 21 years in the penitentiary. The offense was committed at a crap game near Bloomfield, some time in October, 1910, and about midnight. The game was in progress near the pike, and, as estimated by the witnesses from 25 feet to 60 yards distant. The deceased, with his wife and brother-in-law, was riding in a buggy on their way home, and, discovering the game while passing, he left his wife in the buggy and went over to engage in it. All the witnesses and participants are negroes. Appellant had lost at a throw of the dice, and rising from the ground began to swear pretty vigorously about it. The deceased remonstrated with him, told him his wife was near by in a buggy, and requested him to keep quiet on her account. Appellant's cursing and abuse was then directed more particularly to the deceased. It was deceased's turn to throw the dice. With the winnings in his left hand, and dice in the other, and while on his knees in the attitude of making the throw, he said to appellant, who was then standing a few steps away from the circle:

"I know you have got a gun, and, if you don't quit, I will get up and make you eat it."

Soon after this statement--the witnesses estimate it from the moment to ten minutes--the appellant moved back two or three steps, and with his pistol, which he seems to have drawn in rising from the game, shot deceased while he was still on his knees in the attitude of throwing dice. The bullet entered his neck from the left side, and just under his ear, and from this wound he died. The appellant does not testify, but introduced four witnesses who saw the affair. Two of them say that the deceased was reaching to get his pistol, which was lying on the ground to his right, and that he also made an attempt to get up. These two witnesses are positive they saw the pistol. Another witness says that he saw something "shiny" on the ground, but did not know whether it was a pistol or bottle. His other witness did not see any pistol or anything resembling it, but says that at the time he was shot the deceased was making a motion as if to get up. The commonwealth introduced four witnesses who were present, and they say that deceased did not have a pistol on the ground or upon his person, and made no threatening move.

The appellant urges four grounds for reversal. The first is that the court permitted deceased's wife, Lillian Howard, to give certain incompetent evidence. She said that from her place in the buggy she could hear all the swearing, and that immediately the shot was fired her brother told her to come quick, and she "rushed up there and says, 'Charlie, why didn't you get out of the way'; and he said, 'Lillian, I didn't know he was fixing to shoot me.' " The appellant insists that this remark was incompetent and prejudicial, because it was a mere narration by the deceased of a past occurrence, and no part of the res gestæ. At the time the remark was made, the appellant and all of his associates had fled, and no one heard it but the witness. The commonwealth relies upon the case of Daniel v. Commonwealth, 154 Ky. 601, 608, 157 S.W. 1127, 1131, and quotes the following from the opinion:

"The statement made by deceased to his mother, who ran to him immediately that he was shot, might well have been admitted as a part of the res gestæ."

The court was considering its competency as a dying declaration. The deceased had been shot from ambush, and the commonwealth claimed that he recognized his assassins, and told their names to his mother. Quoting again from the opinion:

"He told Mary Gabbard, his mother, who was the first person to reach him, that he was killed, that he was going to die, and that Jerry Rice and Bradley Daniel had shot him."

The statement was admitted and held by this court to be competent upon the rules of evidence applicable to dying declarations, and added might well have been admitted as a part of the res gestæ. In all probability, in this case this was a dying statement, but there is no proof that he so considered it. If he ever uttered another word, the record does not show it. While he lived from midnight Saturday until Monday morning, and the physician says he was paralyzed and his case hopeless from the start, yet that fact was never made known to him.

While there is some slight conflict in the evidence, as to the distance between the witness and the place where the shooting occurred, varying all the way from 25 feet to 60 yards, yet as soon as the shot was fired the witness ran to the place, and she must have reached there in a time so short as to give the wounded person no time for reflection or to recover from the excitement, and the statement must therefore be regarded as impulsive and instinctive. Considering the rules of evidence with reference to res gestæ, Wigmore, in his work on Evidence (section 1750), says:

"The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement must be supposed still to predominate and the reflective powers to be yet in abeyance. It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it,

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