Rutherford v. Commonwealth

• Decision Date: 14 February 1878
• Citation: 76 Ky. 608
• Parties: Rutherford v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 608

76 Ky. 608

Rutherford v. Commonwealth.

Court of Appeals of Kentucky.

February 14, 1878.

APPEAL FROM LOGAN CIRCUIT COURT.

A. G. RHEA AND R. S. BEVIER FOR APPELLANT.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

Section 340 of the Criminal Code (Bullitt's) provides, that "A judgment of conviction shall be reversed for any error of law to the defendant's prejudice appearing on the record." But sections 280 and 281 provide, that decisions of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for a new trial, shall not be subject to exceptions; and in Terrell's case (13 Bush, 246) we held, that as no exception could be taken to the decisions above enumerated, this court had no jurisdiction to inquire into alleged errors therein. We are therefore of the opinion that we have no jurisdiction to revise the action of the circuit court in respect to the appellant's challenges for cause.

Evidence of the declarations made by the appellant at the time he surrendered himself to the justice was not competent. The killing occurred eight or nine miles from Russellville, and the appellant rode to town on horseback, and there surrendered himself from one to three hours after the act was committed. This was ample time in which to concoct a story; and what he said was not so connected with the act for which he was being tried as to make his declarations a part of the res gestæ. Counsel argue, however, that he had a right to prove that he voluntarily surrendered himself to the officers of the law, and that his statements made at the time of surrendering were admissible as a part of that act. That position is not tenable. Declarations made at the time of doing an act, in order to be admissible as a part of the act, must relate to the act being done when the declarations are made, and must tend in some way to explain or qualify that act. No declarations of the appellant, made at the time of surrendering himself into custody, several hours after the homicide was committed, could be admitted to prove the circumstances under which the deceased was killed. They were no part of that act, but accompanied an entirely different act.

It was competent to prove that the deceased had threatened to kill appellant's mother. The witness had stated that amicable relations existed between the two families up to the time the homicide was committed. That statement was material as tending to prove that the killing was unprovoked, and that the appellant was under no just apprehension of danger; and as also tending to contradict the testimony of the appellant's witness in regard to threats made by deceased against his life. If the deceased had threatened the life of appellant's mother, that fact would be inconsistent with the...