Saylor v. Commonwealth

• Decision Date: 29 March 1895
• Citation: 30 S.W. 390,97 Ky. 184
• Parties: SAYLOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

30 S.W. 390

97 Ky. 184

SAYLOR v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 29, 1895

Appeal from circuit court, Harlan county.

"To be officially reported."

N. B Hays, for appellant.

Wm. J Hendrick, for the Commonwealth.

PAYNTER J.

The appellant was indicted in the Harlan circuit court charged with the murder of Hiram Shackelford. He was tried, found guilty of voluntary manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years. It is insisted that the judgment should be reversed, because (1) that the court erred to his prejudice in overruling a motion for a continuance of the case; (2) that the court erred in failing to properly instruct the jury, and give to it the whole law of the case; (3) that the court erred in allowing witnesses to prove the declaration of the deceased which was claimed to be his dying declaration; (4) that the court erred in compelling the accused to state on cross-examination that he had killed James and Lincoln Middleton. To the several actions of the court of which accused is complaining proper exceptions were taken. We will consider the questions in the order stated.

The affidavit which the accused filed for a continuance disclosed fully the facts which the absent witness, Charles Parrot would prove, were he given time to procure his attendance. No doubt can exist as to the relevancy and materiality of the evidence, and we deem it unnecessary to make such statement of the facts of the case, together with the facts which the absent witness will prove, in order to illustrate its importance to the accused to enable him to have a fair trial. The only question is as to whether proper diligence was used to procure attendance of the witness. The accused stated in his affidavit that the witness had been recognized at the instance of the commonwealth to appear as a witness for him at that term of the court on the trial of the accused; that the witness had testified on examining trial of accused for the commonwealth; that the affiant had learned within the week preceding the date of filing the affidavit the witness would prove facts (fully stating them) which were not disclosed by the witness on the former trial; that since learning the absent witness would prove such facts affiant had been confined in jail; his attorney, upon whom he relied was living in another county, and he had no opportunity to procure the attendance of the witness. And from the fact that the commonwealth had the absent witness recognized to appear and testify in its behalf at that term of the court against the accused in this case, we think the affidavit disclosed a state of facts which entitled the accused to a continuance. When the commonwealth has a witness recognized to appear at a term of the court and testify in its behalf, it is not necessary for the accused to have such witness recognized to appear and testify for him, or to have a subpoena issued for or served on him. The commonwealth having taken the necessary steps to procure the attendance of the witness, the accused has the right to rely upon the good faith of the commonwealth, and to expect the attendance of the witness. In considering the question of diligence on a motion for a continuance by the accused on account of the absence of a witness, the fact that the commonwealth had such witness recognized should have the same effect as if he had been recognized at the instance of the accused.

So far as the court gave instructions to the jury they were correct as they were the instructions usually given in cases of homicide; but, in view of the testimony of the defense, the court did not give the entire law of the case to the jury. The testimony adduced by the accused tends to prove that the deceased and others came to the house of the father-in-law of the accused, where the accused and his wife were living, forced the kitchen door open, and the deceased came in with a pistol in his hand, entered the room, looking all around, discovering that the accused and his wife were in the loft, where they had gone to avoid the deceased and his party, endeavored to force them down into the room below. Failing in this, then the deceased tried to get the accused to leave his wife, and allow the deceased to go where she was in the loft. Another one of the party, who accompanied the deceased uninvited, came to the loft where the accused and his wife were, and gave them to understand that they had better do as the deceased wanted them to do, intimating that it would be hazardous for them not to do so, saying that "they knew Hiram Shackelford, and that they had better come down." During this time the accused was advising the parties to go away. Failing to come down, the deceased fired a pistol through a crack into the loft, and grazed the arm of the wife of the accused. The proof also tends to prove that the deceased came to the house to get the wife of the accused, and take her away with him; that on the day of the killing, and just before going there, deceased had tried to hire a party to go to the house where the accused and his wife were, and where the killing took place, and get...