Walston v. Commonwealth
| Citation | 55 Ky. 15 |
| Parties | Walston <I>vs.</I> Commonwealth. |
| Decision Date | 29 June 1855 |
| Court | Kentucky Court of Appeals |
APPEAL FROM ANDERSON CIRCUIT.
Thomas N. Lindsey, for the appellant —
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J. Harlan, Attorney General, for the Commonwelth —
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Thomas F. Marshall, in reply, for the appellant —
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At the July term, 1852, of the Franklin Circuit Court, the appellant was indicted for the murder of Jeptha Montgomery. The prosecution having been transmitted to the Anderson Circuit Court, by change of venue, a trial was there had at the last April term of that court, when he was convicted of voluntary manslaughter, and sentenced to confinement in the penitentiary for the period of two years.
The prisoner has appealed to this court, and the matters relied upon to reverse the judgment, are:
1. That the court improperly admitted the dying declarations of Jeptha Montgomery to be given in evidence against the prisoner.
2. The court erred in not arresting the judgment.
3. The court erred in allowing the Commonwealth the right of peremptory challenge.
4. The court ought to have granted a new trial for the reasons assigned in the record.
1. The English authorities fully establish as a principle of the common law the admissibility of dying declarations as evidence; but it seems to be well settled that they are admissible as such, only in cases of homicide, "where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations." The principle upon which they are admitted, rests upon the ground of public necessity to preserve the lives of the community, by bringing the manslayer to justice. (Greenleaf on Evidence, 186.)
The argument against their admissibility is, that they form a very dangerous description of testimony, made frequently under feelings of revenge, calculated to affect the truth and accuracy of the statements, and that the rule which admits them, not only deprives the accused of the right of cross-examination, but also of the constitutional right "to meet the witnesses face to face," that are produced against him.
The answer to the objection made to the policy of the rule is that such evidence must, from the necessity of the case, be admitted to identify the accused, and to establish the circumstances from which the death resulted; otherwise, the guilty would frequently escape, where no third person witnessed the transaction, for the want of testimony to designate the perpetrators of the homicide, and to explain the manner in which it occurred. And as these declarations, to be admissible, must be made in extremis, under a solemn sense of impending dissolution, it is considered that the constant expectation of immediate death will silence every motive to falsehood, remove every feeling of revenge, and the mind will be induced by the most powerful considerations to adhere strictly to the truth; the awful situation of the individual creating, in legal contemplation, an obligation equal to that which is imposed by an oath administered in a court of justice. Besides, after the evidence is admitted, its credibility is entirely within the province of the jury, who have a right to consider all the circumstances under which the declarations were made, and to give the testimony such credit only as upon the whole they may think it deserves.
The constitutional right of the accused to confront the witnesses against him is not impaired by this rule of evidence. The person who testifies to the dying declarations is the witness against the accused; and it is only by failing to discriminate between the witness and the testimony which he gives that the constitutional objection assumes the appearance of plausibility. The Constitution does not alter the rules of evidence, or determine what shall be admissible testimony against the prisoner, but it only secures to him the right to confront the witnesses who may be introduced to prove such matters as, according to the settled principles of law, are evidence against him. This objection, if carried out fully, would result in the rejection of all declarations, even where they constitute part of the res gestæ. The law determines the admissibility of testimony — the Constitution secures to the accused the right to meet the witness who deposes face to face. But what the witness, when thus confronted, shall be allowed to state as evidence, the Constitution does not undertake to prescribe, but leaves it to be regulated by the general principles of the law of evidence. When the declarations of the deceased are offered to the jury, they constitute facts in legal contemplation, which tend to establish the truth of the matter to which they relate. The position, therefore, that their admission as evidence infringes upon the constitutional right of the prisoner to confront the witnesses against him, is wholly without foundation, and cannot be maintained.
This constitutional provision has received a similar interpretation in the courts of other States, where it has been decided that it does not abrogate the common law principle, that the declarations in extremis of the murdered person, in such cases, are admissible in evidence. (Woodsides vs. the State, 2 How. Miss. Rep. 655; Anthony vs. the State, 1 Meigs 265.)
The Circuit Court, therefore, did not err in the admission of this testimony.
2. The matters relied upon in the arrest of judgment were not such as a motion for that purpose can be based upon. It is expressly provided by the criminal code, (sec. 270,) that the only ground upon which a judgment shall be arrested, is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. No such cause is alleged to exist in this case, and if such an objection had been relied upon, it would have been wholly without foundation.
3. In considering the right of the Commonwealth to challenge any of the jurors peremptorily, it becomes necessary to decide whether the prosecution in this case, inasmuch as it was pending at the time the Criminal Code was adopted, should be regulated by the provisions of the Code, or by the previous law.
The preliminary provisions contained in the Code, which were intended to fix and determine this matter, are not so clear and explicit as might be desired. They are in the following language:
Sec. 1. "That the provisions of this act shall regulate the proceedings in all prosecutions and penal actions, in all the courts of this Commonwealth, from and after the first day of July, 1854, and shall be known as the Code of Practice in Criminal Cases."
Sec. 2. "That all prosecutions or proceedings in criminal or penal cases, which shall be commenced before the first day of September, 1854, and which, by the existing laws, would be valid, shall not be rendered invalid by this act, but may be prosecuted to their conclusion, and enforced according to the existing laws, as if this act had not been passed."
No express reference is made in this last section to such prosecutions as were then pending, but they must be regarded as embraced by its provisions, notwithstanding the language used in it seems more properly to apply to such prosecutions as should be subsequently commenced, inasmuch as every reason which would require such an enactment for the benefit of the latter would apply to the former with equal or greater force. Besides the language used is sufficiently comprehensive to embrace all prosecutions that should be commenced at any time before the first day of September, 1854, and we have no doubt the Legislature intended that the provisions of this section should apply to all such prosecutions whether they were commenced before or after the act took effect.
The first one of the foregoing two sections declares expressly that the provisions of the Code shall regulate the proceedings in all prosecutions and penal actions in all the courts of this Commonwealth, from and after the first day of July, 1854. The language is broad and comprehensive; it embraces all prosecutions and all courts. Had it stood alone, no criminal proceeding after the time mentioned could have been regularly carried on, unless it conformed to the provisions of the Code. To guard against any difficulty or inconvenience that might have resulted, if this requisition had remained imperative, in consequence of the ignorance in some portions of the State of the existence of the Code, and the nature of its provisions — the second section provided that all proceedings in criminal cases, commenced before the period named therein, might be prosecuted to their conclusion according to the existing laws, and should not be thereby rendered invalid. The...
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