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[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 458, 459.]

-ADMISSIBILITY.

we think not. In the long enumerated list of [ court, to be determined from the facts and cirsecurities which the treasurer may accept in cumstances of the particular case. taking the deposit, a deed to real estate executed to himself is nowhere mentioned. Conceding therefore that subsection 8 of the section under consideration permits the plaintiff as an investment company to invest all of its capital stock or reserve fund, or both, in real estate, this fact in no wise aids its contention that the treasurer should be required to accept its deed. If its assets are so invested, there are many ways which might be suggested by which it could issue or procure some one or more of the classes of securities enumerated in the statute with which to make the deposit. To uphold its contention we would not only be compelled to add to the list of the securities mentioned in the statute which the treasurer may accept, but would furthermore be called upon to determine that such companies, under the pro- 5. HOMICIDE 214(1)—DYING DECLARATIONS visions of subsection 8, have the authority to -ADMISSIBILITY. invest all of their assets in real estate, re-identity of his assailant is admissible. A dying declaration by deceased as to the gardless of the fact that such real estate might be in excess of that which "may be necessary for the proper conduct of business," which is doubtful, but not necessary to be now determined.

3. HOMICIDE 203(7)-DYING DECLARATIONS Where deceased received a wound sufficient to render him unconscious, in which condition he remained until his skull was trepanned, his declaration made after regaining consciousness dying declaration, where he expressed the conas to the attack upon him was admissible as a viction that he would die and he very shortly thereafter did die.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 437.] 4. CRIMINAL LAW MISSIBILITY-DECLARATIONS.

Moreover, to require the treasurer to accept the deed to real estate would produce consequences and troublesome situations never contemplated by the statute. The treasurer would be required, if such were the law, to investigate the title to the real estate, and would be burdened with the responsibility of doing this. Upon every occasion of the sale of some of the real estate, or of the placing of a lien upon it, he would be annoyed with these matters, and we are thoroughly convinced that there is nothing in the statute permitting the corporation to comply with the statute by the execution of a deed to the treasurer, or the latter to comply with it by accepting any such deed.

It follows therefore that the court erred in granting the writ prayed for, and the judgment is reversed, with directions to dismiss the petition, and for proceedings consistent with this opinion.

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A dying declaration is admitted on the theory that the solemnity of the occasion and the seriousness of the declarant's condition warrant the admission of his statements made under a sense of impending dissolution or in extremis, though not under oath.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 425-427.]

2. HOMICIDE 218-Dying DeclarATIONSADMISSIBILITY.

The question whether the circumstances are sufficient to admit a dying declaration is for the

366(4)-EVIDENCE-AD

Statements by deceased as to the identity of his assailant when constituting part of the res gestæ are admissible.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 819.]

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 448.] 6. HOMICIDE

221-DYING DECLARATIONS— PROVINCE OF COURT AND JURY.

Where the court has determined that state

ments of deceased offered as dying declarations
the statements attributed to deceased were in
are admissible as such, the questions whether
fact made, and whether they are true, must then
be determined by the jury in the affirmative be-
fore they can be considered.

Cent. Dig. §§ 463, 464.]
[Ed. Note. For other cases, see Homicide,

7. CRIMINAL LAW ~763, 764(21)—INSTRUC

TIONS-INVASION OF PROVINCE OF JURY.

In a homicide case, where an alleged dying declaration of deceased was admitted, the court charged that the jury should consider the testimony as to what deceased said concerning to how the trouble occurred, considering such identification and the statements made by him as statements as though deceased were present testifying. Held that, as it is for the jury to determine whether the alleged statements were if made, and as such evidence is particularly open made by deceased, and whether they were true to objection, the giving of such instruction was erroneous, invading the province of the jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1731.]

8. CRIMINAL LAW 864-TRIAL

DUCT.

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· MISCON

In a prosecution for homicide, the jury, while considering the case, returned to the courtroom, inquiring whether a prisoner under life sentence

was subject to parole at any time. The court

answered the question in the affirmative, and the jury found accused guilty, returning a death verdict. Held that, as the jury's verdict should not be influenced by what another department of the state government might do, the conduct of the court and jury was erroneous.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2068.]

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An occurrence shown by the motion for new trial, but not the bill of exceptions, should not be reviewed on appeal.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2807.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Christian | Hopkinsville, and the appellant either went 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.

THOMAS, J. 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 commonwealth. 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 morn ing 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

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

ones.

blow which he received from his assailant, lieve he would get well, although he did not he was subjected to a trephining operation say that he believed he was going to die, by Dr. Gaither. There were other bruises After making these statements the appellant upon his head, but not necessarily fatal was brought by the police to the room occu pied 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:

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 mat"He said he went in the saloon and got a ter, and the physicians say that his death drink, and met several people and told them he was produced by the blow he received, and was in Hopkinsville for the purpose of renting that it was almost necessarily fatal; the op- or finding a home, a farm, and he was told there eration having more for its purpose the reswas a farm on the railroad, and some colored man came to him and told him he knew where toration of the deceased to his normal mental the place was and would take him out there, and condition than to effect a final cure. Some- he made an engagement to meet this man two or thing like a day and a half after the mental three hours later; that he went out to look at condition of the deceased was restored he the farm, and there was no one living on the place, the house was empty, and they started continued in that condition, but again relaps- back to town, and after they passed one of the ed into a state of unconsciousness from which trestles they came to a narrow path, and h he never recovered. It was during the lucid walked in front and the colored man came beinterval just mentioned that he made the hind, and the next thing he knew he got a blow statement which was admitted as a dying he fell and received another blow on the head, across his head, and showed me the place, and declaration, and of which complaint is made. and he then fell down the embankment and into There are other circumstances found in the creek, in which he said there was probably the record tending to establish the guilt of ap-revived him, and he managed to wade out, were three feet of water. The coldness of the water pellant, but not bearing upon the questions in the words he used, and he remembered no more hand, and with which we will not incumber until he found himself in the hospital." 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 [1] It is contended that the evidence fails with Mr. Duncan all the time, except when he to show that the dying declaration was made was operated on, and was returned to that under a sense of impending dissolution, or in room after the operation. For the sake of extremis, which is necessary, under not only brevity we will not insert the testimony of the opinions of this court, but all other the witness Duncan bearing upon the condi- jurisdictions so far as we are aware, to ention of the deceased, and showing his sense title the statement to be admitted as a dying of impending death and upon which his de- declaration. It is unnecessary for us to inclaration was admitted, but will say that it cumber this opinion with authorities to show shows substantially these facts: That after that the reason for the requirement that the the operation the two remained in the room statement should be made under such solemn some two or three days, and during that circumstances is that the declarant, being time, after the deceased regained conscious- thus faced with immediate or almost imness, the parties engaged in several conver-mediate death, is under as much sense of sations. The witness says that the deceased obligation to speak the truth as though he was apparently sane and rational, as did were testifying under oath; in other words, Dr. Gaither, also, and that after emerging that the solemnity of the occasion and the from the effects of the anaesthetic the witness seriousness of the declarant's condition take asked the deceased how he was feeling, and the place of a duly administered oath. So he said, "Very sore," whereupon he was told that the authorities everywhere hold that the that he would feel better after a while. Wit-facts and circumstances must show that such ness then asked him where he was, and he condition exists in order to admit the statereplied that he was upstairs in some sort of a ment as a dying declaration. 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 be

There were other witnesses who testified as to the identification of the appellant by the deceased.

[2] The question has been before this court a great number of times, and it is recognized in all of the cases that whether or not the circumstances are sufficient to admit the statement as a dying declaration is not only a question for the court, but is to be determined from the facts and circumstances of each case. Many of the cases hold that the declarant need not say in express terms, or in substance, "I believe, or I know, that I am going to die." If what he says, coupled

with his condition, the nature and extent of another witness that he believed he was gothe wound, the rapidity with which death ing to die, and to others substantially the follows, and other circumstances, is suf- same. Taking the statements, coupled with ficiently convincing that the declarant is con- the facts and circumstances, including what fronted with the specter of death, his state- he said to his wife about being crippled, and ments made at such time are admissible as going to move to Ohio, this court determined his dying declaration. We are fully aware that there was not shown sufficient solemnity also, as was stated in the case of Baker v. surrounding the statement to permit it to be Com., 106 Ky. 216, 50 S. W. 54, 20 Ky. Law introduced as a dying declaration. Rep. 1778, that this character of evidence is a species of hearsay testimony, and liable to great abuse and should be received with great caution, and, as was also held in that case, and declarant should believe himself beyond the probabilities of recovery. There are almost numberless cases from this court holding to the same rules, to which it is unnecessary to refer or discuss in this opinion. The cases chiefly relied on as authority against the admission of the statement are those of Mathedy v. Com., 19 S. W. 977, 14 Ky. Law Rep. 184; Starr v. Com., 97 Ky. 193, 30 S. W. 397, 16 Ky. Law Rep. 843; Coyle v. Com., 122 Ky. 781, 93 S. W. 584, 29 Ky. Law Rep. 340; and Com. v. Johnson, 158 Ky. 582, 165 S. W. 984.

An examination of the other cases will show facts and circumstances which influenced the court to reject the testimony. There are many cases from this court where the facts and circumstances do not appear to be so strong in favor of the admission of the testimony as those appearing in the case now under consideration. Peoples v. Com., 87 Ky. 487, 9 S. W. 509, 810, 10 Ky. Law Rep. 517; McHargess v. Com., 23 S. W. 349, 15 Ky. Law Rep. 324; Com. v. Matthews, 89 Ky. 287, 12 S. W. 333, 11 Ky. Law Rep. 505; Eversole v. Com., 157 Ky. 478, 163 S. W. 496; Farley v. Com., 165 Ky. 600, 177 S. W. 431; and Cavanaugh v. Com., 172 Ky. 799, 190 S. W. 123.

In the McHargess Case, before making the dying declaration, the deceased said:

"It is an awful fix for one to be in without warning."

In the Mathedy Case the decedent had taken some poison. It could not, in the very nature of things, be known whether it would prove fatal, and, although he stated that he He was shot in the stomach, and from the was going to die, yet he insisted upon send- nature of the wound and his statement above ing for a physician, which could have been this court determined that what he afterfor no other purpose except to destroy the effects of the poison, and to restore the de- wards said as to the circumstances surroundceased to his previous healthy condition. ing the commission of the crime was properThe court there said that under such circum-ly admitted, although the deceased had made stances the statement was not made under no statement concerning the death, or consuch a sense of impending death as to war-cerning his belief as to the result of his injury. rant its introduction before the jury.

In the Starr Case the deceased had been

shot, but it is not shown that it was necessarily fatal, as was the wound in the instant case, and he made a statement that he would not get well, and that he could not stand it much longer, and the court said:

"It does not appear that the deceased had been told that he could not recover, and he had lived for nearly seven months after being shot. The language seems to us rather that of discouragement than of a conviction of impending death."

In the Coyle Case the deceased was shot through the fleshy part of one of his arms, about four inches below the shoulder joint, and no bones were fractured. There was absolutely nothing from the wound itself to indicate that death would ensue, but complications set up and the arm was amputated, after which he said to his wife:

"You have a one-armed man now, but I will manage to make you a living in some way."

He also said that he and his wife would move to the state of Ohio, and asked his sister-in-law to go with them. The statements upon which the commonwealth relied to admit the declarations were, as testified to by the witnesses, that he said to his wife that he believed it would kill him because the wound was so close to the joint, and to

In the Cavanaugh Case, quoting with approval from the Peoples Case, the court said: "The law does not require as a condition to the competency of the statement as a dying declaration that the injured party shall, in express words, declare that he knows he is about to die, or that he shall make use of equivalent language. His recognition of impending dissolution may be shown in this way, but the law does not limit it to this mode alone.

A further reference to, or quotation from, authorities would render this opinion too long; for enough has been said and a sufficient reference to the authorities has been made to show the general rules governing the subject. After all, each case must depend upon its own facts, and if it is shown by the testimony, from circumstances, or from what the declarant may have said, or from both, that the offered statement as a dying declaration was made at the time when the declarant was in extremis, and believed that he was approaching impending dissolution, it is admissible.

[3] In the instant case the deceased had received a wound sufficient in severity to render him unconscious from the start, in which condition he remained until he was relieved by medical assistance. He expressed a disbelief in the ability of the physicians

and nurses to give him relief, and said that ness Duncan. Whether he made such state-
he entertained no belief that he would get ments is a question for the jury to determine
well. Within a very short time after that he from the evidence beyond a reasonable doubt,
died. After giving the question thorough and under the same rule it is to determine
consideration, participated in by all the whether such statements, if made, are true.
members of the court, we have concluded Under the plea of not guilty, the burden is on
that the statements of the deceased, made the commonwealth to prove beyond a reason-
under such circumstances, were properly ad-able doubt every fact necessary to a convic-
mitted as his dying declaration, and that the
court did not err in so ruling.

tion, and the jury must find every necessary
fact to be true beyond a reasonable doubt
[4, 5] As a part of the first objection urged before they are authorized to convict.
for a reversal of the case is the admission After the court has determined that the
of the testimony as to the deceased identify-statements of the deceased, offered as a dying
ing the appellant as the one who struck him. declaration, are admissible as such, there re-
But little need be said in favor of the pro- main two facts for the determination of the
priety of the court's ruling in admitting this jury, which are: (1) Were the statements at-
testimony. Such identification is admissible, tributed to the deceased in fact made? And
according to all authorities, under at least (2) if made, are they true? The jury must
two sets of circumstances: (a) When the answer both in the affirmative from the evi-
identifying evidence is a part of the res ges-dence beyond a reasonable doubt before it can
tæ; and (b) when it is a part of a valid dying accept or be influenced by the alleged dying
declaration. Many authorities of respectable declaration. The court in this case, by the
standing also permit evidence of the identi- admonition given, took away from the jury
fication to be introduced when the defendant its right to pass upon the first question above,
was present and did not deny the statements and told it that the statements attributed to
of the declarant as to his (defendant's) guilt. the deceased were in fact made, and that the
We do not deem it necessary to discuss any witness Duncan was telling the truth beyond
of these, except to say that the identification a reasonable doubt, thereby not only invading
in this case was made by the deceased under the province of the jury, but depriving the
the same circumstances as his statement tes- defendant of a right as ancient as the com-
tified to by the witness Duncan as a dying
mon law. The error of the court in this
declaration.
In 21 Cyc. 989, in discussing particular is not seriously denied, as it could
evidence which may be admitted as a dying not well be, by able counsel for the com-
declaration, it is said:
monwealth in his presentation of the case.

"Positive statements as to the identity of the malefactor are always admissible in evidence when the deceased was in a position to know the fact stated."

See, also, Henderson v. Com., 72 S. W. 781, 24 Ky. Law Rep. 1985.

We are not without authority as to the
error of the court's action in this particular.
The almost identical question was before the
court in the case of State v. Valencia, 19 N.
M. 113, 140 Pac. 1119, 52 L. R. A. (N. S.) 152.
In condemning an instruction embodying the
the court in this case, it is said:
same idea as is contained in the language of

So we find no error in the ruling of the
court in admitting the evidence in question.
"The serious infirmity about this class of evi-
[6, 7] Coming now to the second contention dence, i. e., dying declarations, is the lack of op-
for a reversal alluded to above, viz. the state-portunity to investigate the truth of the same
ment the court made to the jury at the close by searching cross-examination. And it can
of the testimony of the witness Duncan in well be urged that the passion of the moment,
or the clouded mind resulting from the injury,
regard to the weight they should give to not to say anything about the possible in-
the statements of the deceased as testified to correct quoting of deceased by those depended
by the witness, we are clearly of the opinion upon to supply this evidence, would all tend to
indicate the lurking evils of this class of testi-
that there can be found no authority sustain-mony, to which the jury is prone to attach great
ing the action of the court complained of. consideration, for which reasons instructions
On the contrary, we are convinced that the tending to point out the weight to be attached
effect of the court's action, although uninten- to such evidence are dangerous and calculated
to be highly prejudicial to defendant."
tional on its part, was to destroy one of the
fundamental rights of the defendant to have
the jury find him guilty, if at all, beyond a
reasonable doubt. The accused is presumed
to be innocent until proven guilty beyond a
reasonable doubt, but the presumption was
denied to the appellant here as a necessary
consequence of the court's statement. There
appears in the statement not only the error
of directing the attention of the jury speci-
fically to certain parts of the testimony, but
the jury are also told, in substance, to accept
as true and as a fact that the deceased made To the same effect is the state of Oregon
the statements attributed to him by the wit-v. Doris, 51 Or. 136, 94 Pac. 44, 16 L. R. A. (N.

In a note to that case, upon the question now being discussed, we find this:

"The question whether the declaration was the question as to the credibility of those testifyactually made is for the jury, and includes also ing to it, and as to whether it has been correctly reported. Fogg v. State, 81 Ark. 417, 99 S. W. 537; People v. Amaya, 134 Cal. 531, 66 Pac. 794; Oliver v. State, 129 Ga. 777, 59 S. E. 900; Jones v. State, 130 Ga. 274, 60 S. E. 840; Com. v. Lawson, 119 Ky. 765, 80 S. W. 206 [25 Ky. Law Rep. 21871; Jackson v. State, 94 Miss. 83, 47 South. 502."

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