17 Ky.L.Rptr. 959
Court of Appeals of Kentucky.
SAYLOR v. COMMONWEALTH.
Dec. 6, 1895.
ACTION: Reversed.


Appeal from circuit court, Bell county.
"Not to be officially reported."
Gilbert Saylor was convicted of murder, and appeals.

PAYNTER, J.
This is the second time this case has been here, and it was elaborately considered on the former appeal, which obviates the necessity of writing much on this one.

The evidence establishes the fact that the accused and his wife were living at the dwelling of Burton Hensley, who was the father of the wife of the accused. They were in the house when, as the testimony conduces to prove, the deceased, with arms, made an assault on it, as well as on the accused and his wife. His occupation of the house gave him the same right to defend it as if he owned and occupied it. The court, in its opinion on the former appeal, said: "The testimony tends to prove that the deceased attacked the dwelling, struck the kitchen door, and forced it open, and entered with a weapon in his hands; and, as the accused lived there, he had the right to defend the dwelling, as the law regards an attack on it as equivalent to an assault upon his person, for a man's house is his castle. He had the right to use the force necessary to resist the attack, even to the taking of life." The testimony in this record strongly conduces to prove that the accused killed the deceased in defense of his dwelling, his wife, and himself. The preponderance of the testimony establishes this fact. Indeed, it seems to us to be so satisfactorily established that reasonable men should not entertain a doubt as to the fact. The accused did the shooting from the loft in the dwelling, where he had gone to escape the deceased and those who accompanied him. The accused did not only retreat to the wall, but did so until he was surrounded by walls. Under him were some thin boards, between which there were openings of three or four inches wide; the deceased, a bold, dangerous man, beneath, and, in the language of a witness, with the "bitter end" of his pistol pointed in the direction of the accused and his wife; and the testimony conduces to prove that he fired it at accused immediately before accused killed him.

In addition to the other instruction, the court should have given to the jury an instruction on the question of the right of the accused to defend the dwelling he was occupying at the time of the assault.

The accused introduced as a witness Silas Hensley, who testified that he did not "see a shot fired by any one, and did not see or know who did fire the shot that killed deceased." On cross-examination, the witness was asked "if he did not tell Harvey Wilson and Mary Ann Wilson, on Monday, next day after killing, above Burton Hensley, Sr.'s, near a place called the 'Carne's field,' that he saw defendant shoot deceased over the gable of the kitchen loft in the entry, and if same was not true that he did see him shoot." The witness stated that he did not tell them so, and did not see defendant shoot deceased. Continuing the cross-examination, he was asked "if he did not show Harvey Wilson, Dan Jones, and others, on the next day after the killing, where defendant was standing in kitchen loft, and where deceased was shot, and if he did not see defendant shoot deceased over the gable of kitchen loft." Witness answered "he did not." Harvey Wilson was then introduced by the commonwealth, and was asked "to state to the jury if Silas Hensley told him he [Silas] saw defendant shoot deceased in the room and from the kitchen loft." The witness was allowed to answer the question, and said "that Silas told him so." Ann Wilson was called as a witness by the commonwealth, and was permitted to testify substantially as had the witness Harvey Wilson. Silas Hensley having testified that he did not see the shooting, it was error for the court to permit the Wilsons to testify as to what they claim Hensley told them out of court. It was permitting the commonwealth to convert such statements into substantive testimony. This cannot be done. In Loving v. Com., the court said: "Nor can a witness who fails to testify to substantive facts be asked if he has not made statements to others out of court that such facts exist, for the purpose of proving that he had made such statements, as that would transform declarations made out of court, and not under the sanction of an oath, into substantive testimony."

Judgment reversed, with directions to grant the accused a new trial, and for further proceedings consistent with this opinion.

Ky.App. 1895.
SAYLOR v. COMMONWEALTH.
33 S.W. 185, 17 Ky.L.Rptr. 959



     

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