19 Ky.L.Rptr. 1273, 102 Ky. 241
Court of Appeals of Kentucky.
DUGAN v. COMMONWEALTH.
Nov. 18, 1897.
ACTION: Affirmed.


Appeal from circuit court, Knox county.
"To be officially reported."
John Dugan was found guilty of manslaughter, and he appeals.

PAYNTER, J.
The appellant; John Dugan, was indicted for the murder of John C. Colson. He was found guilty of manslaughter, and sentenced to the penitentiary for 21 years. On June 1, 1897, between 7 and 8 o'clock p. m., Colson was shot and killed in the city of Middlesboro. The testimony in the case is too voluminous to be given here. According to the testimony offered by the commonwealth, Dugan shot and killed Colson. Dugan and William Miller had some trouble in front of what is known as the "Colson Block." Colson was the peacemaker. He disarmed Dugan, by taking from him, in a friendly way, his revolver. The parties separated. Dugan went to his house, procured a 44 Remington, and in a few minutes returned to a place near where the difficulty and separation had taken place. There was a vacant lot adjoining the Colson Block. On this lot Miller and Colson had hitched their horses. Dugan left Cumberland avenue, on which this lot faces, and went to within a few feet of where Colson and Miller were unhitching their horses. Colson had unhitched his horse, and turned, facing Dugan. It was light enough for Dugan to have recognized Colson and Miller. Dugan shot Colson, and immediately fired at Miller. Herman Wienstien, who did business on the opposite side of the street, testified that he saw a man holding a pistol; that there was a flash; that then a man said, "Oh, he shot me;" that then another shot was fired, and Colson walked to the avenue, and then up a stairway leading to the second floor of his block, where, in a few minutes, he expired; that Dugan immediately came upon the sidewalk, holding a pistol in his hand. This witness also testified that the person who did the shooting had on a light suit of clothes, as Dugan appeared to have been dressed. A colored girl who lived at Dugan's house testified that she saw some one present a pistol while standing at the place where the commonwealth claims that Dugan stood when the shot was fired that killed Colson. This girl was standing in the yard back of Dugan's house. Without repeating here what Dugan said, it is sufficient to say that Dugan admitted to several persons that he had shot Colson. There is proof in the record tending to show that Dugan had an ill feeling towards Colson. Numerous witnesses testified that only two shots were fired on the occasion when Colson was killed. Dugan testified that he fired two shots at William Miller; that Miller was attempting to take his life; that he fired the shots in self-defense. Dugan seeks to sustain his claim that Miller fired at him by attempting to prove that the second report was louder than the first; and he claims that that is to be accounted for because Miller fired at about the same time that he (Dugan) fired the second shot. There is no escape from the conclusion, after carefully reading this record, that Dugan purposely shot and killed Colson. We do not entertain the slightest doubt of his guilt. Numerous errors are assigned for a reversal of the case. We will briefly consider some of them:

It is claimed that the court erred in allowing the chief of police and his deputy to testify as to what Dugan did when the chief of police approached him while he was under arrest, in charge of the deputy. Counsel contends that the court permitted the commonwealth to prove that Dugan attempted to draw his pistol on the chief of police and his deputy. After the arrest, the deputy allowed Dugan to retain his pistol until the chief of police appeared on the scene. Neither of these officers testified that Dugan drew his pistol on them. They say that, when the chief of police came up, Dugan had the pistol in his bosom or pants; that he went to draw it, and the chief of police asked him to give it to him. It does not appear from the testimony that Dugan was drawing it in a hostile manner, or resisted the effort to take the pistol; and we are unable to see how the facts with reference to the surrender of the pistol, as given by the officers, did or could have prejudiced the defendant in the slightest degree.

Emma White was introduced by the commonwealth in chief, and testified that she was standing in Dugan's back yard when the shots were fired; that she saw a man raise a pistol to fire, but she did not know who it was, as she threw her apron over her face, so that she could not see the firing. She said that the party who did it stood near the pavement. The defendant, ostensibly to impeach the testimony of Emma White, introduced Mrs. Whitaker. She testified that the White girl told her a few mornings after Colson was killed that she saw a man shoot a pistol near the rear of the Colson Block. In view of the testimony of the defendant and the commonwealth as to the location of the parties when the firing took place, this testimony was unimportant, as all admitted that the shooting took place in the vacant lot between the Colson Building and the paling fence. Besides, it was an effort to make substantive testimony for the defendant by contradicting Emma White, which is not permissible. In view of this fact, the testimony of Mrs. Whitaker as to what Emma White said was so unimportant that the defendant could not have been prejudiced by the action of the commonwealth in proving by Emma White certain statements made to her by Mrs. Whitaker. The statements which Emma White claims that Mrs. Whitaker made to her did not in the slightest degree tend to establish the guilt of the accused.

It is contended that the court erred in refusing to compel Boswoth to answer questions with reference to an alleged corrupt and dishonorable transaction at a certain election, of which he was one of the officers. Boswoth testified that Dugan said, in the city hall, that Colson had slapped him in the face, and took his pistol away from him, and added, "You know me well enough to know that I would kill any s___ of a _____ that would treat me that way." This was the important testimony which Boswoth gave. A number of witnesses had testified substantially to the same facts. Dugan admitted that he had made various admissions, inculpatory in their character, but claimed that he did it through fear of Miller and his friends. It may be assumed that the court erred in refusing to allow Boswoth to answer the questions, and the defendant to prove the truthfulness of his avowal that he could show that Boswoth was guilty of misconduct in the election. Still, Dugan was not prejudiced by it, because several other witnesses had testified substantially to the same facts to which Boswoth had given testimony. Besides, Dugan, on his examination as a witness, substantially admitted that he had made the inculpatory statements.

It appeared in the testimony that the pistol from which Dugan fired the shots was a 44 Remington. The proof tended to show that the ball of a 44 cartridge would weigh, before it is shot, 200 grains, and that the ball, in the same condition as when removed from the body, weighed only 176 grains. Dr. Robinson said that the ball passed through the collar bone and the shoulder blade, and that the effect of a ball's passing through such bones would be to reduce its weight. He did not give an opinion as to what the loss would be. The defendant offered testimony to show that balls which had been shot from a 44 cartridge into soft wood, and into earth, and some other substances, not bone, would lose a certain number of grains, but much less than 24 grains. In rebuttal, the commonwealth introduced Dr. Caldwell, who gave an opinion, from his experience and knowledge, that a ball fired into the body, passing through tissue and bones, would be reduced in weight; and he also gave an opinion, from knowledge which he had acquired from the study of medical works, that a ball fired into the skull (which is about the same thickness as the collar bone) would be reduced in weight from 3 to 50 grains. It is contended that it was erroneous for the court to admit this testimony-First, because it was not offered properly in rebuttal; second, because he was not competent to give an opinion as an expert. Under section 224, Cr. Code, after the defendant has closed, the commonwealth may offer rebutting evidence, and for a good reason, and in furtherance of justice, may be permitted to offer evidence upon her original cage. We think that this testimony was properly offered in rebuttal. The defendant had introduced evidence by which it was attempted to show that the ball which was taken from the body of Colson was not a 44. Then the commonwealth offered Dr. Caldwell, as an expert, to show that a ball might be reduced even more than 24 grains by passing through bones and tissues of the human body. Experts acquire knowledge through actual experience, and by their study of certain subjects. They in that manner qualify themselves to give opinions on subjects of which they have such special knowledge, and it is competent for them to do so, within certain limitations. We think that Dr. Caldwell's experience, and the knowledge which he had acquired by the study of books relating to his profession and the subject under investigation, rendered him competent to give an opinion as to the effect on a ball which passed through bones and tissues of the human body.

It is contended that the confessions or admissions of the defendant were made under such circumstances as rendered them involuntary. The rule is well established that confessions induced by the promises, threats, and advice of the prosecutor, or officer having the prisoner in charge, or of any one having authority over him, or the prosecution itself, or a private person in the presence of one whose acquiescence may be presumed, will he deemed voluntary, and will be inadmissible as evidence. Young v. Com., 8 Bush, 366. This is a well-settled rule. The testimony shows that none of the causes stated existed for rejecting the testimony, but it is claimed that the confessions were made because the defendant was afraid of one William Miller and his friends; that he was afraid to state the facts with reference to the shooting as he claimed them to exist; that they would have implicated Miller, and thus imperiled the life of the defendant. Although the defendant claimed on the trial of this case that Miller attempted to shoot him, and he shot in self- defense, and that if he shot Colson, it went wide of the mark, because he was shooting at Miller, yet, at the time of the admissions which the commonwealth proved, he never intimated that he shot at Miller. He admitted to the officer in charge that he had shot Colson. He did this before Miller had appeared on the scene. After the shooting he went so far as to give the reasons for shooting Colson, and the testimony strongly tends to prove that the first shot which was fired was the fatal one, and Dugan admits that he fired it, although contending that he fired it at Miller. It is wholly inexplicable to us why Dugan was afraid to admit on the night of the arrest that he had shot at Miller, as he did not hit Miller, and as he contends it was done in self- defense, yet was willing to admit that he had purposely killed an influential citizen, and sought to mitigate or justify his act. The testimony in the record shows that there was great excitement in the town, resulting from the killing of Colson, but not the slightest evidence tending to prove that the excited condition of the people influenced Dugan to make the admissions. We think the court properly permitted the evidence of the confessions or admissions to go to the jury. The jury heard all the evidence relating to the circumstances under which they were made, and they were the judges as to the weight which should be given them. It is contended that the court should have given the jury instructions which would, in effect, have allowed the jury to determine whether it was proper for them to consider the admissibility of the confessions as evidence. This court has uniformly held that the court is the judge as to the admissibility of the confessions as evidence. We deem it unnecessary to cite authority on this question, as the rule we have stated has always been recognized by this court as the correct one.

Section 240, Cr. Code, reads as follows: "A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed." It is contended that the court erred in not giving the jury an instruction on the subject as to the effect of a confession not made in open court. We do not say that a case may not arise in which it would be proper for the court to tell the jury the effect of extrajudicial confessions. But we are of the opinion that in this case it was not necessary to do so. The corpus delicti was abundantly proven, as shown by the facts that we have heretofore given, independent of the confessions or admissions of the defendant out of court; hence it was unnecessary for the court to give the instruction in question.

We are of the opinion that no errors of law occurred at the trial which prejudiced the substantial rights of the defendant. The judgment is affirmed.

Ky.App. 1897.
DUGAN v. COMMONWEALTH.
43 S.W. 418, 19 Ky.L.Rptr. 1273, 102 Ky. 241


     

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