14 Ky.L.Rptr. 177
Court of Appeals of Kentucky.
Bates v. Commonwealth.
June 14, 1892.
ACTION: Reversed.

Appeal from circuit court, Boyle county.
"Not to be officially reported."
Pompey Bates was convicted of murder, and appeals.
For decision on former appeal, see 16 S. W Rep. 528.

This is the second appeal from judgment convicting Pompey Bates, under a joint indictment against him and George Word, for the murder of George Wells, though the grounds now relied on are different from those upon which the judgment was reversed on the former appeal. 16 S. W. Rep. 528. The facts proved on the last are not, however, essentially different from those proved on the former trial, and therefore it is not necessary to repeat them at length. It appears from the record before us, as shown by the former one, that the accused was quietly and peaceably sitting down in the room of an eating house waiting for his breakfast, as were several other of his companions, who were raftsmen on their way home in Clay county, when the deceased, accompanied by another person named Sampson, both being armed, entered the room, and, approaching one of them, (Little,) seized, disarmed, and carried him to the door of the house, where he was delivered to one Russell, who had accompanied the deceased and Sampson to the house. The two then returned to where the appellant was sitting, and, as the evidence tends to show, asleep, and also took hold of him, when one of his companions, Word, with an oath, demanded that he be turned loose. Whereupon Sampson turned his attention to Word, and they commenced firing, there being several shots fired in the room, creating, of course, a good deal of confusion. In the mean time appellant and deceased were struggling, but do not seem to have been together when the latter was shot, and it is not entirely certain who did inflict the fatal wound.

The court permitted evidence to go to the jury showing the kind and color of clothes worn by the deceased, and also insignia of the office of marshal that he had about his person. Inasmuch as the deceased was not at the time marshal, nor, if he had been, was authorized to seize and arrest appellant without a warrant, it was prejudicial to appellant to admit any evidence having the effect to show or indicate to the jury he was invested with authority of a peace officer, especially as the court failed to instruct the jury, as ought to have been done, he was not marshal, and had no right to arrest or molest appellant without a warrant.

The testimony of the witness Helm was clearly incompetent. What the deceased said to him, without the presence of appellant, a short time before his death, is not competent as a dying declaration, for he was not then, according to the witness' statement, in the situation "so solemn and so awful as is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." It is true he told the witness he believed he was going to die, but manifestly the statement, as it appears on the record, was not made under a sense of impending death.

The court instructed the jury to acquit appellant upon the hypothesis of his having reasonable grounds to believe he was then and there in immediate danger of loss of life or great bodily harm ar the hands of Wells, the deceased, but erroneously refused to give an instruction upon the hypothesis that he had grounds to believe the same danger from Sampson existed. The deceased and Sampson, both armed, were acting in concert, and together had, with pistols drawn, unlawfully assaulted appellant; and why he should be restricted to the single ground of defense that Wells, the deceased, was about to shoot him, when Sampson was not only present, aiding Wells, but was actually shooting in the room, we do not see.

For the errors indicated the judgment is reversed for a new trial consistent with this opinion.

Ky.App. 1892.
Bates v. Commonwealth.
19 S.W. 928, 14 Ky.L.Rptr. 177


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