15 Ky.L.Rptr. 323
Court of Appeals of Kentucky.
McHARGUE v. COMMONWEALTH.
Sept. 16, 1893.
ACTION: Affirmed.
Appeal from circuit court, Knox county. Samuel McHargue was indicted for murder. From a conviction of manslaughter, he appeals. LEWIS, J. The main point attempted to be made by counsel in this case is that because the indictment was found against appellant in Whitley county, and the offense of murder, with which he is charged, appears from the indictment to have been committed there, we are bound to assume the Knox circuit court, in which he was tried and found guilty, was without jurisdiction. The reasonable presumption is that all the steps required by statute in order for appellant to obtain a change of venue were taken, and that, when the trial took place, the original papers, together with a transcript of the record, pertaining to the prosecution, had been transmitted by the clerk of Whitley circuit court, as was his duty, to clerk of Knox circuit court, and were before the latter court as indisputable evidence of the change of venue; otherwise, we have to assume that the Knox circuit court, utterly without right or authority, undertook to try appellant for an offense involving his life, and to finally adjudge his punishment by confinement in the penitentiary. Appellant, having in the Knox circuit court pleaded to the issue, and submitted without objection to trial, cannot require the commonwealth to make proof in this court the change of venue was actually made. But there is, however, enough in the record to thoroughly satisfy us the original papers and transcript of orders made in the Whitley circuit court, including the proceeding and order for change of venue, were in possession of the clerk of the Knox circuit court, and before that court, when the case was called and tried. But two witnesses seem to have been present when the homicide took place, and their statements do not agree. But the jury, under proper instruction by the court, found from the evidence appellant guilty of manslaughter, and, as there is evidence to support the verdict, it cannot be disturbed. It is not indispensable, in order to render proof of dying declarations competent, for deceased to have stated he was bound to die, and had no hope of recovery. The fact of impending death, and consciousness of it on part of a wounded person, may be proved by circumstances. The deceased was shot about the lower part of the stomach, and the wound was so large that the attending physician stated he could put all his hand in it, and, besides, the bowels were protruding. It is therefore plain the deceased believed he would die very soon, as he did in less than one hour, and that he was utterly without hope of recovery. Besides, what he said showed he believed his death inevitable and near at hand. His expression was that "it was an awful fix for one to be in without warning." But it seems to us the question of competency is immaterial, for, besides the words just quoted, his only remark was, "I am shot;" so that nothing he said really bears upon the cause or manner of his being shot. We perceive no error of the court in admitting or rejecting evidence, or in any other respect prejudicial to substantial rights of appellant. Judgment affirmed. Ky.App. 1893. McHARGUE v. COMMONWEALTH. 23 S.W. 349, 15 Ky.L.Rptr. 323

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