Baker v. Commonwealth
50 S.W. 54
20 Ky.L.Rptr. 1778, 106 Ky. 212
Court of Appeals of Kentucky.
March 16, 1899.
ACTION: Reversed.

Appeal from circuit court, Knox county.
"To be officially reported."
Thomas Baker was convicted of murder, and he appeals.

Having been convicted, and sent to the penitentiary for life, under an indictment for the murder of W. L. White, Thomas Baker has prosecuted this appeal. The indictment was found by the grand jury of Clay county, and removed to Knox county for trial, on account of the state of lawlessness existing in the county where found. The evidence tends to show that appellant and his brother, D. Baker, belonged to a faction which was at feud with another faction to which the deceased, White, belonged. On the day of the killing, they had gone out for the purpose, it is claimed, of seeing G. D. Murray, to whom appellant owed some money; met Murray in the road, and turned back with him in the direction of their home. The Bakers were on foot, and armed with guns and pistols, which is explained by the fact that their father had been shot a short time before by one James Howard, who lived in the neighborhood, and who, as they had been informed, had made threats against their lives. There is also evidence showing that White, the deceased, had repeatedly threatened appellant's life. Murray, who was on horseback, was some 40 yards in advance of the Bakers, when they met deceased. Murray spoke to White,--who was also on horseback,--and White said "Good evening," without looking at him, and, as Murray states, with a peculiar expression on his face. At about the time White met the Bakers, Murray states that he looked around, --which was natural, as he knew the men were enemies,--and saw White jerk his horse with his left hand, facing appellant, and draw his arm around, when appellant raised his gun quickly, and fired. At that time Murray's horse threw him, but without injury to him, as he lighted on his feet. He states that neither Tom nor D. Baker went any nearer to White, but came on to where Murray was, and went with him to his father's house. Murray saw no pistol in White's hand, either when they passed in the road or at the time of the shooting, but states that the road was very dusty, and the rays of the evening sun were full in his eyes as he looked back. Murray states that immediately on the shooting White fell from his horse, and Tom Baker loaded his gun before coming on to where Murray was. The Bakers both state that White drew a pistol from his left side, and was presenting it at appellant, when the latter, with one hand, suddenly raised his gun, and, without taking aim, fired, and White fell to the ground; that neither of them went near him, but they went on down the road, and left him there, and did not see his pistol after they saw it in his hand at the moment of the shooting. The pistol was found by Reese Murray,--the first person to come to White after the shooting,--lying in the dust of the road, with the appearance of having been crawled over. Though a double-action pistol, it was cocked when found. The evidence tends to show that White was a very reckless man when in drink; that he had been drinking that day, and had in his saddlebags a broken bottle, which had contained whisky; that he was angry with appellant, and had made threats against his life. A number of witnesses testified as to declarations concerning the shooting, made by the deceased, who lived only about a half hour after the shooting. At the trial, upon demand of appellant, the witnesses were put under rule. The commonwealth requested that John G. White, a brother of the deceased,--who had been summoned as a witness for appellant,--be excepted from the rule; appellant's objection to this being overruled by the court. Baker filed an affidavit stating that John G. White was his most bitter enemy; had taken a very active part in bringing a large number of partisans of the White- Howard faction in Clay county to Barboursville; that attempts had been made to intimidate appellant's witnesses; and that, if White were permitted to remain in the court room, he believed his witnesses would be intimidated. White made affidavit denying any attempt to intimidate any witness, and stating that he had no personal knowledge of the facts attending the killing of his brother, and that he believed the purpose of summoning him as a witness for the defense was to exclude him from the court room, and prevent him from informing the attorneys for the commonwealth as to the evidence in the case, with which he had acquainted himself.

By section 601 of the Civil Code it is provided: "If either party require it, the judge may exclude from the court-room any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses." By section 151 of the Criminal Code it is provided that the provisions of the Civil Code "shall apply to and govern the summoning and coercing the attendance of witnesses, and compelling them to testify in all prosecutions, criminal or penal actions or proceedings," etc. But in Johnson v. Clem, 82 Ky. 87, it was said that: "If this provision (Civ. Code Prac. � 601) is to be regarded as mandatory, it would produce much inconvenience in the practice, and often obstruct the proper administration of justice. *** It will also often occur in the practice that the presence of a witness familiar with the history of the case becomes indispensable by reason of the unavoidable absence of the litigant, and therefore the necessity of placing that construction on the statute must conduce to a just and proper practice by leaving the question as to the exclusion of the witnesses to the exercise of a sound judicial discretion." We conclude, therefore, that, even if John G. White had been summoned as a witness for the defense, in good faith, the court did not err in permitting him to remain in the court room during the trial for the purpose of informing the attorneys for the commonwealth as to the evidence the witnesses would give.

It is also urged as error that on the cross-examination of appellant the commonwealth was permitted, against objection, to prove by him that he was under indictment for felony, viz. house-burning and burning a storehouse. The two indictments were offered in evidence to the jury, and appellant was asked questions whose object was to show that the deceased had been instrumental in instituting the prosecution. He was also asked, against objection, whether he had been indicted for anything else. He was also asked what that indictment was for, and the court excluded the answer to the latter question from the jury, but allowed the answer that he had been indicted to remain. The court also permitted him to be interrogated as to whether he did not go to New York, 15 or 16 years before the trial, for the purpose of getting counterfeit money. It was probably competent, as showing a motive for the killing, to show that he had been indicted at the instance of deceased. As said by Judge Lewis in the opinion in Martin v. Com., 93 Ky. 193, 19 S. W. 580: "Motive may be shown in certain cases by a state of facts conducing to make out another and distinct offense from that for which the accused is being tried. *** Such evidence goes to the jury as a matter of necessity, for the purpose alone of showing motive on the part of the accused to commit the crime, and no more than is necessary to show motive should be allowed, and then the jury told the purpose for which the evidence is to be considered by them." It does not appear in this record that the jury were informed of the purpose for which alone the testimony as to the indictments was to be considered, and this appears to us to be prejudicial error. He was being tried for two offenses. The fact that the grand jury had indicted him for burning a dwelling and a storehouse was used to fix upon him the crime of murder. As said by Judge Lewis in the Martin Case, supra: "This character of evidence is likely to be wrongfully considered by a jury, and made to constitute a part of the offense for which the party is being tried, as it might well be argued that one so depraved as to commit the crime of robbery would not hesitate to commit murder." We are of opinion that the period concerning which the inquiry is made should bear some reasonable relation to the time at which the testimony is given, and that a period of 15 years is too remote, though we should be reluctant to grant a reversal for such an error alone.

Another objection, very earnestly urged by counsel for appellant, is that the declarations made by deceased just prior to his death were incompetent, and also that, if competent as to the killing and the attendant circumstances, portions of the statement were allowed to go to the jury which should have been excluded, and were highly prejudicial. The evidence tends to show that at the time of making the statements deceased was in a high state of excitement from anger or drink, or possibly both. He had been shot in the stomach. The nature of the wound was such as to indicate a fatal result. He was not removed from the roadside, where he lay when the witnesses reached him. The evidence is that he said Tom Baker shot him; shot him for nothing. He told them not to move him, to let him die there; that Baker shot him, and never spoke to him. One of the witnesses asked him if he drew his pistol. He said he did not. The court excluded the statement that Baker shot him for nothing. Another witness says that he asked White how bad he was hurt, and he said he was killed, and said Tom Baker shot him. The witness asked him if he could do anything for him, and White said, if he could get a doctor, maybe he could do something for him. He told witness to tell his wife to come, and told them to bring his gun, and said, "Maybe I am not killed, and, if not, I will be God damned if I--," when one of the women stopped him and told him not to talk that way. White said, "They have my pistol;" and, again, "No, it is in my left hip pocket." Most of these statements appear to have been, from time to time, repeated, during the 20 or 30 minutes that he lived after the shooting. Some of the witnesses were permitted to state, against objection, that White said, "I want all you people to swear the truth about this."

In support of the contention by appellant that all the statements made by White should be excluded as not competent on the ground of being dying declarations, it is urged that the state of mind in which he was, and especially his expressed desire for a doctor, and his reiterated statement that maybe he was not killed, his revengeful feeling as expressed in the threat as to what he would do in case of recovery, precluded the possibility of the statements made being within the rule as stated, when it is considered that the constant expectation of immediate death will silence every motive to falsehood, remove every feeling of revenge, and the mind will be induced by the most powerful considerations to adhere strictly to the truth." There is considerable authority in support of the proposition that calling for a doctor indicates that the statements were not made under a sense of impending dissolution, and that it must appear that they were made when every hope of this world was gone. It may be possible that we should have reached a different conclusion from the trial court as to the admissibility of these statements of the deceased as dying declarations, but it was necessary for the judge of that court to first determine a question of fact, viz. whether, at the time the declarations were made, they were made under a sense of impending dissolution, and when all hope of this world was gone, before he could decide the legal question of their admissibility. The question of fact is bound up in, and is a part of, the question of law. We should therefore give some weight to the finding of the trial judge upon this question, as he heard the witnesses testify, and was, perhaps, in a better position to estimate the value of their testimony, where contradictory, than this court can be from the bald record of the words they used; and, as the question in the case at bar seems to us to be a close one, we are not inclined to disturb his ruling upon this point. But it was clearly inadmissible to permit witnesses to state that he said, "I want all you people to swear the truth about this." That statement is admissible for consideration by the court as perhaps tending in some measure to show a consciousness of impending death, in determining the admissibility of statements as to the fact of killing and the attendant circumstances; but it was not competent to go to the jury, and was prejudicial, because it had a tendency to unduly impress them with the weight to be accorded to this exceedingly dangerous kind of testimony.

We do not wish to do injustice to counsel for the commonwealth, but some of the interrogatories propounded to witnesses, after the statement that Baker shot him for nothing had been excluded, seem to have been--though, perhaps, not so intended--admirably adapted to draw out testimony as to that declaration from subsequent witnesses. Counsel for the commonwealth should aid the court in keeping from the jury all testimony which the court has ruled to be incompetent, for, though testimony which reaches the jury be excluded by direction of the court, the impression, especially if the statement is often repeated, is likely to remain on the minds of the jury. We have no difficulty, however, in measuring the extent of zeal which counsel for the commonwealth may properly display upon such occasions. The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only,-- equal and impartial justice,--and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence he should act impartially. He should present the commonwealth's case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial officer, but becomes a heated partisan. When that officer allows private counsel to assist him in the trial of a cause, such counsel represents him to that extent, and should be governed by the same rules of propriety."

For the reasons stated, the judgment is reversed, and cause remanded, with directions to set aside the judgment, and award appellant a new trial, and for further proceedings consistent with this opinion.

Ky.App. 1899.
50 S.W. 54, 20 Ky.L.Rptr. 1778, 106 Ky. 212

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