13 Ky.L.Rptr. 450, 92 Ky. 183

Court of Appeals of Kentucky.

Brock

v.

Commonwealth.

Oct. 27, 1891.

Appeal from circuit court, Bell county.

"To be officially reported."

Cale Brock was indicted for killing Michael Saylor. He was convicted of manslaughter, and appeals.

Reversed.

Pryor, J.

The accused, Cale Brock, was indicted in the Bell circuit court for the killing of Michael Saylor, and convicted of manslaughter. On his appeal we find a single error in the record that necessitates a reversal. The deceased had originated a difficulty with some negroes, and a white man by the name of Doc Daniel seems to have interfered in behalf of the negroes, and in such a manner as to excite the anger of the deceased. Daniel, while sitting on the ground near where all the parties had assembled, was approached from behind by the deceased, struck upon the head by him, and knocked senseless, and kicked while in that condition. The appellant, Brock, as the testimony conduces to show, witnessing the assault made on Daniel, drew his pistol, and shot the deceased, inflicting a wound that caused his death in a few days. The pistol seems to have been fired by the appellant after he had ceased to assault Daniel; but the testimony of the accused, that is to some extent corroborated by others, is to the effect that the deceased was in the act of drawing his pistol on the appellant before the latter fired. The testimony on this point is, however, conflicting, and the attempt to reconcile it is not with this court, but with the jury; and the judgment of conviction would be affirmed, but for the rejection of testimony offered by the defense that we think was competent, and its exclusion prejudicial to the rights of the accused. Bingham, a witness for the defense, was sworn, and stated that he was with the deceased when he died; and the defendant offered to prove, and avowed he could prove, by this witness that when the deceased had given up all hope of recovery, he said to the witness that he (deceased) was wholly to blame for the difficulty, and brought on the trouble himself, and did not want the accused prosecuted. This the court said was not competent. It was certainly not competent as a part of the res gestae, the words having been spoken several days after the shooting; but it was competent as a dying declaration. Such declarations can be received as evidence as well for the prisoner as against him, and, while a mere opinion or belief as to which of the parties were in fault would be incompetent, facts that the witness could testify to if alive would be admissible. The dying declaration is to the effect that the deceased brought on the difficulty, and whether he alluded to the origin of the difficulty with Daniel, or to the attempt to draw the pistol on the accused, was a question for the jury to determine; This court held that the statements of the deceased were admissible as dying declarations, as they conduced to show that the deceased was the aggressor. At least, the weight and credit to be given this character of testimony is with the jury. It goes to them as other evidence, and upon the whole testimony they determine the guilt or innocence of the accused, and before a conviction can be had they must believe him guilty beyond a reasonable doubt. For the error indicated the judgment is reversed, and remanded for proceedings consistent with this opinion.

Ky.App. 1891.

Brock v. Commonwealth.

17 S.W. 337, 13 Ky.L.Rptr. 450, 92 Ky. 183

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