
    Case 101 — INDICTMENT FOR HOMICIDE
    November 25.
    Toliver v. Commonwealth.
    APPEAL PROM IIARLAN CIRCUIT COURT.
    1. Criminal Law — Homicide—Instructions—Selp-Depense.—Where the evidence for the Commonwealth tended to show that the defendant shot the deceased in the hack and there was no fact or circumstance proved tending to show that the defendant fired the ’shot in self-defense, it was not error to refuse an instruction on- the subject of self-defense.
    2. Same — Evidence—Dying Declarations. — A statement by the deceased in this language: “Pap, I am killed this time; I Want you to get" George Bailey and write my affidavit, but I am afraid you can not get him in time,” is sufficient to show the deceased’s consciousness of impending death. .
    3. Same — Continuance—Admission by Commonwealth’s Attorney Under Section 189 off the Criminal Code. — An admission made at the indictment term by the Commonwealth’s Attorney that an affidavit for a continuance might be read “as the true statements of the witnesses in said affidavit set out,” is not sufficient to avoid a continuance under section 189 of the Criminal Code as amended by the act of May 15, 1896, but where it develops on the trial that the evidence of the absent witnesses would have been either incompetent or irrelevant the error of the court in refusing the continuance is not prejudicial.
    W. F. HALL and E. E. HOGG for appellant.
    1. The trial court erred to the prejudice of the appellant when it refused him a continuance.
    2. The trial court erred in admitting the statements claimed to be dying declarations.
    3. The court erred in instructing the jury
    Citations: Greenleaf on Evidence, vol. 1, sec. 158; Commonwealth v. Matthews, 89 Ky., 287; 11 Ky. Law Rep., 505; Peoples v. Commonwealth, 87 Ky., 487; Luker v. Commonwealth, 9 Ky. Law Rep., 385; Yaughan v. Commonwealth, 86 Ky., 431; 9 Ky. L. R., 385; Lieber v. Commonwealth, 9 Bush, 11; Collins v. Commonwealth, 12 Bush, 271.
    W. S. TAYLOR, Attorney-General, and M. H. THATCHER for APPELLEE.
    1. The statements of absent witnesses set out in the affidavit for a continuance were either admitted, or, where they were rejected, were incompetent. Crim. Code, sec. 189.
    2. The dying declarations were competent. Norfleet v. Commonwealth, 17 Ky. Law Rep., 1137.
    3. The instructions covered the issues as made.
   JUDGE PAYNTER

DF.IJVICRF.n the opinion of the court.

The jury found the defendant guilty of the murder of M. Gross, and fixed his punishment at confinement in the penitentiary for life.' He seeks a reversal because — First, the court overruled his motion for a continuance; second, in admitting as evidence statements of the deceased as his dying declaration; third, error in instrúcting the jury. We will consider the questions raised in their reverse order.

He denied that he did the shooting which resulted in •the death of Gross, and so testified. The testimony for the Commonwealth tends to show that whilst the deceased was working in his cornfield the accused shot him in the back. There is no pretense or claim that the shooting was done in self-defense; neither was the slightest evidence offered, or a circumstance proven, to indicate that such was the case. The court did not give, and should not have given, an instruction on the law of self-defense. It instructed the jury on the subjects of murder and reasonable doubt, which were all the instructions that should have been given.

To prove that the deceased was laboring under a sense of impending dissolution when he made the statements claimed to be a dying declaration, John Gross, his father, was introduced as a witness. He testified that: “When 3 first went to him, he said: ‘Pap, I am killed this time. I want you to get George Bailey and write my affidavit, but I am afraid you can not get him here in time.’ ” He lived about five hours after he was shot. It is contended that the evidence does not sufficiently show that the deceased was laboring under a sense of impending dissolution, and, therefore, the statements were inadmissible as a dying declaration. He said that he was “killed,” and wanted to make an affidavit, but was afraid that the amanuensis could not be procured in time to take his statement before he died. We think this testimony is sufficient to show that he had no hope of recovery, and felt that he must certainly die soon.

Isom [Sullivan, who was present at the time of the fatal shooting, testified that the accused did it. The defendant filed an affidavit and moved the court for a continuance. It was stated-that Jane Gross would testify that Sullivan came to the house where she was, apparently tired and excited, and said that some one had shot and killed Gross; that he saw some man run from where the shot was fired, some distance away, but did not know him, and had no idea or knowledge who it was that shot the deceased. It was stated in the affidavit that Barbery Gross would prove the same facts. It is also stated in the affidavit that Adron Brown would prove that on a certain occasion, described in the affidavit, the accused did not state to James Brock that he had killed Gross, but, on the contrary, stated that he knew nothing about who had shot him. This testimony was manifestly desired for the purpose of contradicting Isom Sullivan and James Brock in the event they were introduced by the Commonwealth and testified contrary to the statements of the affidavit. There are other witnesses referred to in the affidavit, to whom we will refer later. The Commonwealth Attorney agreed that such parts of the affidavit as were competent could be read to the jury “as the true statements of the witnesses in said affidavit set out.” Thereupon the court overruled defendant’s motion for a continuance. The affidavit was filed and the trial took place at the term during which the indictment was found. It is contended that the Commonwealth Attorney did not make such agreement as section 189 of the Criminal Code of Practice Required he should have made, to authorize the court to-overrule the motion for a new trial. On the trial of the case the Commonwealth introduced Isom Sullivan, who admitted that he had told the Gross women and Matt Gross that he did not know, at the time mentioned in the affidavit, who killed the deceased. He gave as his reason for so stating that he was afraid at that time to give his knowledge as to who had done it. This witness had admitted all to be true. The fact which it was proposed to prove by the G-ross women was rendered incompetent, because it would not have contradicted Sullivan, as he admitted that he had made the statement to them which it was claimed they would prove. James Brock was introduced as a witness for the Commonwealth, but did not make any statements which the accused supposed he would make, and to impeach which he desired the testimony of Adron Brown. The testimony of Brown was to be used in rebuttal, and the occasion did not-arise for its use. William Toliver, who was another witness named in the affidavit as an absent witness, whose testimony the accused desired, appeared in court, and was introduced as a witness for the accused. The motion for a continuance was made at the same term at which the indictment was found; and, if the testimony of the absent witness was material and relevant, the court should have granted it, unless the attorney for the Commonwealth admitted upon the trial that the facts are true” That means that the Commonwealth Attorney can not introduce any evidence on the trial of the case to contradict the statements contained in the affidavit. He was not required to admit that Sullivan did not see the person who did the shooting, but was simply prevented from proving by Sullivan or any one else that Sullivan did not tell the Gross women that he did not know the party who did the shooting. Sullivan proved that he made the statement which the accused claimed that he had made with reference to the matter, and Brock never testified to any of the facts to which the accused supposed he would testify. Therefore the Commonwealth Attorney followed strictly the requirements of section 189, Criminal Code of Practice, although the agreement .which he made was not in the language which the section requires.

The evidence is abundant to establish the guilt of the accused, and, under proper instructions of the court, the jury found him guilty. We do not think that his substantial rights have been prejudiced by any error occurring at the trial. Therefore the judgment is affirmed.  