
    Case 33 — INDICTMENT
    March 29.
    Starr v. Commonwealth.
    APPEAL from MARTIN CIROT'IT COURT.
    1. Dying Declarations. — A statement is not admissible as a dying declaration unless it was made under a sense of impending death. And the statements of the deceased that “he would not get well,” and that he “could not stand it much longer” are not sufficient to show a conviction that death was impending, especially in view of the fact that he had lived nearly seven months after being shot.
    2. Dying declarations should he restricted to the act of killing and the circumstances immediately attending it, and forming part of the res yestue.
    
    The declaration of the deceased in this case that he did not know what made accused shoot him, that they had always been good friends, does not conform to that rule, and its admission was prejudicial.
    3. Evidence. — It was error to refuse to permit defendant to testify that at the time the shot was fired he believed he had no other means of escape.
    
      4. It was error to qualify the instruction as to self-defense by telling the jury, in effect, that they could not acquit on that ground if they believed that defendant “brought on the difficulty” and sought the life of - deceased, or to do him great bodily harm, there being no testimony on which to base such an instruction.
    5. Right of Peace Officer to Carry Arms. — As it appeared that on the day of the homicide the accused, as constable, had been engaged in making the arrest of certain parties charged with crime, and was attending the examining trial that evening, and on that account he had borrowed the pistol with which he shot deceased; and it also appears that on the very night of the killing he was-engaged in attempting to keep the peace as an officer, the court should have given the instruction asked on the subject of the right of an officer to carry arms for his protection while in the discharge of his duties.
    KIRK & KIRK, T. S. KIRK, T. W. NEWBERRY and A. COPLEY FOR APPELLANT.
    1. Two of the jurors were legally disqualified, they being indicted v^for crime at the time they were accepted as jurors. (HendersdiKY. Bradshaw, 4 Bibb, 45; Dana, 203; 1 B. Mon., 214.)
    2. The court; ghould swear the sheriff .to keep the jury together, &c., before they should be permitted to retire, which the court did not do in this 'Gase. (Criminal Code, sec. 245.)
    3. Dying declarations to be competent must be made in extremis, must be a part of the res yeslae, and must undertake to detail the facts and circumstances of the killing. (9 Am. and Eng. Enc. of Law, p. 676; Pace v. Commonwealth, 89 Ky., 204.)
    4. The defendant had the right under the law to testify that he believed that he had no other safe or apparently safe means of escape but to fire the fatal shot, and the court erred in refusing to allow him to do so.
    5. The defendant was entitled to a simple instruction upon the law of self-defense. (Cook v. Commonwealth, 86 Ky., 663; Allen v. Commonwealth, Idem, 643.)
    6. Constables and peace officers have the right when in the discharge of their official duties to carry upon and about their person concealed deadly weapons, and the court should have so instructed the jury.
    7. The Commonwealth’s Attorney should not make any statement in the presence of the jury which is directly in conflict with the evidence and thereby prejudice the rights of the accused, which was done in this case. (Cook v. Commonwealth, 86 Ky., 663.)
    WM. J. HENDRICK, Attorney-General, for appellee.
    1. The majority of the grounds for new trial are covered by sec. 281 of the Criminal Code as those not subject to exception under our law.
    2. The instructions asked with reference to the right of constables to carry concealed deadly weapons was not a correct statement of our law, which is contained in sec. 1313 of the Kentucky Statutes.
    3. The dying declaration of the deceased was properly admitted.
    4. There was no misconduct on the part of the Commonwealth’s Attorney in his argument to the jury.
   JUDGE HAZELRIGG

delivered tiie opinion oe the court.

William Starr, a constable of Martin county, was tried and convicted of manslaughter under an indictment charging him and one Underwood, the police judge of Eden, the county seat of that county, with the murder of John James. On appeal from the judgment of conviction he complains of numerous errors. We shall notice only such as appear to be of a serious nature. The deceased was drinking heavily and on the night of the killing was boisterous and quarrelsome. While passing through the streets of the village, and in the hearing of all, he amused himself by sing-. ing songs of the vilest character, the words of which were most indecent and vulgar. This was in the hearing of the police judge, town marshal and the appellant. The police judge suggested that the marshal arrest the offender, but that official replied that he would not do so as long as he harmed no one, but w'hen he became sober he would summon him and have him fined. The deceased became involved in a difficulty with one Cassedy, and again with the marshal, kicking the latter’s lantern out into the street. After quiet had been restored, Underwood, Starr, and others went over to Price’s,, where there was a wedding, and were engaged in, general conversation in a crowded room when the deceased came in. What there occurred is testified to by a large number of witnesses whose statements, though not altogether tallying, are less contradictory than might be expected under the circumstances.

The fact that the deceased, with a, large open knife in his hand, was making at the appellant when the latter fired, is testified to by nearly all the witnesses, both for the State and for the defendant. Nevertheless, if a fair trial has been accorded the accused, we are to assume, from the finding of the jury,that he was not acting in his necessary self-defense when he fired the fatal shot. The error which most seriously affected his substantial rights and deprived him of such a trial, the appellant urges, is that of the court in admitting the sister and brother-in-law of the deceased to detail to the jury their brother’s alleged dying declaration. The sister testified that she heard her brother say, a short time before his death, that “he would not get well,” that he “could not •stand it much longer.”

The question is: Did this language indicate a, sense of .impending death? It does'not appear that the deceased had been told that he could not recover, and he had lived for nearly seven months after being shot. The language seems to us rather that of discouragement than of a con-, viction of impending death. In Vaughn v. Commonwealth, 86 Ky., 431, the language of the declarant was, “he believed he would have to die,” and it was held insufficient to constitute a basis for the introduction of the alleged “declaration.” “It is the impression of almost im-' mediate dissolution, and not the rapid-succession of death, in point of fact, that renders the testimony admissible.” The mere belief of tbe declarant that he will not get well, but that be will ultimately die from bis injuries, is not sufficient to admit bis declaration. (Greenleaf on Evidence, vol. 1, sec. 158.)

Tbe declaration of tbe deceased was that “'be did not know wbat made Starr sboot bim, that they had always been good friends, that be bated to die and leave bis family.” If tbe deceased did not know “wbat made Starr sboot him,”-tbe inference necessarily is that he bad given tbe accused no cause for doing so. It was as if he bad said: “I am wholly blameless, and one who has always been my friend shot me without my knowing why be did so.”

We can not say that this evidence did not influence tbe jury. It was certainly calculated to arouse their prejudices and inflame their passions against tbe accused as one who bad shot bis friend without cause. We think it was incompetent and prejudicial.

Tbe testimony of tbe brother-in-law is that tbe deceased balked to him on tbe day before be died about dying, and said “be could not get well, that there was a boy be bated to die and leave,that be hated to die and not know one thing: be would like to know what made Bill Starr shoot bim, and that be did not believe be would if Gus Underwood bad not have told bim to do so.” Here we have no better foundation for tbe testimony than.that laid by tbe evidence of tbe sister.

Tbe statement of James that “be would not get well” is far from indicating that he was then resting under a solemn conviction that bis dissolution was' immediately at band or closely approaching. Tbe statement, too, that be did not know why Starr had shot bim is repeated and thus emphasized before the jury. In addition to this tbe jury are told in effect by the deceased that tbe accused bad shot him for no reason except that he was told to do so by Underwood. Such a statement, it seems to us, might have strongly prejudiced the jury against the accused, and if they believed it, would properly have influenced them to disregard his plea of self-defense.

In vain might the defendant attempt to show that he shot the deceased only after he was advancing on him in a drunken frenzy, if the minds of the triers are once filled with the declaration of a dying man, so admitted before them by the court, to the effect that there was no cause for the shooting save an order to do it by an accomplice. Even if the proper basis for the proof had been made, yet the testimony is incompetent, as detailed by the sister and the brother-in-law. In Leiber v. Commonwealth, 9 Bush, 11, and Collins v. Commonwealth, 12 Bush, 271, it is held that the general rule is that dying declarations are only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the declarations, and such evidence should be admitted only upon the ground of necessity and public policy, and should be restricted to the act of killing and the circumstances immediately attending it and forming part of the res gestae.

In this case the act of killing was shown by a number of witnesses and admitted by the defense. The declaration was not even directed to that act, and if it had been, it was wholly unnecessary. The statements do not conform in any particular to the rule laid down in the eases cited.

The question was asked the accused, “Did you or not believe at the time the shot was fired that you had no other means of escape but to fire the fatal shot?” but objection to it was sustained, and this is another ground of complaint. In Williams v. Commonwealth, 90 Ky., 596, such testimony was held to be competent as rebutting the unfavorable inference that might be drawn if the accused, having the chance to do so, failed to state his belief that he was in danger; and so it appears to .us as to this testimony.

The instructions are also complained of. The first one submits to the jury the law of murder and is accurate. The second one is on the same subject, but the conviction of the accused of the crime of murder is based in part, and somewhat confusedly so, on the belief of the jury that Underwood was present at the killing and aided, encouraged and advised Starr to. do the shooting. The proof disclosed that Underwood was present, and some witnesses testified that during the difficulty he said: “Put it to him;” and while Underwood swears that lie only cried out to the town marshal to “arrest him,” or “arrest them,” yet it was error to predicate the guilt of the accused upon the conduct of Underwood. Such an instruction, in view of the admission of-the declaration of the accused that Starr had shot him only because Underwood had told him to do so, must have been extremely misleading and prejudicial.

The third instruction correctly gave the law of manslaughter, and the fourth invested the jury with the usual discretion as to convicting for the lesser crime. The fifth told the jury that mere threats made by James to kill Starr did not justify the latter in killing the former unless Starr believed that James was about to execute his threats and take his life. This instruction is confusing and ought not to be given. The sixth instruction properly gave the law of self-defense except for the wiords of qualification appended to it: “Unless the jury should believe that the defendant, William Starr, brought on the difficulty with James, or aided or assisted or encouraged Underwood to bring on the difficulty with said James, and sought 1ns life or to do him great bodily harm or injury, and if they so believe they can not acquit on the ground of self-defense and apparent necessity.”

There is no testimony on which to base such an instruction in this case. Every witness to the transaction testifies that James commenced the trouble- in the room where the. killing occurred, and if the instruction pointed to any act of the accused outside of that room which might have “brought on” the difficulty, he seems to hare abandoned it before the shooting. The simple instruction on the law of self-defense, offered by counsel for the accused, should have been given.

It appears that on the day of the homicide the accused as constable had.been engaged in making the arrest of certain parties charged with crime, and was attending the examining trial that evening. For this reason he had borrowed of one Price the pistol with which he shot the deceased. It also appears that he was engaged on the very night of the killing in attempting to keep the peace as an officer. For these reasons, we think the court should have given the instructions asked on the subject of the right of an-officer to carry arms for their protection while in the discharge of their official duties.

Other errors are insisted on,involving the competency and conduct of certain jurors, the speech of the attorney ior the Commonwealth etc., which do not seem to be of any significance.

For the reasons indicated, however, the judgment is reversed with direction to, grant the defendant a new trial a,nd for further proceedings consistent with this opinion.  