
    Case 47 — Indictment and Conviction por Murder —
    March 28.
    Barnes v. Commonwealth.
    APPEAL PROM NELSON CIRCUIT COURT.
    ■Change op Venue — Homicide—Instruction as to Self Defense— Right op Judge to Strike Juror prom List — Dying Declarations.
    Held: 1. Some discretion must be left to the trial court in acting upon an application for a change of venue, and, there being no ' abuse of discretion in refusing the application, there can be no reversaron that account.
    2. Upon a trial for murder, it was not error to instruct the jury that they could acquit on the ground of self-defense only in the event they believed that defendant believed, and had reasonable grounds for believing, that he had no safe means of “averting” the danger, except by shooting deceased; the word “averting” not being equivalent to “escaping.”
    3. If the trial judge is informed, by what he deems credible evidence, that a juror, for any reason, is not qualified to try the case, it is proper for him to strike the juror’s name from the ’list.
    4 The statement of deceased that his wound would kill him, which was made in connection with a declaration by him as to the circumstances of the shooting, does not show such a sense of impending death as to make his declaration admissible as a dying declaration.
    JOHN S. KELLY and JOHN D. WICKLIFFE, Attorneys for appellant.
    ROBT. J. BRECKINRIDGE, Attorney-General, for appellee.
    (No briefs in the record.)
   Opinion of the court by

JUDGE GUFFY

Reversing.

The appellant was indicted in the Nelson Circuit Court-for the murder of W. B. Nicholls, and upon trial of the charge he was found guilty of murder, and sentenced to the penitentiary for life, and, his motion for a new trial having been overruled, he prosecutes this appeal.

It appears from the testimony that appellant and deceased lived near together in Nelson county, and prior to the 20th of November, 1899, had been on friendly terms. On the 20th of November, 1899, they met in Bardstown,'in the store of one Losson. It so happened that some conversation occurred between them concerning the recent election, in which it is evident that some harsh words were used by the deceased, and there is evidence conducing to show that appellant either said or did something likely to irritate the deceased. The evidence also conduces to show that deceased and Losson were in friendly conversation in the store before appellant came in. After the trouble between appellant and deceased, appellant left the store, and pretty sooni thereafter deceased, in company with his friend, Smith, also left; and it is the contention of appellani that deceased and Smith followed him to several places in town, the theory of appellant being that they were seeking an opportunity to injure him or renew the difficulty. This, however, is denied by Smith, and it nowhere appears that any other words passed between them in town. It is claimed by appellant that deceased was heard to say, in substance, “We will get him as he goes home.’’ The evidence shows that appellant obtained a pistol from a relative in'town, and also bought three cartridges at a store. Some time in the afternoon appellant left for home, riding a mule, and not long afterwards deceased and Smith left, apparently for home, riding in a buggy, and some distance from town they overtook appellant, and shortly afterwards Barnes shot the deceased with a pistol, from which shooting deceased died next morning. As to what occurred when appellant was overtaken, the testimony of Smith and of appellant is quite contradictory.. They are the only living persons who were present, or saw the difficulty which resulted in the death of deceased. We deem it entirety unnecessary to state either the evidence of Smith or appellant, for the reason that it was for the jury to weigh and determine the testimony. The appellant relied on ten grounds for reversal.

At the May term, 1900, of said court, appellant moved for a change of venue, which was resisted by the Commonwealth, and considerable amount of testimony was introduced for and aginst the motion. The court finally overruled' the motion, and of that appellant complains. Some discretion as to change of venue must necessarily be exercised by the trial court, and in this instance we are not prepared to say that under the evidence introduced, the trial court erred in overruling the motion.

It is earnestly contended for appellant that the court misinstructed the jury in giving instructions 1, 2, 3, and 5. Nos. 1, 2, and 3, it seems to us, are in the form generally given in such cases. No. 5 reads as follows: “If they believe from the evidence that at the time he shot W. B. Nieholls with a pistol, if he did shoot him, the defendant believed, and had reasonable grounds for believing, that he was then in immediate danger of loss of life, or of receiving great bodily harm at the hands of said Nieholls, and' believed, and had reasonable grounds for believeing, he had no apparent and safe means of averting said danger except by shooting said Nieholls, he is excusable on the ■ground of self-defense, and they should find him not guilty.” It is argued that the word “averting” should not have been inserted in the instruction; that it is equivalent to the word “escape” or “escaping,” and that this court has heretofore decided that the word “escape” should not be used in such cases, for the reason that it is liable to be understood as requiring the defendant to flee, retreat, or run away. Mr. Webster defines “avert” as follows: “To turn aside or away; as, to avert the eye from an object; to ward off or prevent the occurrence or effects of; as, ‘how can the danger be averted?’ ‘To avert his ire.’” It will thus be seen that the term used in the instruction could not fairly be understood as requiring the defendant to retreat or run away, and it is therefore unobjectionable; for it will be seen that, unless he had apparent and safe means of averting the danger, he was excusable for acting in his own self-defense. We are not of the opinion that the court erred in refusing the instructions asked by the defendant.

Appellant further complains, of misconduct of the jury and of the Commonwealth’s attorney. It is contended that the jury were permitted to separate during the trial, and considerable evidence was introduced in support of that contention on the motion for a new trial. It is not necessary to discuss the evidence in that regard, as upon the next trial it must be presumed that nothing of the kind will occur, if, in fact, it occurred upon the trial under consideration; and the same may be said as to the complaint of misconduct of the Commonwealth’s attorney, which misconduct Avas Adgorously denied by the prosecution.

It may be conceded that accepting the affidavit of Clark as to the qualification of Biven as a juror was out of the ordinary, but it must also be conceded that if the judge of the trial court is informed by what he deems credible evidence, that a juror, for any reason, is not qualified1 to try the case then under consideration, it is no more than the duty of the judge to strike his name from the list.

,We do not think the court erred in rejecting the testimony offered by the appellant, and the same may be said as to rejecting the testimony offered by the prosecution.

There is no necessity for discussing the question whether or not Blanford was a housekeeper, and therefore a competent juror.

B. S. Lasley was introduced by the prosecution, and was permitted to testify as to a conversation had with the deceased after the shooting, and of this the appellant complains. It is evident that the conversation was allowed to be detailed upon the idea that it was the dying declaration of the deceased, and that the deceased was then in extremis so as to authorize it, and that he had abandoned all hope I of life. The testimony of Lasley shows that he was acquainted with Nicholls, and that he saw him on the back porch of George Iiarned’s, where he was taken shortly after the shooting. In response to a question by the prosecution, he said: “He was lying there like he was asleep, with his eyes closed. He opened his eyes and noticed me, though. Well, he told me, ;That fellow done me up; shot me in the arm.’ I told him to keep quiet; that the doctor would be there pretty soon; may be he was not hurt so bad; and he said he was shot in the side, 'What would kill me.’ I got him to hush talking about it, and after awhile the doctor did come. When the doctor came, we pulled off his vest, and tore his underclothes, so he could get to the place, and he threw his hand over and said, 'As I told you, he has shot me in the side.’ Well, I didn’t let him talle any more than that, and, after the doctor got there and dressed his wounds, Mr. Harned wanted him to move away from there, and he asked the doctor if he would be able to take him away from there, and after awhile the doctor told him, if he had to be moved, he could take him away, and George Bealmear said he would go down to his brother Beck’s and get a cot and some bed clothes, and take him down to Mr. Beck’s. He went down, -and got a cot and some bedclothes, and put him on it, and carried him down. When we got down there we put him in a room there, and he said to me there that it was all uncalled for.” The latter part of that statement, however, was excluded from the jury. At this point the jury was withdrawn from the room, and during their absence the competency of certain evidence to be offered by the witness was considered, and, after the return of the jury, counsel' for the prosecution said to witness, “Go ahead, and testify about the matters the court has instructed you you could testify about.” The witness said: “I don’t know that I could tell what he said to me, if I am not allowed to tell what the witness told me. Q. Tell the jury everything except what the court told you to leave out, Mr. Lasley. A. He told me that that shot in the side— Q. Just tell now what he said to you, and what took place when they met out there, — when he and Barnes came together out there on the road, — except leave out what the judge told you, A. He said when he started out of town in the afternoon he overtook Barnes on Buffalo Hill, and said the fuss was renewed; that Barnes rode ahead of him a few 'feet, and jumped off, and drew his pistol when he came back, and said, ‘If trouble is what you are looking for, you can get it,’ and threw it down; and he said, ‘I never did believe he was going to shoot me.’ ”

The question under consideration has been so often passed upon by this court that a discussion of the law applicable thereto seems to be unnecessary. We will, however, refer to a few cases. In Vaughan v. Com. 86 Ky. 431 (6 S. W., 153), 9 R., 644, we quote from the syllabus: “In cases of homicide, the statements of the deceased as to the killing are not admissible in evidence as his dying declaration, unless it appears that they were made under a sense of impending death. Something more must appear than a mere belief upon the part of the deceased that he would ultimately die from his injuries. In this case the statement of the deceased that he believed he would have to die was nothing more than the expression of an opinion that the wound he had received w'ould ultimately cause his death and was not sufficient to make his statements as to the killing competent evidence.” The most that could possibly be claimed in the case at bar would be that the deceased meant to express the opinion that the wound in his side would at some time cause his-death, and, taking the peculiar expression as appearing in the bill of exceptions, w-e are hardly authorized to conclude that the deceased really expressed an opinion that the wound would cause his death. In Baker v. Com., 20 R., 1778, 50 S. W., 54, this court considered the question under discussion at considerable length, and quoted with apparent approval from Rice on Criminal Evidence (section 330), as follows: “This species of evidence is obviously liable to great abuse, and should be received with great caution, and only when a proper introduction entitles it to -be received. The witness whose testimony is cast upon the record is beyond the reach of cross-examination; all opportunity for investigating the question of malice, enmity, positive identification, is lost forever; and the accused, whose tenure of life is hanging in the balance, has to contend with the additional disadvantage that a just indignation is aroused in the minds of the triors by the mere recital of a hideous crime. Evidence of this character is universally admitted, however, on the ground of necessity; and in order to prevent the entire frustration 'of justice, to impart competency to this evidence, it must clearly appear that the declarant was conscious of the imminency of death, believed himself to be beyond the probabilities of recovery, and this belief must be evident by some word or act of a conclusive and unmistakable character.” It seems clear to us that the evidence of Lasley as to the statements of the deceased were incompetent. It does not at all appear that the deceased was so impressed with1 impending dissolution or so certain of speedy death as to render his statements competent evidence. It will hardly be questioned that the statements of deceased as detailed by the witnesses were material and highly prejudicial to the accused. The judgment is therefore reversed and cause remanded, with directions to set aside the verdict and judgment and award appellant a new trial, and for proceedings consistent herewith.  