#### Petty v. Commonwealth.

(Decided December 21, 1917.)

Appeal from Warren Circuit Court.

1. Homicide — Evidence—Dying Declaration — Admissibility.—On a prosecution for homicide, the dying declaration of tbe deceased is not rendered admissible by the statement of the attending physician to the deceased -that something might happen; there being no statement nor conduct of the deceased, nor other circumstances from which it could be inferred that the declaration was made under a sense of impending death.

2. Homicide — Evidence—Dying Declaration — Admissibility—Error.—• On a prosecution for homicide, the improper admission of a dying declaration made by the deceased to a reputable physician, although a similar declaration was made two days later to the mother of the deceased, was prejudicial error in view of the fact that the jury might not have believed the testimony of the mother, because of her personal interest in the matter, had it not been corroborated by the testimony given by the physician, who had no other motive than to tell the truth.

D. "W. WRIGHT and GEO. H. GALLOWAY for appellant.

CHARLES H. MORRIS, Attorney General, and D. M. HOWERTON, Assistant Attorney General, for appellee.

Opinion op the Court by

William; Rogers Clay, Commmissioner

Reversing.

Porter Petty was convicted of manslaugliter and prosecutes this appeal to obtain a reversal of the judgment.

The facts are as follows: Petty, who is a negro about 22 years of age, was employed as janitor at the St. James-apartment house in the city of Bowling Green, and occupied a room in the basement. He and Dave Duncan, another negro, who lived about a block and a half away, were rivals for the affections of Mary West. Mary spent, the night preceding the homicide with Petty in his room in the basement of the apartment house. As she left the’ next morning about five o’clock, she met the deceased, Dave Duncan. Dave said, “I caught you.” She-replied, “You didn’t catch me doing anything.” Dave said, “That is all right; I am not mad at you; you told me all the time you were going there and I didn’t believe it.” The deceased, after going down the street a short, distance, returned and went toward the apartment house. When Mary last saw him, he was near the gate leading to the apartment house. Shortly thereafter, he was shot *484twice by Petty and died from tbe'wounds about two days later.

According to tbe dying declaration of tbe deceased, Petty shot bim before he got into tbe house and without any provocation therefor. On tbe contrary, Petty states that tbe deceased entered bis room without bis knowledge and immediately assaulted bim with • a knife and cut bis vest. After endeavoring to push tbe deceased away, be reached for a pistol on a table nearby and shot tbe deceased twice for the purpose of saving bis own life. Immediately after tbe difficulty, be exhibited bis vest to a witness living in tbe bouse. There was further testimony by tbe Commonwealth that no knife was found on tbe deceased or nearby, and that tbe knife owned by tbe deceased was in tbe possession of bis father.

. Tbe principal ground urged for a reversal is tbe error of tbe trial court in admitting tbe alleged dying declaration made by tbe deceased to the attending physician, Dr. Z. K. Jones. It appears that Dr. Jones called to see tbe deceased about seven o ’clock on tbe morning of tbe homicide. Tbe only conversation be bad with tbe deceased with reference to tbe circumstances attending tbe homicide occurred at that time, and tbe deceased stated that when be went to tbe St. James apartments to see Petty and started in tbe door, Petty immediately began shooting at bim. Dr. Jones claims that tbe deceased realized tbe seriousness of bis condition and that be told tbe deceased that the wound might prove, to be fatal, yet when asked to tell precisely tbe conversation that occurred be testified as follows:

> “I told bim, ‘Dave, you bad better tell me bow it happened,’ and be said be didn’t want to talk, and I said, ‘This is a serious thing and something might happen to you,’ and be says, ‘I will tell you,’ and I said to Horace to go get me some hot water and then be told me. ’ ’

It must be remembered, that tbe admission of a dying declaration in any case is an exception to tbe general rules of evidence. Therefore, to bring into operation this exceptional rule it must appear that tbe declaration was made in extremity, when the person was at tbe point of death, and when every hope of recovery was gone, every motive to falsehood was silenced, and tbe mind was induced'by tbe most powerful considerations to speak tbe truth; a situation so solemn is considered by tbe law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. R. C. *485L., page 537, section 80; Tibbs v. Commonwealth, 138 Ky. 558, 128 S. W. 871, 28 L. R. A. (N. S.) 665. Although it is essential to the admissibility of a dying declaration that it be made under a sense of impending death, it is not absolutely necessary that the declarant express in so many words, his apprehension of such death. It is enough if it satisfactorily appears in any mode that the declaration was made under that sanction whether it be directly proved by the express language of the declarant, or be inferred from his evident danger or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of his mind. E. C. L., page 545, section 92. Here it does not appear that the deceased used any expression tending to show that he believed death was pending. The attending physician did not so advise him, but merely stated that something might happen. . Nor did the deceased make any preparations for death or otherwise indicate hy his conduct that he had abandoned all hope of recovery ; nor were there any circumstances whatever tending to show that the statement was made under the sense of approaching dissolution. It is clear, therefore, that the preliminary proof offered by the Commonwealth to show that the declaration was made under a sense of impending death, was not sufficient, and that the declaration should not have been received in evidence.

But the point is made that the admission of the declaration to Dr. Jones was not prejudicial, because two days later the deceased made a similar declaration to another witness. It must be remembered, however, that the other witness was the mother of the deceased, who had a personal interest in the matter, and the jury might not have believed her statement of whát her' son said to her, had it not been corroborated by the testimony of Dr. Jones, a reputable physician, who was actuated by no other motive than the desire to tell the truth. 'Viewing the question in the light of this fact and of certain circumstances tending to show the deceased was prompted by jealousy to go to appellant’s room for the purpose of attacking him, we conclude that the admission of the dying declaration as detailed by Dr. Jones, was prejudicial error.

Judgment reversed and cause remanded for a new trial consistent with this opinion.