The law demands, and civilized society is entitled to, the enforcement of the criminal laws, regardless of immaterial errors, to the end that property rights, life, liberty, and the peace and good order of society may be protected and maintained; and, believing that this court has departed from sound principles in holding that the trial court prejudicially erred in admitting the two items of evidence complained of and in reversing the judgment for such reasons, I feel impelled to register my dissent therefrom.
The evidence concerning the permit from the county judge for defendant to carry concealed weapons was a plain effort to manufacture evidence in his behalf by seeking to relieve him of whatever odium might attach because of his having a pistol concealed upon his person at the time of the homicide; he, no doubt, believing that, if he had such permit, it would be a justification and relieve him from the appearance of an outlaw, or of having prepared for an anticipated combat.
The opinion rejects the evidence concerning defendant's remark on the occasion of his driving a cow some months following the homicide, solely upon the ground that the proven statement of appellant was too far removed from the time of the homicide, and the domestic cases of Duncan v. Commonwealth, 12 S.W. 673, 11 Ky. Law Rep. 620; Taggart v. Commonwealth,
In the relied on Duncan and Howard cases from this court there was no question involved such as we have *Page 721 here, relating to the admissibility of statements of defendant himself. In those cases the questioned evidence related to certain conduct of defendant, removed in point of time from the principal transaction, the purpose of which was to make it possible for the jury to infer and find what was the motive, intention, and purpose of the defendant on trial at the remote passed occasion of the commission of the crime for which he was being tried, i. e., the state of his feelings toward his victim at that time, and his real purpose in the commission of the crime for which he was being tried. They were independent and collateral transactions involving a course of conduct of defendant from which, if not too far removed, the jury might deduct facts necessary to establish guilty intent so as to convert the acts with which he was charged from an innocent into a guilty purpose on his part. Similar collateral and independent acts and conduct were also the subject-matter being discussed by Mr. Wigmore in his text quoted and relied on in the opinion. Neither in the domestic cases nor in the text of Mr. Wigmore, were any express statements (requiring no deductive reasoning for their meaning) from the mouth of the accused involved. The reason why acts and conduct of the accused (greatly removed in point of time) are held to be irrelevant is, as is pointed out, that because of such remoteness, the jury might be led into error and visit injustice upon the defendant by an erroneous conclusion drawn therefrom concerning the condition of defendant's mind at the time of the commission of the principal crime for which he was being tried. In other words, that there is great possibility for misinterpretation.
An altogether different question, however, is presented when there emanates from the mouth of the accused statements which speak for themselves and which portray the attitude of defendant's mind towards his victim, since in such case he (himself) communicates that attitude, and it is not left to interpretation, or deduction, or to be inferred by the jury from any independent and collateral conduct of the defendant, which might or might not have a bearing upon such attitude, dependent upon the length of time intervening between the principal fact and the occurring of such collateral matters. It was of the latter that this court was dealing in the Duncan and Howard cases, and also of which Mr. *Page 722 Wigmore was treating in the text to which the opinion makes reference.
In his section 394, just preceding the one referred to in the opinion, and as a premise for the discussion of the general subject the author was then treating, he says: "Every one of the human qualities or conditions with which the foregoing chapters have been concerned may be evidenced byconduct exhibiting it. The interpretation of that conduct proceeds always from experience as to the inferences to bedrawn from particular kinds of conduct. Questions of evidence rarely arise over such inferences, so far as the evidence of Emotions is concerned, probably because these interpretations are fairly plain and indubitable." (My italics.) It will thus be seen that the exclusion of evidence to prove such collateral and independent conduct (the only purpose of which is to permit the jury to draw inferences or deductions therefrom), when its occurrence was too remote from the principal fact, is a precautionary rule for the protection of the accused against probable erroneous inferences concerning his mental attitude toward his victim at the time the alleged crime was committed. But, surely that same rule of remoteness, rendering that character of testimony incompetent, would not apply to astatement or admission made by the defendant himself and which is an express portrayal by him of his condition of mind and of his feelings toward his victim. The latter is everywhere admitted, howsoever far removed from the principal transaction, as an admission or declaration by defendants against his interests. Being his own expressions they are always admissible howsoever far removed in point of time from the date of the commission of the offense of which he is accused and for which he is being tried. They involve no deductive reasoning or drawing of inferences, as is the case when only collateral conduct of the defendant is involved. Nor are such direct admissions and statements from defendant to be excluded because of their contents when there is no doubt as to the subject-matter to which they refer. So that, such a statement is competent and admissible, notwithstanding it may not embody a direct and positive admission, if the language employed is susceptible to no other reasonable interpretation than a guilty one, and which I may illustrate by a reference to the alleged incompetent evidence now under consideration. If defendant had said in this *Page 723 case, though at a remote time from the killing, that "I entertained malice toward my victim" (it being probable as well as impossible for it to generate after his victim was dead), there would be no doubt of its competency, howsoever far removed from the killing; but any other express statement not so direct but tending to prove substantially the same attitude and feeling toward his victim is for the same reason equally competent, and from which it will be seen only a question of interpretation by the court is involved. If the statement, though indirect, as is true here, necessarily points to defendant's callous and indifferent condition of mind toward his victim, it is admissible as a statement against interest the same as if it was positive and direct. It is, therefore, my conclusion that the opinion, in excluding the proven remarks of defendant on the occasion of his driving his cow, proceeded upon a wholly inapplicable principle of the law of evidence, and thereby ignored the well-settled and undeviating rule that an admission by a litigant against his interests, howsoever far removed from the principal transaction, is always competent against him.
The Taggart case involved the question of the admissibility of a proven statement made by defendant some short while after he committed the homicide for which he was being tried, and it was objected to, not on the ground of remoteness, but because its subject-matter did not point to defendant's guilt, or to the establishment of any fact as an element of his guilt, but this court held otherwise and admitted it. It is true that in the opinion it is stated that the statement was made "shortly after the shooting," but, clearly that statement in the opinion was not made at bearing upon the admissibility of the evidence, but was employed by the court in giving a history of the case. The court held that the involved statement was competent, not because it was recently made, but because, as said in the opinion, "the evidence bore solely on the appellant's state of feeling toward the deceased, and conduced to illustrate his animosity toward him." So that the objection there was not upon the ground of remoteness, but was one that related to thesubject-matter of the statement, i. e., whether its language was or not expressive of the speaker's feeling toward the deceased. The court, as we have said, held that it was, and, being so, it was a declaration against interest and would be admissible regardless of the intervening *Page 724 time between its making and the crime to which it related.
If the opinion is to be adhered to, then all guilty statements of the defendant on trial, if made, as in this time of the commission of his crime, are incompetent solely because of remoteness, and which is the announcement of a doctrine that is a stranger to me, and with which. I have not heretofore met in my experience as a practitioner as augmented by my experience as a member of this court. If the testimony in this case related to some independent act or conduct of defendant, perpetrated six months after the homicide with which he is charged, and its only purpose was to afford the jury an opportunity to interpret that act or conduct so as to draw an adverse inference against him, then, perhaps, the doctrine announced in the opinion would apply. But, I repeat, we have no such case as that, and for that reason I am convinced that the evidence was competent for whatever it was worth. If, however, I should be mistaken in my position, I am convinced that the proving of the statement now under consideration, though erroneously introduced, did not prejudice defendant's substantial rights, and was not an error of sufficient magnitude to require a reversal of the judgment.
I therefore most respectfully dissent from the opinion.
