Kirby v. Commonwealth

Citations

• 77 Va. 681
• 1883 Va. LEXIS 104

Syllabus

<p>1. Criminal Practice—Evidence—Res gestee.—The admissibility of declarations of the injured party as part of the res gestee, depends on whether or not they were made recently after the injury, before sufficient time had elapsed for the fabrication of a story.</p> <p>2. Idem—Idem—Examination of accused.—Code 1873, chapter 195, section twenty-two, provides that “ in a criminal prosecution, other than for perjury, or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.” Therefore, evidence that the statements of witnesses for the accused conflict with the testimony of the accused as delivered on his examination as a witness at a former trial, is inadmissible.</p> <p>3. Idem—Idem—Idem—Case at bar.—In M.’s store, at night, a man entered, and suddenly, without apparent provocation, shot M. through the head. M. exclaiming, “You have killed me,” ran out at the door, around the house, to the door of another room in the same house, occupied by R., which door was eighty feet from the point in the store at which he was shot. Upon being admitted he said: “I am shot; William Kirby has shot me.” Not more than two minutes elapsed between the shooting and this declaration. At a former trial accused testified as a witness in his own defence. At the succeeding trial he did not. Evidence was introduced by the commonwealth to prove that statements made at this trial by witnesses for the defence were in conflict with the testimony of the accused at the former trial.</p> <p>Held :</p> <p>1. The declarations of the injured party were admissible as evidence as part of the res gestee. Under the circumstances, it is unreasonable to suppose that there was time or capacity to fabricate a story.</p> <p>2. The evidence to prove conflict between the testimony of accused at the former trial, and the statements of witnesses for the defence at the last trial being objected to, was inadmissible.</p>