October 1, 2012

Dye vs. Commonwealth, Pulaski, 1867

Dye vs. Commonwealth.

COURT OF APPEALS OF KENTUCKY

66 Ky. 3; 1867 Ky. LEXIS 105; 3 Bush 3

December 4, 1867, Decided

PRIOR HISTORY:  [**1]  APPEAL FROM PULASKI CIRCUIT COURT. 

DISPOSITION: Reversed and remanded for a new trial. 

COUNSEL: A. J. JAMES, For Appellant,

JUDGES: JUDGE ROBERTSON. 

OPINION BY: ROBERTSON 

OPINION

 [*3]  JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

As the personal attendance of Metcalfe on the final trial of this case was not shown to be impossible, the circuit court erroneously admitted as competent the testimony of Compton and others, reciting the evidence of Metcalfe before the examining court, as to what the appellant said to him concerning the charge of stealing Compton's mare, and did not cure the error by afterwards instructing the jury to disregard that hearsay, except so far as it harmonized with facts afterwards developed. In making this exception, the judge inadvertently misapplied the principle applicable to testimony extorted by duress. What the appellant said, if he said anything, to  [*4]  Metcalfe, was not extorted by duress, physical or moral; and, therefore, although Metcalfe's recital of it may have been thus extorted, yet the proof of what he testified [**2]  was only hearsay, which, whether extorted from him or not, was not apparently competent against the appellant to any extent.

For this error alone the judgment of conviction is reversed, and the cause remanded for a new trial.

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