41 F.2d 162 | 9th Cir. | 1930
On the evening of September 13, 1928, about 8 o’clock, at Kodiak, Alaska, the appellant shot and killed Eric Dahlberg as the latter was leaving the former’s home. At the trial, upon an indictment charging him with murder in the first degree, he admitted the killing, but claimed that it was done in self-defense. Upon a conviction of manslaughter he was sentenced to serve a term of fifteen years in the federal penitentiary.
He assigns three errors, all based upon the failure of the court to give certain requested instructions, one on the subject of reasonable doubt, one touching evidence of his reputation for peace and quiet, and the other in respect of a dying declaration. Of the first it will suffice to say that the instructions given were substantially correct and reasonably adequate, and, of the second, that the request was like that considered and disapproved by us in Baugh v. United States (C.C.A.) 27 F. (2d) 257.
Prior to the homicide there had been trouble between defendant and his wife and she had brought a suit for divorce, which was still pending. His testimony, however, was that two or three days previously a reconciliation had been effected and she had returned to their home. During his absence decedent went to this home, where he found the children, but, as it turns out, not defendant’s wife. ■ According to the testimony of one of the children he brought a loaf of bread and stayed only a few minutes. As he was leaving, the defendant, who claims he had been informed some time before of improper relations between his wife and decedent, approached. His testimony was to the effect that he came into the yard just as decedent came out on the porch and started down the trail toward him; that, in response to a question as to what he was doing there, decedent made an insolent and offensive reply and, putting his hand to his pocket, charged down upon him, whereupon he pulled his gun and shot him. The testimony supporting and opposing this theory of self-defense was for the jury, and a detailed recital of it would be irrelevant to the question under consideration.
With other requests, defendant asked the court to charge the jury that: “Evidence has been introduced to show what are ordinarily called the dying declarations of the decedent; that is to say, statements which it is claimed the decedent made when he was in immediate danger of death and had no hope of recovery. Y.ou should take into consideration the fact that such dying declarations were not given under oath and the defendant had no opportunity of cross-examination; and the testimony of all such declarations should be received and weighed by you with great caution.”
Not only was the request declined, but the court failed to give any instruction of any kind upon the point. This, we think, was prejudicial error.- The- decided cases exhibit
We are unable to see how an instruction explanatory of this and other considerations and advising the jury of their duty to exercise care and caution in weighing such declarations would be violative of the Alaska statute providing that: “In charging the jury the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact.” Comp.Laws Alaska 1913, § 1023. To advise the jury of a general rule of law under which evidence is. to be weighed or the credibility of witnesses is to be considered is not to state the facts of the particular case or to instruct upon an issue of fact. A general rule pertaining to evidence is nevertheless a rule of law. It is a common practice to charge that ■ the testimony of an accomplice should be closely scrutinized and weighed with caution. It is still more common to advise them of general considerations which they should bear in mind in weighing the-testimony-of witnesses of different classes. They are informed that the testimony of one having an interest • in
Without attempting an elaborate analysis or incorporating extensive excerpts, we may cite the following decisions as giving support to the general conclusion we have reached. While the precise question was not involved in People v. Lawrence, 21 Cal. 368, Mr. Justice Field there stated: “Declarations of this character are received with the greatest caution. They are admissible on the ground of necessity.”
In Pearson v. State, supra, among other things, the court said: “In the case of the weight to be given to dying declarations, it is fundamental that the jury shall know from the court the methods which they are entitled to use and adopt in determining what weight ought to be given to them.”
In Jackson v. State, 155 Tenn. 371, 293 S.W. 539, the same court, quoting from its earlier decision in Dickason v. State, 139 Tenn. 601, 202 S.W. 922, said: “Ordinarily the trial court instructs the jury to receive a dying declaration with caution.”
In the two cases, People v. Kraft, 148 N.Y. 631, 43 N.E. 80, 81, and People v. Falletto, 202 N.Y. 494, 96 N.E. 355, 357, the New York court seems unequivocally to hold that, as a matter of law, dying declarations cannot be given the same weight as testimony adduced under oath by witnesses who are subject to cross-examination; and the reasoning is persuasive. And such seems to be the doctrine of the Supreme Court of Washington. See State v. Mayo, 42 Wash. 540, 85 P. 251, 255, 7 Ann.Cas. 881; State v. Walker, 104 Wash. 472, 177 P. 315, 316. And see, also, State v. Eddon, 8 Wash. 292, 36 P. 139, 143. In Coart v. State, 156 Ga. 536, 119 S.E. 723, 730, the syllabus, which was apparently prepared by the court, strongly supports the view we have taken. In the decision itself we find this expression: “After a careful review of the evidence adduced to the court before the introduction of the written statement [dying declaration], we are satisfied that the trial judge did not err in permitting it to go to • the jury for its consideration, under rules for their guidance which were fully and correctly given.” See, also, Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230,
Reversed, with instructions to grant a new trial.