Hollywood v. State, 120 P. 471

120 P. 471 | Wyo. | 1912

Lead Opinion

Scott, Justice.

The plaintiff in error (defendant below) upon a charge of murder in the first degree was tried and convicted of manslaughter, and brings error.

1. It is contended. that the court violated defendant’s rights in compelling him to go to trial without sufficient time for him or his counsel to prepare for his defense. The crime is alleged to have been committed on the morning of September 30, 1909, at Thermopolis, Fremont county, and 80 or 90 miles from Lander, the county seat and place of the trial. The information was filed October 11th, following, and within 14 days of the regular November, 1909. term of the district court within and for that county, and served upon the defendant on October 26th. The defendant was arrested on November 10th, and confined in jail until November 17th, when he gave bail. On November 2nd, the defendant having theretofore retained the firm of Landfair & Hardin, Mr. Hardin of that firm went to Thermopolis to interview the witnesses and prepare for trial. Having arrived at Thermopolis, he was, on Nov. 3, subpoenaed as a witness in a homicide case then being tried at Basin, the county seat of Big Horn county, where he was detained under process of the court until November 13th, whereupon he' returned forthwith to Lander, where he arrived on November 16th, since which time he was engaged in the trial of other cases and did not have the time to prepare for defendant’s trial. Landfair was called to an eastern state, where he was a witness in the trial of a suit involving his father’s estate, and he could not devote any time to the preparation of defendant’s defense.

The bill shows that defendant had additional counsel in the person of W. Waltman, Esq. The record shows his presence throughout the trial. The motion was addressed to the sound discretion of the court, and unless we can say that the court abused its discretion to the extent of depriving the defendant of his constitutional right of representation by counsel, and such right' would include a reasonable time within which to prepare for the trial, we would not be authorized to disturb the judgment by reason of the court’s ruling. We are unable to say from the record, that the defendant was prejudiced by the ruling. There is no showing of any absent witnesses or of newly discovered evidence, and we can not say as a matter of law that the tiriie allowed for the defendant to prepare for his trial, i. e., from Oct. 26th, when the information was servéd, until Decembér 1st, when the trial commenced, although he was confined in jail from November 10th to 17th, on which latter day he was admitted to bail, was insufficient as upon the facts set up in the affidavits the court found contrary to defendant’s contention. The defendant was not confined in jail so as to deprive him of an opportunity of preparing for trial, nor was Hardin his only counsel, but as he says in his motion, his chief counsel. There was nothing to prevent him, insofar as the record discloses, from counseling and consulting with his attorney Waltman,'even if he was prevented from doing so with Hardin & Landfair by reason of their absence. The case appears to have been tried on his behalf with consummate skill and ability, and' wé can find ño prejudice to him by-reason,of the denial of his motion for a continuance.

2. The evidence tends to show that the defendant and his two brothers, together with the deceased, had spent a part of the night of September 29, 1909, in a saloon, and between 6 and 7 o’clock in the morning, while leaving the saloon and while all were under the influence of intoxicating liquor, Bray, the deceased, was boisterous, whereupon the defendant remonstrated and Bray in an ugly mood drew and pointed his revolver in a threatening manner at the defendant. Thereupon the defendant backed off and he and his brothers left the scene'of the quarrel, Bray re-entering the saloon, and the former going to his saloon nearby and getting his loaded revolver, and the three brothers shortly thereafter returned to the saloon. Bray was not then in the saloon but soon after was seen passing along the sidewalk across the street and Onnie, one of the defendant’s brothers, in an undertone spoke to defendant, drew his revolver, and went to the door of the saloon, called to Bra.y across the street telling him to “come over and not be sore.” Bray came across the street and Onnie stepped out of the door of the saloon onto the sidewalk with revolver in hand. He (Onnie) says he didn’t know where. Bray was going at the time he called to him, but as he (Bray) stepped on the sidewalk he reached for his revolver and he (Onnie) drew his gun on him and told Bray to put up his gun, and having Bray covered he told Harry, who, having followed him to the front door to take his (Bray’s) gun. The defendant then drew his revolver, went out of the saloon and took part in the attempt to disarm Bray. The defendant, with revolver in hand, having 'approached sufficiently near Bray, the latter grabbed hold of the revolver and attempted to wrench it from the hand of defendant, and during the scuffle and while in defendant’s hand, the revolver was discharged, inflicting a wound in Bray’s knee, from which ground Bray lingered for several days and died.

One Adams, -a witness for the state, testified over objection, that he heard defendant and his brothers talking while they were returning to the place of the difficulty, and that Larry told Jack (the defendant) he would get himself into serious trouble if he didn’t look out what he was doing, and the latter responded: “I don’t care, I will shoot the paunch out of him.” It is objected that this evidence did not identify the deceased as the one against whom the threat was made. It must be construed in connection with the other evidence. The witness further testified that he saw the Hollywoods, following this remark, walk down the street to and into the Bank saloon, and that shortly thereafter he saw the Hollywoods and the deceased standing on the sidewalk in front of the saloon, and that he then walked down that way, but before he reached them and was 100 feet away, he heard a gun shot, and going closer saw both deceased and defendant hold of a revolver. We think the court committed no error in admitting this evidence. It was sufficiently connected in point of time and place with the pre-existing trouble and was immediately followed by the infliction of the wound, and the circumstances pointed unerringly to deceased as the object of the threat. The question was for the jury, and it could not have been misled as to whom the threat was directed against. The defendant’s acts spoke as clearly as words as to whom he had reference and the state was entitled to the evidence.

With reference to this conversation the defendant while testifying in his own behalf was questioned. The questions were objected to and sustained, whereupon the defendant offered to prove that he said to his brother, Larry Hollywood: “We ought to disarm Bray-or he will hurt somebody.” Whereupon Larry replied: “Whatever you do, don’t get into trouble,” it being further stated in this offer “That if the prosecution is entitled to part of the conversation between these parties at that time, the defense is entitled to all the conversation, * * * for the reason that his conversations at that time tend to show the malice and intent.” Objection to this offer was sustained. The part of the conversation introduced by the state was competent as tending to establish the element of malice and intent to take the life of the deceased,- upon the issue of first and second degree murder and, upon which charges the defendant was then on trial. He was acquitted of these degrees and found guilty of manslaughter, a lesser degree of the crime charged. Manslaughter under our statute is defined as follows: “Whoever unlawfully kills any human being without malice express or implied, either voluntarily upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful a,ct, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.” (Sec. 5793, Comp. Stat.) It will be observed that involuntary manslaughter does not involve an intent to kill. In Ross v. State, 8 Wyo. 351, 57 Pac. 924, it was held by this court that an error in defining murder in the first degree was harmless when defendant is found guilty of murder in the second degree, unless the misdirection in some way affected the verdict. In Downing v. State, 11 Wyo. 86, it was again said that upon an indictment charging murder in the first degree, a conviction for murder in the second degree will not be reversed for an erroneous instruction as to premeditated malice in murder in the first degree unless the misdirection in some way influenced the jury in arriving at the verdict. The intention to disarm the deceased for fear that he might hurt somebody may have proceeded from the best of motives, but at the time the attempt to do so was made the deceased was not engaged in committing a felony, nor was he menacing any one, nor was the defendant an officer of the law and so authorized to disarm him. It is not pointed out nor do wé discover from the bill that he denied the threat as testified to by the witness, Adams, and the offer was to prove as a part of the conversation something in addition to and as a part thereof which was left out by the state. With or without this evidence as offered, the attempt to forcibly disarm Bray in the manner as disclosed by the evidence was unlawful, and we are unable to understand how the defendant could have been prejudiced upon the issue of manslaughter by its exclusion.

3. The defendant offered, but was not permitted to show, that between the first and second difficulty, while he was away from the place of the homicide, that he was looking for the -marshal to take charge of Bray. In view of the fact that the defense was not self-defense and the homicide was committed by the defendant while engaged in an unlawful act and that Bray, while apparently peaceably inclined, was called to the place of the homicide ‘ for the purpose of committing such unlawful act, we are of the opinion that the exclusion of this evidence was proper, or at least not prejudicial upon a conviction of manslaughter, as it would.only have'borne upon the question of his intent.

4. It is urged that the defendant was not permitted to show certain statements made by Bray and within half an hour after the shooting, and after he had been assisted from the -sidewalk into the saloon, addressed to defendant, in which he said in effect, “I am sorry I got shot, it was my own fault. I won’t have you arrested.” It is claimed that this was a part of the res gestae, and falls within the rule of Johnson v. State, 8 Wyo. 494, 506. In that case the deceased said when shot: “Oh, Johnson, you have shot me,” and within a half hour after being carried into the house, upon inquiry as to how it occurred, he stated: “Johnson (defendant) shot me, but he did not intend tp do it.” It was held that the latter sentence might be considered a continuation of the former and was admissible as a part of the res gestae and that its exclusion was error. In that case the defendant was convicted of murder in the second degree where malice and intent were material elements to be proven. This court said: “We think the evidence should have been admitted. The shooting was confessed, and the sole issue involved, in the charge of murder, was the intent of the defendant.” The facts of that case are very similar to those in the case before us, except that the defendant here was acquitted of murder, but convicted of manslaughter. The inapplicability of the law of that case, where intent to kill was the essence of the crime, and the case here, where the crime of which the defendant was found guilty was complete without such intent, is apparent. We need not, however, base our ruling on this reasoning alone, for there was evidence of several witnesses before the jury of the deceased having made statements to the same effect while on the sidewalk before and after the deceased was assisted into the saloon and which were made prior in point of time to those which were rejected. The ruling complained of was with reference to evidence which was cumulative even though a part of the res gestae.

5. The professional nurse who nursed the deceased the last few days before his death, testified as a witness on behalf of the state. She was permitted, over objection, to refresh her memory as to deceased’s symptoms from a chart kept by her during the time she was employed. It was insisted by the defendant that if these symptoms were to be regarded that the chart was the best evidence. At the close of her testimony the state offered the chart in evidence. It was received over defendant’s objection “that the best evidence has been given by the person who kept it.” We are of the opinion thát the admission of the chart in evidence, though it may have been error, was not prejudicial. It was merely cumulative of the witness’s testimony and could in no way have prejudiced the defendant.

6. * The defendant offered to prove by the same witness that 36 hours before his death the deceased was feeling badly and she was trying to get him to take nourishment, and he said: “It is no use. I am going to die in spite of hell. I want to tell you Jack (meaning the defendant) was not to blame. It was all my fault.” The state objected to the evidence so offered on two grounds, first: That the witness had violated the rule theretofore made by the court excluding all witnesses from the court room during the trial, and, second: that the proffered declaration was an opinion and not the statement of a fact. The objection was sustained. It is not shown that the defendant was in any wise responsible for the violation of the rule and the question upon this assignment must be determined upon the competency of the evidence offered.

It is contended that the declaration is in the nature of an opinion, and not the detailed statement of facts. “Opinions in dying declarations are inadmissible. It is indispensable that the dying declaration should consist only of facts, and not of conclusions, mental impressions or opinions.” (Underhill Cr. Ev. 136; Sec. 294 Whar. Cr. Ev. (9th Ed.) ; Wharton on Homicide, (3rd Ed.) Sec. 629; 1 Bish. New Cr. Proc. (4th Ed.) Sec. 207, et seq.; 1 Greenleaf Ev. (Redfield’s Ed.) Sec. 159.)

The courts are not in harmony as to what constitutes an opinion and what constitutes the statement of a fact within the rule1 stated, although all seem to agree that the statement by the declarant of conclusion founded upon an inferred as distinguished from an actual fact within his knowledge is objectionable. The rule in that respect is clearly stated in House v. State, 94 Miss. 107, 48 So. 3, 21 L. R. A., N. S. 840, wherein the court say: “To us the true and proper test as to admissibility is whether the statement is the direct result of observation through declar-ant’s senses, or comes from a source of reasoning from collateral facts. If the former, it is admissible; if the latter it is inadmissible.” In that case there was a question of identity of the party who fired the fatal shot. In State v. Wright, 112 Iowa, 436, 445, 84 N. W. 541, the dying declaration to the effect that the deceased stated that he did not think the defendant intended to shoot him, and, further, that he thought defendant was crazy, was offered and rejected. The ruling was sustained.. The court say: “Declarations made under the solemn sense of approaching death are only competent as to facts which the. witness might testify to if living.” The case was followed in State v. Sale, 119 Iowa, 1, 4, 92 N. W. 680, where a dying declaration to the effect that the defendant was not to blame for the difficulty and that hé had to do what he did was rejected. In State v. Fielding, 135 Iowa, 255, 112 N. W. 539, the court sustained a conviction as against a complaint that the trial court permitted proof of a dying declaration of deceased to the effect that defendant deliberately shot her on the ground that the statement involved, first, an assertion of the fact that it was defendant who shot her; and, second, as to the manner, and attendant circumstances of the shooting, “that it was intentional and not accidental.”

In People v. Alexander, 161 Mich. 645, 649, the court in speaking of dying declarations say: “The universal rule as established by the courts, is that such declarations may not include narration of matters not immediately connected with the fatal occurrence, and may not state mere opinions or conclusions when such opinions or conclusions would not be admissible from the lips of a living witness.” The court cites the following in support of this statement, vis: 10 Am. & Eng. Ency. L. (2nd Ed.), p. 382 et seq.; 21 Cyc. p. 975; People v. Olmstead, 30 Mich. 431; Note to Worthington v. State, 56 L. R. A. 353 (92 Md. 222, 48 Atl. 355); note to State v. Meyer, 86 Am. St. Rep. 637 (65 N. J. L. 237, 47 Atl. 486). In Mulkey v. State, 113 Pac. 532 (Okl.) a dying declaration in the following language was admitted in evidence over objection. The declaration in part was: “John Mulkey shot me without warning, foully murdered me without warning.” It was held proper for the court to admit in evidence the words “John Mulkey shot me without warning,” but that the objection should have been sustained as to the words “foully murdered me without warning,” on the ground that the latter words was the expression of an opinión. In Moeck v. People, 100 Ill. 242, the defendant offered in evidence the dying declaration of the one on whom he had inflicted a fatal wound exonerating him from any blame in the affair. The offer was rejected and the supreme court in sustaining the ruling say: “Under the decision in the case of Adams v. People, 47 Ill. 376, they were not admissible as evidence. It was there said: ‘The dying declarations of deceased, that he did not wish accused hurt for' what he had done, and that accused had done only right/ etc., affords no evidence of anything more than a truly 'Christian spirit of one who had,been unjustly done to death, and who, in his dying agonies, was willing to forgive the malefactor.” Without discussing the question further, we are of the opinion that the dying declarations here offered amounted to an opinion only as to who was to blame. That was practically the question that the jury had to find from the evidence. There was no question of identity and the facts surrounding the commission of the homicide wew before the jury by the evidence of eye witnesss and the question as to who, if anyone, was at fault ór criminally responsible was for the jury. We are all the more readily led to this conclusion for the reason that we are unable to find any decisions that hold that a dying declaration in the words of the one here presented is competent evidence, but on the contrary, the universal holding seem to be the other way. (Ratterton v. State, 53 Ga. 570; Sweet v. State, 107 Ga. 712, 33 S. E. 422; State v. Sale, supra; Haney v. Com., 5 Ky. L. Rep. 203; State v. Harris, 112 La. 937, 36 So. 810.)

7. Leading questions were propounded to Dr. Hamilton, a witness for the state, upon his direct examination. It appears that he had given evidence before the coroner’s jury different from the answers to questions propounded to him upon the trial. The court permitted the state, over objection, to examine him as to his previous statements. The ruling of the court was proper and is sustained. (Arnold v. State, 5 Wyo. 439; Horn v. State, 12 Wyo. 131, 132, 40 Pac. 967; Sec. 774, Wigmore on Ev.)

Questions were also propounded to Dr. Plamilton, who attended deceased during his last illness and who made the post-mortem examination, upon cross-examination as to whether he found any symptoms or evidence of deceased haying been addicted to the use of morphine. Objections to these questions were sustained. The defendant, by his counsel, then made the following offer, viz: “We will show that said witness is a physician and surgeon, and testifying as an expert on cross-examination, also that he was the attending physician in charge of Mr. Bray preceding his death. We wish to show by this witness that the use of opium or morphine is one of the causes for hypostatic pneumonia.” The offer was rejected. All of the offer except the last sentence was already in evidence. The use. of opium or morphine by the deceased was not a defense, even though it may have contributed to the death of deceased, unless it was the sole .cause of the death, or that death resulted from the use of morphine as a cause independent and distinct’ from the wound. The law is that if the wound was unlawfully .inflicted and contributed mediately or immediately to the death, then the one who so inflicted the wound is guilty. (2 Bish. New Cr. L., Secs. 636, 637; Clark’s Cr. Caw, 128, 129.) The offer was not sufficiently broad to make the evidence admissible, for its' competency was not then disclosed to the court, and the extent of the cross-examination with reference to collateral matters, in order to ■ test the knowledge of the witness as an expert, was within the discretion of the court, an abuse of which we think the record fails to disclose. After this- defense was developed by defendant’s evidence, the witness might have been recalled for further cross-examination, but this was not done.

8. Dr. Safely having theretofore testified as a witness for the state, was called in rebuttal and permitted, over objection, that the evidence was not proper in rebuttal, to answer the following questions: “Q. Doctor, in your examination of the deceased at the post-mortem, did you see any evidence of this man Bray having used morphine by reason of his injecting needle points, or spots in the skin showing that? A. No. Q. Doctor,.I will ask you whether or not in your opinion, as a physician, a state of coma or collapse, such as happened to Bray at the end of the second day, whether that is not a very common symptom occurring about that time? A. It is.” Doctors Richards and Kenney testified as witnesses on behalf of the defendant that they were present at the post-mortem examination, and the former was called in consultation with Dr. Hamilton on the third day after the wound was inflicted, when the deceased was in a state of collapse or coma. Both testified that in their opinion death resulted not from the effect of the wound but from hypostatic pneumonia, caused by a weakened heart which was brought on by the use of morphine. This evidence was new evidence brought into the case by defendant’s witnesses. The evidence of Dr. Safely was rebuttal and properly admitted. (Horn v. State, 12 Wyo. 80, 73 Pac. 705.)

9. By instruction No. 10, given at the request of the state, over defendant’s objection, the court pointed out the material allegations of the information and told the jury that it was incumbent upon the'state to prove each of them beyond a reasonable doubt and if the prosecution had done so it was not necessary that the other facts or circumstances surrounding such testimony as had been given on behalf of the state “should be established beyond a reasonable doubt. Some of such facts or circumstances may be established by a preponderance of evidence or may not be established. It is not meant that it is incumbent upon the prosecution to establish every fact surrounding such testimony* as given beyond a reasonable doubt. All that is incumbent upon the prosecution is that all facts and circumstances taken together should establish the defendant’s guilt beyond a reasonable doubt. If you are satisfied beyond a reasonable doubt from all the evidence in the case, of the defendant’s guilt, you should find him guilty.” This instruction was approved in Horn v. State, 12 Wyo. 80. In that case the state relied largely upon circumstantial evidence, while in this case the homicide was established by the evidence of eye witnesses. We do not understand that this court limited the instruction to cases resting upon or held that it was an instruction upon circumstantial evidence. The rea-, son in support of giving it is as applicable when the prosecution rests upon direct' as upon circumstantial evidence. There are many minor details and facts that enter into the evidence in every prosecution and which go to prove the ultimate essential elements of the crime charged. This court said in the Horn case (at page 153, 12 Wyo.) : “It is not true that the prosecution is bound to establish beyond a reasonable doubt every minor circumstance given in proof as tending to establish the main or ultimate fact essential to conviction.” It would not be incumbent upon the court to so instruct: We are of the opinion that the instruction was proper and that the court committed 'no error.'

•10. Instructions Nos. 16J4, 17 and 18 were given at the request of the state over defendant’s objection. They are as'follows: “The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that defendant at the time of this shooting was engaged in the act of attempting by power and force and by the display of a gun in the, hands of defendant, and by pointing said gun at deceased, to cause deceased to hand over to him, defendant, a gun that he, deceased, had then and there .upon his person, then the court instructs the jury that these acts of defendant were unlawful and that in their commission defendant was engaged in the commission of an unlawful act.”

Instruction No. 17. “The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that at the time ■ of the shooting, defendant was engaged in the act of attempting, by power and force and by the display of a gun in the hands of the defendant, to cause deceased to hand over to him, defendant, a gun that the deceased had then and there upon his person. And if the jury further'.believe from the evidence, byond a reasonable doubt, that this attempt by power and force and by the display of, a gun oh the part of the defendant, with the intention to cause deceased to hand over to him, defendant, a gun that the.deceased had then and there upon his person, to be an unlawful act, and the jury further believe that while defendant was engaged in this act, the gun in the hands of defendant was involuntarily discharged and deceased was shot and wounded by reason of said discharge; and the jury further believe that this wound, so caused, was the cause of the death of deceased, then this jury will find the defendant guilty of the crime of manslaughter.”

Instruction No. 18. “The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt,' that defendant, at the time of this shooting, was engaged in the act of attempting by power and force and by the pointing of a gun in the hands of defendant at deceased, to cause deceased to hand over to defendant* a gun that he, .deceased, had then and there upon his person ; and if the jury further believe .that defendant was engaged in the commission of an unlawful act, by this attempting by power and force and by the pointing of a gun in the hands of defendant at deceased, to cause deceased to hand over to defendant a gun that he, the deceased, had then and there upon his person; and the jury further find that while defendant was engaged in this act, deceased attempted to push or turn said gun in the -hands of defendant away from tlie deceased; and that by reason of this act of deceased, said gun was discharged and deceased was wounded thereby; and the jury further believe that this wound, so caused, was the cause of the death of the deceased, Smith Bray, then this jury will find defendant guilty of the crime of manslaughter.”

As applied to the -facts and considered together, tliesé instructions were not misleading or prejudicial. The defendant testified as a witness and his own testimony showed that the homicide occurred in an attempt without warrant or authority to disarm his victim. Sec. 5898, Comp. Stat. 1910, is as follows: “Whoever draws or threatens -to use any pistol, dirk, knife, slung-shot, or any-other deadly or dangerous weapon, already drawn, upon any other person; shall be fined in a sum not more than one hundred dollars^ to which may be added imprisonment in the county jail not more than six months; Provided, That the provisions "of this section shall not apply to a person drawing or threatening to use such dangerous or deadly weapons in defense of his person or property, or in defense of those entitled to his protection by law.” This section was adopted from the 'criminal code of Indiana and has entered into prosecutions for homicides in that state before and since its adoption here. (Lange v. State, 95 Ind. 610; Surber v. State, 99 Ind. 71.) The evidence tended to show that the defendant was in the commission of an act inhibited and declared to be a crime by this section of- the statute, and if the jury so found, then the defendant was engaged in an unlawful act. It was properly left to the jury by instruction No. 163^ to find of determine the existence of certain facts, and if established by the evidence to their satisfaction beyond a reasonable doubt, then the defendant, as a* matter of law, was engaged in the commission of an unlawful act. ' It is true that the instruction is without qualification, but upon the evidence it needed no qualification. The defendant’s evidence showed that he was engaged in an act for which there was no legal excuse or justification. The defense was not self-defense. Upon the evidence, had that defense been urged, it could not be sustained. The defendant tried his case upon the theory that he had a right to forcibly disarm Bray. The jury could reasonably infer from the evidence that the latter was called to the scene of the. homicide pursuant to an understanding between defendant and his brothers for the purpose of forcibly taking his revolver from him. By the first sentence of instruction number 17 the question of facts as to what the defendant was engaged in doing at the time the homicide occurred was again left to the jury. By the second sentence, to which objection is here made, the jury were told that if they further believe from the evidence beyond a reasonable doubt the matter set forth in the first sentence “to be an unlawful act,” etc. It is perhaps true that the words “as already defined” would have made the instruction more complete, hut it clearly appears from these instructions, and we think the jury must have understood, that for the purposes of the prosecution there could be no unlawful act except upon the proof thereof to their satisfaction beyond a reasonable doubt. The instructions were to be considered and construed together and in the light of each other and the jury were so instructed. So construed, we fail to understand how the jury could in any way have been misled. The whole trend of these instructions taken together left the question of finding upon the facts to the jury, which if found in a. certain way would establish in law an unlawful act, for they were in effect told if certain facts were established from the evidence to their satisfaction, beyond a reasonable doubt, the law would regard the defendant as being engaged in an unlawful act at the time the homicide was committed.

11. Error is assigned upon the refusal of the court, at defendant’s request, to give the following instruction numbered 30: “You are instructed that it is not necessary that the defendant should establish to your mind beyond a reasonable doubt that he is innocent; neither is it necessary that he should establish his innocence by a preponderance of evidence; the law is that if, upon the whole evidence, there exists in your mind a reasonable doubt of his guilt, then it is your bounden duty, under your oaths to give the defendant the benefit of that doubt, and to find him not guilty.”

The jury were instructed by No. 9, given, that if, after a careful and candid consideration of all the evidence, they had a reasonable doubt that the defendant was guilty of any of the degrees of the crime charged, or of the crime of manslaughter, or if they had a reasonable doubt as to the cause of the death of the deceased, it would be their duty to return a verdict of not guilty, and by instructions 12 and 13 the jury were told that the burden of proof was upon the state to prove the defendant’s guilt beyond all reasonable doubt and that the presumption of innocence attended the accused throughout the trial until that was done. • The refused instruction, we think, was fully covered by these instructions which were given, and for that reason the court did not err in refusing to give it.

12. The court refused to give the following instruction, requested by the defendant, vis: Instruction No. 31. “The court instructs you that if you believe from the evidence, beyond a reasonable doubt, that the defendant, John Hollywood, about the time alleged in the information, did shoot, and did thereby wound the deceased, Smith Bray, and you further believe from the evidence that such shooting was accidental and not intentional upon the part of the defendant, then and in that event the homicide is excusable; and if you so believe from the evidence, or if you have a reasonable doubt thereof; then you will find the defendant not guilty.” This instruction was properly refused, for if the defendant was engaged in an unlawful act, which the evidence tended to show, then'the homicide would not be attributable to accident, for the latter would not have occurred but for the unlawful act in which the defendant was engaged. The accidental killing of a human being by another is not a defense unless caused in the doing of some lawful act. (Johnson v. State, 94 Ala. 35, 41; Henderson v. State, 98 Ala. 35; Jenkins v. State, 82 Ala. 25; People v. Steubanvoll, 62 Mich. 329, 28 N. W. 883; Reddick v. State, (Tex. Cr. App. Nov. 23, 1898) 47 S. W. 993.)

In State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417, 421, an indictment' for murder, the evidence tended to show that the defendant pointed a loaded gun at the deceased, a scuffle ensued, during which the gun was discharged and killed the deceased. The court say: “If * * * the defendant pointed a loaded gun at the deceased, under such circumstances which would not have justified him in shooting the deceased, and the deceased seized it and struggled for it to save himself from the menaced injury from it, and in the struggle it went off without being purposely shot off by the defendant, the latter could .mot claim that the homicide was excusable. It would be manslaughter, and the circumstances relied on wholly to excuse the def fendant would be regarded by the court in affixing the amount of punishment. The converse of the last proposition would, of course, be true, viz: -that if the defendant pointed a loaded gun at the deceased, and it went off, under the circumstances in which it would have been lawful to have shot it off, the defendant would be regarded by the law as being guilty of no offense.” (See also Jenkins v. State, 82 Ala. 25, 2 So. 150.) Upon the facts the instruc1 ticin was properly refused.'

13. The following instruction was requested and refused, viz: Instruction No. 34. “That if you find there was a gun-shot wound upon the person of Smith Bray, inflicted by the defendant; and that it was not a mortál wound, that is, was not inflicted upon any portion of the body of Smith Bray as would likely cause death, and, if you believe from the evidence that said Smith Bray came to his death from some other or subsequent cause, apart from said gun-shot wound, then I charge you it is your duty to acquit the defendant.” The court properly refused this instruction by reason of the qualification of and what constitutes a mortal wound. If given, the jury would have been told that the wound was not mortal unless • inflicted upon a part of the body as would likely cause death. The place of the wound, its extent and severity were proper matters to be considered by the jury in determining the cause of death, but the instruction goes farther and ignores the physical condition or vitality of the deceased. The low vitality of a person may not enable him to withstand the shock or effect of such a wound as was inflicted on Bray, or even one of less severity, and such a wound might hasten his death and thus shorten his life, and if it did so the one who is shown to have unlawfully infiictéd the wound is guilty of homicide. (State v. Johnson, 102 Ind. 247.) The law makes no distinction as to the condition of health of.the person whose life is taken, so long as the act of killing was unlawful. (Sec. 638, 2 Bish. New Cr. Law; Clark’s Cr. Law, 128.)

14. Error is assigned upon the refusal of the court to give the following instruction, numbered 35: “The court instructs the jury that if you entertain any reasonable doubt as to whether the gun-shot wound was mortal in itself, or reasonably calculated from its nature and extent to produce death, and whether death did ensue from hypostatic pneumonia, and to which the wound did not materially contribute, then you should acquit the defendant.” There was no error in the refusal to give this instruction, for the jury were told in an instruction given that in order to convict they must find beyond a reasonable doubt that the gun-shot wound caused or contributed to the death of the deceased, and unless so satisfied they should find the defendant not guilty.

We find no prejudicial error in the record, and the judgment will be affirmed. Affrmed.

Beard, C. J., and PoTTER, J., concur.

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Rehearing

ON PETITION EOR REHEARING.

Scott, Justice.

The plaintiff in error has filed a petition for a rehearing. No new question is here presented for our consideration, but it is sought to have this court again review the questions discussed in the opinion filed.

It is urged.that the court failed to pass upon the alleged error of the court in permitting the official stenographer to identify under oath a complete transcript of the evidence taken and given at the coroner’s inquest. The transcript was not offered in evidence. This alleged error was not made a specific ground in the motion for a new trial, and for that reason it was not discussed in the opinion filed nor need it be here discussed.

In support of the petition, among other grounds, it is earnestly insisted that the court reached an erroneous conclusion as to the inadmissibility of the dying declaration of the deceased. We are aware that there is some difficulty in fixing the line as to what tonstitutes an opinion and therefore inadmissible, and what constitutes the declaration of an evidentiary fact and admissible as a dying declaration, assuming, of course, that the foundation has been properly laid. The rule was stated in the opinion in the precise language used in House v. State, cited therein. We confess that we had much difficulty in reaching the conclusion and only after a thorough examination of cases on the brief and others which were not cited were we enabled to reach a conclusion satisfactory to all the members of this court. In view of the earnestness of the eminent counsel for plaintiff in error, we have again examined the record and the cases cited in the brief in support of this motion and are not convinced that any good purpose would be served by granting the motion.

We are therefore of the opinion that as there are no questions here presented which were not discussed upon the briefs and in the opinion filed, that a further discussion is unnecessary. The petition will be and is hereby denied.

Rehearing denied.

Beard, C. J., and Potter, J., concur.