13 Utah 69 | Utah | 1896
It appears from the record in tbis case that a jury found the defendant guilty of murder in the second degree; that the court entered a judgment of conviction, sentencing him to imprisonment in the penitentiary at bard labor for the term of 14 years, and denied bis motion for a new trial; and that be has appealed from that order and judgment to tbis court. It also appears that Frederick Niebergall, the deceased, was a soldier in the service of the United States; that on the night of the 22d of November, 1894, when in the bouse of Mrs. Binkley in Salt Lake City, be was shot in the abdomen, at about 15 minutes before 11 o'clock, from which be died on the 27th day of the same month. The evidence as to whether the defendant was at the bouse at the time is conflicting. The neighbors beard scuffing in the bouse, three shots fired, and Niebergall jumped through the window into the back yard, hallooing that be was shot, and calling for help. After be bad lain where be fell 20 or 30 minutes, be was carried into the bouse, and laid on a bed. While there, Capt. Donovan, a police officer, came into the room, and asked him who shot him, to which be replied that be was not a “squealer.” But when Donovan insisted upon the information, be said that a man known as “Doc” shot him; that “Doc” was with Mrs. Binkley; that be was an old man, with a gray bead, and about six feet high. It appears, from the evidence, that the defendant was called
These statements of the deceased were not competent as dying declarations, and were not offered as such. They were offered and admitted as part of the res gesta’.. This assignment of error presents the first question for our consideration and decision. If the homicide of Niebergall was murder, the act of shooting him, with the intent from which it proceeded, made it so. From the act alone the law would infer malice and murder. But other acts during the struggle, and before and after the shooting, with the accompanying language, might explain the act of killing, or show that it was a mere accident, or that it was in self-defense, or that it proceeded from passion, without malice, and was therefore manslaughter, or that the intent was formed in such haste, and amid such confusion, and was so indistinct, as to be murder in the second degree, or was so deliberate and distinct as to make it murder in the first degree. Hence, all the physical acts of the parties engaged in the conflict, and all the expressions, verbal or otherwise, attending them, and all the motives, Avhether of .malice, of passion, of fear, or desire, or otherwise indicated, constituted the res gesta;. The res gestee, when viewed altogether, constituted a whole, though it may have been composed of many acts, expressions, and motives. A physical object may be composed of many parts, all of them together constituting a machine or other object. So the struggle or conflict may be composed of many parts, but altogether they consti
The statements of Niebergall to Donovan were merely narrative of a past occurrence, and were not concomitant with it. The motives from which the statements to Donovan proceeded did not coexist with the scuffling, the shooting, and the jumping out of the window, or the motives from which those acts proceeded. The motive of Niebergall in the scuffle was probably mere passion, or a desire to defend himself, and a wish to get away from the man that was shooting at him caused him to jump out of the window, and a wish for assistance and protection was his motive in hallooing that he was shot, and calling for help; while his motive for giving the name to Donovan by hich the man was known, and a description of him, was that he might be brought to justice for his crime, in all probability. The case of Waldele v. Railroad Co., 95 N. Y. 275, is in point. This action was by the administra-trix to recover damages for the death of one Waldele, who, while crossing the defendant’s track, at night, on his way home, received an injury from a passing train
In the case of Reg. v. Bedingfield, the defendant was indicted for the murder of a woman at Ipswich, against whom he had received a violent resentment. He came to her house early in the morning, and went into the room where she was. In a minute or two the deceased came suddenly out of the house, towards two women in the yai*d, with her throat cut, and on meeting one of them, she said something, pointing backwards to the house. In a few minutes she was dead. In the course of the opening speech on the part of the prosecution, it was proposed to state what she said. It was objected to, on the part of the prisoner, that it was not admissible; and Coclc-burn, C. J., said he had carefully considered the question, and was clear that it could not be admitted, and therefore ought not to be stated, as it might have a fatal effect. “I regret,” he said, “that according to the law of England, any statement of the deceased should not be admissible. Then could it be admissible, having been made in the absence of the prisoner, as part of the res gestee; but it is
This ruling of the chief justice being criticised, he published a pamphlet in which he discussed the subject of res gestee at considerable length. In the course of his discussion, the chief justice gires the following definition of the term res gestee: “Whatever acts or series of acts constitute, or in point of time immediately accompany and terminate in, the principal act charged as an offense against the accused, from its inception to its consummation or final completion, or its prevention or abandonment, whether on the part of the agent or wrongdoer in order to its performance, or on that of the patient or party wronged in order to its prevention, and whatever may be said by either of the parties during the continuance of the transaction with reference to it, including herein what may be said by the suffering party, though in the absence of the accused, during the continuation of the action of the latter, actual or constructive (e. g. in the case of flight or application for assistance), form part of the principal transaction, and may be given in evidence as part of the res gestee, or particulars of it; while, on the other hand, statements made by the complaining party, after all action on the part of the wrongdoer, actual or constructive, has ceased, through the completion of the principal act, or other determination of it by its prevention, or its abandonment by the wrongdoer (such as, e. g. statements made with a view to the apprehension of the offender), do not form part of the res gestee, and should be excluded.”
In this the chief justice said, in substance, that whatever acts immediately accompany the principal act, from
The opinion of Mr. Justice Park, in the case of Rawson v. Haigh, 9 Moore 217, also found in Thayer, Cas. Ev. 637, has been referred to. The question was whether the act of the party in departing the realm constituted an act of bankruptcy. The justice said “that declarations made at the time of the departure, and during the absence of the party, were admissible in evidence to show the motive of such departure,” and added that “the letters in question may be considered as having been written during the continuance of the act complained of,” — as G-reenleaf says, supra, “the departure and absence being regarded as one continuing act.” This is based on the assumption that human acts proceed from human motives, and that the motive characterizes and explains the act, and that what a person says with respect to an act while performing it is competent evidence to show the intent from Which it proceeds, and to characterize it. But this prin
The attorney general cites Insurance Co. v. Mosley, 8 Wall. 397, in support of the ruling of the court on the point under consideration. That action was upon a policy insuring the life of Arthur H. Mosley, containing a provision that the insurance should not extend to any injury arising from natural causes. And to prove that he died from the effects of an accident his widow was allowed to testify, against the objection of the company, that the assured had left his bed between 12 and 1 o’clock at night, and when he came back, “he said he had fallen down the back stairs; almost killed himself; that he had hit the back part of his head in falling down stairs. She noticed that his voice trembled, he complained of his head, and appeared to be faint, and in great pain.” The son of the assured was also permitted to testify, against the objection of the company, “that he slept in the lower part of the building occupied by his father; that, at about 12 o’clock of the same night, he saw his father lying with
We are of the opinion that the ruling of the court admitting the witness to testify to the conversation between Niebergall and Donovan was erroneous. On the
We do not deem it necessary to consider the other errors separately. We do not regard them as well assigned. For the reasons stated in tbis opinion, the judgment and order of the lower court appealed from are reversed, and the cause is remanded, with directions to that court to grant a new trial.