Rakes v. People

2 Neb. 157 | Neb. | 1873

Mason, Ch. J.,

after reading the indictment and the evidence above recited, delivered the opinion of the ' Court- as follows: —

I. It was urged, upon the motion to quash, that the place where the offence was committed was not clearly stated^ The offence is charged to have been committed in the County of Cass, and State of Nebraska; and the facts which constitute the offence are clearly and distinctly stated. The indictment charges Tallant Rakes with the murder of Sarah J. Powers, in the County of Cass, and State of Nebraska, on the twenty-eighth day of June, 1870. It states facts, which, if true,,constitute the crime of murder. The county where the offence is charged to have been committed is clearly averred in the body of the indictment, and the allegation of time and place then and there is reported to every material fact which is issuable and triable. This is sufficient. See The State v. Williams, 21 Indiana, 234.

The indictment should contain a certain description ■of the crime which the defendant is accused of committing, and a statement of the facts by which it is constituted. This indictment states the facts of the crime charged with as much certainty and precision as the nature of the case will allow; and this is all that is required. 5 T. R., 586 ; 1 Leach, 249; 5 T. R., 611, 623.

II. When it appears that the deceased, at the time of the declaration which is offered in evidence, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterwards, the declaration is inadmissible. Says <xreenleaf., vol. L, sect. 158, “ It is essential to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death ; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction, whether it be expressly proved by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants stated to him, or from his conduct or other circumstances of the case; all of which are resorted to to ascertain the state of the declarant’s mind. The length of time that elapses between the declaration and the death of the declarant furnishes no rule for the admission or rejection of the evidence; though, in the absence of other evidence, it may serve as one of the exponents of the belief of the deceased that dissolution was or was not impending.” It was incumbent on the State to lay a sufficient foundation for the admission of the declaration of the deceased, by showing that the deceased believed, at the time of the declarations which are offered in evidence, that her death was impending. This was not done.

In the middle of the afternoon she expressed a belief — not a hope, but a belief — that she would recover.. Before this time, and while the prisoner was absent after a doctor, she said he, the prisoner, would bring none: he did not want any. It was clearly error to admit this declaration while she, the deceased, had strong hopes of recovery.

III. But it has been suggested that the objection to the admission of this evidence was not made in time.

The accused has a right to a legal and impartial trial; and to insist that evidence, the tendency of which is to prejudice his case, and which is not legally admissible, shall be submitted to the jury for their consideration, because the objection was not made in time, is in violation of that principle of law, that the mere neglect to insist on a right, in a capital criminal case, is not a waiver of that right. But, in this case, there was not even a neglect to insist on the right; but the bill of exceptions recites the evidence which is objectionable,— the declarations of deceased, — and then proceeds: “ The defendant’s counsel objected to the testimony of witness as to deceased’s dying declarations, upon the ground that no foundation had been laid for such testimony; which objection was overruled by the Court, and to which ruling defendant’s counsel excepted.” The bill of exception is very inartistically prepared. But the reasonable construction is, that the evidence was objected to at the time it was offered. I think, from the manner in which the facts are recited, that such was the case; but, whether it was or not, the result must be the same. In a capital case, the prisoner may, on motion for a new trial, bring before the Court, for review, any ruling which denies him a substantial legal.right. See The People v. Ah Fong, 12 California, 348; The People v. Beebe, 6 California, 246; The People v. Demmit, 8 California, 423.

It is not necessary to examine the record further: this disposes of the case. The judgment is reversed, ,and a new trial granted.

Cbounse, J.

The evidence introduced by the prosecution as dying declarations was brought in without a proper foundation having been laid: whether objection to its introduction was made in time strictly, is not clear. However, in a case of this kind, we will resolve any doubt in favor of the accused. The conviction of the defendant in the Court below resting wholly on circumstantial evidence, and the evidence thus improperly allowed being very important in the case, a new trial should be allowed..

Judgment reversed, and new trial ordered.