State v. Carlton
48 Vt. 636
| Vt. | 1876

The opinion of the court was delivered by

Royce, J.

The first exception taken on the trial was to the admission as evidence of the declaration of Alonzo W. Davis, made to the wituess Winthrop Davis, that “ he (meaning the respondent) shot me before I touched him.” This declaration was admitted as a part of the res gestee. It is frequently difficult to *643determine when, and under what circumstances, matter offered as evidence is admissible as a part of' the res gestee. But it is well settled in this state, that to make such matter admissible, it must have been concurrent with the act or transaction in issue and a part of it, and that a narrative of a transaction completed and finished when the narrative is given, though made while fresh in memory, and so soon after that the party had not time, probably, to imagine or concoct a false account, is inadmissible. Warden v. Powers, 37 Vt. 619; Downer and Wife v. Strafford, 47 Vt. 579; and see Luby and Wife v. Hudson R. R. Co. 17 N. Y. 131; and Enos v. Tuttle, 3 Conn. 250, and Russell v. Frisbie, 19 Conn. 205. This is the rule which has prevailed in civil cases. In State v. Davidson, 30 Vt. 377, in the opinion delivered by Ch. J. Redfield, he says : “ The declarations of a party injured when no one is present, are not evidence to show the manner in which the injury occurred, however nearly contemporaneous with the occurrence; and it clearly would not have been competent to show that Baldwin [the party that the respondent was charged with robbing] said when first discovered, that he had been robbed by the respondent.” The declaration of Alonzo W. Davis that was given in evidence was no part of the act or transaction from which his death resulted. That was finished and ended some time previous to the making of the declaration. And it was not so connected with and a part of the act or transaction as to make it admissible. The wisdom and justice of this rule in the administration of criminal law must be apparent. The general rule is, that no evidence can be received against a prisoner except such as is taken in his presence. McNally’s Pleas of the Crown, 261. And the exception that is made in admitting dying declarations, is upon the theory that when made, every motive to falsehood is silent, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. To make a further exception, and admit the declarations of the party injured, made in the absence of the party accused, and without the right of cross-examination, at a period of time so *644far subsequent to the happening of the act or transaction about which the declarations are made that the party might have invented them, would be depriving the accused of one of the important safeguards which the law has given him for his protection.

In passing upon the question as to whether there was error in the charge, the requests and charge have to be considered in connection with the facts which were developed by the evidence. It was conceded that at the time of the affray that resulted in Alonzo W. Davis’s death, he and the witness Winthrop Davis were trespassing upon the respondent’s land, and that the respondent had the right to expel them therefrom by the use of reasonable force. The respondent’s evidence tended to show that while he was endeavoring to expel them from his land by the use of reasonable force, he was assaulted by Alonzo W. Davis, and thrown by him upon the ground, and that while he was lying upon the ground with Alonzo W. Davis on top of him, the loaded pistol, which he had all the time during the conflict held in his left hand, was acci-déntally discharged into the body of Alonzo W. Davis, inflicting the wound which caused his death. The counsel for the respondent requested the court to charge the jury that if the pistol was discharged in that manner, and the death of Alonzo W. Davis was caused thereby, there was no positive misconduct on the part of the respondent — the death was by misadventure merely, and a conviction of manslaughter was not justifiable. The court, upon the subject-matter of this request, charged, that “ if the respondent took the' pistol, loaded and in condition to be used, and voluntarily took part in the conflict, put himself in position, expecting it, prepared for it, and entered upon it voluntarily, and had the pistol with the intent and design to use it in any emergency that might arise — for instance, in case he was not successful with his cane, or if ho was in danger of being overcome, or in any event —when he went into the conflict voluntarily, and prepared to use it in any emergency that should arise, that he would become, by resorting to a deadly weapon, the aggressor; to enter upon the conflict, if he entered upon it voluntarily, he would be responsible for the result if by any accident life was destroyed; he would be responsible for the result, though not designed.” We think *645this instruction to the jury was erroneous. The respondent having the right to use reasonable force in expelling Alonzo W. Davis and Winthrop Davis, he had the right to go prepared to defend himself against any assault that they might make upon him while in the exercise of that right; and if he only intended to use the pistol in such an emergency in defending his own life, or against the infliction of great bodily harm, the carrying it for such a purpose would be lawful. Resort must be had to the evidence, to ascertain the sense in which the word conflict is used in the exceptions and charge. The evidence on the part of the respondent tended to show that on his part, it was at its commencement a contest, or strife, conducted on his part in a lawful manner, to expel Alonzo W. and Winthrop Davis from his land. We do not understand that the carrying a deadly weapon upon entering into such a conflict, would, as matter of law, make the party carrying it the aggressor ; and his responsibility, if by any acci: dent life was destroyed in consequence of his carrying it, would depend upon other considerations than his carrying the weapon upon entering into such a conflict. The court further charged the jury, “ that if by any gross carelessness in having about him fire-arms in preparation for discharge, though he did not.intend to use it in any manner, if by gross carelessness life was destroyed, he would be responsible for the result of his carelessness, and it would be manslaughter in any event if Alonzo W. Davis was killed in consequence of gross carelessness on the part of the respondent.” As an abstract proposition, this portion of the charge is unexceptionable ; but as applicable to this case it was erroneous. We have already seen that under certain circumstances the pistol might have been lawfully carried into the conflict, and if lawfully carried, it was not carelessness in the party carrying it; and yet the jury might have found, from the language of the charge, that the act of carrying it into the conflict for any purpose, was gross carelessness. The respondent’s evidence tended to show, that while he was endeavoring to expel Alonzo W. Davis from his land in a lawful manner, that Alonzo made an unlawful assault upon him, and that the pistol was discharged in consequence of such assault. The court should have charged the jury *646that if the respondent was carrying the pistol for a lawful purpose, the carrying it for such a purpose was not in itself carelessness ; and if it was afterwards accidentally discharged in consequence of the unlawful act of Alonzo, and without fault on the part of the respondent, he was not responsible for the consequences. In the above particulars we do not think the charge was as favorable to the respondent as it should have been. Some other exceptions were taken on the trial, but they have not been urged in this court, and hence we have not examined them with as much care as we should have done if they had been insisted upon in argument. From the examination we have given them, we have discovered no error in the rulings of the court, except in the matters indicated.

The exceptions are sustained, verdict set aside, and new trial granted.