24 Or. 295 | Or. | 1893
delivered the opinion of the court:
The defendant, Frank Eletcher, appeals from a judgment of conviction of murder in the second degree in killing one Charles Petre, and assigns error in the admission and rejection of evidence by the trial court.
1. A question is made that the ante mortem declarations of the deceased were improperly admitted, because, it is claimed, the evidence does not show that they were made under a sense of impending death. The deceased was shot through the head about eleven o’clock on the evening of the ninth of November, 1892, while in bed, from the effects of which he died about three o’clock on the second day thereafter. It appears from the testimony of Frank Olinger, a boy about eleven years old, who was the only eye-witness to the homicide, that soon after the shooting the deceased got out of bed and tried to build a fire. Then he attempted to wash the blood from his person and close the door, but went back to bed, saying he “was shot through the head, and did not think he would live because he was hurt too bad.” When visited by the physicians on the afternoon of the following day, he was found in a semi-comatose but conscious condition, capable, when aroused or spoken to, of answering intelligently such questions as were propounded to him. The witness Martin testifies that he called at the residence of the deceased about four o’clock on the day following the shooting, just as the physicians were leaving, and remained about two hours. At intervals during the time he was there the deceased used the expression, “ My God, I can’t live! ” and after he had used this expression several times the witness says: “I went back to the bed where he was lying and spoke to him, and took him by the hand, and said: ‘Charley,do you know me?’ and he hocked the blood out
2. The witness Olinger, who at the same time was shot in the neck and hand, remained alone all night with the deceased, and in the morning started to his own home about a mile and a quarter distant, but returned because, as he testified, he was afraid that two persons whom he saw going from the barn along the fence, but did not recognize, would kill him. An attempt was made by the defendant to impeach this witness by showing that he had stated to one Jessie McKinney, or in his presence, that one of the men he saw coming from the barn on the morning after the shooting, was the defendant, but on an objection by the state, the evidence was rejected. The object of this proposed evidence was to impeach the witness by showing that he had made statements out of court inconsistent with his testimony, but, if the court below was in error in supposing that a proper foundation had not been laid for its admission, the exclusion of the evidence was harmless error because the witness admitted on the stand that he had so stated to different persons. When we remember that he claims to have recognized the defendant at the time of the shooting, as one of the persons who so foully attempted to murder him, it is not surprising that on the following morning, alone in the mountains, a mile and a quarter from home, and suffering from his wounds, the boy should have thought or imagined that one of the persons he saw coming from the barn, as he supposed, was the defendant.
3. The next assignment of error is in the refusal of ■ the court to permit the defense to use the pistol and cart
4. The next assignment of error is in the refusal of
In Greenfield v. People, 85 N. Y. 76., the defendant, under an indictment for murder, and against whom the evidence was only circumstantial, offered in evidence a letter written by one Royal Kellogg to his brother, which,
In Walker v. State, 6 Tex. App. 576, on an indictment for murder, it was held incompetent for the accused to prove that a very short time before the homicide a person other than the accused made threats to take the life of the deceased, the court saying: “The issue on the trial was the guilt or innocence of the defendant on trial. Evidence is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; and this seems to be the limit,, and excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and for the good reason stated for the rule by Mr. Greenleaf, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice, and mislead them: 1 Greenleaf, Evidence, §§ 51, 52.” So in the case of State v. Davis, 77 N. C. 483, which was also an indictment for murder, the prisoner proposed to prove by one Peck “that George Nicks had malice.toward the deceased, and had a motive to take his life, and opportunity to do so, and had threatened to do so before the court.” He further offered to prove by one Rice, “that one Peck took a gun, and went in the direction of the house of the deceased with the threat that he was going to kill the deceased some time before the deceased was killed.”