55 Kan. 135 | Kan. | 1895
The opinion of the court was delivered by
The appellant, Anderson Gray, and one Thomas McDonald were jointly charged with having murdered Thomas Patton, in Sumner county, on the 5th of May 1894. The defendant, Gray, was separately tried and convicted of murder in the first degree. From that conviction he has appealed to this court.
The evidence clearly shows that the gunshot which killed Patton was actually discharged by McDonald, and that Gray was not, in fact, present at the shooting. The theory of the prosecution was that Gray counseled and incited McDonald to commit the .murder. It appears that McDonald was working for Gray as a hired hand on his farm; that Patton was a tenant of Gray’s, living on a portion of his farm about half a mile distant from Gray’s house.. Both
The first error alleged is with reference to the admission of a dying declaration of the deceased, Patton. The shooting occurred between 9 and 10 o’clock in the morning. Patton died at nine o’clock that night. During the interval he was conscious, and believed he was about to die. Mrs. Harmon, a witness called by the prosecution, testified to having a conversation with the deceased at about half past two in the afternoon, in which he told her he had no hopes of recov
"Ques. Did he state to you or did you have any conversation with him as to who was concerned in the matter, or had anything to do with it, during that ■ evening? Ans. That day I did.
"Q. About what time? A. I think it was about half past two ; something near that.
" Q. A¥hat did he say in that respect? [This question was objected to as incompetent, irrelevant, and immaterial, and because no proper foundation for it had been laid. The objection was overruled, and the witness answered.] A. He said Mr. Gray had it done. Paid ‘ Gray done this.’
“ Q. State just how he said that. A. Just as I spoke it. Said ‘ Gray had this done. This was Gray’s work.’ ”
These declarations were admitted in evidence, not as a part of the res gestte, but as dying declarations. The rule as to the admission of such declarations was well stated in the case of The State v. Medlicott, 9 Kas. 257, as follows :
‘ ‘ Statements not under oath can only be admitted in evidence as dying declarations when they are made in extremis, and where the death of the person who made the declaration is the subject of the charge, and ■where the circumstances of the death are the subject of the declaration, and the person making them is in the full belief that he is about to die ; and this condition of the mind must be made clearly to appear.”
It is conceded that Patton was in extremis when the declarations were made, and without hope of recovery.
Under these authorities, no error is shown in the action of the court. It is true that the question is not so carefully framed as it might have been; but as it fairly called for competent testimony, we do not think that the mere fact that a witness could possibly give an improper answer which would yet be responsive to the question a sufficient ground of itself for a reversal. The other testimony in the case renders the objectionable statement quite unimportant. The witness, Craig, testified without objection that while walking along the road toward the scene of the tragedy Patton told him about the difficulty he had had that morning, in the course of which he said, P McDonald was brought there for a game, and now he got the game and had to play his hand.” N. J. Probst, who was with Gray
“Q,ues. Did he say what gun? Ans. I do n’t know whether he said. I rather think he said the ‘big gun’ ”
It does not appear that Gray made any response. It would appear from this question, which Patton asked Gray, that he recognized the gun as one belonging to Gray. There is a great deal of other evidence in the record showing that Gray was instrumental in bringing on the quarrel between Patton and McDon'ald; that he then took especial pains to excite McDonald’s fears, and make hip. believe that Patton was a desperado, who would surely take his life if he had an opportunity to do so ; that he urged McDonald to prepare himself, and to get in a position where he could kill Patton without incurring any risk of being killed himself; that it was at his suggestion that McDonald practiced shooting at a target; that he cleaned the gun afterward, and furnished the cartridges ; that McDonald’s wife protested against her husband going out to do the deed ; that Gray insisted to her that her husband would be killed if he did n’t kill Patton ; that he then went with McDonald, selected the spot where he should lie in wait for his victim ; that after the tragedy life swore before the coroner’s jury that McDonald was in the house sick at the time ; that he believed the shooting was done by Dave Patton, a cousin, with whom the deceased had had difficulty; that he. had found tracks in the grove which other witnesses who made search for them failed to find ; that he afterward
If the jury believed the testimony of McDonald and his wife, which they were of course at liberty to do if satisfied of its truthfulness, the evidence is overwhelming and absolutely convincing of the guilt of Gray. Even if they were to discard the evidence of both the McDonalds, and to leave entirely out of consideration this dying, declaration of Patton, which is objected to, still a very strong case remains, hardly admitting of a reasonable doubt, that Gray was the moving cause of Patton’s death. When Mrs. McDonald was on the witness-stand, she was asked :
“Ques. Now, I will ask you, Mrs. McDonald, if a short time after this shooting, I forget whether it was the morning or the evening after, but a short time afterward, if you heard Mrs. Gray in the presence of Mr. Gray and your husband say anything about who was to blame for this? Ans. Yes, sir.
*143 “ Q,. State wliat she said. [This was objected to, but the objection was overruled, and the witness answered.] A. On Saturday evening, after this trouble > had occurred, Mr. Gray was standing in the kitchen washing his hands, and my husband and I were fixing to go up stairs. Mrs. Gray came,to the middle door that came out of the front door, and was very mad, and she says, ‘ Tom, am I to blame for all this trouble that occurred to-day? ’ And my husband did n’t say anything, for he did n’t have time. She says, ‘ Mr. Gray says I am, and if I am, when the time comes to tell anything, I will tell the truth and I will see where I send him.’ And Mr. Gray said, ‘ Shut up ; we have got you all right.' Your evidence don’t amount to anything. Go on Tom, do n’t pay any attention to her ; to what she says.’ ” .
It is contended that the law not only prohibits proof of confidential communications between husband and wife, by one of them, but also prohibits the proof of communications between them by others who were present and heard them. This contention is unsound. Communications between husband and wife are not confidential when made in the presence of third parties, and part of the statements in this case were made directly to a third party. In The State v. Buffington, 20 Kas. 599, it was held, that—
“In a criminal prosecution, where a letter previously written and sent by the defendant to his wife is not in the custody or control of either the defendant or his wife, nor in the custody or control of any agent or representative of either, but is in the custody and control of a third person, who is the prosecuting witness in the case, such letter may be used as evidence in the case by the prosecution against the defendant.”
It is not the communication between husband and wife that is privileged, but the husband and wife are incompetent witnesses to prove the communication.
The only other claims of error in this case arise on the instructions. The defendant asked the court to instruct, in substance, that the defendant, Gray, could not be convicted unless they also found that the defendant, McDonald, was guilty of some degree of felonious homicide ; and that they could not convict Gray as an accessory before the fact of any higher grade of offense than the evidence convinced them McDonald was guilty of. The court did instruct the jury, as follows :
“You are further instructed, that before you can find the defendant, Anderson Gray, guilty as charged in this action, you must find from the evidence beyond a reasonable doubt, that the defendant, Thomas McDonald, was guilty of and committed some degree of felonious homicide as explained to you in these instructions, in the shooting and killing of Thomas Patton.”
Complaint is also made of the twenty-fourth instruction, a part of which only is quoted in the brief. The whole instruction reads as follows :
“The court further instructs the jury, that if Thomas McDonald, after having made preparations to kill the deceased, Thomas Patton, and having placed himself in ambush for the purpose of so doing, abandoned the purpose of so killing the deceased from ambush, or killing him at all, then such abandonment would be a defense for the defendant, Anderson Gray, but before the defendant, Anderson Gray, would be entitled to such defense, it must be shown to the jury that Thomas McDonald had wholly abandoned such preparations to kill the deceased, Thomas Patton, and had absolutely given up all preparation in that regard ; and i't is not sufficient to prove such abandonment, by the mere declaration of the said Thomas McDonald*146 of such mental change, provided that you believe, beyond a reasonable doubt, that he continued in the execution of the design until he shot and killed the deceased, Thomas Patton. Before you would be justified in believing that there had been an abandon-men of such plans and preparations, there should be shown. some substantive act that the abandonment was real, and something more than his mere declaration of such change of mind.”
Counsel selects out and disconnects a part of one sentence, and contends that the court has, in effect, said that the uncorroborated testimony of an accomplice is legally sufficient to convict, hut insufficient to acquit. But the court, in the above instruction, said “It is not sufficient to prove such abandonment by the mere declaration of the said Thomas McDonald of such mental change.” The law was correctly declared in-this instruction. (1 Whar. Crim. Law, §187.)
Although the record in this case is very long, and the defense in the trial court was conducted with skill and vigor, we find it free from substantial error. The instructions given by the court are remarkably full, clear, and fair to the defendant. The jury have rendered a verdict which is sustained by competent and convincing testimony. We affirm the judgment.