224 Mo. 145 | Mo. | 1909
— This cause is now pending before this court upon appeal by the defendant from a judgment of conviction of murder in the second degree in the circuit court of the city of St. Louis, Missouri. In what was known as Walsh’s saloon, located at the northeast corner of Pine and 22nd streets, in the city of St. Louis, between two and three o’clock Sunday morning, January 29, 1905, defendant, Edward Kelleher, with a pistol, shot and killed Thomas Sullivan, a prize fighter by profession and known as “St. Louis Tommy Sullivan” in prize fighting circles. The defendant was charged by indictment with murder of the first degree, for the killing of said Sullivan. The sufficiency of the indictment is not challenged, hence there is no necessity for reproducing it.
This is the second appeal of this cause. See State v. Kelleher, 201 Mo. 614.
The evidence on the part of the State at the second trial tended to show that Herman Sellinger, Mike Morissev, William Taylor and the defendant, Edward Kelleher, were all standing at the bar in said Walsh’s saloon drinking, when Sullivan and the witness, John Howard (now deceased), came into the saloon, and Howard ordered the drinks for himself and deceased, Sullivan; that the defendant was standing near a water
To fully appreciate the nature and character of the testimony it is well to give a brief statement of the testimony of the witnesses as to the main facts developed at the trial of this cause. We have examined in detail the record disclosing the evidence, and by verification find that the learned counsel for appellant, in his brief abstract of the evidence of the various witnesses, substantially states the leading features of the testimony of such witnesses, as disclosed by the record.
John Howard was a witness in this cause upon the former trial and the testimony of Howard was preserved for the purpose of review, upon the former appeal. This witness, at the time of the second trial, was dead, and his testimony, which was preserved in the bill of exceptions, was presented to the jury. The
Cross-Examination: Deceased was a prize fighter and roomed at my father’s at 1914 Chestnut street. I lived with “my girl,” Mande Brooks, at 2024 Pine street. “I generally drink about 25 or 30- whiskeys a day and 40 or 50 beers.” The night of the shooting I had drunk 10 or 12 whiskeys and 14 or 15 bottles of Budweiser. Defendant was a barkeeper at Walsh’s saloon at 22nd and Pine streets, and deceased was accustomed to staying a good deal in the neighborhood at Kehoe’s saloon, between 22nd and 23rd on Pine street. As we went in Walsh’s saloon I spoke to Sellin-ger, but I did not hear deceased speak to anybody. After we took our places against the bar I did not look at any of the parties while waiting for and while drinking our drinks. I don’t know whether Taylor was in the room when the shooting occurred, and I did not take any notice of what the deceased was doing, nor at whom he may have been looking. I do not know of any previous trouble between Kelleher and deceased, and I do not know what Kelleher referred to when he said to deceased, “This is no place to come to look for trouble.” I don’t know whether I stated at the inquest that Kelleher applied an epithet to the deceased. Kell-eher had no gun in his hand when he spoke to deceased, nor until deceased jumped back from the bar and threw his hand back. “If he had any in his hand I certainly would have seen it.” After Kelleher addressed the deceased he jumped back and faced Kelleher and threw his hands back (illustrating by taking a position) ; I can’t say what he was reaching for. I was arrested during the night and I then and several times afterwards denied positively to the police that I knew anything about the shooting.
William Taylor, a, witness introduced by the State, in substance testified as follows: I am known as
Cross-Examination: Sellinger, Morissey, Kelleher and T were at different places drinking that night. I had ten or fifteen bottles of Budweiser. We were in Walsh’s about a half hour before the shooting took place. It did not occur a very short while after we got there. We had three of four drinks in there before Howard and deceased came in. We were all drinking heavily. I testified before the grand jury as to this shooting, and I swore that as we entered the saloon I took Morissey into the water-closet and let him vomit, and we were in there when the shooting occurred and saw nothing of it. I testified falsely. I would have said anything to protect him; I would not swear anything to protect myself or to get myself out of the penitentiary. I hope to get out of the penitentiary, but I am not sure of it. Mr. Sager promised me that if I would treat him right he would treat me right; he promised me that he would help to get me out and I hope to get
Re-Direet-Examination: I was indicted for perjury committed before the grand jury during its investigation of this shooting when I swore that I was not at Morgan’s saloon with Kelleher, Morissey and Sel-linger, and that I was in the water-closet with Moris-sey who was sick when the shooting occurred, and saw nothing of it. After the shooting I saw Sellinger put his gun on the music box. I did not see McTague pick the gun up from the floor and put it on the music box.
Herman Sellinger, the next witness for the State, substantially stated that: In January and February, 1905, I was conducting a saloon at 2028 Olive Street.
Cross-Examination: I had been drinking very heavily that night and I don’t really know what did take place before the shots were fired. I did not see whether Morissey and Taylor had gone back to the rear of the saloon or to the water-closet before the shots were fired, or not. “We all went in together and the trouble happened within a minute.” By “we”
Re-Direct-Examination: I went into Walsh’s saloon first alone and met Morissey, Taylor and Kelleher, and left there and went to Daneri’s saloon about 12 o’clock and from there to Morgan’s and then went back to Walsh’s about two o’clock.
John Hoffman testified: I am sergeant of police of St. Louis. I went to the saloon where the shooting occurred about 5 o’clock in the morning. I saw a bullet hole in the counter about 2 inches from the top and about midway the length. The bar runs north and south and the bullet appeared to have been fired from the southwest. I found the pistol on top of the music box which was about 7 feet high. That looks like the gun. It was loaded and I turned it over to Officer Can-tillion. I assisted in arresting the defendant at 2627 Locust Street, Walsh’s residence, about half past nine in the morning of the shooting. When I entered his room he was dressing, another officer having preceded me, and McTague was lying in bed. We took the defendant to the hospital in the presence of the deceased. The deceased made a statement and the defendant said, “I don’t know the man, never saw him in my life before.”
Cross-Examination: I don’t remember that I stated before the coroner at the inquest that the only statement I got from the defendant was in the wagon on the way to the hospital. The defendant never made any statement to me but once, and that was at the hospital. I don’t remember that on the former trial of this case I stated that I asked the deceased on the way from the hospital to the holdover, what he had to say to what Sullivan had stated in his presence at the hospital. I saw the gun handle sticking over the edge of the music box and took it down by tip-toeing. I could not see on top of the music box.
Cross-Examination: Bumberry’s saloon is about the middle of the block between 22nd and 23rd streets. I saw the deceased there about three o’clock in the morning. I went to the saloon where the shooting occurred and saw where a bullet entered the counter and splintered it up a little below the top of the bar. A large crowd gathered at Bumberry’s and I don’t know whether A1 Hamilton was there or not.
The witness was recalled by the prosecution and stated that since leaving the stand he had read his testimony given at the former trial and by refreshing his memory he could state that the deceased at Bum-berry’s saloon said that he thought it was all off with him.
Michael O’Brien testified: I am on the metropolitan police force and am a stenographer. On January 31st, 1905, I took the ante-mortem statement of the deceased at the City Hospital in shorthand and after reducing it to typewriting it was read over to the deceased and he signed it. Said dying statement was read in evidence and was to the effect that the deceased knew that he was dangerously injured and was liable to die; that about 3 o’clock in the morning he and Howard met at 21st and Chestnut streets, and from there went to Daneri’s saloon at 22nd and Chestnut streets where they remained about three-quarters of an hour and had about three drinks of whiskey ther.e, and from Daneri’s they went to Walsh’s saloon at Howard’s suggestion, and there he saw Kelleher who shot him. That he and Howard walked to the middle of the bar
Herman Sellinger (recalled) testified: I had a revolver with me the night deceased was shot, and after the shooting I put it on top of the music bos. I could not say who was present at the time that I did this.
Cross-Examination: I put the revolver on the music box a minute or so after the shooting and as soon as I walked back into the saloon from the rear thereof. I would not say that this is the revolver, but it looks like it. I had a partner named Cullen in the saloon business at 2028 Olive Street. The revolver was one that was kept in the saloon and may have belonged to Cullen and was the only revolver there that I knew about. I lived with a woman named Gene Rogers, who, according to the newspapers, was a. notorious panel worker and thief. I have been living in the tenderloin district for about three years. I don’t know whether I testified before the grand jury or not that I was in the water-closet when the shooting occurred. I was indicted for perjury before the grand jury. I was so drunk at the time of the shooting that I have a faint recollection of what occurred. I testified as a witness for the State at the former trial of this case and I did not at that time say anything about having put this pistol on the top of the music box, because I was not asked about it. I cannot say whether or not I will be prosecuted on the perjury indictment. At the former .trial I said that I had a pistol that night, and that was the only question asked me about a pistol and I never told anybody anything about it until I was arrested and brought back from Chicago on this per
The evidence upon the part of the defendant, as developed at the trial, was in substance, about as fol lows:
Dr. Henry Lloyd testified: I have been deputy coroner of the city of St. Louis for over three years and was coroner for one term, and I conducted the inquest on the body of the deceased, Thomas Sullivan. At the inquest, the witness, John Howard, in illustrating the motion made by the deceased when he jumped back from the bar, threw his right hand back towards his hip pocket. In his testimony before the coroner, Howard did not state that the defendant used any epithet toward the deceased on the occasion of the shooting.
William Winters testified: I am in the saloon business for about nine months. In January, 1905', I was barkeeper for John Shannon at 11th and Chestnut streets; I had been working for him for about two years. The deceased was in that saloon nearly every night. I recall the fact that deceased was shot one night in Walsh’s saloon, and that he was in Shannon’s saloon about 4 or 5 o’clock the preceding morning. He was standing in front of the bar having several drinks, and was talking about going and getting one of them “sons of bitches,” Kelleher or Taylor. Shortly afterwards he displayed a revolver and wanted to shoot it off in the saloon.
Cross-Examination: I understood from parties at the saloon that a fight had occurred there two or three days before in which Kelleher and deceased were engaged in the wine room of Shannon’s saloon. When I asked him what “sons of bitches” he referred to, he said, Kelleher or Taylor. It was a black gun that he displayed. I was not at the-saloon when the fight in which Kelleher and the deceased were engaged,
Beverly Brown testified: I am in the employ of the city as rodman with the surveyor in the Street Department. I knew Sullivan, the deceased, ten or twelve years, intimately. At about ten o’clock on the night of the shooting I walked with him up Chestnut street towards Howard’s saloon, and he told me about some trouble he had in a saloon at 11th and Chestnut streets a few days before, and he said that he was going up to Walsh’s and get even with Eddie Kelleher and that bunch, and asked me to go with him and I told him ¡I did not want to go up. He said he wanted to get a few drinks first. He displayed a revolver, and said, “We will go up and get them,” and I says, “I don’t want to go up. I declined the invitation.”
Cross-Examination: I don’t know how often I have been arrested on charges in the police court. The gun deceased displayed to me was black. The deceased was in the habit of carrying a pistol continually. I have seen him with a pistol lots of times.
Michael Ryan testified: I am a carriage driver, and in January, 1905,1 had a stand at 19th and Chestnut streets at the southwest corner at Howard’s saloon. I heard of the shooting of the deceased, Thomas Sullivan, the same morning that it happened. He was shot at Walsh’s saloon at the corner of 22nd and Pine streets. I saw him about one o’clock the same night that he was shot. He was drinking and he wanted to hire my carriage to go up to Manly’s saloon and from there to Walsh’s saloon, and said he “wanted to get Kelleher.” I told him I was engaged, but I was not. I don’t know whether he had a pistol that night, but I saw him display a pistol a short time before that when I had him and a man by the name of Brown and they talked about beating some man up in his room. I was hauling them from 11th and Chestnut up to 19th and Chestnut streets.
A1 Hamilton testified: I am a cigar salesman. I heard of the shooting of deceased shortly after it occurred and I went to Bnmberry’s saloon where he was. I knew Sullivan well for about five years. He roomed' with me once for about two or three months. I stooped over him and had a talk with him as he lay on a cot in Bumberry’s saloon, and I asked him how he got shot, and he said, “Well, they beat me to it.” I after-wards went to Walsh’s saloon and Officer Yollmer put me in charge of the place after arresting the parties therefrom.
Cross-Examination: I afterwards examined the bar where the bullet had struck and one of them found a revolver on top of the music box. I have been arrested but was acquitted.
Officer Theodore Vollmer testified: I am in the undertaking business and was on the police force January, 1905. Being notified of the shooting I went to Bumberry’s saloon, where the deceased was lying on a cot, and thence to Walsh’s saloon, where the shooting had occurred, and there arrested Sellinger, Morissey and Taylor. At- an early hour on the same night, I was called to Morgan’s saloon, and found Sel-linger, Taylor, Morissey and Kelleher in there. I searched both Sellinger and Kelleher for pistols and did not find any on them.
John Cullen testified: I am in the cigar business now. In January, 1905, Herman Sellinger and I were in the saloon business together at 20'28 Olive street.
John J. Noonan testified: I am sergeant of police. I have known the deceased eight years and once had occasion to arrest him on a charge of “holding up” a young man. The reputation of deceased for general morality was bad.
J. R. Shipp testified: I am in the saloon business and was formerly on the police force up to the 10th of January, 1906; have been on the force for about five years. I knew deceased around the corners of the beat that I walked, and knew him quite well, and ran him off my beat several times. His general reputation was bad.
Thomas E. McTague testified: I came from New Orleans, where my mother lived, to St. Louis about five years ago. In January, 1905, I lived at 2629 Locust street at a rooming house, the same place that Mike Walsh lived, and I had been, “off and on,” barkeeper for Mike Walsh. The defendant also was a barkeeper for Walsh. On the night of January 29, 1905, I entered Walsh’s saloon between 2 and 2:30 in the morning, by front door on 22d and Pine streets. There was also a rear door to the saloon on 22d street. Just as I entered the saloon I noticed Eddie Kelleher, Herman Sellinger, John Howard and Tommy Sullivan standing at the bar: Kelleher was at the south end of the bar, Sellinger was next to him, Howard was next to Sellinger and Sullivan was next to Howard. As I entered I heard a remark passed and Sullivan replied, “Tes, G-od damn you,” and just then I had about reached a music box which stood against the west wall of the saloon and! about opposite the middle of the bar. Then Sullivan made an effort to draw his gun and Kelleher stepped out and shot at Sullivan and
Cross-Examination: I was standing at the south side of the music box and Sullivan was to the north of me and near the water-closet. Thére was nobody beyond or north of him. Kelleher was south of him near the partition. Sullivan and Kelleher stepped out from the bar about the same distance. I did not testify at the coroner’s inquest; I was not subpoenaed. I testified at the former trial of Kelleher to the same statement I am now testifying. I did not testify at the trial of Taylor or Morissey. G-ussie Groves, Mike Walsh’s woman, is notorious. I room there and pay my rent. I held a position as street inspector under the city until about a year ago. Walsh’s saloon was resorted to by bad characters. I am not married, have no wife in New Orleans, nor was I ever married in Illinois. I was on my way home when I stopped in Walsh’s saloon the night of the shooting. I don’t
Re-direct Examination: At the time Sullivan went back for his gun, Kelleher had made no effort to draw his revolver., Sullivan was the first one to go back for his gun. I was never arrested in my life before the time of this shooting. The arrest referred to by me occurred. since then.
In addition to the testimony, as herein indicated, the State introduced Dr. J. A. Hartman and Dr. John Young Brown, both of- whom fully testified as to the nature and character of the wound, and that the death of Sullivan was the result of the gunshot wound.
This is a sufficient indication of the nature and character of the testimony upon which this cause was submitted to the jury. The testimony developed upon the trial, as well as the objections interposed by counsel for the defendant, will be alluded to and given careful attention during the course of the opinion.
At the close of the evidence the court instructed the jury upon murder of the first and second degrees ,and self-defense, and also covered by appropriate instructions all the other subjects to which the testimony
The cause was submitted to the jury upon the testimony as developed and the instructions of the court, and they returned their verdict finding the defendant guilty of murder in the second degree, and assessing his punishment at fifteen years’ imprisonment in the penitentiary.. Timely motions for a new trial and in arrest of judgment were filed, and, by the court, overruled. The defendant was duly sentenced in accordance with the verdict, and judgment and sen-tencé duly entered of record.. From this judgment this' appeal was prosecuted, and the record is now before us for consideration.
OPINION.
The record in this case discloses the assignment' of numerous complaints of error as a basis for the' reversal of this judgment. We will give to the complaints of the appellant such consideration as in our opinion their importance requires.
I.
The most serious proposition presented by the record with which we are confronted, is the assignment of error upon the part of the trial court in the admission, over the objections of the defendant, of certain portions of the dying declaration made by Thomas Sullivan, the deceased. The declaration of which complaint is made and to which timely exceptions were preserved, was in the form of answers by; the deceased to certain interrogations propounded. To fully appreciate this proposition it is essential that we reproduce such portions of the dying declaration of
“Q. Where did you meet Johnnie Howard? A. 21st and Chestnut street. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)-
“Q. Where did you go then? A. We went to Joe Danexi’s, 22d and Chestnut streets. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)
“Q. How long did you stay in Daneri’s? A. About three quarters of an hour. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)
“Q. Did you have any drinks while in there? A. Yes, sir. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)
“Q. About how many? A. Three, I believe. (Objected to by defendant as not being part of res gestae and immaterial. Objection overruled and exception saved.)
“Q. Was it beer or whiskey? A. Whiskey. (Objected to by defendant as not being a part of ‘res gestae and immaterial. Objection overruled and exception saved.)
“Q. Where did you go from Daneri’s? A. Over to Walsh’s. Johnnie says, ‘Let’s go in and get a drink.’ (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)
“Q. Where did he say that? A. When we got opposite Walsh’s. (Objected to by defendant as not being part of res gestae and immaterial. Objection overruled and exception saved.)”
That the declarations as herein indicated, to which objections were interposed, related to matters occur
The proposition now under consideration was sharply presented to this court in State v. Parker, 172 Mo. 191. In that case, as in the case at bar, objections were interposed to certain portions of the dying declaration, and this court, speaking through Judge Gantt, very clearly and correctly announced the well settled rules applicable to the admission of dying declarations. In treating of the proposition in that case, it was said:
“We are thus brought to the objection that portions of this statement were incompetent because it was not confined and restricted to the identification of the accused and the deceased and to the act of killing and the circumstances immediately attending said act and forming a part of the res gestae.
“Dying declarations a.re admissible as to those facts 'and circumstances constituting the res gestae of the homicide, but as to all other matters occurring anterior to the killing and not immediately connected with it, they are incompetent. This is the settled law of this State. [State v. Draper, 65 Mo. l. c. 340, and cases cited; State v. Vansant, 80 Mo. l. c. 76; State v. Bowles, 146 Mo. l. c. 16; l Greenleaf on Ev., sec. 156; State v. Parker, 96 Mo. l. c. 392.]
“The portions of the statement to which defendant objected, outside of those excluded by the court and included within brackets, are the following: ‘I never made any threats against him in my life.’ The State by its counsel conceded that the words ‘in my life’ should be stricken out and the defendant objected to striking out those- words without striking out the whole of that sentence.
*168 “We think the court erred in not striking out the whole of said sentence. It necessarily referred to matters anterior to the fatal encounter, was not a part of the res gestae and under the rule just announced was inadmissible. It cannot be said that it was harmless as it tended directly to disprove the evidence of the defendant’s witnesses that deceased had made threats of violence toward defendant and they had been communicated to defendant.
“Other parts of the statement to which exception was taken, were: ‘I had not touched a drop of liquor for over a month;’ ‘I know of no reason why he shot me, except as above stated;’ ‘I did not think he was going to shoot me, as I had never given him any cause to shoot me;’ £I had never had a quarrel with him.’
“Each of these statements are subject to the same objection as the one above noted. They do not purport on their face to be statements of any facts which occurred at the killing. They refer either to the absence of threats anterior to the homicide or the conclusions drawn by deceased that defendant had no cause to shoot him. We think they should likewise have been excluded. [State v. Elkins, 101 Mo. 344.]”
With equal clearness, Judge Bubgess, in this case upon the former appeal, exhaustively reviewed the authorities upon the subject of dying declarations which related to facts and. circumstances occurring subsequent to the fatal difficulty, and expressly held that such facts did not constitute any part of the res gestae, and therefore were inadmissible. The same rule which was so clearly pointed out as to facts and circumstances occurring subsequent to the killing, applies with equal force to the facts and circumstances occurring anterior to the fatal difficulty, which are not immediately connected with and forming a part of the res gestae.
It must not be overlooked that the learned trial judge was not in any way misled, either by the action
“Mr. Harvey: It was objected to as not being a part of the dying declaration proper. In the .dying declaration you cannot give anything except the facts immediately connected with the alleged homicide.
“The Court: Anything he testified to in his dying statement.
“Mr. Harvey: I wish to state, as I understand the ruling about a dying declaration, they can contain only such things as grew immediately out of, or occurred with the alleged shooting or killing. Anything that occurred before that, or afterwards, the dying declaration could not contain; it is confined to what occurred at the time, and arose immediately out of it.
“The Court: It may contain anything the dying party might have testified to, both before and after the transaction. ’ ’
Upon the complaints of the appellant as to the admission of the portions of the dying declaration as heretofore indicated, the learned Attorney-General submits two propositions:
First: That the opinion by this court upon the former appeal based upon the ante-mortem statement
Second: That the questions and answers of the ante-mortem statement objected to by the appellant do not in any way violate the rule as laid down in the cases of State v. Draper, 65 Mo. 335; and State v. Bowles, 146 Mo. 6.
After a most careful consideration of the propositions so ably presented by the Attorney-General, we are unable to give our assent to the correctness of either insistence. While it is true that the declarations now under consideration upon this second trial were embraced in the record upon the former appeal, but manifestly an examination of the opinion will demonstrate that the question as to the competency of such declarations was not passed upon by this court, for the reason that they were not in judgment before the court. Counsel for appellant, upon the former appeal, did not embrace the dying declarations now under consideration among those to which he interposed an objection; hence Judge BuRgess in treating of the question as to the admissibility of dying declarations, correctly directed his attention only to those to which an objection had been interposed. The dying declarations involved in this proceeding were not discussed, and of course were not erroneously admitted in that case, for the reason that they went in without objection.
We know of no rule which would preclude a defendant on a second trial from interposing objections to testimony which was admitted upon a former trial without any objection. It often occurs in the trial of causes that instructions are given as well as evidence introduced to which no objection is made, and this court in disposing of the case would not give any attention to such instructions or to such evidence, for the reason it was not before the court for review; but upon some subsequent trial where the same instructions were given and the same evidence introduced, to which clear
It often happens in the trial of important cases that learned and able counsel, being confronted with so many complicated questions, may fail to timely interpose an objection to certain testimony or to certain instructions given in the cause. As in the case at bar, the dying declarations offered in evidence by the State were quite lengthy and consisted of questions and answers by the deceased. In going over such questions and answers counsel failed to make his objections to certain portions of them, but did not make objections to other portions of the dying declaration, and by reason of the admission of the portions to which objections were interposed, the judgment in the case was reversed and the cause remanded, and a second trial had. This second trial was separate and independent of the first. All of the facts essential to establish the guilt of the defendant had to again be developed by the State, as well as all matters of defense by the defendant had to be again introduced at that trial, and in our opinion it cannot be seriously contended that the defendant did not have the right to interpose objections to any portion of the testimony which may have been introduced in the former trial without any objection, and the mere fact that this court upon the former appeal did not treat of the admissibility of certain evidence, for the reason that it was not subject to review, and was admissible on the ground that the testimony went in without any objection, should not be held as res judicata of the question as to the admissibility of such evidence
Recurring to the second proposition insisted upon by the learned Attorney-General, that'is, that the ante-mortem statement objected to by appellant does not in any way violate the rule as laid down in the cases heretofore indicated, we will say that the portions of the dying declaration to which timely objections and exceptions were made, are fully set forth herein, and in our opinion they furnish a full and complete answer to the question as to whether or not such declarations related to matters and incidents occurring anterior to the killing and not immediately connected with it. The answers and questions embraced in the dying declarations show beyond dispute that they had reference to matters which occurred anterior to the killing, which were not immediately connected with it, and for that reason such declarations formed no part of the res gestae of the homicide.
It does not furnish a sufficient o.r satisfactory answer to the complaint urged by appellant that the dying declarations as herein indicated were not admissible, to say that they were harmless. It may be said that a number of the questions and answers embraced in the dying declaration concerning the different saloons visited and the number of drinks taken, and the character and class of drinks, were not of very much importance, yet they might, however, be used by the State to some extent for the purpose of corroboration of one of the leading witnesses against defendant, John Howard; but when we reach the questions and answers in the dying declarations wherein the deceased states in substance that he went into Walsh’s saloon at the solicitation of John Howard for the purpose of getting a drink, and that this suggestion was made before they entered the saloon of Walsh—in other words, as stated in the declaration that this suggestion was made “when we got opposite Walsh’s,” it presents a statement which
Tbis testimony as introduced by tbe defendant could be used and doubtless was used in tbe discussion
We have carefully analyzed the Parker case, heretofore referred to, and we are unable to distinguish the force and effect of the dying declarations which were erroneously admitted in the case at bar, and the testimony in that case which was held to be incompetent and inadmissible. The portion of the statement in the Parker case which was introduced as a dying declaration, embraced the following: “I never made any threats against him in my life. ’ ’ This court held that the trial court erred in not striking out the whole of that sentence, and in assigning a reason for such holding it was said that the declaration could not be treated as being harmless, as it tended to directly disprove the evidence of defendant’s witnesses that deceased had made threats of violence toward the defendant. So we say in the cage at bar, that the dying declaration introduced in evidence which was anterior to the time of the
We see no necessity for pursuing this subject any further. If the Parker case announced the correct rule, and we see no legal valid reason for departing from it, concerning the declarations sought to be introduced in that case, then we see no escape from the conclusion in the case at bar that the learned trial court erroneously and improperly admitted the declaration to which we have referred.
n.
It is insisted by appellant that William Taylor, commonly known as “Buck” Taylor, who testified in this cause against the defendant, was incompetent as a witness. This witness was convicted and sentenced to seven years in the penitentiary for perjury, and while serving said term of imprisonment he was brought from the penitentiary by a guard and introduced as a witness by the prosecution in this cause. The defendant, through his counsel, upon the facts being developed that this witness was serving a sentence in the penitentiary, and was in attendance upon court .unlawfully and without any authority of law, interposed an objection to his competency, which objection was overruled and a timely exception preserved.
It is sufficient to say of this proposition that it is conceded by counsel for appellant and respondent that this witness has been pardoned and is now not an inmate of the penitentiary, therefore upon the retrial of this cause the grounds urged in the case at bar as to his incompetency, will not be in existence, his term of ser
III.
It is next insisted that the court committed error in its refusal of the second and third instructions requested by the defendant on the subject of imperfect self-defense. It is only necessary to say upon that proposition that the leading features of the testimony in the case at bar are substantially the same as disclosed by the record upon the former appeal. Judge Bxjegbss fully, treated of the propriety of similar instructions in the disposition of the case upon the former hearing. In our opinion the question as to the propriety of those instructions was correctly determined in that case, and we see no legal valid reason for departing from the conclusions therein reached.
IV.
We have indicated our views upon the leading propositions disclosed by the record, and it is sufficient to say of. the other complaints made by appellant, to which we have given consideration, that they are insufficient to warrant this court in reversing the judgment. For the errors as herein pointed out, the judgment of the trial court should be reversed and the cause remanded. It is so ordered.
