State v. Lewis, 264 Mo. 420

State v. Lewis

264 Mo. 420 | Mo. | 1915

WALKER, J.

On an amended information filed in the circuit court of Washington county charging appellant with murder in the first degree in having shot and killed one James Edsell, appellant was upon a trial in said circuit court at its August term, 1913, convicted of murder in the second degree and his punishment assessed at ten years’ imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, an appeal was granted to this court, and the approval of a bail bond by the trial court authorized *426a stay of execution pending the determination of the case here. This is the second appeal in this case. After a conviction of murder in the second degree at the first trial upon the same information under -which appellant was tried in the instant case, he appealed to this court and the judgment of the trial court was reversed and the case remanded for a new trial for the errors set forth in the opinion. [248 Mo. 498.] The facts in each trial are substantially the same in all material matters, as admitted by counsel for appellant, except as to the admission at the second trial of evidence in regard to dying declarations. Por a statement of the facts, therefore, reference may be had to the court’s opinion on the first appeal, except as to matters not therein reviewed, which will be set forth at length.

The witnesses in regard to the dying declarations were Dr. David Foard, Silas Baker and Henry Tyrey. Dr. Foard, whose testimony is in the main that of the others, testified that he reached the scene of the shooting about 10:30 o ’clock p. m., August 6, 1911; that he was called there to attend James Edsell, who was alleged to have been shot by appellant. Upon his arrival the doctor found Edsell lying on the ground in front of the church; that he examined and determined the location of the wounds, and informed Edsell they were fatal and that he was bound to die. Edsell said he knew it, and began to tell his friends good-bye. One of them was his father-in-law, Mr. Tyrey. In telling them good-bye Edsell said he knew he was going to die, and, addressing his father-in-law, asked him if he would not take care of his (Edsell’s) wife and children. Edsell, in detailing the facts in regard to the difficulty to the witness after he had said he knew he was going to die, stated, in effect, that after he (Edsell) and some young men present had been quarreling appellant said to Edsell: “You have said enough to the boys;” that he (Edsell) then stepped down off of the porch before *427the church door and struck appellant and a shot was fired which struck and wounded a Miss Palmer, who fell to the ground; that he (Edsell) turned to where the girl had fallen and was stooping over her, and upon rising up saw appellant right at him with a gun drawn on him; that he (Edsell) grabbed or struck at the gun, but could not get it out of appellant’s hands, and that he and appellant then clinched and two shots were fired. Edsell died at his home August 8, 1911, two days after the difficulty, from the effects of the gunshot wounds.

Appellant assigns as error: (1) The improper admission of the testimony of certain witnesses as to the dying declarations of the deceased; (2) The exclusion of certain testimony of appellant’s witnesses named in the motion for a new trial; (3) The giving of all of the instructions on the court’s own motion; (4) the refusal of instructions numbered 1, 2 and 3 asked by the appellant; and (5) permitting special counsel for the State to refer to what appellant failed to say when he was a witness and subject to cross-examination.

I. Dying Declarations. — Appellant contends that error was committed in admitting statements of certain witnesses in regard to the dying declarations’ of the deceased. It is elementary that dying declarations are admissible when made under an impression of impending death. It will be recalled that the deceased was told by the witness, Dr. Foard, that his wounds were fatal and that he was bound to die from the effects of same. To this the deceased replied that he knew this to be a fact, and thereafter he bid friends who approached him good-bye and especially requested his father-in-law to take care of his wife and children. These parting adieus and his anxious solicitude as to the future care of his wife and children are confirmatory of his general realization expressed to the witness, Dr. Foard, that he was conscious of his impend*428ing dissolution, and renders Dr. Foard’s testimony clearly admissible. As was said in State v. Colvin, 226 Mo. l. c. 482: “It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind. ’ ’ In the same case, following the rule laid down in earlier cases, it is held that the length of time between the declarations and the death of the declarant ■furnishes no rule for the admission or rejection of the testimony. The admissibility of the testimony being, in its last analysis, dependent upon the declarant’s impression of impending dissolution and not the rapid succession of death. In the instant case, the declarations of deceased were made soon after he had been shot, but death did not ensue until two days later. In State v. Wilson, 121 Mo. l. c. 439, statements made by a deceased as to the circumstances under which he was shot were obtained from the deceased six days before he died. In Commonwealth v. Cooper, 5 Allen (Mass.), l. c. 497, where a person believed he could not recover, his declarations made to a witness as to the assault seventeen days before his death were held admissible. The court said in this case that the question as to the admissibility of testimony of this character “does not depend upon the length of interval between the death and declaration, but on the state of the man’s mind at the time of making the declaration, and his belief that he is in a dying state. ’ ’

The consciousness of the declarant in the instant case that his wounds were fatal renders admissible the testimony of the witnesses, other than Dr. Foard, to whom the deceased made relevant statements in regard to the difficulty after his declaration to Dr. Foard of a *429belief in Ms impending dissolution. No other tenable objection can be raised to the testimony of these witnesses, because it fills the full measure as to the competency and relevancy of evidence of this character, in being confined to matters occurring at the time of the shooting and in detailing facts and not mere conclusions of the declarant, and, if the rule required it, comprising a continuous and connected statement of facts and not a disconnected patchwork of relevant and irrelevant statements. We would not be understood as holding that a statement of facts in a dying declaration brought out by proper questions to which relevant answers were made would not be admissible as a dying declaration, as has been held in a number of well-considered authorities (Rex v. Fagent, 7 Car. & P. 238; Vass v. Commonwealth, 3 Leigh (Va.), 786; State v. Martin, 30 Wis. 216; People v. Sanchez, 24 Cal. 17), but to emphasize the fact that in the case at bar even this objection could not be urged against the declarations.

II. Exclusion of Testimony. — Appellant contends that the trial court erred in excluding parts of the testimony of certain of his witnesses, whose names are set forth in the motion for a new trial. After a careful examination of the entire testimony, especially that of the witnesses named, we find that no such definite and specific objections were made to the court’s ruling in this regard as to preserve the errors, if they existed, for our consideration. No reasons were assigned in opposition to the trial court’s rulings, counsel for the appellant simply contenting themselves with “I object.” This, we have repeatedly held, is not an objection sufficient to base an exception thereon which will authorize a review of the trial court’s action here. It is not a finical reason to exclude matters sought to be preserved for review by this class of objections, but the rule is based upon an effort on the part of the *430courts to promote a careful and correct administration of the law. The trial court is entitled to know the reasons which move counsel to action in the stress of a trial, and it is hut fair that they should he stated in order that intelligent rulings may he made upon the matter in controversy. More briefly stated, the reason being given by counsel for his contention, the trial court will he better enabled to rule rightly and the appellate court to determine whether there is ground for reversal on account of the alleged erroneous ruling. See State ex rel. v. Diemer, 255 Mo. l. c. 345, in which Judge Lamm learnedly and laboriously compiles and comments upon the Missouri authorities in which it has been ruled that general objections to the action of the trial court in regard to testimony are no objections. In State v. Crone, 209 Mo. l. c. 330, a like ruling confined to criminal cases appears supported by references to a number of earlier cases. There is, therefore, no merit in appellant’s contention that the trial court erred in ruling upon the evidence.

III. Instructions Given. — Appellant contends that the instructions, fourteen in number, given by the court on its own motion, were erroneous. Instruction numbered 1 correctly declared the law in regard to murder in the first degree. Appellant, however, was convicted of murder in the second degree, and if the instruction had been erroneous he would not be heard to complain. This was ruled as above stated upon the former appeal in this case. [State v. Lewis, 248 Mo. l. c. 504, following a like ruling in earlier cases.]

Instructions numbered 2, 3, 4, 5, 6, 7, 8 and 9 covered murder in the second degree, presumptions arising from the use of a deadly weapon, credibility of witnesses, credibility of defendant as a witness, presumption of innocence, reasonable doubt, and that the information was a mere formal charge. These instructions were literal copies of in*431structions approved in the former review of this case by this court, are in the forms which have oftentimes received judicial sanction, and time and space will not be consumed in their further discussion, except to say that instruction numbered 2 for murder in the second degree was based upon sufficient evidence to authorize its being given. The deceased struck appellant just a few minutes before the latter shot him; deceased grappled with appellant just as the latter shot him. There was, from these facts, an absence of that deliberation necessary to constitute murder in the first degree, and hence the giving of the instruction was authorized. Furthermore, having been prosecuted for murder in the first degree, and there being evidence to submit that grade of homicide to the jury, the appellant will not be heard to complain because the court gave an instruction authorizing a conviction for a lesser offense. Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the offense charged, but guilty of a grade of the offense inferior to that charged. [Sec. 4903, R. S. 1909.] This power having been conferred upon juries, we are precluded by section 5115, Revised Statutes 190§, from arresting or setting aside the verdict because the accused was convicted of a less offense than that charged. [See State v. Bobbitt, 215 Mo. l. c. 38.]

Instruction numbered 10 is in regard to self-defense. Notwithstanding its great length, it correctly declares the law and follows approved precedents to be found in State v. Sebastian, 215 Mo. l. c. 76, and State v. Lewis, 248 Mo. l. c. 508.

Instruction numbered 11 relates to statements out of court. A similar instruction in all of its material features was approved by this court in State v. Wilson, 223 Mo. l. c. 192, and many previous cases.

Instructions numbered 12 and 13 were given at the request of appellant.

*432Instruction numbered 14 in regard to dying declarations followed approved precedents found in State v. Colvin, 226 Mo. l. c. 487; State v. Zorn, 202 Mo. l. c. 31; and State v. Parker, 172 Mo. l. c. 203.

IV. Instructions Refused. — Tbe trial court refused appellant’s instructions numbered 1, 2 and 3. Each of these instructions commented upon the evidence, singled out certain facts and directed the jury to consider them, without embracing’ other essential facts necessary to a proper consideration of the case; in addition, if instruction numbered 1 had been properly framed it was fully covered by instruction numbered 14 given by the court.

There was, therefore, no error committed in the refusal of these three instructions asked by appellant, especially in view of the fact that the instructions given covered every phase of the case under the evidence.

V. Remarks of Counsel for State, — -Counsel for the State in his argument stated that “three witnesses, ’’ naming them, “had testified that on the night after the shooting the appellant had visited Miss Palmer,, the girl who was wounded when the first shot was fired, and had said to her, ‘Laura, I shot, and killed you, ’ and that appellant had gone on the witness stand to testify and had not denied same. ’ ’ Miss Palmer had been escorted to the church by appellant the night of the shooting and was standing by his side when the first shot was fired which struck the girl. It was true, as stated by counsel, appellant did not when on the stand deny this declaration stated to have been made by him to Miss Palmer. Under our ruling in the recent case of State v. Larkin, 250 Mo. 218, in which Faris, J.,. lucidly and exhaustively reviewed the statute (section 5243) and overruled the cases construing this statute and holding that counsel for the State could *433not comment upon the failure of a defendant to testify, we hold that the remarks of counsel in the instant case were not error. The. reasoning on this point in the Larkin case is, to our mind, so conclusive that nothing need he added thereto, except to say that the conclusion there reached removes one more of the technical pretexts heretofore successfully interposed to prevent a wholesome administration of the criminal law without, in any manner, depriving a defendant of a substantial right.

We find no prejudicial error in this case; the judgment of the trial court should therefore be affirmed, and it is so ordered.

All concur.

PER CURIAM. — -Appellant in his motion for rehearing contends that we have overlooked, to his prejudice, his exception to the admission by the trial court of the testimony of Silas Baker, a witness for the State, who testified as to certain dying declarations of deceased. The burden of this contention is that at the time of the making of the declarations to this witness the deceased did not express a belief that he was in extremis. This belief had been expressed by the deceased to Doctor Foard, who was leaving just as the witness came into the presence of the deceased. The latter, after saying to the witness Baker, “I guess I got what was prepared for me,” proceeded to state the facts and circumstances connected with the difficulty. He made no statement to this witness as to his belief of his impending dissolution, nor did he then, or thereafter, indicate a belief that he would recover.

It is not a prerequisite to the admission of dying declarations that the declarant should state to each one to whom he makes the declarations that he believes he cannot recover, or words of similar import.

Dying declarations are admitted, first, on account of public necessity, and, second, because it is presumed *434that the declarant, believing himself to be in the presence of death, will speak truly. The state of mind of the declarant, therefore, is of prime importance in determining whether dying declarations are admissible or not. If, therefore, the declarations of the declarant find expression in a consciousness of the near approach of death it will be presumed that this state of mind continues until the contrary appears. The application of this rule to the admission of dying declarations has been expressly approved by this court in the recent case of State v. Finley, 245 Mo. l. c. 473, in which Brown, J., speaking* for the court, says in effect: that although the declarant did not state that he was about to die, yet if he had stated to others than the witness whose statements were sought to be admitted that '“he was mighty bad and bound to die,” what he said to the witness, if otherwise competent, is admissible in evidence as a dying declaration.

There was no absence of preliminary proof necessary to authorize the admission of the statements made by the deceased to the witness Baker. The belief of the deceased that he could not recover, expressed to Doctor Foard a few minutes before the statements were made to the witness Biaker, constituted sufficient proof to entitle these statements to admission as dying declarations. We, therefore, hold that appellant’s contention as to the inadmissibility of the statements made by Baker is without merit, and we overrule the motion for rehearing.