State v. Long, 32 Del. 380

State v. Long

32 Del. 380 | Delaware Court of Oyer and Terminer | 1923

Rice, J.:

The evident purpose of the question is to show that the deceased and the defendant were together at a time when the murder could have been committed. It is not claimed that the deceased was starting or about to start to meet the defendant when the declaration sought to be proved was made by him. The statement of the deceased, therefore, neither accompanied nor characterized any act relevant to the issue. While an examination of the authorities above cited will show that declarations of a deceased person under such circumstances are some times admitted on the ground of being a part of the res gestae, as we view it, they are not admissible on that ground, (opinion of Start, C. J., in State v. Hayward, 62 Minn. 474, 65 N. W. 63); and we do not understand that the State contends that they are. Such declarations are also admitted in some cases on the ground that they are verbal acts. {State v. Hayward, Supra). If, however, the doing of an act is material, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done as planned (1 Wigmore on Ev., Sec. 192; Greenleaf on Ev., *384Sec. 126a); and, considering the plan or design as a condition of mind, a person’s own statements of a present existing state of mind when made in a natural manner, under circumstances dispelling suspicion, and containing no suggestion of sinister motives, only reflect the mental state, and are, therefore, competent to prove the condition of the mind when made; or, in other words, what such person’s purpose or intention then was. A similar principle has been applied in this state in a suit for alienation of affections, to show the wife’s feeling toward her husband by her declarations. Rash v. Pratt, 1 W. W. Harr. (31 Del.) 18, 111 Atl. 225. The purpose of the question is not to show that the deceased was at some time, at a particular place with a particular person because he said he was going there, — and it clearly would not be admissible on that ground, — but to show his purpose or intention at the time he made such statement as a circumstance tending to show that he did as he planned or intended to do. In a trial on an indictment for murder, where the defendant relies on self-defense, evidence that threats were made by the deceased person against the defendant, though not communicated to him, are admissible to show that the deceased began the affray. State v. Powell, 5 Penn. 24 (32-34).1 While there are certain limitations on this rule, including the limitation that in order to make such evidence admissible it must be uncertain as to which was the agressor, the principle involved would seem to be similar. For the reasons above stated our conclusion is that the declarations in this case are admissible as an exception to the hearsay rule. (Wigmore on Ev., vol. 3, Sec. 1725, 1726, 1727; Greenleaf on Ev., Sec. 126a. Supra; State v. Farnam, 82 Or. 211, 161 Pac. 417, Ann. Cas. 1918A, 318; State v. Mortensen, 26 Utah 312, 73 Pac. 562, 569 (633); See also Mutual Life Ins. Co. v. Hillam, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706, and Commonwealth v. Trefethen, 157 Mass. 185, 31 N. E. 961, 24 L. R. A. 235. We, therefore, overrule the objection, reserving to defendant’s attorney the right to move to strike out the reply of the witness, if it should not prove to be material.

The witness answered the question as follows:

*385“Well, he told me that she (Mrs. Ella Baull) asked him to come around to see her, and he told, her that he cquldn’t come, that he was going away soon, and he told her that he had a date that night to meet a girl and a fellow on the duPont Road at about eight o’clock, and I am afraid to say whether he said the boy was from Wilmington and the girl was from Philadelphia, because I wouldn’t like to say”.

Houston, Deputy Attorney-General, in endeavoring to prove that it was the habit of Elisha W. Hudson to carry a considerable some of money on his person, asked the following question:

“Do you know his habit in relation to his money?”

The attorney for the defendant objected to the question, unless the State proposed to follow it up by proving that the deceased had money on him at the time of his death.

Rice, J.:

On the authority of the Supreme Court in Roberts v. State, 2 Boyce 385 (391), 79 Atl. 396, Ann. Cas. 1914 D, 1266, the Court overrules the objection.

A witness for the State, after testifying that the deceased had a considerable sum of money on his person in the shape of notes about three weeks before his death was asked:

Q. Did you see any of the denominations of those notes?

A. Yes, sir; I saw some one hundred dollar bills.

The attorney for the defendant moved to strike out the answer to the question on the ground that proof of what money Elisha W. Hudson had on his person three weeks before he was murdered was too remote, and, therefore, not material to show how much money he had on his person at the time of the murder. On the promise of the State to show that Hudson was a sawyer in a mill, and that it was not his habit to spend much money, the motion of the defendant was overruled.

Rice, J., in ruling on the defendant’s motion, said, that it was perfectly proper for the State to prove that the deceased had money in his possession shortly before his death, and that how far back the inquiry would be permitted to go, depended upon the character and business habits of the deceased, as well as on all *386other circumstances which rendered it more or less probable that if he had money on his person prior to the time of his death, that he still had it at the time of his death (Kennedy v. People, 39 N. Y. 245; Commonwealth v. William, 170 Mass. 461, 50 N. E. R. 1035; Commonwealth v. Richmond, 207 Mass. 249, 93 N. E. R. 816); and that, if the State produced the additional proof promised, evidence as to the money that he had three weeks before his murder was entirely proper.

State vs. Lynch, 2 W. W. Harr., (32 Del.) 597.