178 P. 48 | Utah | 1918
William 0. McNair, the defendant, is charged in the information filed by the district attorney in the district court of Salt Lake County with having “willfully, feloniously, unlawfully, premeditatedly, and of his malice aforethought” killed and murdered one Edward T. Williams, of Salt Lake City, Utah, on the 14th day of February, 1917. The defendant was convicted of murder in the second degree, and sentenced to imprisonment in the state prison for a term of 15
It is conceded that McNair shot and killed Williams at the place and on the date mentioned in the information. McNair, however, claims that at the time the shooting occurred, the deceased was in the act of assaulting him with a deadly weapon — a knife — with intent to kill and murder him, and that he killed Williams in self-defense.
The facts and circumstances leading up to and surrounding the commission of the homicide are, as disclosed by the record, as follows: In July, 1916, Juanita Williams, wife of Williams, obtained an interlocutory decree of divorce from him. Mrs. Williams was given the custody of Lulu Williams, a little girl of about eight years of age, the issue of her marriage with Williams. It seems that Williams was permitted to occasionally visit and talk with the little girl. About the time the interlocutory decree of divorce was granted Mrs. Williams rented a few rooms in an apartment house at 123 West North Temple street, Salt Lake City, and took roomers and boarders in order to support herself and child — the little girl mentioned. Williams called at the house occasionally, apparently for the purpose of visiting with the little girl. The defendant McNair became a roomer at Mrs. Williams’ apartments some time in November, 1916, and on or about the 1st day of January, T917, commenced taking his meals there. A close friendship grew up between Mrs. Williams and Mc-Nair, and the evidence shows that he frequently accompanied Mrs. Williams and the little girl when Mrs. Williams went shopping. On two or three of these occasions he met Williams, who seemed to object to the friendly relations existing between him and Mrs. Williams, and particularly to the attention that he (McNair) was paying the little girl. On one occasion, while • accompanying Mrs. Williams and the little girl to a picture show, he met Williams, who assaulted him by striking him a heavy blow in the face with his fist. About February 1, 1917, Mrs. Williams discontinued keeping roomers and boarders, except that McNair, the defendant, remained at her apartments, and moved into the suite of rooms occupied by her and the little girl, which is referred to in the
“Mrs. Culp helped me take my shoe and stocking off. * * * The baby stepped over in front of me, * * * and while she was standing there McNair took hold of her sleeve and said ‘Hon.’ * * * Mr. Williams cursed him, and told him not to call his child Honey. ‘If you call my child Honey again I will kill you.’ So Mr. McNair turned around to the child and said, ‘That is nothing to call her Honey, is it Babe?’ and Williams said (omitting the alleged profanity) : ‘I am going to kill you. You get your hand on your gun and get it on quick. If you don’t get me, I will get you.’ * * * He had his pocket knife in his hand, * * * and threw his hand back to his pocket as he made a dash towards Mr. McNair; and Mr. McNair said to him,- ‘Mr. Williams, I am not looking for trouble; I don’t want any.’ Mr. Williams said: ‘You heard what I said. Get your hand on your gun and get it quick. If you don’t get it, I will get you.’ He made the second dash towards McNair, and I jumped up from the chair with the intention of grabbing Mr. Williams, as I done before when he was in there — he had threatened so many times, made those threats, I felt if I could get- — just get hold of him I could get him quieted down, * * * but I didn’t have time. As he made the second dash, Mr. McNair jumped up before I could do it. Two shots were fired. * * * I said, ‘My God!’ and grabbed for the gun. As I grabbed for the gun it went off again, and Mr. Williams * * * went to make a turn; * * * turned twice around, and then he went down in a heap.”
Mrs. Williams further testified that she left the room immediately after the shooting, rushed to a telephone in another part of the building, and summoned a doctor, notified the police department of the homicide, returned to the room where Williams was lying, and as she entered the room — . “McNair said to Williams, ‘You know I wouldn’t have done
McNair testified in his own behalf at great length, and his testimony, except as to some matters of detail, was substantially the same as that given by Mrs. Williams.
Mrs. Kerren testified that just prior to the homicide Mr. Williams came to her room, which was situated across a hall from the room where the shooting took place, “and asked if Juanita (Mrs. Williams) was-there. I said, ‘No, sir.’ * # * He said he came to bid the little girl good-bye because they were going to Idaho. ’ ’ The witness further testified that immediately after the shots were fired McNair came to her room, knocked on the door, and asked to be admitted; that she refused to open the door to him; that he said, “I told you * * # I would shoot her husband, and I shot the son of a b-.”
Mr. Kerren, who at the time was in the room with his wife, testified that McNair on that occasion said, “I told you I would get the woman’s husband, and I got the son of a b-,”
Mrs. Culp’s testimony is to the effect that as soon as Williams entered the room, or immediately thereafter, McNair, without any apparent provocation whatever, drew his gun and shot him down.
Two police officers, Coulson Smith and William A. Pierce, arrived at the scene of the homicide soon after it occurred. Smith was called as a witness by the state, and testified that they arrived there about three o ’clock p. m.; that when he entered-the room Williams was talking; that two women and McNair “were sort of bending over him”; that he heard Williams say, “All I ask is that you take care of my little girl;” that he asked who shot Williams, and McNair said, “I did.” He further testified:
“I asked him why he did it. He said: ‘Why, I knew this thing was coming; I felt it all the time. It has been coming for a long time. ’ I asked him if he was prepared when Wil
That McNair at the time “appeared to be under the influence of liquor — very close to being intoxicated’’; that he examined Mr. Williams’ clothes, and “looked on the floor where he was lying” for a weapon, but did not find one of any kind; that about 10 minutes after he entered the room he and Pierce put Williams in an automobile and rushed him to the emergency hospital at police headquarters; that on the way to the hospital McNair rode on the front seat with Pierce, and that he and Williams occupied the rear seat of the automobile; that he asked Williams if he was armed, and that Williams answered, “No; I never carried a gun in my life; I only went down there to bid my little girl good-bye, as they were going away, and this is what I get for it”; that McNair turned around in his seat and said to Williams, “She is .no more your wife than she is mine”; that he did not observe anything that indicated that Williams had been drinking or that he was under the influence of liquor. McNair denied making the remarks and statements attributed to him by Coulson Smith.
The evidence shows that immediately after Williams was taken to the emergency hospital Dr. Keyting made an examination of the gunshot wounds inflicted on Williams, and before he left he told Williams he could not hold out much hope of him recovering from his wounds. About the time the doctor was waiting on Williams, Walter W. Little, assistant city attorney, called to see the deceased. Mr. Little was called as a witness by the defendant, and testified that he was in the room with Williams “just a few minutes”; that he asked him “whether he realized that he was on his deathbed, or words to'that effect, and that Williams made some statement about outliving all his enemies, and that he raised up in bed and said that he would outlive his enemies.” Soon after Mr.
“Q. Williams, do you want to make a dying statement as to who shot you? A. Yes. Q. Who shot you? A. W. 0. McNair. * # * Q. Are you conscious and know what you are doing? A. I do, absolutely. Q. Did you have a row with him to-day ? A. No. Q. Did you threaten to kill him today? A. No. Q. Did you reach back in your pocket for a gun ? A. I did not ;* I was talking to my wife. Osborne (McNair) was then in the room. He turned around and called my little girl ‘Honey.’ He said, ‘Come here, Honey.’ I said you can have the woman, but it breaks my heart to have you'call my child ‘Honey.’ He told me to g:et out of there, that he was running the house. That is all I remember, when I was shot three times, as near as I can remember. * * # Q. You didn’t threaten to shoot.him? A. No; I told him I wouldn’t harm a hair of his head; he was welcome to my wife, but I did roast him for calling my baby ‘Honey.’ But I did not threaten him. I went up to see my baby and bid her good-bye, not to quarrel with him. * * * Q. Did you
The testimony of the sheriff respecting the declaration made by Williams to him is assigned as error. The admis•sibility of the declaration is challenged on two grounds: First, it is contended, that it was not shown that it was made under the sense of impending death; and, second, that it was a statement of a mere conclusion and not one of fact.
In the case of Commonwealth v. Brewer, 164 Mass. 577, 42 N. E. 92, the court said:
‘'The dying declarations of Latimer were admissible. The evidence was clear that they were made under a sense of impending death. Just.*108 before they were made both the attending doctors had told Latimer that there was no chance of Mm recovering. His exclamation in answer, ‘Oh, my God, must I die! ’ and his later request, ‘ Give me some water, if I have got to die,’ imply an acceptance of the fact.”
In Titus v. State, 117 Ala. 16, 23 South. 77, the court said:
“The declarations, reduced to writing as dying declarations, were properly admitted. Ho stated that ‘he believed he would soon die.’ The physician who attended him said that the ‘deceased was very low, and that he did not think he would live many hours. ’ ’ ’
These cases are cited by counsel for appellant in support of their contention that the evidence in the case at bar was not sufficient to show that the declarations made by Williams were made under the conviction on his part that he was about to die. The evidence of the sheriff, however, is that Williams stated he “knew he was going to die.” We think the only fair conclusion permissible from this statement, considered in connection with the circumstances and conditions under which it was made, is that deceased was convinced that he was. about to die from the effects of the gunshot wounds he had received. The evidence that the deceased had a conscious sense of impending death when he made' the declarations referred to is stronger and more convincing than it was in either of the cases above cited.
“The admissibility of such declarations does not depend upon any particular forms of expression, for these will vary indefinitely, but it depends upon the view which the deceased took'of his own case when in imminent danger of death.”
We think that under the' circumstance^ the preliminary proof — the evidence of the state of mind ttíe deceased was in respecting the fatal character of his wounds and his conviction that he could not long survive — was amply sufficient to authorize the admission in evidence of the declarations, provided they were otherwise competent. Wharton, Crim. Ev. (9th Ed.) section 284.
In Wharton on Homicide, section 629, the author says:
"The prevailing rule is that a declaration that a killing was done without provocation, or without reason, or for nothing, constitutes a statement of fact, and is admissible as a dying declaration. ’ ’
Again, in the same section:
"So, a statement that the shooting was willful and malicious is not objectionable as a mere statement of opinion, when the testimony tends to show that there were facts within the knowledge of the deceased upon which he might have based an opinion to that effect. ’ ’
In the case at bar the evidence shows that the facts and circumstances attending the shooting were practically all known to the deceased, and there is abundant evidence to the effect that it was without cause or provocation.
In 21 Cyc. 988, it is said:
"A dying declaration by the victim of a homicide that the act was without provocation, or words of like import, although very general, is, as a rule, held admissible as the statement of a collective fact and not a mere conclusion. ’ ’ 2 Words & Phrases, Second Series, 206; State v. Mace, 118 N. C. 1244, 24 S. E. 798; State v. Saunders, 14 Or. 30, 12 Pac. 441; State v. Lee, 58 S. C. 335, 36 S. E. 706.
The court, after instructing the jury fully and very clearly respecting the first degree murder, and on each of the degrees of homicide included therein, proceeded and charged the jury" as follows: • '
“You are further instructed that the offense of murder in the second degree, voluntary manslaughter, and involuntary manslaughter are included in the offense charged in this information, and under our law a defendant may be convicted of either of such offenses so included; and if in this case it shall appear to you that the defendant committed a public offense, and there is in your minds a reasonable doubt of which, of -two or more degrees he is guilty, you can convict him of the lowest of such degrees only.”
The giving of that part of the instruction which we have italicized is assigned as error.
Judgment affirmed.
