60 Kan. 772 | Kan. | 1899
The opinion of the court was delivered by
The first objection brought to our attention in this review is to the rulings of the court on challenges of persons called to serve as jurors. Some of them stated on their voir dire that they had formed opinions as to the commission of the offense charged, but it appears upon further examination that the opinions so formed did not extend beyond the fact that O’Shea had fired the fatal shots. The fact that Dawson was shot by O’Shea, and that death resulted from the shooting, was not disputed. Throughout the trial the shooting and consequent death of Dawson were conceded, and the claim of the defendant was that the act was justifiable, being done in self-defense. Opinions upon matters not in issue do not disqualify the jurors entertaining’ them, and especially where, as in this case, it is shown that they have not formed or expressed an opinion as to the guilt or innocence of the defendant, and where there is nothing indicating that they cannot give the defendant a fair and Impartial trial. (The State v. Wells, 28 Kan. 321; The State v. Gould, 40 id. 258, 19 Pac. 739; The State v. Wells, 54 id. 166, 37 Pac. 1005.)
•The controlling questions in this case arise upon the admission .of statements contained in what is
The rule admitting such declarations, made without sanction of the oath, not in the presence of the defendant, and where there is no opportunity for cross-examination, is exceptional, and because it cannot be subjected to the ordinary tests it is necessarily restricted. It is limited to cases of homicide, and is confined to the act of killing and the circumstances immediately attending the act which form a part of the res gestee. Statements relating to former and dis
The statements of what occurred at O’Shea’s place in the afternoon before the shooting were separate and distinct transactions, and manifestly inadmissible. After these occurrences Dawson went to another part of the city, and did not return until nine o’clock at night, which was seven or eight hours later than the transactions of the afternoon. While these occurrences may be proper testimony for some purposes, if related by competent witnesses, they were not immediately connected with the killing, and therefore were not receivable as dying declarations. As said in Montgomery v. The State, supra, “matters which do not form part of the res gestee are not provable by dying declarations. The rule is confined to a statement of the circumstances connected with the fatal act and forming part of the same transaction. It is quite well settled that what occurs before or after the act has been done does not constitute a part of the res gestee, although the interval' of separation may be very brief.” The statements related to the matter of
The statements that they were friendly and had no difficulty in the afternoon; that he had always thought that he and the defendant were the best of friends ; that he had frequently spent much money at his place, and had been taken around and introduced by the defendant as a schoolmate and friend; that on the afternoon of the day he was shot he made him a present of a revolver and also of some jewelry, were wholly inadmissible as dying declarations, within the rules stated and the authorities cited. Prom these statements the jury might infer that there was no provocation or cause for the killing, nor any reason for the defendant to shoot in self-defense. Besides, they were objectionable in form, being largely opinions, beliefs and conclusions which would not have been competent testimony in the first instance if given by Dawson as a witness.
Equally objectionable were the statements- that he had never in any manner or form attempted to harm “Paddy,” nor had any reason to do so; that he had no gun with him, and did not go there for any
Testimony tending to show that the deceased frequently used profanity to the nurses and attendants just before his death, about the time the dying declaration was made, was offered by the defendant and excluded. In view of the character of the declaration and the statement by him that he firmly believed in a God and in a hereafter, and that he was about to die and meet his Creator, these statements were competent to contradict and impeach his declaration. The supreme court of the United States holds that such declarations may be contradicted and impeached in this manner. It decided that such “declarations by no means import absolute verity.” “ The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts ; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them.” In the same connection, the court stated that such declarations “ may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of reward or punishment.” (Carver v. United States, 164 U. S. 694, 17 Sup. Ct. 228.)
In Tracy v. People, 97 Ill. 101, it was held that “ when dying declarations are offered in evidence, it is competent for the accused to show by cross-examination
Other objections were made to the rulings of the court, but we discover no prejudicial error in them, nor do they require special consideration. For the errors mentioned the judgment will be reversed and the cause remanded for a new trial.