State v. Perigo, 45 N.W. 399

Given, J.

l Murder-evidenoe. — I. Following tke order pursued in tke arguments, we first consider tke overruling of defend-an^s objections to testimony. Willis Hidinger, having stated on cross-examination that kis fatker, tke deceased, kad reasons, ke said, why ke wanted Mrs. Wremwick to take tke dog, was asked on re-examination wkat reasons kis father gave, to which ke answered: . “Tke objections were tkat ske was not in a fit condition to quarrel over a dog. Ske was evidently in a family way.” Tke ownership of tke dog, and wkat each knew as to tke claim made by tke otker, was important in connection witk tke quarrel of May 7. Tke reason given by deceased for allowing Mrs. Wremwick to take the dog, not being in the presence nor brought to tke knowledge of defendant, was not admissible to charge him with knowledge tkat deceased claimed tke dog. Defendant claimed tkat the fact tkat deceased allowed the dog to be taken was evidence tkat ke made no claim to it. It was competent, therefore, to rebut tkis by showing any otker reason ke kad for allowing Mrs. Wremwick to take it. It does not tend to charge defendant witk knowledge, but does tend to disprove tke inference contended for. Tke reasons were given at tke time, and were a part of tke transaction.

*412. -:-: dying declarations. *40II. William Hannah was called to testify to dying declarations made by tke deceased. It is admitted that, *41at the time deceased made the declarations Hannah, he was in such condition of mind as to entitle them to be received as dying declarations. The statement complained of was : “Bill, it is pretty hard to go through the whole war, and come home and be murdered on my own farm.” Defendant’s motion to strike out .this part of the testimony, “ as not detailing the transaction had in that field, but simply gives a conclusion,” was overruled. Hannah was recalled on part of the state “ for further examination omitted by oversight.” He was permitted to testify that, at the time deceased made the statement to him, he also made a statement in relation to’ threats that had been made against him by the defendant, prior to the time of the shooting, in connection with the cattle transaction, and that he did not give any dates. On defendant’s objection, he was not permitted to state what deceased said.

. Dying declarations are statements of material facts concerning the cause and circumstances of homicide made by the victim, under solemn belief of impending death. They are restricted to the act of killing, and to the circumstances immediately attending it, and forming a part of the res gestos. When they relate to former and distinct transactions, and embrace facts or circumstances not immediately illustrating or connected with the declarant’s death, they are inadmissible. They are admissible only as to those things to which the deceased would have been competent to testify. They must relate to facts, and not to mere matters of opinion or belief. 6 Am. & Eng. Cyclop. Law, 123; State v. Clemons, 51 Iowa, 274. The declaration, “Bill, it is pretty hard to go through the whole war, and come home and be murdered on my own farm,” is not a statement of any fact concerning the cause and circumstances of the homicide, nor of any circumstances concerning it. It is not a statement to which the deceased would have been competent to testify, but a mere exclamation as to the hardship of his then situation. *42The statement does not refer to the defendant, nor to any fact or circumstance connected with the killing. As stated, dying declarations must relate to facts, and not to mere expressions of opinion or belief. If the word “murdered ” was used as expressing the degree or character of the homicide, then it is an expression of opinion. If not used in that sense, then it was the statement of an uncontroverted fact, to-wit, that he expected to die in consequence of the wound. The threats were not made at the time of the homicide, but prior thereto. How long prior, was not stated; but it appears from other testimony that the quarrel about the cattle had occurred nearly a year before, and that no other quarrels had occurred between that time and the day of the homicide. Surely, these threats were not a statement of anything forming a part of the res gestee, but of a former and distinct transaction. “The rule that dying declarations should point distinctly to the cause of death, and to the circumstances preceding and attending it, is one that should not be relaxed. Declarations, at the best, are uncertain evidence, liable to be misunderstood, imperfectly remembered and incorrectly related. As to dying declarations, there can be no cross-examination. The condition of the declarant in his extremity is often unfavorable to clear recollection, and to the giving of a full and complete account of all the particulars which it might be important to know. Hence all vague and indefinite expressions, all language that does not distinctly point to the cause of death and its attending circumstances, but requires to be aided by inference -or supposition in order to establish facts tending to criminate the respondent, should be held inadmissible.” State v. Center, 35 Vt. 378.

We are clearly of the opinion that this testimony was improperly admitted. While it is true there was no question but that the defendant inflicted the mortal wound, and the statements testified to contain nothing as to the facts or circumstances of the homicide, and *43were, therefore, immaterial, yet we cannot say that the defendant was not prejudiced thereby. While the jury may have regarded the statement of deceased as to the hardship of his situation as immaterial, we cannot say the same as to statements that threats had been made against him. Our conclusion is that the court erred in overruling defendant’s motion to strike out the statement from the testimony, and in admitting the statement as to threats.

3. -: reason-instructions ■ ’ III. The appellant contends that the instruction defining a “reasonable doubt” is erroneous, in that it directs the jury that, if a fair examination . , a^ evidence raises a doubt, they should acquit, while it should have been that, if a fair examination of all the evidence fails to remove reasonable doubts from the mind, they should acquit. This presupposes the existence of reasonable doubts, and that it is the office of evidence to remove them, while the true theory is that until the testimony is heard the jury have no opinion, and consequently no doubts. The doubt that acquits is a reasonable doubt that exists in the mind after all the testimony is heard and considered. The instruction given will not bear the construction placed upon it, and is in harmony with repeated decisions of this court.

4. -: instructions as to lesser offenses. IV. Appellant .contends that the court erred in limiting the inquiries to murder in the second degree anc^ manslaughter; that, under the indictment and evidence, they might have convicted of lesser degrees, as of assault to inflict great bodily injury, assault and battery or simple assault. Is is true that these offenses were embraced in the charge of murder; but whether it is necessary or proper for the court to so instruct depends on the facts of the case. State v. Cole, 63 Iowa, 695; State v. Mahan, 68 Iowa, 305; State v. Froelick, 70 Iowa, 213. The facts in this case are identical, so far as this question is concerned, with those in Oases of Mahan and Froeliclc. There is no question but that *44the defendant inflicted the mortal wound. The only question is whether he did so unlawfully. If unlawfully, he is guilty of murder in the second degree, or manslaughter. If not, then he is not guilty. There was no evidence whatever on which to base a conviction of any lower degree than manslaughter.

5. -: instruction as to manslaughter. V. Following the contention just considered, it is urged on behalf of appellant that the court erred in submitting the inquiry as to guilt of manslaughter. It is zealously argued that the defendant was either guilty of murder in the second degree, or not guilty. It is enough so say on this proposition that it was possible for the jury, after considering all the testimony, to have a reasonable doubt as to defendant’s guilt of murder in the second degree; and, in that case, it was their duty, as instructed, to acquit him of that charge, and then decide as to his guilt of manslaughter. There are so many phases of the testimony to justify that result, and the verdict returned, that it would have been a grave error not to have instructed as to manslaughter.

6. -: definition of manslaughter. VI. In defining “manslaughter” the court gave full definition, including involuntary manslaughter. In defining “self-defense” the court included a statement of the right to defend person, dwelling or property. It is contended that there was nothing calling for an instruction as to involuntary manslaughter, or the right to defend one’s dwelling. The definitions were plain and correct. They could not have been made more so by omitting the parts complained of. Indeed, they are indispensable to full definition, and could not be misunderstood to defendant’s prejudice.- Without following the points argued further in detail, we say that we have examined the instructions with care in respect to the errors complained of, and to any that might appear, and our conclusion is that they fully and fairly presented the issues and law of the case to the jury.

*45YII. For the errors in admitting testimony as to the so-called ‘1 dying declarations,” the judgment of the district court is reversed. It is unnecessary to notice other questions presented in the record, as they will not arise on a retrial. Reversed. ■

Case Details

Case Name: State v. Perigo

Court Name: Supreme Court of Iowa

Date Published: May 12, 1890

Citations: 45 N.W. 399; 80 Iowa 37; 1890 Iowa Sup. LEXIS 163

Court Abbreviation: Iowa