State v. Petty, 21 Kan. 54

21 Kan. 54 | Ark. | 1878

The opinion of the court was delivered by

Horton, C. J.:

The appellant was indicted -in May, 1870, for the alleged murder of one Robert Clark, in May, 1866, and was convicted in the court below of murder in the first ■degree, at the May term, 1878.

On the trial, Mrs. Clark, the widow of the deceased, testified on the part of the state, that on Sunday, the 27th day of May, 1866, her husband and she were sitting in their cabin, when they noticed a stranger on horseback ride around the south end of the cabin and in front of the east door, tie asked if Robert Clark lived there, and being answered in the affirmative, asked if he was at home. Clark said, Yes. The stranger then inquired the direction to Brazil’s. Clark, still sitting in his chair, leaned his body out of the door, and while in the act of giving the man the direction to Brazil’s, was shot from the north end of the house; that she did not see or know who fired the pistol; that Clark jumped up and attempted to reach his gun, hanging on a rack, but fell to the floor. After he had fallen down, she looked at the door and recognized the appellant as he passed on horseback; that almost immediately after she saw the-appellant pass the door, three men on horseback rode up to the window in the south side, or end of the cabin, with their revolvers drawn and pointed toward the house; that she recognized the appellant as one of them, and said to him: “For God’s sake, Wash. Petty, don’t kill me and my little children — you have already killed my husband;” that the three men stood at the window until her husband was dead, and then rode away.

The appellant, on his defense, introduced as a witness one Tatman, who testified that he arrived at Clark’s house about two hours after Clark was killed; that when he reached there, the body had been dressed and laid out; that as soon as he got to the house, Mrs. Clark came up to him at the door, and said, “Oh, Joe! Robert has been murdered;” that he asked her, “Who did it?” and she replied, “She did not know who shot him; that there were three strange men, and she did not know any of them;” that he said to her, “He believed it was Wash. Petty;” she answered, “She did not know either of the three men; ” that he had not heard Petty’s name mentioned in connection with the murder until he suggested it to Mrs. Clark.

declaration On rebuttal, the state produced as witnesses, Seth Kellogg, E. C. Guffey, Chris. Hoover and William Hoover. Kellogg was permitted to testify, against the objection of appellant, that Mrs. Clark told him the day her husband was killed, “That Wash. Petty was one of three men that killed her husband; that she saw and recognized him.” The Hoovers, against like objections, testified that Mrs. Clark also told them, at her house, the evening her husband was killed, “That Wash. Petty was one of the three men that killed her husband.” Guffey gave similar testimony, but fixed the time of the declarations of Mrs. Clark as having occurred about one hour after the killing of Clark, and-before the body was laid out. None of these conversations of Mrs. Clark, related on' the part of the witnesses for the state, were connected with the statements of Tatman with Mrs. C.; nor does it appear from the record that either of the witnesses on rebuttal was present at the time of the conversation between Tatman and Mrs. C.

witness narrating atdim.rentently times; general rule; exception, - The statements of Mrs. Clark to Kellogg and the Hoovers formed no part of the transaction, and were only hearsay; hence, they were not entitled i'o be received as a part of the res gestee. This conclusion seems to be conceded; but it is insisted that this testimony was competent, not as evidence against the appellant, but in support of the evidence previously given by Mrs. C.; that, as the testimony of Tatman was introduced to contradict and destroy the evidence of Mrs. Clark, by showing that she never thought of Petty being one of the murderers until Tatman suggested it, two hours after the homicide, the testimony on rebuttal was competent to sustain Mrs. Clark. As to Guffey’s evidence,.this argument is sound, and no error was committed in receiving that. The declarations to him by Mrs. Clark were fixed at a time antecedent to her conversation with Tatman, but the record does not show a like state of facts in reference to the declarations to Kellogg and the Hoovers, and as all of the testimony has been embodied in the bills of exceptions, there are no presumptions favoring the ruling of the court below. These latter declarations do not purport to have been made prior in point of time to the statements testified to by Tat-man. It is the general and almost universal rule, that evidence of what the witness has said out of court cannot be received to fortify his testimony. Corroborative statements of this character are very easy of . . . n manufacture, and, if admitted, might oftentimes be made the means of great imposition. To this general rule» however, there are exceptions. Thus, when a witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, then it may be shown that he made similar declarations at a time when the imputed motive did not exist; and where there is evidence in contradiction, tending to show that the account of the transactions given by the witness is a fabrication of a late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Whar. on Ev., vol. 1, § 570; Robb v. Hackley, 23 Wend. 49; People v. Finnegan, 1 Parker’s Crim. Rep. 147; Dailey v. State, 28 Ind. 285; Conrad v. Griffey, 11 How. 480; 2 Phillips, Cowen & Hill’s notes, 979.)

Within the exceptions, the declarations made to Guffey were admissible, as tending to support the original testimony of Mrs. Clark, that she recognized Petty at her house immediately after the shooting, and so stated before she saw Tat-man on that day. The evidence of Kellogg and the Hoovers has not been brought within these exceptions. For aught that appears to us, these declarations were made subsequently to the conversation with Taiman. If so, they would not contradict his testimony nor support the original testimony of Mrs. C. Being incompetent, unless within the exceptions, and not being shown within sáid exceptions, we are under the necessity of declaring the court erred in admitting them. All the declarations of Mrs. Clark to these witnesses should have been confined to a time prior to Tatman’s visit and conversations at the house. Such declarations, to have been admissible, must have been clearly made antecedently to the conversation with-Tatman. The facts that Kellogg stated the declarations to him were made the day of the homicide, and that the Hoovers fixed the time of their conversations on the evening that Clark was killed, in no manner establish these declarations prior to Tatman’s alleged suggestions to Mrs. Clark.

The point is further made, that the indictment does not charge murder in the first degree. Within the authority of Smith v. State, 1 Kas. 365, this point is not well taken, as the language of the indictment construed together clearly imports that the killing was willful, deliberate and premeditated.

. For the error in receiving incompetent testimony, the judgment of the district court will be reversed, and a new trial awarded. The appellant will be returned from the penitentiary, and delivered over to the jailer of Greenwood county, to abide the order of the district court of that county.

All the Justices concurring.