25 Kan. 349 | Kan. | 1881
The appellant was informed against in the district court of Republic county, for an assault with intent to kill and rob one Robert Watson. He was tried and convicted, and sentenced to the penitentiary for the period* of two years and six months.
The exceptions called to our attention pertain to certain oral declarations which are alleged to be mere hearsay, and which therefore, it is urged, were inadmissible. Ii-K- Hoyt, a witness for the state, testified that he slept in Fisher’s barn on the night of October 1, 1879, some seventy-five or eighty rods from the shanty or dugout of Watson; that, soon after lying down to sleep, he heard a number of screeches and the cry of murder; that he and his partner hastily arose, then ran to Fisher’s house near by; that he found Fisher’s folks alarmed, and the old man and wife on the porch; that Fisher started with them at once for Watson’s; that they ran as fast as they could, and when they reached Watson’s the latter was just coming up out of the dugout; that only three to five •minutes elapsed from the time of hearing the cry of murder until they reached Watson’s. Thereupon the prosecuting attorney asked: “What did Watson say on your arrival?” The appellant’s counsel objected, on the ground that the declarations of Watson are hearsay, and no part of the res gestee. The court overruled the objection, and the witness proceeded to testify: “After arriving at Watson’s, he said he had been attacked by a man demanding his money — said it was Han. Pomeroy; that he went over to his trunk to get a cigar, when Dan. Pomeroy appeared at the window and thrust the muzzle of a gun through it, and said: ‘ You d — d son of a b — h, give me your money,’ and Watson said: ‘Are you in earnest, Dan.?’ Watson said he then grabbed the gun and crowded close along side of'the wall toward the chimney.” Similar declarations were also given by two or three other witnesses. The appellant was not seen at Watson’s by the witnesses going to his assistance. No signs .of any scuffle were visible; nor was
For the error in admitting hearsay testimony of a highly prejudicial character, 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 Republic county, to abide the order of the district court of that county.