26 S.D. 589 | S.D. | 1910
One Nils Swenson, a farmer 72 years old, was convicted in the circuit court of Clay county, upon the charge of murdering Bertha Swenson, his daughter-in-law, by administering strychnine poison. Upon a proper bill of exceptions a new trial
Charles Swenson, son of the accused and husband of the deceased, being called as witness by the state, was asked a certain question which was objected to as incompetent, irrelevant, too remote to be binding upon the defendant, and not a part of the res geste, and no proper foundation laid, which objection was overruled and the ruling excepted to by the accused. To understand the materiality of the question presented by this assignment, it is necessary to consider -the circumstances of the alleged crime as developed by -the evidence on the part of the -prosecution. Charles Swenson was the first witness called by the state. He had testified that a-t the time of the alleged crime, he, together with his wife and three children, were living in his father’s house, on his, the defendant’s farm, in Clay county; he and his wife being hired by the father to work -on the farm. On the 7th day of July,
Dr. Elliott, referred to by witness in the foregoing evidence, was called as a witness on behalf of the state and testified that at the time he was getting the history of the case on the occasion of his first visit, the deceased made a remark in the Swedish' lan
While the evidence is not as clear and satisfactory as might be desired, it may be assumed that it shows the deceased died of strychnine poisoning. The record, however, is absolutely devoid of any evidence tending to connect the accused with the giving of the strychnine to the deceased, except the two statements made by her, the first in the presence of her husband and Dr. Elliott and the accused, and the second statement made to> her. husband alone, very shortly before her death.
The first assignment of error which we shall consider, is that relating to the competency of the first of the statements above referred to. 'There is no evidence whatever that the deceased was ill on the previous evening, to which this alleged statement refers. On the contrary, it quite conclusively appears that she was in her
It is, however, quite strenuously urged that the statement is competent a>s a verbal act accompanying a medical examination, and competent as disclosing and characterizing the then physical condition of the deceased. We are at a loss to understand how appellant’s counsel can consistently make this claim. It must be presumed that the state when it offered this evidence was cognizant of all the attendant facts and circumstances and knew precisely what the evidence would disclose, namely, that the deceaséd was not ill at any time on the previous day or evening; that she was in her usual health and in the performance of all her ordinary household duties, that 'she had made no complaint of feeling ill,, and had retired with her husband at the usual hour the night preceding her death, in her ordinary -good health. These facts, conclusively shown by the record, negative the alleged statement of deceased that the accused on ■ the evening before her death had given her a drink which made her sick, and that she had grown worse ever since. Why the deceased made this statement, if she did make it, is difficult to understand. It seems to have been a pure fabrication. It is not enough to say that the jury must have known the statement to be untrue, and -therefore the accused could not have been prejudiced by it. It further appears in the record that the state -mad-e use of this very statement of deceased in -con
We cannot agree with the contention of counsel that evidexice showing only that accused had opportunities to admixrister such doses, with no evidence of illness from their effects, is sufficient alon'e to support such a hypothetical question. It is true that hypothetical questions may be based upon facts proved, or upon facts the existence of which the evidexice tends to show, but mere evidence of opportunity to do an act is no evidence .whatever, even tending to show that the act itself was done, when standing alone, unaided by any other facts. Illness of the deceased on the evening preceding her death, shown by competent evidence, might have been sufficient, but it was not shown. That there was no evidexice of illness clearly appears — in fact, such illness is conclusively nega
State v. Kuhn, 117 Iowa, 216, 90 N. W. 733, is not in point as to the question under discussion. In that case the statements were concededly dying declarations and were held to be admissible in rebuttal of the theory of suicide. As dying declarations they were admissible, irrespective of the theory of suicide and being receivable in evidence were competent for the purpose of rebutting the theory of suicide as well as to' show the guilt of the accused. The case is authority for the doctrine that dying declarations made in the presence of the accused, which are in effect denials of self-destruction, may be received in evidence to rebut the theory of suicide, on the ground that they are a part of the res gestee. The effect of the decision is to hold that the declarations were competent both as made in extremis and as part of the res gestae. The precise sense in which the term “res gestae” is there used is not very clear. But the general principle is entirely clear. The statements must have been made under such circumstances as to entirely preclude the idea of falsehood through premeditation. And where, as in the 'case at bar, the evidence of the state shows that the statement itself is not and cannot be true, we can conceive of no possible ground upon which it could be considered competent as part of the res gestae, and made the basis of hypothetical questions, merely because the words may have been uttered by the deceased. The utterance of statements known to- be untrue by
In Grant v. Grant, 6 S. D. 147, 60 N. W. 743, Mr. Justice Corson stated the principle very clearly: “Ordinarily, in considering a motion for a new trial, in addition to the fact that the trial court has better opportunities for observing the manner of the witnesses in giving their testimony, the demeanor, and peculiar characteristics of the witnesses than the appellate court, there are frequently matters occurring at the trial, that cannot be spread upon the records, that may have an important bearing upon the question of whether or not a new trial should be granted, of which the appellate court has no knowledge. It is in view of these facts that appellate courts do not- feel justified in disturbing the decision of the trial court in granting or refusing a new trial, except in a clear case of the abuse of its diso-etion.”
We might rest this decision upon the grounds already indicated, but as the question of the competency of the alleged declaration of the deceased to her husband, shortly preceding her death, as a dying declaration, may arise upon the new trial, it may be briefly considered at this time. It is not clear to us that it was not error to receive this statement as a declaration 'in extremis. There is no evidence in the record showing with any degree of certainty that the deceased made the statement under the apprehension of impending death. It is true that the fact of impending dissolution may be inferred from the conduct, condition, or statements of the declarant, but the record discloses nothing directly tending to show
Numerous assignments of error in rulings upon evidence are in the record, but as the same conditions may not arise on a new trial, we do not deem it necessary to consider them.
The order granting a new trial is affirmed.