77 Me. 488 | Me. | 1885
The prisoner was indicted for murder, and the jury returned a verdict of murder in the second degree. The case is before the law court on exceptions.
At the time of the shooting, which was not far from nine o’clock in the evening-, the deceased was in front of the respondent’s house, either upon the piazza or in the yard very near to it. A party of eighteen persons had assembled for the alleged purpose, as claimed by the prosecution, of serenading the respondent, who had been recently married, and upon entering his grounds, the party commenced blowing horns, firing guns, ringing bells and making other noises, both in the yard and on the piazza of the house. The respondent, with his wife and father and two other persons, was in the house at the time. All had retired for the night, and no lights were burning. It was claimed by the respondent and his witnesses that after these demonstrations had continued at intervals for nearly an hour, some of the party outside made an assault upon the door and tried to burst it in, threatening to take the respondent’s wife out into the yard, and making other threats against the respondent and his wife. The witnesses for the government denied that any assault was made upon the house, or that such threats were used or any provocation given for violence to be used against them by the persons in the house. The testimony of the respondent and his wife was that upon the first discharge of the guns, the wife became unconscious and so remained when the respondent left her in the bed-room shortly before he fired. The respondent stated that he took his pistol from the place where he had been in the habit of keeping it, on the table in his bed-room, and
It appeared in evidence that Leonard H. Walker, father of the respondent, met him in the entry just at the moment the respondent discharged his pistol through the sidelight. In answer to the question " what, if anything, did you find or hear, ’’ propounded by the respondent’s counsel, he said: " At that time they.-were rattling the door; they were trying to get into the ell door, and when I got to the entry door, I met Frank there, and they were trying at that time to get into the door, and Frank seemed to be frightened, and I put my arm on him and he was all of a tremble, and Frank spoke and — ” At this point, objection was interposed by the counsel for the state, to any statement by the witness as to what the respondent said, and the declaration was excluded, to which exception was taken by the respondent’s counsel.
■From the materially different standpoints taken by the government and the respondent in relation to the circumstances, under which the fatal shot was fired, it became important to ascertain what those circumstances were; why the shot was
" Where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate or give character to the act, and which may derive a degree of credit from the act itself, are also admissible as a part of the res gestee. ” Sessions v. Little, 9 N. H. 271. If the declaration is made by a party while doing an act, the nature, object or motive of which is the subject of inquiry, and serves to explain it, then such declaration is admissible in evidence. And it is generally in this class of cases, where either the nature, object or motive of the act is material, that this rule receives its broadest application. The declaration becomes important as forming a part of the transaction itself, on the ground that what is said at the time, affords a legitimate means of ascertaining the character of the act, and as a part of the circumstances to be given in evidence with the principal fact. As a learned author has expressed it, such declarations are admitted, " not to prove their own truth, but to exhibit the attitude of the parties, and to show the transaction in all its aspects. ” 2 Whart. Ev. § 1102. Nor are such declarations said to be received as hearsay, but they are distinguished from it by their connection with the principal fact under investigation and which they serve to elucidate and explain.
Exceptions sustained. New trial granted.