43 Kan. 121 | Kan. | 1890
The opinion of the court was delivered by
The defendant, Guy Wellington, was prosecuted for murder in the first degree, and was convicted of and sentenced for murder in the second degree; and from such conviction and sentence he now appeals to this court. In all probability, from the evidence introduced on the trial, the verdict and sentence are correct; and yet for error occurring during the trial, the judgment of the court below must be reversed. During the trial, which was before the court and a jury, a letter from the defendant’s mother, Anna B. Crandall, addressed to him under the assumed name of G. A. Mitchell, was introduced in evidence. It does not appear that the defendant ever received the letter, or saw it at any time before the trial. At the close of the evidence the defendant’s counsel asked the court to instruct the jury among other things as follows:
“20. The court instructs the jury that the letter put in evidence by the state and written to the defendant by his mother, was only permitted to be received and read in evidence for the purpose of contradicting or impeaching any testimony given by the mother on the witness stand, and for no other purpose, and can only be considered by the jury for that purpose— it cannot be considered as defendant’s act, or to criminate him.”
This instruction the court refused to give, and the defendant
“This letter was one which the jury might, in ignorance of the fact that it was competent only to contradict Mrs. Crandall, give an effect that was very unjust to the defendant; and the refusal of the court to give it [the instruction] we regard as an unfortunate error on the part of the court, which must have left the minds of the jury greatly prejudiced against the defendant.”
If the letter was in fact used as evidence upon the merits, it was certainly very damaging to the defendant’s case; and the record apparently shows that it was so used; and when the facts are disputed, we can be governed only by the record.
As this case must be remanded to the district court for a new trial, it would perhaps be well for us to refer to some other matters presented as errors by counsel for the defendant.
We think the information is sufficient, and no error was committed by the court in permitting the county attorney to indorse the names of additional witnesses upon the information.
We do not think that the court erred in refusing the request of the defendant to require the state to call Mrs. Crandall as a witness on behalf of the state. It is true her name was indorsed as a witness upon the information; and it is also true
It is also claimed that the court below erred in admitting in evidence a written statement of what purported to be a dying declaration of Mr. Crandall. It would seem from the authorities, that to admit statements of the victim of the homicide as dying declarations, “they must be made not merely in articulo mortis, but under the sense of impending death, without expectation or hope of recovery.” (6 Am. & Eng. Encyc. of Law, 107, and cases there cited; 1 Bish. Cr. Proc., §1212.) Now it is thought by this court, or at least by a majority of its members, (the writer of this opinion having doubts,) that it has not been sufficiently shown in this case that the supposed dying declaration of Crandall was in fact made “under the sense of impending death, without expectation or hope of recovery;” and therefore it is thought that it was not admissible as a dying declaration. With a proper foundation laid, however, it might have been introduced as-
The judgment of the court below will be reversed, and the cause remanded for a new trial.