51 P. 145 | Ariz. | 1897
Appellant was indicted in the district court of Apache County in April, 1893, and accused of the crime of murder in the killing of one Ike Lee. He pleaded not guilty, and at the April term, in 1894, of said court, was tried, found guilty of murder as charged in the indictment, and sentenced to the territorial prison for forty years. A motion to set aside the verdict and for a new trial was made by defendant, for the reasons: 1. That the court erred in admitting in evidence declarations of the deceased, as dying declarations; 2. That the court erred in refusing a certain instruction requested by defendant, and in modifying certain instructions requested by him, and in giving certain instructions requested by the prosecution, and also on its own motion; 3. That the verdict is against the law, and not sustained by the evidence; 4. That the court erred in permitting the district attorney to use a diagram of his own making, not in evidence, in his closing argument to the jury. Said motion was overruled, and defendant duly excepted, and appeals, and assigns as error the said several points urged for a new trial.
The evidence discloses the fact that defendant was seen in Ike Lee’s house, in Holbrook, in the early part of the night of the ninth day of November, 1892. Defendant and Mrs. Lee, the wife of deceased, were occupying chairs, facing each other, so close together that he had his foot on her chair, and was leaning forward towards Mrs. Lee, who was sitting erect. They were conversing with each other. The witness who saw the parties in that position testified that after he had walked about one hundred yards, he heard some shots or reports of some kind of firearms. One witness, a Mr. Bowman, testified that he resided about one hundred and fifty feet from Ike Lee’s house, on November 9, 1892; that after he had retired for the night, and about half-past eight o’clock p. m., he heard some one walking by his house, and he got up to see who it was. It being dark, he could not see the person who was walking by, and he inquired who it was, and the person responded,
It is essential to the admissibility of dying declarations, and is a preliminary fact to be proven by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated so to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain
We think the dying declarations, under the showing made, were properly admitted in evidence. Those declarations, in effect, were that declarant, when he got home, found defendant and another in his house; that he ordered them away; that they got into a quarrel; that defendant took declarant’s pistol away from him, and shot at him three times, hitting him with the second shot. When asked why defendant shot him, Lee replied, “You know why.” The evidence disclosed the fact that Lee had left home the morning before he was killed, for his work, which, in the nature of things, was expected to keep him from home for some time. We know nothing from the record of Lee’s movements during the day, or where he was from an early hour in the day until after dark. .He was then seen within one hundred and fifty feet of his house, and less than ten minutes before he was shot. We know from the evidence that about the time Lee was seen defendant was in Lee’s house with Lee’s wife, occupying suspicious positions •with reference to each other. What Lee saw when he got home is not disclosed by the record. By his dying declarations we learn that defendant was there, and was ordered away; that defendant secured Lee’s pistol, and shot at Lee three times; that Lee was wounded unto death. Lee’s house was examined next day, and it bore the physical evidences of having been recently the scene of an altercation in which firearms had been used. The visit of defendant to Lee’s house, after night, and in Lee’s absence, and when it was to be reasonably supposed that he was to be .absent for several days,
Counsel complains of the instructions in which the learned judge used the expressions “a trespass” and “a trespasser,” with reference to the conduct of the defendant, and with reference to the defendant being at Lee’s house. Under the facts disclosed by the record, we feel that the judge should be commended for the use of those expressions, which were so exceedingly charitable towards the defendant. The .evidence was sufficient to warrant the verdict, and, there being no.error committed on the trial, the judgment should be affirmed; and it is so ordered.
Baker, C. J., and Bethune, J., concur.
Hawkins, J., dissents.