The State v. Clemons

• Decision Date: 06 June 1879
• Citation: 1 N.W. 546,51 Iowa 274
• Parties: THE STATE v. CLEMONS
• Court: Iowa Supreme Court

1 N.W. 546

51 Iowa 274

THE STATE v. CLEMONS

Supreme Court of Iowa, Des Moines

June 6, 1879

Appeal from Washington District Court.

THE defendant was indicted for the murder of John O. Dayton. He was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for life.

He now appeals to this court for a reversal of the judgment against him.

REVERSED.

Henderson & Jones and Woodin & McJunkin, for appellant.

No appearance for the State.

OPINION

ROTHROCK, J.

I.

The defendant was put upon his trial for murder in the first degree. It is urged, in his behalf, that this was erroneous because the indictment is for murder in the second degree only. The alleged defect consists in the failure to charge that the killing of the deceased was wilful deliberate, and premeditated. The case of State v McCormick, 27 Iowa 402, and other cases determined by this court, are cited in support of the question made by counsel.

We have not thought it necessary to set out the indictment at length, because, as the judgment must be reversed upon other grounds, to which we will presently give our attention, the question raised upon the sufficiency of the indictment for murder in the first degree becomes immaterial and need not be determined. The trial was had for murder in the first degree. The verdict was that defendant was guilty of murder in the second degree. It is conceded that the indictment is good for murder in the second degree, and defendant cannot again be put on trial for any greater degree of the crime than that of which he was convicted. State v. Tweedy, 11 Iowa 350.

II. On the evening of the 19th of August, 1876, the deceased, with several other persons, was in a billiard hall in the village of Westchester, Washington county. There was a window in the north end of the hall. The lower sash of the window was up and a curtain extended down near to the bottom of the window. At about 9 o'clock the deceased was at the billiard table, with his face fronting toward the south. While standing in this position he was shot by some one from the outside through the window. The ball entered the body of the deceased between the seventh and eighth ribs, and passed through the liver and kidney. He lived four days afterward, when he died from the effect of the wound. Three witnesses, who were in the billiard saloon with the deceased at the time the shot was fired, testified that "the first seen of the firing was a flash through said window." On the same evening there was an examination made and a bullet-hole was found through the window curtain, about an inch from the bottom.

One W. H. Dayton, a brother of the deceased, and a witness for the State, testified as follows: "After deceased knew he was to die from said wound I heard him say: 'Ed. Clemons (meaning the defendant) shot me; ain't I right?'" Another witness testified as follows: "Shortly before his death I heard Dayton say it was Ed. Clemons who shot him."

This evidence was objected to by defendant, and the objection overruled. It is not urged by counsel for defendant that these declarations of the deceased were not made after the deceased had given up all hope of life, and under a solemn sense of impending dissolution, but it is claimed that the declaration testified to by W. H. Dayton should have been excluded, and taken from the consideration of the jury, because it was merely the statement of an opinion, and not the statement of a fact.

It is well settled that "the statement made by the deceased must be such as would be receivable if he were alive, and could be examined as a witness. Any declaration, therefore, upon mere matters of opinion, as distinguished from facts, would not be receivable." 1 Phillipps on Evidence, 297; and see 1 Greenleaf on Evidence, § 159; Wharton's American Criminal Law (3d Ed.), 312. But it is a question for the court to determine whether the dying declarations are admissible in evidence. "And after the evidence is admitted, its credibility is entirely within the province of the jury, who, of course, are at liberty to weigh all the circumstances under which the declarations were made, including those already proved to the judge, and to give the testimony only such credit as, upon the whole, they may think it deserves." 1 Greenleaf on Evidence, § 160.

In view of these well settled principles we think there was no error in admitting the dying declaration testified to by W. H. Dayton. The objection that the deceased named the defendant as Ed. Clemons instead of Ezra, his true name, we need not consider. It is nowhere shown that any other person than the defendant was intended or referred to by the deceased. The first part of the declaration is a distinct assertion that the defendant did the fatal shooting. The closing part is put in the way of an interrogatory, and it may have been for the purpose of assuring himself, not that he was correct as a matter of opinion, but that his observation of the fact was correct.

Now it was not for the court to say that the circumstances attending the infliction of the mortal wound were such that the deceased could not have seen who was his assassin. This was a question for the jury to determine from all the evidence in the case. As we understand the rule the court is warranted in excluding this class of evidence only when the dying declaration shows upon its face that it is a mere opinion. In 1 Phillipps on Evidence, in a note to page 298 it is said: "If it be found that the deceased said 'A. B. has shot me,' or 'has killed me,' it is for the jury to find from that, and the other testimony in the case, whether the deceased intended to state a fact within his own personal knowledge or as a mere inference from other facts. In the...