State v. Wensel

Citation11 S.W. 614,98 Mo. 137
PartiesThe State v. Wensell, Appellant
Decision Date20 May 1889
CourtUnited States State Supreme Court of Missouri

Appeal from Ralls Circuit Court. -- Hon. Thos. H. Bacon, Judge.

Reversed and remanded.

R. F Roy for appellant.

(1) The court should have excluded the testimony of Dr. Moore and John W. Taylor, detailing the supposed dying declarations of the deceased, as it does not appear that the deceased at the time was expecting an impending and almost immediate death and it does not appear that the deceased had no hope whatever, but on the contrary, the declarations of the deceased show that he had not given up all hope, and when told that he was going to die, he said that he "did not feel that way," and it was six days before his death. State v. Simon, 50 Mo. 370; State v McCanon, 51 Mo. 160; State v. Dominique, 30 Mo. 585; State v. Rider, 90 Mo. 54; 1 Greenleaf Ev., [8 Ed.] sec. 156, et seq.; Whittaker v. State, 3 S.E. 403. (2) The instruction in regard to manslaughter in the fourth degree, which was asked by defendant and refused by the court, should have been given. State v. Davidson, 95 Mo. 155; State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 53; State v. Wilson, 85 Mo. 134; State v. Barham, 82 Mo. 67.

John M. Wood, Attorney General, for the State.

(1) The testimony of Dr. Moore, the attending physician, as having at his second visit informed deceased that his wounds would prove fatal, and that by his advice and direction arrangements were made to take deceased's dying statement, was objected to because too remote. The question of remoteness or nearness in time could only apply, so as to affect the competency of the declaration, to the time the arrangements for taking it were talked of or made, and the objection is untenable. (2) It was competent for the state to show, for the purpose of laying the foundation for admitting the statement made by deceased a few days before his death as a dying declaration, the condition of his mind at the time, his belief as to his approaching death and the basis for such belief, and the objections to the testimony of witness Taylor were properly overruled. State v. Simon, 50 Mo. 370; State v. Draper, 65 Mo. 335; State v. Kilgore, 70 Mo. 546; State v. Chambers, 87 Mo. 406; Whart. Cr. Ev., secs. 279, 282. (3) Under the evidence, the defendant should have been convicted of either murder in the first or second degree or acquitted. The court therefore properly confined its instructions to those degrees of the offense and refused to instruct as to manslaughter in either degree. State v. Hardy, 95 Mo. 455; State v. Ramsey, 82 Mo. 138; State v. Jones, 79 Mo. 441; State v. Sneed, 91 Mo. 552; State v. Anderson, 86 Mo. 309; State v. Anderson, 89 Mo. 312; State v. McDaniel, 94 Mo. 301.

Ray, C. J. Black and Brace, JJ., concur; Barclay, J., dissents; Sherwood, J., absent.

OPINION

Ray, C. J.

Defendant was tried at the August term, 1887, of the circuit court of Ralls county, upon an indictment charging him with murder in the first degree for the killing of Jacob Young. Upon arraignment, he entered his plea of not guilty, and upon the trial was found guilty of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for the period of thirty years. He has appealed to this court and assigns and urges several grounds for the reversal of the judgment, the first of which is that the trial court should have excluded the testimony of the witness J. W. Taylor, detailing the alleged dying declaration of the said Young.

That testimony is as follows, to-wit: John W. Taylor testified: "I reside in Perry, Ralls county, Missouri, and am a justice of the peace; knew Jake Young; Dr. Moore notified me that Jake Young wished me to go there and take his dying statement. I went there on the twenty-sixth of July, about four days after the cutting was done.

"Q. What, if any, conversation did you have with Jake Young concerning his near approaching death?

"A. I asked Mr. Young if he understood his condition, that there was no hopes of his recovery. He said that he did from the statement of Dr. Moore."

The defendant here objected to any further testimony of statements made by Jake Young as dying declarations, on the ground that they do not appear to be dying declarations but made six days before his death, and it does not appear that the deceased knew definitely that he was going to die. The court overruled the objection and the defendant excepted, and the witness proceeded as follows:

"He appeared suffering severely, and the conversation was frequently interrupted, and he said that he was sent for by Mr. Wensell to his place of residence to come to Mr. Harvey Young's about eight o'clock at night, and that he came over not expecting any trouble; that he came to Harvey Young's and went into the living-room and sat down; that Mr. Wensell came out of another room and commenced at once to talk rough to him; called him a God-damned liar and son of a b -- h, and asked him what he should have said about Miss Neva Young. Mr. Young said that he told him that he, Wensell, did say it, and that Wensell called him a liar and made a pass at him. That in the first round their arms went up together; that there was no difference in the time of their striking. He said that he pushed Mr. Wensell and immediately they came together; that when they raised their arms he pushed Wensell out from him, and immediately Wensell clinched him and commenced cutting him. He said that he received a cut in the back and suddenly felt himself deprived of the use of his limbs and sank to the floor, and that he saw Wensell throw a knife out the window."

On cross-examination of this witness (Taylor), the following questions and answers, among others, were asked and given, to-wit:

"Q. You are a justice of the peace and notary public?

"A. Yes, sir.

"Q. You went down to take his dying statement?

"A. Yes, sir.

"Q. Did he say anything to you about why he wanted to make his dying statement?

"A. Nothing more than I have detailed here, except that he was conscious that there was no hope of recovery; and his friend had advised him to make it."

The principal reason urged in this behalf is that when said dying statements were made, said Young was not under the impression that his death was impending and inevitable. This is, we think, an important and perhaps difficult question under the facts as the same are now preserved in the record, and one we feel required to consider at some length. "Where the death is the subject of the charge, and the circumstances of the death are the subject of the declarations," the testimonies, usually denominated dying declarations, are receivable in evidence, and are generally said to be admissible upon grounds of public necessity, and for the reason that persons in certain expectation of almost immediate death may fairly be supposed, in this solemn situation, to have no motive to speak falsely, but to have on the contrary, strong motives to adhere to the truth and to speak without disguise or malice. 1 Chitty's Cr. Law, p. 569; Roscoe's Crim. Ev., p. 35. But these testimonies are, in all cases, to be received with the greatest caution, and this for obvious reasons often stated and which we need not restate at the present time. 1 Stark., p. 26.

The rule, as to their admission, is stated with some variety as to verbiage, but the meaning is, perhaps, substantially the same, that the declaration must be made under the expectation and settled conviction of death as the result of the wounds received and after all hope of recovery is abandoned. Greenl. Ev., p. 208; Best's Ev., p. 913. It is the impression of impending and almost immediate death that makes the statements admissible, and any hope of recovery, however slight, renders them inadmissible. Greenleaf's Ev., p. 208; Best's Ev., p. 913; State v. Simon, 50 Mo., p. 374, and cas. cit. "And even the faintest hope of recovery" is a common form of expression employed in the authorities as sufficient for their exclusion. Best's Ev., p. 913, and cases cited in note; Adwell v. Commonwealth, 56 Ky. 310, 17 B. Mon. 310; State v. Nash, 7 Iowa 347; Commonwealth v. Densmore, 12 Allen (Mass.) 537.

With these views and observations in view, we will now recur to the evidence, as preserved in the record before us, to ascertain if we can, the state of mind, under which said Young, afterwards deceased, made the statements or dying declarations in question. For this purpose, it is allowable and legitimate, and sometimes necessary, to consider the nature and extent of the wounds inflicted, as well as the conduct of the party at the time, and the communications, if any, made to him by his medical advisers. 1 Greenl. Ev., p. 208. The wounds, as described by the doctor, consisted of several cuts, which were inflicted by an ordinary pocket knife, the fatal one being described "as a transverse cut in the back between the third and fourth dorsal divisions. The knife first struck the spinous process and passed between the joints and severed the spinal cord." The point of the knife blade was taken by the doctor at the post-mortem examination from this wound which was necessarily fatal.

The difficulty or fight occurred about eight or nine o'clock in the evening and grew out of some damaging remarks which the deceased alleged defendant had made about a young lady. About two o'clock on the day after the difficulty, and some sixteen hours after his first call and visit to Young, Doctor Moore informed him the wound, in his opinion, was fatal. After stating this announcement the doctor's testimony continues as follows:

"Q. State whether or not, from your statement to him, that he must die, whether he considered he must die?

"A Jake Young said 'according to my...

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