State v. Lewis
| Decision Date | 23 February 1915 |
| Docket Number | No. 18363.,18363. |
| Citation | 175 S.W. 60,264 Mo. 420 |
| Parties | STATE v. LEWIS |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.
Walter Lewis was convicted of murder, and he appeals. Affirmed.
See, also, 248 Mo. 498, 154 S. W. 716.
Frank H. Farris, of Rolla, and S. G. Nipper, of Potosi, and Bryns & Rhodes, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.
On an amended information filed in the circuit court of Washington county charging appellant with murder in the first degree in having shot and killed one James Edsell, appellant was upon a trial in said circuit court at its August term, 1913, convicted of murder in the second degree, and his punishment assessed at ten years' imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, an appeal was granted to this court, and the approval of a bail bond by the trial court authorized a stay of execution pending the determination of the case here. This is the second appeal in this case. After a conviction of murder in the second degree at the first trial upon the same information under which appellant was tried in the instant case, he appealed to this court, and the judgment of the trial court was reversed, and the case remanded for a new trial for the errors set forth in the opinion. 248 Mo. 498, 154 S. W. 716. The facts in each trial are substantially the same in all material matters, as admitted by counsel for appellant, except as to the admission at the second trial of evidence in regard to dying declarations. For a statement of the facts, therefore, reference may be had to the court's opinion on the first appeal (248 Mo. 498, 154 S. W. 716, supra), except as to matters not therein reviewed, which will be set forth at length.
The witnesses in regard to the dying declarations were Dr. David Foard, Silas Baker, and Henry Tyre-Y. Dr. Foard, whose testimony is in the main that of the others, testified that he reached the scene of the shooting about 10:30 o'clock p. m., August 6, 1911; that he was called there to attend James Edsell, who was alleged to have been shot by appellant. Upon his arrival, the doctor found Edsell lying on the ground in front of the church; that he examined and determined the location of the wounds, and informed Edsell they were fatal, and that he was bound to die. Edsell said he knew it, and began to tell his friends good-bye. One of them was his father-in-law, Mr. Tyrey. In telling them good-bye Edsell said he knew he was going to die, and, addressing his fatherin-law, asked him if he would not take care of his (Edsell's) wife and children. Edsell, in detailing the facts in regard to the difficulty to the witness after he had said he knew he was going to die, stated, in effect, that, after he (Edsell) and some young men present had been quarreling, appellant said to Edsell, "You have said enough to the boys;" that he (Edsell) then stepped down off of the porch before the church door and struck appellant, and a shot was fired which struck and wounded a Miss Palmer, who fell to the ground; that he (Edsell) turned to where the girl had fallen, and was stooping over her, and upon rising up saw appellant right at him with a gun drawn on him; that he (Edsell) grabbed or struck at the gun, but could not get it out of appellant's hands; and that he and appellant then clinched and two shots were fired. Edsell died at his home August 8, 1911, two days after the difficulty, from the effects of the gunshot wounds.
Appellant assigns as error: (1) The improper admission of the testimony of certain witnesses as to the dying declarations of the deceased; (2) the exclusion of certain testimony of appellant's witnesses named in the motion for a new trial; (3) the giving of all of the instructions on the court's own motion; (4) the refusal of instructions numbered 1, 2, and 3, asked by appellant; (5) permitting special counsel for the state to refer to what appellant failed to say when he was a witness and subject to cross-examination.
I. Dying Declarations. Appellant contends that error was committed in admitting statements of certain witnesses in regard to the dying declarations of the deceased. It is elementary that dying declarations are admissible when made under an impression of impending death. It will be recalled that the deceased was told by the witness Dr. Foard that his wounds were fatal, and that he was bound to die from the effects of same. To this the deceased replied that he knew this to be a fact, and thereafter he bid friends, who approached him, good-bye, and especially requested his father-in-law to take care of his wife and children. These parting adieus and his anxious solicitude as to the future care of his wife and children are confirmatory of his general realization expressed to the witness Dr. Foard that he was conscious of his impending dissolution, and renders Dr. Foard's testimony clearly admissible.
As was said in State v. Colvin, 226 Mo. loc. cit. 482, 126 S. W. 458:
"It is enough, if it satisfactorily Eppears, 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 to him, or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the declarant's mind."
In the same case, following the rule laid down in earlier cases, it is held that the length of time between the declarations and the death of the declarant furnishes no rule for the admission or rejection of the testimony ; the admissibility of the testimony being, in its last analysis, dependent upon the declarant's impression of impending dissolution and not the rapid succession of death. In the instant case, the declarations of deceased were made soon after he had been shot, but death did not ensue until two days later.
In State v. Wilson, 121 Mo. loc. cit. 439, 26 S. W. 357, statements made by a deceased as to the circumstances under which he was shot were obtained from the deceased six days before he died.
In Commonwealth v. Cooper, 5 Allen (Mass.) 495, 81 Am. Dec. 762, where a person believed he could not recover, his declarations, made to a witness as to the assault 17 days before his death, were held admissible. The court said in this case that the question as to the admissibility of testimony of this character "does not depend upon the length of the interval between the declaration and the death, but on the state of the man's mind at the time of making the declaration and his belief that he is in a dying state."
The consciousness of the declarant in the instant case that his wounds were fatal renders admissible the testimony of the witnesses, other than Dr. Foard, to whom the deceased made relevant statements in regard to the difficulty after his declaration to Dr. Foard of a belief in his impending dissolution. No other tenable objection can be raised to the testimony of these witnesses, because it fills the full measure as to the competency and relevancy of evidence of this character, in being confined to matters occurring at the time of the shooting, and in detailing facts and not mere conclusions of the declarant, and, if the rule required it, comprising a continuous and connected statement of facts and not a disconnected patchwork of relevant and irrelevant statements. We would not be understood as holding that a statement of facts in a dying declaration brought out by proper questions, to which relevant answers were made, would not be admissible as a dying declaration, as has been held in a number of well-considered authorities (Rex v. Fagent, 7 Car. & P. 238; Vass v. Commonwealth, 3 Leigh [3D Va.] 786, 24 Am. Dec. 695; State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; People v. Sanchez, 24 Cal. 17), but to emphasize the fact that in the case at bar even this objection could not be urged against the declarations.
II. Exclusion of Testimony. Appellant contends that the trial court erred in excluding parts of the testimony of certain of his witnesses, whose names are set forth in the motion for a new trial. After a careful examination of the entire testimony, especially that of the witnesses named, we find that no such definite and specific objections were made to the court's ruling in this regard as to preserve the errors, if they existed, for our consideration. No reasons were assigned in opposition to the trial court's rulings; counsel for the appellant simply contenting themselves with, "I object." This, we have repeatedly held, is not an objection sufficient to base an exception thereon which will authorize a review of the trial court's action here. It is not a finical reason to exclude...
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