Howard v. State

• Citation: 201 N.W. 968,113 Neb. 67
• Decision Date: 22 January 1925
• Docket Number: 24169
• Parties: THOMAS HOWARD v. STATE OF NEBRASKA
• Court: Supreme Court of Nebraska

201 N.W. 968

113 Neb. 67

THOMAS HOWARD v. STATE OF NEBRASKA

No. 24169

Supreme Court of Nebraska

January 22, 1925

ERROR to the district court for Lincoln county: GEORGE C. GILLAN JUDGE. Affirmed.

AFFIRMED.

George N. Gibbs, E. G. Maggi, and Halligan, Beatty & Halligan, for plaintiff in error.

O. S Spillman, Attorney General, and Lloyd Dort, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY, GOOD and THOMPSON, JJ.

OPINION

MORRISSEY, C. J.

Defendant prosecutes error from a conviction for manslaughter.

The charge was that defendant, on October 17, 1923, shot and wounded one Chester Porter, who, as result of such wound, died three days later. The state was permitted to prove statements made by Porter a few hours before his death, which statements charged defendant with having fired the fatal shot. It was claimed by the state that these statements were dying declarations. Defendant assigns as error the admission of this testimony and asserts that the record fails to show that the statements, if made, were made by Porter with a knowledge of impending death, etc. We do not deem it necessary to review at length the foundation for this testimony. Were we limited solely to the testimony of the witnesses who testified as to the substance of Porter's statement, there might be merit in defendant's contention; but the testimony of these witnesses, so far as the foundation for the introduction of a dying declaration is concerned, is supplemented by the testimony of the nurse who was in attendance upon the wounded man. Porter died at 2 o'clock in the afternoon. The declarations admitted in evidence were made at 11:30 a. m. The nurse testified that, when Porter was denied a hypodermic injection at about 10 o'clock a. m., he said: "What is the difference whether I die now or six hours from now? I am going to die anyway." She testified that he talked about dying only a short time before the statements in evidence were made and that he was, during the forenoon, conscious of the fact that he was about to depart this life. This testimony is not disputed. The foundation for the admission of the testimony was sufficient.

Defendant makes a general assignment that the verdict is not sustained by sufficient evidence. Porter, the victim of the unfortunate affair, was a farmer residing with his family some distance from North Platte. Defendant was his friend and had visited the Porter home from year to...