Collins v. State

• Decision Date: 01 October 1895
• Citation: 46 Neb. 37,64 N.W. 432
• Parties: COLLINS v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 37

64 N.W. 432

COLLINS

v.STATE.

Supreme Court of Nebraska.

Oct. 1, 1895.

Syllabus by the Court.

1. As a general rule, the re-examination of a witness should be limited to the points arising out of the cross-examination; but whether this rule shall be strictly enforced, or not, seems to rest entirely in the discretion of the trial judge. Schlencker v. State, 1 N. W. 857, 9 Neb. 241.

2. It is competent for a witness, on his redirect examination, to make clear or complete matters left obscure or incomplete by his answers on cross-examination.

3. In reviewing the rulings of the trial court in receiving and rejecting evidence, this court will confine its examination to the objections made at the trial. Hill v. State, 60 N. W. 916, 42 Neb. 503.

4. Dying declarations, to be admissible, must be made under a sense of impending death. But it is unnecessary that the deceased should have stated at the time of making the same that he was about to die. It is sufficient if this state of mind appears from other testimony. Fitzgerald v. State, 10 N. W. 495, 11 Neb. 577.

5. The term “res gestæ” means a thing or things done in and about--as a part of--the transaction out of which the litigation in hand grew, and on which transaction said litigation is based.

6. The declaration of an injured person--who subsequently dies from such injury--as to the cause of his injury, though made out of the presence of the party accused of inflicting such injury, and made under such circumstances as not to be admissible as the dying declaration of the deceased, is nevertheless competent evidence, as part of the res gestæ, provided the declaration was made so near the time of the infliction of the injury, and under such circumstances, as to raise the presumption that it is an unpremeditated explanation thereof.

7. Whether the declaration of a person, since deceased, is competent evidence, as being part of the res gestæ of some transaction occurring in the life of said deceased, in any case, must be determined from the facts and circumstances surrounding the case on trial.

8. One McPherson, about midnight, was wounded by a pistol shot, of which wound he died a few days afterwards. At the time of the shooting he and one Dale were stealing coal from a railroad yard. McPherson was found insensible, where shot, shortly afterwards, but soon thereafter regained consciousness. He was then removed to an hotel near by, and his wound dressed. About two hours and a half after the shooting he stated to those in attendance upon him at the hotel “that Dale had shot him accidentally.” It did not appear from any statements of McPherson's, or other evidence, that when he made said declaration he was possessed of the conviction that he was mortally wounded and about to die. No inquiries were made of McPherson by those who found him in the railroad yard, while there, as to how he came to be shot. McPherson made no statements, while in the railroad yard, as to who shot him. It was not made to appear that McPherson was unable to speak while in the yard, after regaining consciousness, and before being removed; nor was it made to appear that he lost consciousness, or became unable to speak, at any time after reaching the hotel, and before the making of such declaration. On the trial of one Collins for the murder of McPherson, the prisoner offered in evidence McPherson's declaration, above quoted. Held, (1) that the declaration was not competent evidence as the dying declaration of McPherson; (2) that the declaration was not made so soon after the shooting, and under such circumstances, all the facts and circumstances of the case considered, as to raise the presumption that the declaration was the unpremeditated explanation of the shooting, and that, therefore, it was incompetent evidence as part of the res gestæ.

Error to district court, Douglas county; Scott, Judge.

Edward J. Collins, having been convicted of murder, brings error. Affirmed.

Jos. R. Clarkson, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

RAGAN, C.

For the shooting and killing of one Louis McPherson, Edward J. Collins was convicted in the district court of Douglas county of the crime of murder in the second degree, and sentenced to the state penitentiary for life. Collins brings the judgment pronounced against him here for review, and seeks its reversal for the following alleged errors committed by the trial court.

1. On the trial the state called as a witness one Bennett, the sheriff, who, among other things, testified that after a conversation with one Dale he arrested the prisoner. Bennett, on his cross-examination by counsel for Collins, testified as follows: “Q. After you heard Dale's story, and after you had arrested Collins, you felt suspicious, didn't you? A. I did, for two reasons. Q. You did feel suspicious of him? A. Yes, sir.” Bennett, on his redirect examination by the state, was then asked: “What were your reasons?” (for being suspicious). This question, counsel for Collins objected to. The objection was overruled, and the witness answered. The first reason was, Mr. Dale seemed to be very open in his remarks, and he did not care how he talked. The other reason was, Mr. Collins was very closemouthed, and very careful what he said. The ruling of the court in permitting this question to be answered is the first error assigned here by Collins. In Schlencker v. State, 9 Neb. 241, 1 N. W. 857, it was held that: “As a general rule, the re-examination of a witness should be limited to the points arising out of the cross-examination. But whether this rule shall be strictly enforced, or not, seems to rest entirely in the discretion of the presiding judge.” Whether the evidence elicited from Bennett on his cross-examination was competent, and would have been permitted, had objection thereto been made by the state, we do not decide; but it is clear that the redirect examination of Bennett was limited and directed solely to the facts of Bennett's suspicions at the time he made the arrest of Collins, as brought out on his cross-examination. It is competent for a witness, on his redirect examination, to make clear or complete matters left obscure or incomplete by his answers on cross-examination. The court did not abuse its discretion in permitting the question to be answered, and it was proper and competent evidence, tending to explain and make complete facts elicited from Bennett on his cross-examination which were left incomplete and obscure. The assignment is therefore overruled.

2. On his direct examination a witness for the state was asked, “What, if anything, did you hear defendant, Ed Collins, state, previous to the shooting in this case, about there being too much stealing done in and about Valley, and he was going to put a stop to it?” The prisoner's counsel objected to this question, as leading, and thereupon the trial court said: “You may repeat his language, if you know. State what he said.” The prisoner excepted, and the witness answered. The ruling of the court in permitting this question to be answered is the second assignment of error urged here. It is to be observed that the only objection made to the question was that it was leading. The trial judge, in effect, sustained this objection, and himself put to the witness the question: “You may repeat his language if you know. State what he said.” No objection was interposed to the question, as actually put by the court and answered by the witness. “In reviewing the rulings of the trial court in receiving and rejecting evidence, this court will confine its examination to the objections made at the trial.” Hill v. State, 42 Neb. 503, 60 N. W. 916. For the reason that no objection was made in the court below to the question actually put to and answered by the witness, the assignment of error is overruled.

3. It appears from the record that the deceased was shot in a railroad yard in the town of Valley somewhere near midnight of the 18th of November, 1893. Shortly afterwards he was found lying on the ground where shot, in an unconscious state of mind, with a bullet hole in his head. About 30 minutes after he was found, and while he was still in the railroad yard, he regained consciousness, and was soon afterwards removed to an hotel, where he was washed and put to bed,--a man named Ball being in attendance upon him in the hotel. Ball was called as a witness for the prisoner, and testified that McPherson, while in the railroad yard, made no statements as to how he happened to be shot. Counsel then asked Ball this question: “Did he (McPherson), while you were present at the hotel, after he had recovered so as to be able to talk, state the manner of his shooting?” This question the state objected to. The court sustained the objection, and the prisoner excepted. The witness then testified that at no time while he was present with McPherson was anything said by him about the likelihood of his dying, or which indicated that he thought he was dying, or fatally wounded. The prisoner then made the following offer of proof, under the question asked Ball, and which the court refused to permit him to answer: “Defendant offers to prove by this witness that McPherson, the deceased, at the Reid Hotel, in the presence of the witness and others, stated, when questioned regarding the manner in which he was shot, and the person by whom, that his partner had shot him, and that he thought it was accidental, and that he laid no blame on him.” This offer was objected to by the state, and the court said, “If you will show, on the part of the defendant, that the deceased was laboring under the belief or conviction that he was going to die, you may introduce that testimony.” The prisoner made no such showing, and the court sustained the objection to the testimony offered, to which the prisoner excepted. This ruling of the court is the third assignment of error alleged here.

In Fitzgerald v. State, 11 Neb. 577, 10 N....