Hawkins v. U.S.

• Citation: 108 P. 561,3 Okla.Crim. 651,1910 OK CR 85
• Parties: HAWKINS v. UNITED STATES.
• Decision Date: 26 April 1910
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

108 P. 561

3 Okla.Crim. 651, 1910 OK CR 85

HAWKINS v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

April 26, 1910

Syllabus by the Court.

Upon a trial for murder, a declaration made by the deceased, clearly without premeditation or design, not more than half a minute after the shooting, upon the spot where the shooting occurred, and which declaration tended to explain the main fact, namely, the circumstances of the shooting, is properly a part of the res gestæ, and is admissible.

Where a dying declaration is admitted in evidence before a proper predicate therefor is laid, but by evidence subsequently adduced the declaration is shown to be admissible, the error in admitting the declaration without requiring the predicate proof to be first made is harmless.

Proof that the deceased was shot one afternoon, and died about 8 or 9 o'clock the following morning, that his wound was intensely painful and necessarily fatal, that he was unable to be moved from the house in which he was shot, and that he stated that he was going to die, shows a conviction in deceased's mind that death was impending, and is a sufficient predicate for the admission of his dying declaration.

Whether a purported dying declaration was made under a sense of impending death is a question solely for the court in so far as it determines the admissibility of the declaration in evidence.

When a dying declaration is offered in evidence, the court should require the necessary preliminary proof to be first made to the court and in the absence of the jury. If it is made and is sufficient, then both the preliminary proof and the declaration should be given anew before the jury. If it is not sufficient, neither the preliminary proof nor the declaration should be given to the jury.

Before the testimony of a witness at a former trial may be proved as secondary evidence against a defendant in the final trial, it must first be proved that such former trial was had, that the witness was sworn and testified, that the defendant was present, and had opportunity for cross-examination, and that the witness has since died, become insane, left the state that he is sick and unable to testify, or that his whereabouts cannot with due diligence be ascertained.

Where incompetent and injurious testimony is admitted ever the objection of the defendant, the latter does not waive his objection by the introduction of counter evidence, even though such counter evidence would not have been competent but for the admission of the incompetent evidence sought to be counteracted by it.

Under the law in force in the Indian Territory prior to statehood record proof of the conviction of a witness of an infamous crime rendered such witness disqualified to testify except in his own behalf; but proof of such fact by the witness' admission went only to his credibility.

Under the law in force in the Indian Territory prior to statehood the deposition or former testimony of a witness qualified when he gave it, but subsequently disqualified by conviction of an infamous crime, cannot, after such conviction, be admitted over objection, upon the theory that the witness must be competent at the time his testimony is offered.

Under section 863, Ind. T. Ann. St. 1899 (Mansf. Dig. § 1520), to make a prima facie case of murder, the prosecution is required to establish only two facts, namely, the death of the deceased, and the fact that he was killed by the defendant. If those two facts are established without disclosing facts sufficient to raise a reasonable doubt of the degree of the homicide or of the defendant's justification or excuse, then the burden shifts to the defendant to introduce sufficient evidence to engender a reasonable doubt as to the degree of the offense, or as to whether he was justifiable or excusable.

Instructions upon self-defense in a trial for murder which tell the jury that it must appear from the evidence that the defendant was not the aggressor before the plea of self-defense can avail him, and that if they believe certain facts from the evidence, then they should acquit the defendant as having acted justifiably, and which nowhere tell the jury that if, upon a consideration of all the evidence, they entertain a reasonable doubt as to whether the defendant acted in his real or apparent necessary self-defense, they should acquit, are disapproved.

Additional Syllabus by Editorial Staff.

Act Cong. May 2, 1890, c. 182, 26 Stat. 81, adopting certain general laws of Arkansas, also adopted the construction previously placed upon such laws by the Supreme Court of Arkansas.

A law changing the qualifications of witnesses is not ex post facto as to offenses committed prior to its passage.

Appeal from District Court, Wagoner County; John H. King, Judge.

Gabe Hawkins was convicted of murder, and he appeals. Reversed and remanded for new trial.

Under the law in force in the Indian Territory prior to statehood, the deposition or former testimony of a witness qualified when he gave it, but subsequently disqualified by conviction of an infamous crime, cannot after such conviction be admitted over objection, upon the theory that the witness must be competent when his testimony is offered.

Cook & De Graffenried, for plaintiff in error.

Chas. West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and S. M. Rutherford, for the State.

RICHARDSON J.

On the 4th day of October, 1905, the plaintiff in error, Gabe Hawkins, hereinafter designated as the defendant, was indicted in the United States Court for the Western District of the Indian Territory at Muskogee for the murder of one Sanford Daniels, alleged to have been committed in that district on the 30th day of April, 1905. The cause was continued from time to time until the admission of Oklahoma into the Union, after which, by proper order of the district court of Muskogee county, it was transferred for trial to the district court of Wagoner county, upon a showing that the offense, if any, was committed in the latter county. The cause was tried at the October, 1908, term of the court, and resulted in a verdict finding the defendant guilty of murder, without capital punishment.

The defendant admitted the killing, but pleaded self-defense as a justification. The homicide was committed in a house owned by R. B. Daniels, the deceased's father, and occupied by one Dora Smith, a tenant. Just prior to the killing the said R. B. Daniels and Warrior Hawkins, a brother of the defendant, had a difficulty on these premises, in which no weapons were used and neither party was hurt. Neither the deceased nor the defendant participated in this difficulty, the defendant not being present at the time. The state contended that when the defendant, who was about two blocks from the scene of the trouble, heard of the difficulty, he announced his intention to "go down and settle that squabble," end that he then proceeded to the house carrying his pistol in his hand; that the deceased, who was on the porch when the defendant arrived, went into the house upon seeing the defendant coming up armed; that the defendant immediately cocked his pistol, and made a demonstration as if to shoot through the door, when those present told him not to shoot in the house because he might hit the deceased; that thereupon the defendant put his shoulder against the door, broke it open, and deliberately shot and killed the deceased, who was standing in the room unarmed. The defendant contended that he went to the house to get his brother and take him home; that he did not have his pistol in his hand; that he stopped upon the porch, and, the door being open, he saw the deceased in the room; that when the deceased saw him he drew a pistol and said, "Gabriel, I am going to kill you," and thereupon leveled the pistol on the defendant, whereupon the defendant drew his pistol and shot the deceased. A considerable crowd was present at the time of the shooting; and on the trial the contention of each party was supported by the testimony of several witnesses.

1. In response to questions propounded by the state, and over the objection of the defendant, the witness R. B. Daniels testified that the deceased told him immediately after the shooting that he (the deceased) was unarmed. In connection with this statement the witness testified that at the time the shot was fired he was about seven feet from the corner of the room in which the shooting occurred; that he ran into the room at once, that some one was then picking the deceased up from the floor where he had fallen, and that the statement was made by the deceased at that time and under those circumstances. The defendant saved an exception to the action of the court in admitting this testimony, and he assigns it as error here. The record shows that this declaration was made not more than half a minute after the shooting, and upon the very spot where the shooting occurred; the time when and the circumstances under which it was made clearly indicate that it was made wholly without premeditation or design, and could not have been the result of deliberation; it tended to explain the main fact, which was the circumstance of the shooting, and it followed immediately upon it. It was, therefore, properly a part of the res gestæ, and was admissible. Price v. State, 1 Okl. Cr. R. 358, 98 P. 447; Com. v. Hackett, 2 Allen (Mass.) 136; Mitchum v. State, 11 Ga. 615; State v. Garrand, 5 Or. 217; State v. Ah Loi, 5 Nev. 99; State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am. St. Rep. 661; Com. v. Werntz, 161 Pa. 591, 2,9 A. 272.

2. The witness R. B. Daniels also testified that the deceased made a dying declaration in which he said that he was unarmed at the time of the shooting, and that he did not know why the defendant shot him...