Hollywood v. State
| Citation | 19 Wyo. 493,120 P. 471 |
| Decision Date | 12 January 1912 |
| Docket Number | 654 |
| Parties | HOLLYWOOD v. STATE |
| Court | United States State Supreme Court of Wyoming |
Rehearing Denied April 1, 1912, Reported at: 19 Wyo. 493 at 522.
ERROR to the District Court, Fremont County; HON. CHARLES E CARPENTER, Judge.
John Hollywood was tried upon a charge of murder in the first degree, and convicted of manslaughter. He brought error. The material facts are stated in the opinion.
Affirmed.
M. C Brown, for plaintiff in error.
The motion for continuance should have been granted, for it was an abuse of discretion to deny the request of the defendant to postpone the trial to the next term of the court to enable him to prepare for his trial. There is no reasonable presumption that a defendant's motion for continuance at the first term after indictment is without merit, or made to obtain an unfair advantage. The affidavits clearly showed that the defendant and his counsel had no reasonable opportunity to prepare for his trial, and he was therefore practically denied his constitutional right to the assistance of counsel. (State v. Pool, 23 So. 503; Dunn v People, 109 Ill. 635; Wray v. People, 78 Ill. 212; Conley v. People, 80 Ill. 236; State v. Simpson, 38 La. Ann. 24; State v. Ferris, 16 La. Ann. 425; State v. Brooks, (La.) 1 So. 421.) The record discloses that questions were involved requiring the most careful examination and consideration by counsel, and sufficient time should have been given them to make proper preparation.
The testimony taken at the coroner's inquest or a record of such testimony is not competent as original testimony on the trial of the one charged with a homicide. Such record might be used to refresh the memory of a witness or to contradict him. It was error to admit over objection the testimony of the witness Adams with reference to a conversation overheard by him between the defendant and his brother. It did not appear by that testimony that the statements said to have been made by the defendant referred to the one alleged to have been killed by him, and therefore the admission of the testimony was prejudicial error. Much other testimony on direct and cross-examination was erroneously admitted over the objection of the defendant. The nurse who attended the deceased was permitted to state what his symptoms were, and following her testimony the chart which she had made during his illness was offered and admitted in evidence. These matters are referred to, not alone because the rulings of the court were erroneous, but because they tend to show that the defendant did not have a fair trial.
An expert witness may state the reasons for his opinion, and testify as to the source of his knowledge. He is therefore in a different position from other witnesses. He is permitted to express his opinion as to causes and effects, based upon the material facts either observed by himself or testified to by others, because of his special learning and knowledge as to the specific matter under inquiry. (5 Ency. Ev. 521-523; Ferguson v. Hubble, 97 N.Y. 507.) Because of the rules controlling the admission of testimony of expert witnesses the broadest latitude should be given in cross-examination. On such cross-examination it is proper to put questions in an abstract or theoretical form, for the purpose of testing the knowledge and information of the witness, and his competency to give the opinion which he may have stated. (People v. Augsbury, 97 N.Y. 501; R. R. Co. v. Edmanson, 135 Ala. 336; People v. Sutton, 73 Cal. 243; Beviar v. Delaware &c. Co., 13 Hun, 254; State v. Tighe, 27 Mont. 327; Ins. Co. v. Copeland, 86 Ala. 551; 5 Ency. Ev. 859.) The question of res gestae is squarely presented upon this record. There were several rulings relating to evidence of conversations occurring some minutes before the shooting, when the defendant was crossing the street. Defendant's counsel sought to bring out the whole of the conversations and other declarations made at the same time. The defendant had a right to the evidence under the ordinary rule of cross-examination. It was competent and relevant as part of the res gestae. (Louisville &c. Co. v. Samuels, (Ky.) 59 S.W.; Calley v. Comm., (Mo.) 12 S.W. 132; Means v. R. R. Co., 32 S.E. 960; 8 Tex.App. 254; State v. Bigerstaff, 17 Mont. 510; Monroe v. State, 5 Ga. 85; Sherley v. State, 144 Ala. 35; Stevenson v. State, (Tex.) 89 S.W. 1072; Feldin v. State, (Tex.) 3 S.W. 145; State v. Wagner, 61 Me. 178; Flinn v. State, 43 Ark. 289; R. R. Co. v. Chollett, 41 Neb. 578; Ins. Co. v. Mosley, 75 U.S. 307.) The rule is more liberal in cases of homicide than in civil cases. (State v. Hudspeth, 159 Mo. 178; Puls v. Grand Lodge, 13 N.C. 559.) Statements after the act, even in narative, form res gestae. (Narley v. R. R. Co., 64 Miss. 329; 52 La. Ann. 727; Murray v. Boston &c. Co., 72 N.H. 32.) The tendency is to extend rather than to narrow the doctrine of res gestae. (Jack v. Mut. Res. Fund, 113 F. 49; State v. Harris, 45 La. Ann. 842; R. R. Co. v. McLane, 11 App. D. C. 220; R. R. Co. v. O'Brien, 119 U.S. 99; R. R. Co. v. Coly, 55 Pa. 402; Boat Co. v. Brackett, (U. S.) 30 L.Ed. 1049; Bergerman v. Ry. Co., (Mo.) 15 S.W. 994; Goss v. Ry. Co., 50 Mo.App. 622; Comm. v. McPike, 3 Cush. 181; Harman v. Stowe, 57 Mo. 93; Mattanson v. R. R. Co., 35 N.Y. 487; R. R. Co. v. Sutton, 42 Ill. 438; Land v. People, 104 Ill. 248; State v. Robinson, 12 Wash. 491; Freeman v. State, 40 Tex. Cr. 545; Alserver v. R. R. Co., 115 Ia. 338; Nutchum v. State, 11 Ga. 615; State v. Garrand, 5 Ore. 217; State v. McDaniel, 68 S.C. 384; Sullivan v. State, 58 Neb. 796; Wright v. State, 88 Md. 705.) There is no arbitrary time limit. (Johnson v. State, 8 Wyo. 494; Sullivan v. State, supra.) As to conclusions see also: People v. Swenson, 49 Cal. 338; State v. Foley, 113 La. Ann. 52; State v. Henderson, 24 Ore. 100; State v. Sloan, 47 Mo. 604.
To entitle a dying declaration to admission in evidence, it must appear that the declarant believed death to be impending and imminent, that the statement referred to the injuries which resulted in death, the person or persons who committed the injury, and the attending circumstances. Such statements differ from res gestae, in that they are admissible though usually made some time after the homicide elapsed, and are made in extremis and under a sense of impending death. (Kane v. Comm., 109 Pa. St. 541.) Statements admissible as res gestae are admissible as dying declarations. (State v. Nash, 7 Ia. 347; State v. Parigo, 80 Ia. 37; People v. Olmstead, 30 Mich. 431; Steel v. Baldwin, 79 Ia. 714; Simons v. People, 150 Ill. 66; State v. Scott, 12 La. Ann. 274.) The rule under which they are admitted is an exception to the rule which excludes hearsay evidence, and the further rule requiring a witness to be sworn. (Kane v. Comm., supra; State v. Williams, 67 N.C. 12.) If the declaration was made under a sense of impending death it is admissible, no matter what the state of the declarant's mind was either before or after the making of the statement. (State v. Baldwin, supra; Small v. Comm., 91 Pa. St. 304; Polk v. State, 35 Tex. Cr. 495.) And the length of time after the statement before death is immaterial. (Swisher v. Comm., 26 Gratt. 963; State v. Mills, 91 N.C. 581; State v. Reed, 55 Kan. 767; State v. Kilgore, 70 Mo. 546; State v. Tilghman, 33 N.C. 513; Highsmith v. State, 41 Tex. Cr. 32.) The admission of the declaration does not depend upon the number of witnesses testifying upon the same matter. (Reynolds v. State, 68 Ala. 502; Linke v. Comm., (Ky.) 5 S.W. 354; 4 Ency. Ev. 937.) Dying declarations are admissible in behalf of the defendant. (People v. Southern, 120 Cal. 645; Rex. v. Scaife, 1 M. & R. 551; U. S. v. Taylor, 4 Cranch C. C. 338; Mattox v. U.S. 146 U.S. 140; Moore v. State, 12 Ala. 764; Brook v. Comm., 92 Ky. 183; Comm. v. Matthews, 89 Ky. 287; People v. Knapp, 26 Mich. 112; State v. Saunders, 14 Ore. 300.)
While this court will not disturb a judgment for an error which did not operate to the substantial injury of the complaining party, it is well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have been prejudicial. (R. R. Co v. O'Brien, (119 U.S.) 30 L.Ed. 300.) After the plaintiff has introduced his evidence, and the testimony of the defendant has been heard, the plaintiff is not then entitled as a matter of right to introduce further proof in chief. (Walker v. Walker, 14 Ga. 242; Macullar v. Wall, 6 Gray, 507; Hathaway v. Hemingway, 20 Conn. 195; Pettibone v. Deringer, 4 Wash. C. C. 215.) The plaintiff can only give such evidence in rebuttal as tends to answer the new matter introduced by the evidence of the defendant. (Graham v. Davis, 4 O. St. 362.) But the court may, in the exercise of a sound discretion, permit evidence in rebuttal that should have been offered in chief, when it is clear that the offer is not a device to obtain an unfair advantage. (Wheedlove v. Bundy, 96 Ind. 319; Clayes v. Ferris, 10 Vt. 112; Webb v. State, 29 O. St. 351.) But a repetition of evidence in chief has been rarely allowed in rebuttal. (Thompson on Trials, Sec. 343.) Instruction number 10 is frequently given in cases of circumstantial evidence, but where all the testimony was from eye-witnesses the instruction is out of place. (Welch v. State, 124 Ala. 41.) The instruction was misleading and...
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Hollywood v. State
...HOLLYWOOD v. STATE No. 654Supreme Court of WyomingJanuary 12, 1912 19 Wyo. 493 at 522. Original Opinion of January 12, 1912, Reported at: 19 Wyo. 493. Rehearing M. C. Brown, for plaintiff in error, on petition for rehearing, argued that the defendant was not committing an unlawful act in hi......