Johnson v. State
| Decision Date | 04 November 1899 |
| Parties | JOHNSON v. STATE |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.
Patrick L. Johnson was informed against for the crime of murder, and was convicted of murder in the second degree. He prosecuted error.
Reversed.
E. E Enterline, D. G. Thomas, and D. A. Reavill, for plaintiff in error.
It was error to deny the motion of defendant below to require the prosecution to call a witness whose name was indorsed on the information, who had been subpoenaed by the prosecution and was present at the trial. (People v. Etter, 45 N.W 1109; People v. Dietz, 49 id., 296; People v. Kenyon, 93 Mich. 19; Thompson v. State, 17 S.W. 448; Ruyens v. State, 25 id., 786; Mayes v. State, 24 id., 421; People v. Oliver, 4 Utah 460).
The declaration of the deceased that defendant did not intend to shoot him was admissible as part of the res gestae. (Underhill on Cr. Ev., 120, 121; Lewis v. State, 29 Tex. App., 201; State v. Arnold, 47 S. C., 9; State v. Talbert, 19 S.E. 852; Fulcher v. State, 28 Tex. App., 465; Pierson v. State, 21 Tex. 14; Smith v. State, 21 Tex. App., 277; Ingram v. State, 43 S.W. 518; Darter v. State, 44 id., 850; Benson v. State, 43 id., 527; Pilcher v. State, 32 Tex. Cr., 557; State v. Martin, 124 Mo. 514; State v. Rollins, 113 N.C. 722; Von Pollnitz v. State, 92 Ga. 16; Com. v. Werntz, 161 Pa. 591; State v. Euzebe, 7 So. 784; People v. Callaghan, 4 Utah 49; Ter. v. Davis, 10 P. 359; State v. Brown, 28 Or. 147.).
The evidence offered to show kind acts toward deceased on the part of defendant was admissible to rebut malice. (Brannigan v. People, 3 Utah 488.)
It was error to permit the prosecution to cross-examine defendant respecting matters not alluded to in chief, and to call out thereby the fact that one with whom defendant associated, after the homicide, killed a man. The constitutional right of defendant was also violated.
The instruction that the intent to kill is to be conclusively presumed from the pointing and firing of a pistol at a vital point of another's body is erroneous.
J. A. Van Orsdel, Attorney General, and John H. Chiles, for the State.
The prosecution was not required to produce the witness whose name was indorsed on the information. People v. Robertson, 67 Cal. 646; State v. Payne, 10 Wash. 545; State v. Russell, 13 Mont. 164; State v. Barrett, 54 P. 807; State v. Rolla, 55 P. 523; People v. Robinson, 6 Utah 101; Clark Crim. Proc., 548; 17 N.W. 446; 38 N.W. 525; 2 N.E. 775; Abb. Cr. Brief, 187; 6 Park. Cr., 398; 96 Ill. 91; 55 N.W. 753; 61 N.W. 246; 14 S.E. 331.
The declarations of defendant during flight were properly admitted. (Underhill Cr. Ev., 115-119; Bish. New Cr. Pro., 1250.)
The statement of deceased was properly rejected. It constituted no part of the res gestae. People v. Ah Lee, 60 Cal. 85; State v. Raven, 115 Mo. 419; State v. Daugherty, 17 Nev. 376; Jones v. State, 71 Ind. 66; Hall v. State, 132 Ind. 317; Stephenson v. State, 110 Ind. 358; Parker v. State, 136 Ind. 284; State v. Carey, 56 Kan. 84; Turner v. State, 89 Tenn. 547; Hall v. State, 48 Ga. 607; State v. Carlton, 48 Vt. 636; State v. Pomeroy, 25 Kan. 349; Kirby v. Commonwealth, 77 Va. 681; State v. Arnold, 47 S. C., 9; 21 Enc. Law, 111; Underhill Crim. Ev., 120; Wharton Crim. Ev., 263.
It seems the true rule is, regarding the cross-examination of the accused, that in the absence of a statute limiting the right of cross-examination, that if the accused take the witness stand in his own behalf, although not obliged to do so, he is subject to the same examination as any other witness in the case.
The instruction complained of is sustained by Underhill on Ev., Sec. 234.
An information was filed against the defendant Johnson, charging him with the murder of William Strang. The killing took place early in the morning at a ranch where the defendant, the deceased, and several other young men had stayed over night. The defense was that several of those present at the ranch had been amusing themselves by shooting near each other with their pistols, but so as to miss. That the shot which caused the death of the deceased was fired in this way, and was aimed some distance to his right. That he slipped in the snow and thus came within range of the bullet and was killed, the defendant, who fired the shot, not intending it. There was a verdict of murder in the second degree and the defendant was sentenced to the penitentiary for life. The several errors assigned will be considered as far as practicable in their order.
1. A witness whose name was indorsed upon the information, and who was present in court, was not called by the prosecution. At the close of the evidence for the State the defense demanded that he be placed upon the stand for cross-examination by them. We do not think the court erred in denying the request. The witness was in court and was afterward examined by the defense. He was not an eye-witness to the transaction, and no actual prejudice to the defendant by reason of the failure of the State to call him is pointed out. This question was quite fully discussed in Ross v. The State, decided at the last term of this court.
2. Together with other evidence offered by the prosecution to show the flight of the accused, a witness testified that two days after the shooting the defendant came to his camp about two o'clock in the afternoon and stayed overnight. That while there he stated that a man by the name of Bennett had gone around by Brown's Park to get some fresh horses, and that when he returned defendant would get a fresh horse, go to Rawlins, and go home to Iowa and leave the country. Upon being asked if defendant stated why he was going to leave the country the witness replied that the defendant said they were making it pretty hot for him in Brown's Park, and that he did not like to be seen there after the horses. The witness stating upon cross-examination that defendant said nothing about the shooting of Strang, and that he did not understand the latter remark to have any connection with this case, defendant's counsel asked that it be stricken out as irrelevant and immaterial, and the refusal of the court to strike it out is assigned as error. Any evidence tending to show flight was material. It was shown that defendant left the ranch where the shooting took place about three hours and a half after it occurred, and before the death of Strang. The witness stated that when defendant came to his camp, he was traveling, riding one horse and leading another. These facts certainly had some tendency to show flight, and his declarations, in regard to his movements, his intentions and his reasons for leaving, made at the same time, were verbal acts constituting a part of the same transaction. As such they were admissible in evidence. That the testimony was likely to prejudice the defendant in the eyes of the jury can not be denied, for they might be influenced by the consideration that however doubtful the case upon trial might be, a verdict of guilty would in any event result in placing the defendant upon the right side of the penitentiary. But this fact can not be deemed sufficient reason for the rejection of relevant testimony, not otherwise subject to any objection. The court would no doubt, upon a request to that effect, have protected the defendant, as far as possible under the circumstances, by an instruction that the evidence should have no weight with the jury except as it might tend to show the flight of the defendant on account of the alleged crime for which he was upon trial.
3. Almost immediately after being shot the deceased was carried into the house by the defendant and others. The defense offered to prove that, a short time after being carried in, the deceased, upon being asked how it occurred, said, "Johnson shot me, but he did not intend to do it." The witnesses say that they do not know how long after the shooting this statement was made; that it may have been half an hour or an hour: that it was not long. The evidence was excluded as not being a part of the res gestae.
The question is confessed to be one of much difficulty, and the cases are very numerous and...
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...which it relates, quite as well as a spontaneous statement or declaration of facts. This is well illustrated in the case of Johnson v. State, 8 Wyo. 494, 58 P. 761, where deceased, immediately after the shooting, and upon being asked how it occurred, said the defendant "shot me, but he did ......
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