Richard v. State

• Decision Date: 12 October 1900
• Citation: 42 Fla. 528,29 So. 413
• Parties: RICHARD v. STATE.
• Court: Florida Supreme Court

29 So. 413

42 Fla. 528

RICHARD v. STATE.

Florida Supreme Court

October 12, 1900

Error to circuit court, Bradford county; Rhydon M. Call, Judge.

R. R Richard was convicted of manslaughter, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Dying declarations of a person mortally wounded, in reference to the circumstances that caused death, in cases where the death of the declarant is the subject of investigation, are admissible in evidence when the declarant is in extremity believes death is imminent, and is without hope of recovery and the circumstances under which the declarations are made should be shown, in order that the court may determine whether or not they are proper to go to the jury as 'dying declarations.'

2. The fact that dying declarations are made in response to questions asked the declarant is no ground for excluding them; nor is it material, as to their admissibility, that the questions are omitted, and the answers only given, when they are reduced to writing, read over, and signed by declarant.

3. It is not error to deny a motion to exclude or strike out a statement offered as a dying declaration when a portion sought to be excluded is admissible, though another portion may be objectionable. The proper practice in such a case is to confine the objection to the inadmissible portion.

4. In considering exceptions to portions of charges, they should all, bearing on the subject, be considered in connection with each other.

5. The correctness of a charge on the subject of murder in the first degree becomes immaterial where the jury reject entirely the theory of the case presented by the charge, and render a verdict for manslaughter.

6. It is proper to refuse requests based upon a state of facts not shown by the evidence.

7. When the entire scope of requests to charge has been covered by charges given, it is not error for the court to refuse to repeat the charges in substance, though differing in phraseology.

8. Where two persons are jointly indicted and tried, and one is acquitted and the other convicted, the correctness of charges applicable in terms solely and exclusively to the one acquitted cannot be questioned by the one who was convicted.

9. A brother is not included among the domestic relations enumerated under the second head of the second division of section 2378, Rev. St., in behalf of whom a person may defend, not only when absolutely necessary to protect life but also when there shall be a reasonable ground to apprehend a design to commit a felony, or do some great personal injury, and there shall be imminent denger of such design being accomplished. A brother may interfere in behalf of a brother to the extent of taking life only when the homicide is necessarily committed in lawfully keeping or preserving the peace.

10. A request containing several alternative propositions of law, one of which is incorrect, is correctly refused when requested as an entirety.

COUNSEL John E. Hartridge and Wills & Long, for plaintiff in error.

OPINION

MABRY J.

R. R. Richard and O. G. Richard were jointly indicted for the murder of A. J. Kite, and on the trial O. G. was acquitted and R. R. convicted of manslaughter. The case is in this court on writ of error from the sentence of the trial court imposing a term of five years in the penitentiary against R. R. Richard.

The deceased was shot on a street in Lake Butler, Bradford county, in August, 1899, between 7 and 8 o'clock in the evening, and sat down on the steps of a building, where he was approached by one J. L. West. who was examined for the state. West testified that when he reached the deceased he said: 'Get me a quilt, and lay me on the street, and let me die. * * * I am shot through and through, and can't live. I am going to die.' He was asked who shot him, and said: 'I went to arrest Gordon [O. G. Richard], and I had to knock him down, and while I stooped over him to pick him up to carry him to jail, Dolph [Randolph R. Richard] ran up behind me, and shot me.' He was then put on a cot, and on the way to his house said he was going to die. The witness further testified that deceased was shot three times in the back, indicating that the balls went through the body. Motion was denied to exclude the evidence on the ground that it was not properly connected, or a proper foundation laid for its introduction as a dying declaration. Motion was then made to strike out all of the testimony except the statement made by the deceased as to who shot him, and this was denied. R. Tomlinson, who attended the deceased before he died, testified that the cause of his death was three wounds, caused by three pistol shots, indicating where the balls entered and came out of the body. One of the shots was stated by him to be mortal. Speaking in reference to a statement reduced to writing, made by the deceased soon after he was shot and carried home, the doctor further testified that at the time of making the statement the deceased said he was going to die, and all he wanted was something to ease his pain; he was fuffering, and wanted something to ease his pain; and at the time his mind seemed to be clear. On cross-examination this witness stated that he told deceased that the wounds were just shot throught the skin, and would not amount to anything, and that a Dr. Anthony told him he was not hurt much, and that he was a Kite, and could stand it all right. The deceased replied: 'No, I am going to die. This is going to kill me.' The motion was then renewed to strike out the testimony of West as to the statements of the deceased on the ground that no proper foundation was laid for a dying declaration, and this motion was denied. A justice of the peace testified that the deceased made a statement to him the night he died, and the statement was reduced to writing as near as possible in the language used, and, after being read over to deceased, he signed it. The justice further testified that he questioned the deceased, before the statement was made as to his condition, if he thought he was going to die or get well, and his reply was that he realized his condition, and realized that he would not get well. Both of the physicians were present at the time. On cross-examination the justice stated that he did not put in the written statement the questions, but only the answers to questions as they could be understood; that he did not remember how many questions were asked, and that he put down only the answers to the questions. He also testified that at some time while he was present with the deceased he said he knocked O. G. Richard down, but witness did not remember whether this statement was made at the time of the reduction to writing or just before or after. The shooting occurred between 7 and 8 o'clock in the evening, and death ensued early the next morning. The state introduced the written statement, which is as follows:

'State of Florida, Bradford County. Before me, a justice of the peace in and for said state and county, personally appeared A. J. Kite, who, being duly sworn, says that on the 19th day of August, A. D. 1899, in the county and state aforesaid, one O. G. Richard was drunk and disorderly in the town of Lake Butler, and he, the said deponent, attempted to arrest him, the said O. G. Richard, when some one shot him in the back from behind. The said deponent then ran across the street, and said R. R. Richard following him, shooting him. I then pulled my pistol, and R. R. Richard and I stood and shot at each other. I fired three shots. O. G. Richard came up, and R. R. Richard told him to shoot me. Gordon jumped behind the well. I don't know whether he shot me or not. I am satisfied that I will not get well. [Signed] A. J. Kite.' This statement was shorn to before the justice of the peace. Objection was made and overruled to the intoroduction of the written statement on the grounds that it relates to matters distinct from issues being tried, and not part of the res gestae; because it was shown that the witness did not claim to be literal in taking down the statement; because it was in part, as shown by the testimony, in response to questions asked; because the affidavit shows upon its face that it was not the dictation or statement of the deceased, but a succession of questions by the scribe and answers of deceased; and because no proper foundation was laid for its introduction. The foregoing rulings in reference to the dying statements of the deceased form the basis of the first, second, and third assignments of error. Dying declarations of a person mortally wounded in reference to the circumstances which caused death, in cases where the death of the declarant is the subject of the charge, are admissible in evidence when the declarant evidently believes that death is imminent, and he is without any hope of recovery. When the party is in extremity all hope of this world gone, every motive to falsehood silenced, and the mind induced by the most powerful considerations to speak the truth, the situation is so solemn and so awful as to be considered by the law as creating an obligation equal to that of an oath administered in court. The circumstances under which such statements are made must be shown, in order that the court may determine whether the declarations should be considered by the jury. Dixon v. State, 13 Fla. 636; Lester v. State, 37 Fla. 382, 20 So. 232; Greenl. Ev. (16th Ed.) § 156. We are of opinion that a sufficient showing was made that the deceased thought his death was imminent, and had lost all hope of recovery, when he made the oral statement to West, and the declarations to the justice, and reduced to writing, to admit them as dying declarations. He asked West to lay him on the street, and let him die; stating at the

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