Salas v. People
| Decision Date | 06 November 1911 |
| Citation | 118 P. 992,51 Colo. 461 |
| Parties | SALAS v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Bent County; Henry Hunter, Judge.
Florencio Salas was convicted of murder, and brings error. Reversed and remanded for new trial.
H. L Lubers and C. E. Snyder, for plaintiff in error.
John T Barnett, Atty. Gen., Benjamin Griffith, Atty. Gen., James M Brinson, Deputy Atty. Gen., and Theodore M Stuart, Jr., Asst. Atty. Gen., for the People.
1. Plaintiff in error, Florencio Salas, was convicted of murder of the first degree for shooting and killing Domingo Balles, and sentenced to life imprisonment in the penitentiary. People's evidence shows: That, on July 24, 1909, deceased was floor manager at a dance in Las Animas. Shortly before midnight, Jayo, brother of the defendant, was very abusive and quarrelsome, and started to pick a fight with one Pedro, outside the dance hall. Deceased tried quietly to get him to go home, and in so doing placed his hand on Jayo's shoulder. Defendant said, 'No son of a bitch can take my brother,' and immediately fired, striking deceased in the abdomen; deceased grabbed the gun. In the struggle which ensued, defendant was overpowered by the assistance of others, and the pistol taken from him. Deceased went back into the hall, where he received medical attention, and stayed there until the next morning, when he was taken home, and died about 4 o'clock on the afternoon of the 25th.
Defendant's evidence showed that he was a musician, playing for the dance, and going out during the disturbance found his brother intoxicated, and in a quarrel or fight with Pedro. At deceased's request, he intended to take his brother home, but went back in the hall first, to get a pistol he had secreted there early in the evening. This he put on the inside of his trousers, and while standing by deceased and his brother deceased put his hand on Jayo's shoulder, and asked him to go home. About this time, the pistol slipped down the inside of the leg of his trousers, and was coming out at the bottom; he reached down and pulled it out, when deceased grabbed it, and in the struggle which ensued over its possession it was accidentally discharged, killing deceased, but that he did not know who did it; in any event, the shot was unintentional.
People introduced, without objection, the dying statement of deceased, in which he said that Jayo and Pedro were fighting outside; that he went out and tried to quiet Jayo, when the defendant said he had something for any son of a bitch who wanted to take his brother, and immediately drew his revolver and shot him; that a scuffle followed over the possession of the weapon.
Defendant offered to prove by witness Taylor that, on the morning of the 25th, witness had a conversation with deceased in the dance hall before he was taken home, in which he said, in the presence of two other witnesses, that Florencio Salas shot him; that there were three or four persons scuffling for the pistol, and during the scuffle it went off, and he was shot. The people objected to this offer, on the ground that it was hearsay. The objection was sustained, and to the ruling error is assigned. Defendant claims the offered testimony was admissible upon two grounds: First, as a part of the res gestae of the litigated fact; second, that it was a statement, made out of court by the deceased, inconsistent with his dying declaration, and tended to impeach him.
2. The record fails to show the time; also the events transpiring during the interval between the fatal shot and the alleged statement. While these do not determine the competency of a statement, made out of court, offered as a part of the res gestae, still they should be shown, before the statement is admitted. One offering an oral statement, made out of court, as a part of the res gestae of a litigated fact, must first prove the things necessary to qualify the statement as evidence; until this is done, it is hearsay, and not res gestae. The statement itself is no proof that it is a part of the res gestae. State v. Williams, 108 La. 222, 32 So. 402; Bradberry v. State, 22 Tex. App. 273, 2 S.W. 592; Ford v. State, 40 Tex. Cr. R. 280, 50 S.W. 350; Pool v. Warren County, 123 Ga. 205, 51 S.E. 328; State v. Pugh, 16 Mont. 345, 40 P. 861; Territory v. Armijo, 7 N.M. 436, 37 P. 1113; Vickery v. State, 50 Fla. 149, 38 So. 907.
3. Instinctive, voluntary, spontaneous words, said under the impulse of an event of which they form a part, are not hearsay. They are incident to or a part of the transaction litigated, and admissible in evidence as a part of the res gestae; that is, as a part of all the circumstances making up the whole case. In the case at bar, the offered testimony is but a narrative of what had occurred. It and the fatal shooting are distinct, with no connection between them, and the statement is not an incident of the transaction. The court did not err in excluding the statement as a part of the res gestae. Garves v. People, 18 Colo. 170, 32 P. 63; Herren v. People, 28 Colo. 23, 62 P. 833; Pueblo Building Co. v. Klein, 5 Colo.App. 348, 38 P. 608.
4. The people's evidence, without the dying declaration, showed that when deceased put his hand quietly on Jayo's shoulder, and tried to get him to go home, defendant shot him in the abdomen; that deceased grabbed the gun after he was shot, and there was a struggle over the weapon. Deceased's dying declaration is that when he placed his hand on Jayo's shoulder defendant, with an ugly remark, instantly shot him, and that the scuffle for the possession of the weapon was after the shooting. Defendant testified that, when he took the pistol from the bottom of his trouser's leg, the deceased grabbed it, and during the struggle it was unintentionally discharged, striking the deceased. There is a sharp conflict in the evidence whether deceased was shot before the struggle over the gun, or whether it was unintentionally discharged by some one during the struggle. The offered testimony was that the deceased, in the dance hall, after the shooting, before he was taken home, and before his dying declaration, in a conversation with witness Taylor, said that there were three or four persons scuffling for the possession of the revolver, and during the scuffle it went off and shot him. This offered testimony is in conflict with and tends to impeach the dying declaration of the deceased. The district attorney objected to it, upon the ground that it was hearsay, and that the proper foundation had not been laid, and the objection was sustained. In this ruling, the majority of the court are of the opinion that the district court committed reversible error. It was competent for the defendant to introduce evidence tending to show that the deceased had made statements out of court, after he received the mortal wound, inconsistent with his dying declaration. That a dying declaration may be impeached, by showing that the person making it has made other statements inconsistent therewith, is held by the great weight of authority. McPherson v. State, 9 Yerg. (Tenn.) 279; People v. Lawrence, 21 Cal. 368; Carver v. U.S., 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602; State v. Blackburn, 80 N.C. 474; Battle v. State, 74 Ga. 101; Morelock v. State, 90 Tenn. 528, 18 S.W. 258; Green v. State, 154 Ind. 655, 57 N.E. 637; State v. Mayo, 42 Wash. 540, 85 P. 251; Hurd v. People, 25 Mich. 405; State v. Shaffer, 23 Or. 555, 32 P. 545; Commonwealth v. Silcox, 161 Pa. 484, 29 A. 105; McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S.W. 879; Dunn v. People, 172 Ill. 582, 50 N.E. 137; Wigmore on Evidence, §§ 1033, 1446. Such is the opinion of this court upon the admissibility of oral statements, made out of court by a deceased person, contradicting or impeaching a dying declaration. The writer of this opinion, however, does not agree with the opinion of the court on this point, and I will now give my reasons for dissenting.
5. The law is thoroughly established that evidence cannot be introduced, showing that a witness, at some other time, when not under oath, made statements out of court inconsistent with his testimony, without first laying the foundation by calling the witness' attention, when on the stand, to the time and place and circumstances surrounding the making of the alleged statements, and affording an opportunity to contradict or explain the statements on re-examination of the witness. Such evidence is purely hearsay. Its admission is an exception to the general rule excluding hearsay evidence, and before it can be admitted under the exception the proper foundation, above stated, must be laid. Nutter v. O'Donnell, 6 Colo. 253; Rose v. Otis, 18 Colo. 59, 31 P. 493; Ryan v. People, 21 Colo. 119, 40 P. 775; Mullen v. McKim, 22 Colo. 468, 45 P. 416; Teller v. Ferguson, 24 Colo. 432, 51 P. 429; Jaynes v. People, 44 Colo. 535, 99 P. 325; Insurance Co. v. Wich, 8 Colo.App. 409, 46 P. 687. The majority opinion does not dispute this principle, but holds, in a dying declaration, there is an exception to it, because death has made it impossible to lay the foundation. I think the law, as well as substantial justice, does not and should not recognize such an exception; in other words, there is no such exception recognized by the best line of adjudicated cases. The death of the witness does not dispense with the general rule in such cases, requiring the foundation to be properly laid. Mattox v. U.S., 156 U.S. 237, 15 Sup.Ct.
337, 39 L.Ed. 409; Ryan v. People, 21 Colo. 119, 40 P. 775; Stacy v Graham, 14 N.Y. 492; Runyan v. Price, 15 Ohio St. 1, 86 Am.Dec. 459; Wroe v. State, 20 Ohio St. 460; State v. Taylor, 56 S.C. 360, 34 S.E. 939; Craft v. Commonwealth, 81 Ky. 250, 50 Am.Rep. 160. It necessarily follows, if there is...
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