State v. Carrington

• Decision Date: 09 October 1897
• Docket Number: 825
• Court: Utah Supreme Court
• Parties: STATE, RESPONDENT, v. CARRINGTON, APPELLANT

50 P. 526

15 Utah 480

STATE, RESPONDENT, v. CARRINGTON, APPELLANT

No. 825

Supreme Court of Utah

October 9, 1897

Appeal from the First district court, Box Elder county. C. H. Hart Judge.

J. B Carrington was convicted of murder in the second degree, and appeals.

Reversed and remanded.

Moyle Zane & Costigan, for appellant.

It is apparent that if the dying statement in writing was admissible the oral statements were not admissible. If it was committed to writing it is essential to produce the writing, which is the best evidence. Greenleaf on Evidence (14th Ed.) 161; Rex v. Gay, 7 C. and P. 230; Rex v. Reason, 1 Strange 499; Boulden v. State, 15 So. Rep. 341.

When not signed it seems not to be evidence although it is even sworn to. State v. Whiston, 16 S.E. 332; Darby v. State, 9 So. Rep. 429; Shaw v. People, 3 Hun 272; State v. Williams, 67 N. Car. 12; Reynolds v. State, 68 Ala. 502; Collins v. Comm., 12 Bush 271; Warren v. State, 9 Tex. App. 619; Matherly v. Comm., 19 S.W. 977; State v. Elkins (Mo.) 14 S.W. 116; 69 Iowa 705; People v. Lanigan, 81 Cal. 142.

The letter states his reasons for going. It is a declaration made at the time an act is done explaining and characterizing the act, and was therefore admissible. U. S. v. Penn, 27 Fed. Cas. 490; Ins. Co. v. Hillman, 145 U.S. 285; 4 Tex. App. 5; 3 Tex. App. 91; note found at 95 Am. Dec. 68; Comm. v. Trefethan, 24 L. R. A. 235; Tait v. Hall, 71 Cal. 149; Ry. Co. v. Herrick, 49 Ohio St. 25.

BARTCH, J. MINER, J., and HILES, District Judge, concur.

OPINION

BARTCH, J.:

The defendant in this case was indicted for murder, and was tried for and convicted of murder in the second degree, the higher offense being waived by the prosecution at the commencement of the trial. Counsel for the prisoner objects at the outset to the indictment, because it was found by a grand jury of seven members, as provided in section 13, art. 1, Const. Utah, and claims that the law authorizing such a jury was ex post facto as to this case, because the alleged offense was committed before the constitution went into effect. The provision referred to provides that the offenses formerly prosecuted by indictment shall, under the state government, be prosecuted by information or by indictment found by a grand jury of seven, five of whom must concur therein; but it does not make an act, which was innocent when done, criminal; nor does it aggravate the crime by making it greater than when committed, or provide for or inflict a greater punishment; nor does it change the legal rules of evidence, so as to require less or different evidence to convict. The law in question simply changes the mode of procedure, and does not affect the substantial rights of the prisoner. It is therefore not ex post facto, and is not in conflict with the constitution of the United States. An extended discussion of this question is not deemed necessary in this case, because a similar and closely connected question was before us in the case of State v. Bates, 14 Utah 293, 47 P. 78, where the objection was that the prisoner could not be tried by a jury of eight men; and it was contended that section 10 of the same article was an ex post facto law, and in conflict with the constitution of the United States. We held section 10 valid, and the same principles which were applied in that case to the question respecting section 10 apply substantially to the objection here under consideration. We have no disposition to depart from the ruling in that case, notwithstanding that the same question there discussed is again raised in this. We are of the opinion that section 13 is valid, and that its provisions apply to the case at bar, and reaffirm our former ruling as to section 10. These sections do not appear to be in conflict with the constitution of the United States, but to be within the proper exercise of the constitutional power of a state. Nor do our views on this point conflict with the decision of the supreme court of the United States in the case of Kring v. Missouri, 107 U.S. 221, 27 L.Ed. 506, 2 S.Ct. 443. That case turned on the point, in the opinion of a majority of the court, that the change in the law of Missouri changed the rule of evidence. Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111.

Nor do we think the indictment is bad for duplicity. The charge is murder, and the allegations concerning the abortion and miscarriage, as well as those respecting the instruments and drugs used and administered to procure the miscarriage, are statements showing the means used in the perpetration of the offense, and do not constitute a separate and distinct charge. Com. v. Brown, 14 Gray 419.

Nor can we say that the court erred in refusing to grant the motion for a change of venue, under the circumstances disclosed by the record, there being no question as to the jurisdiction of the court to try the cause. The matter of a change of venue in any case where the court has jurisdiction is within the sound discretion of the trial court, subject to review and reversal only for an abuse of the discretion. It is a judicial discretion, and should be exercised only for good cause shown. The action of the court in the case at bar was based on affidavits for and against the change of venue, and it does not appear from the record that the motion was improperly denied. The ruling in this regard must be upheld. People v. Goldenson, 76 Cal. 328, 19 P. 161; State v. Russell (Mont.) 13 Mont. 164, 32 P. 854; Territory v. Manton, 8 Mont. 95, 19 P. 387; Power v. People (Colo. Sup.) 17 Colo. 178, 28 P. 1121.

It is insisted for the defendant that the court erred in refusing to admit in evidence a certain letter written by the defendant to his wife on the eve of his attempted departure from the state, in which, among other things, he assigned reasons for his intended departure, and also stated his intention to return. The prosecution had introduced evidence tending to show that the prisoner attempted to flee from justice, and the letter was offered to rebut that testimony. It appears that, at the time of the writing of the letter, the defendant had already been informed of the death of the deceased, and that there was a charge of some kind against him, and it seems quite clear from the evidence that he was considerably disturbed in mind. This may also be gleaned from the letter itself, for therein he said: "I will stop at Salt Lake, and go and see those people, Mrs. Page, and see if there is anything in this story. I know it can't be true so far as I am concerned." The record fails to show that the defendant could have had no self-serving purpose or motive in writing the letter, but, on the contrary, his own evidence as well as the letter, indicates that, at the time of writing, he was subject to disturbing influences. The letter was therefore incompetent as evidence, and was properly rejected. Silva v. Pickard, 10 Utah 78, 37 P. 86.

The next assignment of error which we will consider is that relating to the introduction of proof of the dying declarations of the deceased. It is insisted for the prisoner that, at the time the declarations were made, the deceased did not realize that death was impending. The evidence does not warrant this contention, for it clearly shows that the declarations were made in view of approaching death and dissolution. They were made on the day previous to her death, and, without referring to the evidence in detail, it is clear from a perusal thereof that she was fully conscious, and realized her dying condition.

The prosecution first offered parol proof, which was admitted, of the dying declarations, and afterwards a writing containing their substance, but which was not signed, in evidence. This was admitted over the objection of counsel for the prisoner and it is now insisted that the court erred in...