State v. Dennis

• Decision Date: 08 April 1903
• Citation: 94 N.W. 235,119 Iowa 688
• Parties: STATE OF IOWA, Appellee, v. EDWARD DENNIS, Appellant
• Court: Iowa Supreme Court

94 N.W. 235

119 Iowa 688

STATE OF IOWA, Appellee, v. EDWARD DENNIS, Appellant

Supreme Court of Iowa, Des Moines

April 8, 1903

Appeal from Page District Court.--HON. A. B. THORNELL, Judge.

THE indictment charges the defendant, jointly with Eugene Mason and Wesley Irwin, with the crime of murder in the first degree. This defendant demanded, and was given, a separate trial. There was a verdict of guilty of murder in the second degree, upon which judgment was entered imposing a term in the penitentiary. The defendant appeals.

Affirmed.

W. P Ferguson and G. I. Miller for appellant.

Charles W. Mullan, Attorney General, and C. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

BISHOP, C. J.

On the night of December 18, 1901, an alleged tramp, named Oscar Miller, was struck several blows upon the head by some blunt instrument, from the effects of which he died on January 2 1902. The crime was committed in a small house, used for storing sand, situated near the Wabash Railroad station in Shenandoah, Page county. Upon the trial the state was allowed to introduce, over the objection of defendant, what purported to be a dying declaration signed by Miller on December 28, 1901. It is now urged that the admission of such declaration in evidence was error.

The particular objection made to the introduction of the declaration as a whole is that it does not appear that the same was made and signed under the solemn belief of impending death. It is well settled that, to be admissible as a dying declaration, it must appear that the proffered statement was made at a time when declarant was in fact in extremis and that it was so made by him under the belief that he was about to die. State v. Clemons, 51 Iowa 274, 1 N.W. 546; State v. Perigo, 80 Iowa 37, 45 N.W. 399; State v. Wright 112 Iowa 436, 84 N.W. 541. The question of the admissibility of the statement is, of course, one for the court, and should be determined from all the facts and circumstances appearing in the case. The court is not limited in its inquiry to what was said by the declarant upon the subject, but the fact may be proved like any other fact in the case. State v. Nash, 7 Iowa 347; State v. Schmidt, 73 Iowa 469, 35 N.W. 590; State v. Baldwin, 79 Iowa 719; People v. Simpson, 48 Mich. 474 (12 N.W. 662); Com. v. Matthews, 89 Ky. 287 (12 S.W. 333); Mattox v. U. S., 146 U.S. 140 (13 S.Ct. 50, 36 L.Ed. 917). In the case last cited it is said that a belief in impending death "may be made to appear from what the injured person said, or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive, as well as from his conduct at the time, and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him."

Having before us the rule of law governing the subject-matter, we now turn to the record to ascertain the facts upon which the ruling complained of was based. When found on the morning of December 19th, Miller was lying in the open door of the sandhouse. He was unconscious, and remained so for several days thereafter. He steadily grew weaker down to the time of his death. He was advised by his physician concerning the character of his injuries, and that his chances for recovery were very slim. The physician from time to time tried to encourage him in the hope of getting well, but it is evident that he knew he was steadily growing weaker. He stated upon several occasions that he knew he had but a slight chance, and, on the evening the declaration was made and signed, he said to the physician, "I do not think I can get well." This was said in response to a statement to him by the physician that the probability was that he could not get well. Thereupon the physician told him that parties had been arrested on the charge of assaulting him, and that unless he made a statement there would be no evidence after his death to establish their guilt. He expressed a willingness to make the statement, and it was then prepared, and read over and signed by him. Such being the evidence, we think it cannot be doubted that Miller was conscious that he was soon to die, and that such was the belief of his physician. It follows that there was no error in admitting the declaration in evidence.

Counsel for appellant insist, however, that a certain portion of the declaration should not have been admitted, for that it was merely statement of an opinion, and not a statement of fact. It is a sufficient answer to this contention to say that it appears from the record that, when it was proposed to read the declaration in evidence, the court offered to exclude certain portions thereof, whereupon counsel for defendant replied, in substance, that, if any of the statement was to be read, they wanted it all read. The entire statement was then read to the jury. In view of the record, the present contention cannot be considered.

II. Up to December 18, 1901, the defendant and Mason, jointly indicted with him, were employed as night men at the Wabash station coal sheds. On the evening of that day they were discharged by the yard foreman, and one Davis was put at work in their place. Defendants lingered about the station, and there is evidence tending to show that they had a wordy quarrel with the foreman, during which this defendant declared that Davis had run him out of his job, and that he was going to whip Davis or somebody before he went home, on account thereof. The witnesses were permitted to testify that Mason had a part in the word quarrel, and that he also made threats similar to those said to have been made by this defendant. It is now urged that the admission of the evidence concerning the threats made by Mason was error. With this contention we do not agree, and the reason therefor is readily found in the situation. Dennis and Mason had been discharged and both were angry because of such fact. Not only does this appear in evidence, but there is evidence to the effect that they loitered about the station and sandhouse until late in the evening. It is evident from a reading of the record that the case of the state was presented upon the theory that this defendant and his associates had conspired together to make an assault upon Davis. Such theory is not without support in the evidence, and the state was fairly entitled to present it to the jury. In this view, and giving consideration to the fact that Dennis and Mason were together and each taking part in the quarrel at the time the threats are said to have been made, we think the evidence was admissible.

III. The state offered and introduced evidence in chief to the effect that, just preceding the making of the dying declaration, the defendant, with Mason and Irwin, was brought into the presence of Miller for the purpose of identification. It is...