State v. DeVlin

• Decision Date: 01 April 1879
• Citation: 7 Mo.App. 32
• Parties: STATE OF MISSOURI, Respondent, v. PATRICK DEVLIN, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 32

STATE OF MISSOURI, Respondent,

v.PATRICK DEVLIN, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 1, 1879.

1. In a murder trial, a declaration of the deceased that the defendant fired the fatal shot is competent, though not a part of the res gestæ and not a dying declaration, where it was made in the presence and hearing of the defendant and was not denied by him.

2. Where the defendant identifies as his the signature to an affidavit, it is error to read the affidavit to the jury, for the purpose of contradicting the defendant's testimony, without first giving him an opportunity to explain, by having his attention called to the matter about which it is sought to contradict him.

APPEAL from St. Louis Criminal Court.

Reversed and remanded.

F. D. TURNER, for appellant: The declaration of the deceased, not being a part of the res gestæ nor made in articulo mortis, was incompetent.-- The State v. Simeon, 50 Mo. 370; The State v. McCurran, 51 Mo. 160; McMillan v. The State, 13 Mo. 27; The State v. Dominique, 30 Mo. 585; The State v. Sloan, 47 Mo. 604; Ladd v. Cozzens, 35 Mo. 516; Brownell v. Railroad Co., 47 Mo. 239; The State v. Brown, 64 Mo. 371. It was error to admit the defendant's affidavit, no foundation having been laid for it.-- The State v. Elkins, 63 Mo. 165; Prewet v. Martin, 59 Mo. 325; Kitchen v. Railroad Co., 59 Mo. 514; The State v. Foye, 53 Mo. 336; The State v. Starr, 38 Mo. 275; Gregory v. Cheatham, 36 Mo. 162; The People v. Reed, 62 Mo. 129; The State v. Bovine, 44 Cal. 152.

LEWIS B. BEACH, for respondent.

LEWIS, P. J., delivered the opinion of the court.

The defendant was indicted for the murder of Lillie Hammer, by shooting her with a pistol. He was found guilty of murder in the second degree, and sentenccd to imprisonment in the penitentiary for twelve years.

The testimony tended to show that the defendant and a companion, both being soldiers in the United States regular service, and on a temporary leave of absence, visited a house of prostitution kept by one Minnie Kriedler, and there became involved in a dispute with the deceased and another loose woman, about a small sum of money. There was some conflict in the testimony as to the immediate provocation, one or two witnesses testifying that the deceased was in the act of attacking the accused with a poker, while others swore that she had made no hostile demonstration, other than in words, when the fatal shot was made. The shooting was done between nine and ten o'clock in the evening of October 2, 1876, and the woman died on the 7th of the same month.

Part of the testimony given for the State is thus preserved in the bill of exceptions: “ Q. Was he (defendant) brought into her (deceased's) presence before her death? A. Yes, sir. Q. Did she recognize him as the man who shot her? What did she state, if anything? (Objected to as incompetent and irrelevant and immaterial. Objection overruled. To which ruling of the court the defendant's counsel then and there duly excepted.) A. She said he was the man that shot her. [The court.] Q. That was in his presence? A. Yes, sir.”

It is objected that this testimony was incompetent, because the declarations of the deceased were not part of the res gestæ, nor were they made in articulo mortis. The objection might prevail, if there were no other ground of admissibility. The statement was made in the presence of the defendant. It does not appear that he denied its truth.

The apparent acquiescence of the defendant, when he might have contradicted, places the whole on the footing of an admission by the defendant himself. To this end, it is of no consequence by whom the statement was made. That it was not made in articulo mortis is of no more consequence in the case of the victim of the fatal shot than it would be in the case of any indifferent person. Because the statement cannot be received as a dying declaration, it is not therefore to be rejected on account of the death of the utterer. It involved a matter of vital concern to the defendant, and was made under circumstances in which any man, if innocent, would be expected to deny the truth of the charge. It was admissible on the general principle that statements made in the presence of a party sought to be bound by them, and not denied, are competent evidence against him. The State v. Miller, 49 Mo. 505; The State v. Hamilton, 55 Mo. 520.

The defendant testified as a witness in his own behalf at the trial, stating, in effect, that he was present at the difficulty which ended in the shooting, and that the fatal shot was fired by another man. The circuit attorney produced in rebuttal an affidavit for a continuance, which the defendant had made at a former term of the court, wherein he swore that he expected to prove by the testimony of two absent witnesses that at the time of the shooting, and for several hours before and after, he was at Benton Barracks, distant several miles from the scene. The only foundation laid for the introduction of this paper was in showing the signature to the defendant and asking him if that was his, and in further asking him if he had sworn to the affidavit. He answered affirmatively; whereupon the affidavit was read in evidence, against the defendant's objections. This proceeding is assigned for error.

The general rule is universally recognized, that, in order to impeach the credibility of a witness by proof of contradictory or inconsistent oral statements previously made by him, it is necessary first to direct the witness's attention to the former statements, and give him an opportunity to explain or reconcile the apparent discrepancy. But in the application of the rule to the case of a previous written or sworn statement, there appears to be some disagreement among the authorities. In Clapp v. Wilson, 5 Denio, 285, a former deposition of the witness was introduced to show his contradictory statements. Said...