State v. Draper

• Decision Date: 31 October 1877
• Citation: 65 Mo. 335
• Parties: THE STATE v. DRAPER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 335

THE STATE

v.DRAPER, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

John O'Day for appellant.

1. The court erred in admitting in evidence the dying declaration of deceased to prove facts distinct from and prior to the homicide. “That some two or three weeks before the homicide, he, deceased, and Draper (defendant) had trouble about the trunk, and that they quarreled, and Draper then abused deceased and threatened deceased.” Dying declarations must be restricted to the act of killing and the circumstances immediately attending the act, and forming a part of the res gestæ, and are not admissible to prove previous trouble or threats, or to show previous malice on part of the prisoner to the deceased. Dying declarations are only admissible when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations; citing the following authorities in addition to those discussed in the opinion of the court: Wharton on Homicide (2d Ed.), Sec. 744; Crookham v. State, 5 West Va. 510; State v. Medlicott, 9 Kansas 257; 2d American Leading Crim. Cases 398; Starkey v. the People, 17 Ill. 17; Wilson v. Boerene, 15 Johnson 286; Daily v. N. Y. & N. H. R. R. Co., 32 Conn. 356; 1st Greenleaf Evidence (11th Ed.), Sec. 156; 1st Phillips Evidence (4th American Ed.) 287; Rex v. Mead, 2 Barn. & Cress. 605; the King v. Lloyd, 4 Car. & P., 233.

2. The court erred in admitting in evidence any part of the so-called dying declarations of Gilbert. Dying declarations are admissible only where the person making them is in articulo mortis, and in the full belief that he is about to die. Such declarations shall not be received, unless the proof clearly shows that the deceased was in articulo mortis, and at the time of making them was fully conscious of that fact--not as a thing of surmise and conjecture or apprehension, but as a fixed and inevitable fact. The evidence fails to show that deceased was in this condition at the time the so-called dying declarations were made by him. Dying declarations should be admitted with scrupulous care. State v. Medlicott, 9 Kansas 257; Campbell v. State, 11 Ga. 353; Woodcock's case, 2 Leach 563.

3. The indictment is bad for repugnancy. Stripped of its verbiage, it charges that defendant gave the deceased four mortal wounds, and that these four wounds were inflicted in and upon the breast of deceased, and also in and upon the belly of deceased. If inflicted on the breast, then they were not inflicted upon the belly. State v. Jones, 20 Mo. 58.

J. L. Smith, Attorney General, for the State.

1. The indictment charges the wounds to have been inflicted “in and upon the breast of him, the said J. L. Gilbert, and in and upon the belly of him, the said J. L. Gilbert, etc.” This was describing the location of the wounds with sufficient accuracy. State v. Edmundson, 64 Mo. 398.

2. Carter and Newell, witnesses for the State, were asked whether they ever had any conversation with deceased in regard to his condition. In answer, they stated that he said, on the evening before he died, that he “could not live till morning.” Thereupon the witnesses detailed Gilbert's statement of the cutting. The evidence was properly admitted; the proper foundation had been laid; the deceased was in a dying condition at the time, and knew and believed that fact. The statements were made in articulo mortis. McLean v. State, 8 Mo. 153; McMillen v. State, 13 Mo. 30.

NORTON, J.

The defendant was indicted for murder in the first degree in the circuit court of Jasper county, at its September term, 1876, for the killing of one J. L. Gilbert. On defendant's application the venue of the cause was changed to the circuit court of Greene county. In this latter court defendant was put upon his trial, at its May term, 1877, which resulted in his conviction for murder in the first degree. Unsuccessful motions for a new trial and in arrest of judgment having been made, the cause is brought here for review on appeal.

The grounds relied upon for a reversal of the judgment are the insufficiency of the indictment, the refusal of the court to receive legal evidence, the reception of illegal evidence, giving improper and refusing proper instructions. It is objected that the indictment is insufficient, because it does not with certainty allege the locality of the wounds, or the part of the body on which they were inflicted. The allegations in the indictment are “that the said Draper, with a certain knife, &c., in, and upon the body of J. L. Gilbert, did, &c., make an assault, and that he, the said Draper, with the said knife, so had and held as aforesaid, upon the said Gilbert, did then and there, &c., strike, cut and stab in and upon the breast of him, the said Gilbert, and in and upon the body of him, the said Gilbert, giving to him, the said Gilbert, in and upon the breast of him, the said Gilbert, and in and upon the belly of him, the said Gilbert, four mortal wounds, &c., of which said mortal wounds the said Gilbert did then and there instantly die.”

1. MURDER.

It is argued that under the ruling of this court in the case of the State v. Jones, 20 Mo. 58, the indictment is open to the objection of repugnancy. The allegations in the indictment in the case at bar are distinguishable from the charge in the indictment in that case, in this: In that case the charge was that the defendant did strike and thrust the deceased in and upon the left side of the belly, and in and upon the right shoulder, giving one mortal wound of the breadth of three inches, and of the depth of six inches. Judge Ryland says “now that indictment avers the giving of but one mortal wound by the blows and thrusts, and described as being given ‘on the left side of the belly, and also as being given on the right shoulder,’ and yet this wound is of the breadth of three inches and the depth of six inches.” It was a physical impossibility for this wound to have been given both on the right shoulder and the left side of the belly, and, therefore, the charge was held repugnant. It is not so in the case we are considering; here it is charged that the defendant did cut and stab the deceased, in and upon the breast, and in and upon the belly of the deceased inflicting four mortal wounds. Two of them may have been on the breast and two of them on the belly, or one on the breast and three on the belly, and there is consequently no such repugnancy as is to be found in the case to which we have been cited. The case of the State v. Jones, supra, was decided upon the authority of Dias v. State, 7 Black. 20, in which the indictment charged that defendant struck the deceased in and upon the left side of the head and over the left temple, giving to the deceased, with the axe aforesaid, in and upon the right side of the head and over the right temple, one mortal wound. For this clear repugnancy the indictment was held bad, and even this case has been overruled in 14 Ind. 23, 21 Ind. 441, and in the case of Cordell v. the State, 22 Ind. 1. We think the indictment in the case at bar sufficiently alleges the part of the body on which the wounds were inflicted, and is not subject either to the objection of repugnancy or uncertainty urged by counsel. The motion to quash was, therefore, properly overruled.

In the progress of the trial witness Carter was permitted to testify as to the dying declaration of Gilbert, against defendant's objections. His evidence was as follows: “Gilbert told him he could not live till morning, that he could not live through the night. Gilbert's voice was very weak. He told me his trouble with Draper originated about a trunk; that Draper and his wife had boarded with him; that some two or three weeks before, they went away, owing him for board, and he left the trunk; that he and Draper had trouble about it then, that they quarreled, and Draper abused him; that Draper had been to him afterwards for the trunk...