State v. Furney

Decision Date01 July 1889
Citation41 Kan. 115,21 P. 213
CourtKansas Supreme Court

Appeal from Morris District Court.

PROSECUTION for murder. The appellants William Furney, Martin Biglin and James Furney were charged with stabbing and killing Calvin Cooper on November 24, 1886, in Morris county. Trial was had in the district court of that county, at the November term 1887, and the defendants were each convicted of murder in the second degree, and each was sentenced to imprisonment for ten years in the penitentiary of the state. They appeal. The opinion states the material facts.

Judgment reversed.

Maloy & Kelly, and A. H. Case, for appellants.

J. M Miller, county attorney, and John T. Bradley, for The State.

CLOGSTON C. All the Justices concurring.



The first question raised is as to the sufficiency of the information. The motion to quash the same was overruled. We have carefully examined the information, and the objections urged against it, and are clearly of the opinion that the information contains a sufficient statement of facts to constitute the crime of murder. It is true the information contains much that might have been stricken out, and it is open to the objection that it does not in plain and concise language, without repetition, set forth the charge; but this is not such a defect as will warrant the court in quashing the information, as surplusage or redundant allegations will not render the information bad where there is specific matter alleged sufficient to clearly indicate the crime with such certainty that the court could pronounce judgment upon a conviction. The motion to quash was properly overruled.

The second allegation of error is, that the court permitted the preliminary proof to the introduction of the death-bed statement of Calvin Cooper to be given to the court in the presence of the jury. The hearing of this evidence by the court in the presence of the jury was largely within the discretion of the court. Good practice would require that this evidence be heard, not in the presence of the jury, but in this case no motion to exclude the matter or to request that the jury be sent out was made, and therefore no error is alleged in the record.

The third assignment of error is, that it is not sufficiently shown by the testimony that Calvin Cooper realized that he was in a dying condition, or that death was certain as the result of the wound, at the time of making the written statement offered in evidence. Before the death-bed statement of the deceased could be used, it must be clearly shown that such statement was made with a full knowledge and belief that death was imminent, and that the deceased with this knowledge, without a hope or expectation of recovery, made the statement. (See The State v. Medlicott, 9 Kan. 257.) The evidence offered and received by the court we think sufficient to entitle the statement of the deceased to be admitted in evidence. Four witnesses testified upon this question. Dr. D. H. Painter testified that on his second visit to the deceased he concluded that the wound was fatal, and he told Cooper so. This was on Sunday or Monday following the Thursday on which Cooper was injured. The doctor testified: "I told Cooper that I felt satisfied in my own mind that the injuries he had received were necessarily fatal, and that he would die as a result of them; that I could not do anything more for him." The doctor then testified that, after this statement, it was reduced to writing, and was signed by Cooper. The doctor also testified that Cooper told him that he knew he was going to die.

The next witness called to establish this fact was Robert Cooper, who also testified that he was present at the time the doctor told Cooper he was going to die. This witness was the uncle of Calvin Cooper, at whose house Calvin Cooper was living before and at the time of his death. He stated that the doctor told him (Cooper) that the wound would be fatal, and that he would die, and asked Cooper to make a statement of what took place at the time he received the injury. He said that at the time the doctor made this statement Cooper said he did not hardly think he was going to die, or something like that, or that he had not thought of dying at all. But after being informed by the doctor that he would die from the wound, and that if he had anything to fix up he had better fix it, the doctor asked him if he did not want to make a statement of what occurred at the school-house, and he said he did, and a short time afterward made the statement that was offered in evidence.

The third witness who testified was William Chitty, who said that he was present at the time Dr. Painter said to Cooper that if he had any worldly matters to fix up he had better fix them up right away, because he was likely to die at any time, or something to that effect. Witness testified he had a conversation with Cooper, in which Cooper told him he thought he was going to die, and that he was trying to keep it from the knowledge of his friends, and requested witness not to inform the family that he was going to die. Before making the statement he asked some one to come in and pray for him, and Mr. Simmons prayed for him; and Cooper then asked if there was anyone else in the house who would pray for him, and Chris. Anderson also prayed for him. He also stated, in response to a question asked by Mrs. Cooper, that he was prepared and ready to go at any time, speaking of his death.

The fourth witness was Samuel Rouse, who testified that he was present at the time Dr. Painter made the statement to Calvin Cooper. This witness also testified that the deceased had prayers offered for him, and that Simmons and Chris. Anderson, at his (Cooper's) request, prayed for him, and after these two had offered prayers, Cooper asked if there was anyone else in the house to pray for him, and after this statement of Dr. Painter's to him, and the prayers offered, this statement was made that was offered in evidence.

Now from this testimony it can clearly be said that Calvin Cooper made this statement under the belief that he was about to die, and that all hope of recovery had fled. The rule contended for by the defendants is, that before this statement can be offered, all the testimony must show that the deceased knew he was going to die, and the fact that his uncle testified that Cooper said he did not think he was going to die, or had not expected to die, left the matter in doubt, and that if there was any doubt about it, it was the duty of the court to exclude the statement. In this we do not concur. It was a question of the admissibility of evidence, and was governed by the same rules that govern the admission of all other evidence. The question is, was there sufficient evidence to sustain the ruling of the court? The court passed upon this question, and there is abundant evidence to sustain...

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