State v. Gray

• Citation: 43 Or. 446,74 P. 927
• Parties: STATE v. GRAY.
• Decision Date: 11 January 1904
• Court: Supreme Court of Oregon

74 P. 927

43 Or. 446

STATE v. GRAY.

Supreme Court of Oregon

January 11, 1904

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Woodson Gray was convicted of manslaughter, and appeals. Reversed.

T.H. Crawford and J.D. Slater, for appellant.

A.M Crawford, Atty. Gen., for the State.

WOLVERTON J.

The defendants Woodson and Wade Gray were jointly accused by indictment of the crime of murder in the first degree for killing one A.M. Hallgarth on March 20, 1903; and, being tried, the former was convicted of manslaughter, and the latter acquitted. This appeal is from the judgment following conviction.

On the morning of the day indicated, the defendants were passing Hallgarth's premises on foot upon the public highway, and, being hailed by the latter, who was in his field, south of the road, halted for him to come up. As he approached, a conversation sprung up relative to some difficulty with Gray's children at school, which became animated and heated; and Hallgarth, becoming angered and enraged, jumped over the fence into the road, removed his coat, and advanced toward the defendant Woodson Gray in a threatening attitude, expressing, as the evidence tends to show, his purpose of settling the difficulty then and there when Gray drew his pistol with his left hand (being left-handed), and warned Hallgarth to desist, and that, if he did not, it would be at the peril of his getting hurt. Hallgarth paid no heed to the warning, but continued to advance upon Gray, cursing him, and threatening to take his gun from him and beat his brains out with it, and, when he came within reach, violently seized the gun, and attempted to wrench it from Gray's hand. A scuffle ensued, in the course of which four shots were fired; one of them taking effect upon Hallgarth, entering his body upon the right side two or three inches below the armpit, in the sixth interspace, ranging forward and downward, penetrating the lung, the right lobe of the liver, and a part of the bowel and passing out through the tissues and muscles of the stomach. During the affray, and, when Gray was about to be overcome, he called upon his son to take his knife and defend him, whereupon the son assailed Hallgarth; inflicting six wounds upon his person, in the back and shoulder, some of them slight, others more severe, but none necessarily fatal. Gray testified that as Hallgarth advanced upon him he backed off several steps, but that Hallgarth continued to advance, cursing and threatening to kill him, until he came within striking distance, when he jumped and struck him on the left side of the head, knocking him down, grabbing for the gun at the same time; that, as defendant was falling, or as he struck the ground, he fired the first shot, and thereafter fired two or three others, but thought it was the first shot that took effect, and that Hallgarth wrenched the gun out of his hand, and attempted to shoot him with it, but, in the excitement, his finger was pulling on the guard instead of the trigger. Hallgarth stated that when he got close enough to Gray to grab his arm, in the hand of which he held the revolver, but before getting hold of it, Gray shot him. He further stated that Gray fired two or three more shots at him in close succession before he was able to take the revolver from him; that he got him down by throwing him over, not by knocking him down; that he did not hit him at any time; and that while he had him down, securing the revolver, Gray called upon his son to take his knife and kill the declarant. Hallgarth made a statement to Dr. Whiting about 6 o'clock of the evening of the day of the altercation, which the latter reduced to writing, and the former signed after it had been read over to him several times. This statement was introduced by the state, and admitted in evidence, over the objection of defendant, as the dying declaration of Hallgarth; and the action of the court in that regard constitutes the first assignment of error.

Dr Whiting testified that he attended Hallgarth in the morning and evening of the 20th, and again the next day in the morning, and that he died in the evening; that he found him in bed, in a condition of extreme collapse, and, after detailing the nature of the several wounds inflicted, stated that the direct cause of his death was the bullet wound; that the knife wounds contributed to the shock upon his system, but were not fatal, nor the proximate cause of death. He further testified that, before Hallgarth made the statement (using the language of the witness), "I told him I thought he was going to die, that he necessarily had to die, and that probably a statement would be of some service in clearing up the matter in court; and he gave me that statement." The basis of the objection to the admission of his declarations is that they were not shown to have been made under a sense of impending death. It will be perceived that deceased made no express or direct statement indicating that he was conscious of the fatality of the injuries received, or of his near approach to dissolution; and all there is from which the state of his mind upon the subject may be inferred is the suggestion just related of his physician, made to him, his action in response thereto in making and signing the declarations, and the circumstances and conditions leading up to them. Was this sufficient to justify their admission as evidence in the case? Two conditions must exist to render dying declarations admissible: (1) The declarant must have been in extremis; and (2) they must have been made in the conscious belief that death was impending, and without hope or expectation of recovery. The latter condition is purely one of the mind, and must be ascertained and determined by what was said and done in relation to the declarations, and by all the facts and circumstances leading up to and attending their utterance. It may be, and usually is, evidenced by verbal expressions of the declarant indicating with more or less directness his belief in the near and sure approach of dissolution; but it is not essential that he should have made any statement or given utterance in language expressive of his present frame of mind in that relation, for it may be inferred from his conduct and deportment, his apparent condition, involving the nature and extent of the wounds inflicted, being obviously such that he must have felt and known that he could not survive, and the communications made to him, if any, especially by his medical advisers, if assented to or understandingly acquiesced in by him. As was said by Mr. Justice Bean in State v. Fletcher, 24 Or. 295, 297, 33 P. 575, 576: "It is not necessary to prove the existence of such belief by any express statements of the deceased, but it may be inferred from all the circumstances." And quoting from Greenleaf on Evidence (volume 1, § 158), he continues: "It is enough if it satisfactorily appear in any mode that they were made under that sanction, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind." See, also, People v. Simpson, 48 Mich. 474, 12 N.W. 662; Peoples v. Commonwealth, 87 Ky. 487, 9 S.W. 509, 810. Regina v. Perkins, 9 C. & P. 395, is a case very near to this. The declarant was mortally wounded by a gunshot on one day, and died the next. In the evening of the day he received the injury, he was told by the attending physicians that in...