State v. Johnson

• Decision Date: 07 December 1893
• Parties: STATE v. JOHNSON.
• Court: Missouri Supreme Court

24 S.W. 229

118 Mo. 491

STATE v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

December 7, 1893.

CRIMINAL LAW — EVIDENCE — OBJECTIONS — SUFFICIENCY — DYING DECLARATIONS — WHAT ARE.

1. An objection to the testimony of witnesses on the ground that their names were not indorsed on the indictment cannot be raised for the first time on motion for new trial.

2. Defendant and deceased engaged in a fight in which deceased was knocked down, and defendant got on top of him, but released him on his representation that he had swallowed some tobacco. Deceased then mounted a horse and rode home, telling a companion that he was not hurt. On reaching home he became sick, and vomited up the tobacco, and while vomiting told his wife he was going to die, and made declarations as to how he received his injuries. At the time of making such declarations he was without a physician, and had no external indications of injury. Held, that there was no such belief in approaching death on deceased's part as would make the declarations admissible.

3. Dying declarations are inadmissible when the witness does not pretend to give either the words or the substance of what deceased said, or all that he said.

4. Dying declarations should not be allowed to go directly to the jury without any preliminary determination by the court as to their admissibility.

Appeal from circuit court, Bates county; James H. Lay, Judge.

Robert Johnson was convicted of manslaughter, and appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, J.:

Under an indictment charging manslaughter in the second degree for killing Samuel Keene, defendant was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the penitentiary for the term of two years. The deceased, defendant, and some others were riding on horseback along the public road leading from Butler towards their respective homes, on Friday, the 11th of March, 1892. Defendant had a bottle of whisky, of which he partook freely, and the others sparingly at his request. While on the way homeward, and after dusk, an altercation sprang up between deceased and defendant, in which defendant, it seems, was the aggressor, using opprobrious epithets towards deceased, the result of which was that both parties got down off their horses, and engaged in a scuffle in the road. Whether any blows passed no witness could state, but the outcome of it was that deceased was found on his back, and defendant on his hands and knees on top of deceased, when defendant said to deceased, "I could pound you up here, but I've got more respect for your family than that," to which deceased made no reply. Then defendant said to deceased, "I'll let you up if you say you've got enough;" but deceased said, "I won't say I've got enough." Then deceased said to defendant, "Bob let me up; I've swallowed a chaw of tobacco." Thereupon defendant did so, and deceased walked a quarter of a mile in the direction of his home, his horse having gotten away and gone in that direction, when defendant said to deceased, "Get up behind me, and ride; you shan't walk home," when Marquis Young told deceased no, he had better ride behind him, which he did, and rode home with him. Then defendant told deceased he had whipped him, and deceased replied, "Bob, it ain't all settled yet," when defendant offered to settle it there if deceased wanted to. Johnson then rode off towards his home. Meanwhile Newton Young, who had gone in pursuit of deceased's horse, returned with it, and met deceased riding behind Marquis Young. The moon was then shining brightly, and Newton Young said to deceased, "I see some blood there on your ear," and he just jaughed, and he says, "I reckon that's where he scratched me." Thereupon Newton Young asked deceased if he had got hurt, and he said he had not. Marquis Young also observed a little blood on the left ear of deceased, and deceased also told Marquis Young he was not hurt. Before Johnson left the other parties he remarked that he had hurt his fist; that he had thrown his thumb out of joint; that "his [deceased's] head was so damned hard, he hurt his fist." On the same evening, about 8 o'clock, defendant went into a drug store at Spruce, and was looking for deceased; said he had whipped the ____ in the road, and that he had agreed to meet him, and have it over again at Spruce; and he also said something about having bitten deceased's ear off. To another witness, on the same evening, defendant who was evidently much the worse for liquor, said that he had a fight with deceased, and that he had "knocked him [deceased] down, and choked and beat hell out of him." Keene, the deceased, died on the next night, Saturday. An autopsy being held upon his body, a bruised place or contusion was discovered near his left ear and on the opposite side of the head. On opening the skull, an extravasation of blood was found on the right side, which, in the opinion of the physicians, was caused by a blow near the left ear, or a fall on that spot, and that this blow or fall was the cause of the death of deceased. When Marquis Young rode home with deceased, he got off the horse, and went into the house, and Young then put up the horse and went into the house. Deceased was lying on the bed; was vomiting. He had been vomiting when Young came in. At that time he heard deceased say nothing about any injury he had received, and soon afterwards deceased became unconscious. Young then went after Dr. Colson, but did not reach the doctor's until a little after 12 o'clock, and when the doctor reached deceased he found him in a comatose condition, but he returned somewhat to consciousness so as to know persons about him, but made no statement respecting his injuries.

Mrs. Keene, wife of deceased, who had not testified at the preliminary examination or at the coroner's inquest, testified at the trial of defendant as to certain dying declarations alleged to have been made by deceased soon after his arrival home. That testimony, given over the objection of defendant, was the following: "Q. Now, you can just turn to the jury, and tell the condition he was in when he came home. A. When he came home his head was bloody, and I asked him what was the trouble, and he said Robert Johnson had hit him and knocked him down. Q. You saw his head was bloody? A. Yes, sir; I washed the blood off. Q. What part of his head appeared to be bloody? A. On the left side of his head and his ear. Q. Did you notice any injury to his ear? A. Yes, sir; it was still bleeding. Q. His ear was still bleeding? A. Yes, sir. Q. What time in the evening was it when he come home? A. About dusk. Q. How long did he remain in that condition, — that is, conscious? A. Well, I don't know exactly how long, but from an hour and a half or two hours. Q. That he remained conscious? A. Yes, sir. Q. You can state whether he was conscious of the fact that he was going to die before he died? A. Yes, sir; he was. Q. What did he do to indicate that he knew that he was going to die? A. In the first place, he bid us goodby, — called the children first. Q. What time was that? A. It was on the night of the 11th, — of Friday. Q. How long after he come home? A. It wasn't a great while, because he wasn't conscious a great while. Q. This was before he became unconscious? A. Yes, sir; he knew everything. Q. Just tell the jury what he did before he told you what he did? A. He went to bed as soon as he got home. Then he called to the family. Q. What did he say that indicated to you that he knew he was going to die? A. He just said — Q. What did he call you for, and what did he call the family for? What did he say to the family? A. He told us that he was bound to die was one thing. I can't tell it word for word, somehow. Q. But he told you that he was bound to die? A. Yes, sir; that he was done work for his children, and that they would soon be done for he. Q. Did he make any statement as to how he was injured, and what was the cause of his death? Mr. Francisco: I make the objection that there has not been the proper foundation for any statement that may have been made, and for that reason it is incompetent. (Overruled by the court; to which ruling the defendant, by his counsel, then and there duly excepted at the time.) Mr. Francisco: Who was present, Mrs. Keene, at this time? A. When Mr. Keene come home? Q. Yes, A. His family was at home, and my brother. Q. What was his name? A. Marquis. He come home with him, but he wasn't in the house but a little while. Q. Was Mr. Keene vomiting when he come home. A. He vomited a little while after he come home. Q. Was this vomiting before this conversation or afterward? A. It was between times. Q. He vomited very severely, didn't he? A. He vomited once. Q. Did he strain hard in vomiting? A. No, sir. Q. Did he complain of having swallowed a chew of tobacco? A. He said he swallowed a chew of tobacco. Q. Did he say that was the trouble with him? A. No, sir; he said it was the lick that was the trouble. Q. Who was present, now, when you had the talk with him? A. The family. Q. Was Marquis Young there? A. No, sir; he called for him, but I told him he was away, and would be back in a few minutes. He said it was too late for him. Mr. Silvers: Now, Mrs. Keene, just turn to the jury here, and tell the jury what he said to you as to what caused his death. (Objected to by defendant's counsel for the reasons heretofore stated. Overruled by the court, to which ruling the defendant by his counsel then and there duly excepted at the time.) A. He came home, and said that Robert Johnson hit him and knocked him to the ground, and then jumped on him, and choked him, and then bit him. Q. Where did he say he bit him? A. He said he bit him on that ear where the first lick was. Q. When did he say he struck him first? A. When he hadn't yet got steady on the ground, — when he was getting off of his horse. Q. Any other statements that he...