State v. Knoll

• Citation: 77 P. 580,69 Kan. 767
• Decision Date: 07 July 1904
• Docket Number: 13,868
• Parties: THE STATE OF KANSAS v. JOHN KNOLL
• Court: Kansas Supreme Court

77 P. 580

69 Kan. 767

THE STATE OF KANSAS v. JOHN KNOLL

No. 13,868

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Appeal from Ellis district court; J. H. REEDER, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMICIDE -- Charge of Manslaughter Sufficient. Error cannot be predicated of the overruling of a motion to quash an information of doubtful sufficiency to charge murder in the first degree when it was sufficient to charge manslaughter in the first degree, of which crime defendant was convicted.

2. HOMICIDE -- Reason for Admission of "Dying Declaration." A "dying declaration" is hearsay evidence, and is taken out of the rule excluding such evidence because of reasons of necessity, and because it is supposed that a realization on the part of the declarant of the certain and speedy approach of death affords as powerful incentive to tell the truth as does the administration of an oath.

3. HOMICIDE -- Mental Condition of Declarant. In order to render such declarations admissible it must be first shown that the declarant was not only in articulo mortis but under the sense of impending death, without hope of recovery, at the time such declarations were made.

4. HOMICIDE -- Statements of Deceased Insufficient. The statements made by the deceased that he had to die of the whipping he had received from the defendant, and that he might die at any hour of any day, did not sufficiently show his sense of impending death to render his statements competent as "dying declarations."

5. INDETERMINATE-SENTENCE ACT -- Section 5686, Not 5685, of the General Statutes of 1901, Repealed by Act of 1903. The title of chapter 375, Laws of 1903, known as the indeterminate-sentence law, recites that part of its purpose is to repeal section 5685 of the General Statutes of 1901. No mention of this section is made in the body of the act, but, instead, section 5686 is therein named as repealed. From the nature of chapter 375 and the matter therein treated, it is evident that it was intended to repeal section 5686. Held, that section 5685 is not repealed, and that section 5686 is repealed by implication, because chapter 375 covers the entire ground of that section and is a substitute for it; and held, further, that chapter 375 is not rendered invalid by reason of such error.

C. C. Coleman, attorney-general, and E. A. Rea, for The State.

W. E. Saum, and A. D. Gilkeson, for appellant.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Alois Denning and John Knoll were friends, or on friendly terms, and had been so for some time. They were both addicted to the excessive use of alcoholic liquors. A personal encounter occurred between them on the 19th day of February, 1903, closing a convivial season of some five or six hours, during which time both had indulged in the use of intoxicants to a considerable extent. This had occurred at Denning's place of residence, which was in connection with his store.

It seems that there was a matter of disagreement between the parties concerning a report which Knoll said he had heard relative to alleged improper relations between himself and Denning's wife. This, however, did not appear to be serious, and Denning had assured Knoll that he would take such measures as were necessary to contradict any unfavorable comment and rectify any supposed wrong. However, an altercation, somewhat noisy and violent, at least, on the part of Knoll, took place between them, during which the latter broke some dishes on the table at which they were seated partaking of their dinner together. Denning remonstrated and told Knoll that he must cease these violent demonstrations or leave the premises. With a view of enforcing this requirement Denning procured a pistol, but there was little evidence that he had any purpose to use it against Knoll. With alternating periods of apparent friendliness and boisterousness, the matter finally culminated in Knoll's throwing Denning to the floor, getting upon him with his knees, striking him with his fists, and breaking his leg in some way, not indicated by the evidence. The entire evidence pointed strongly to the conclusion that the whole affair was merely a drinking bout indulged in by the two men, resulting in this altercation, in which Denning was sadly and unnecessarily worsted. Denning was suffering from chronic alcoholism and fatty degeneration of the heart. In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died on the 23d of March, thirty-two days after his injury. While his physical condition prior to his injury was such as would have eventually resulted in his death, the injury which he received hastened that result. From a prosecution which resulted in his conviction of, and sentence for, manslaughter in the first degree, Knoll prosecutes this appeal.

Complaint is made of the denial of a motion to quash the information. While in terms this information charged murder in the first degree, we doubt the sufficiency of the facts, as therein set out, to support a conviction for that offense, but are of the opinion that sufficient facts are therein found to support the conviction of manslaughter in the first degree, and, hence, following The State v. Triplett, 52 Kan. 678, 35 P. 815, that no prejudicial error resulted.

What purported to be the dying declaration of Denning was introduced in evidence. It is contended that this testimony was improperly received, because it was not sufficiently shown that Denning at the time he made it believed himself to be in extremis. The declaration was made on March 7, sixteen days prior to his death; his condition thereafter and up to the time of his death is not shown. The qualifying evidence came from the lips of Denning's sister, and the strongest language attributed to Denning, as indicating his estimate of his condition at that time, was as follows:

"He said that he had to die of the whipping of John Knoll; that he had to die; that any hour, any day, he might die; and he had to die of the whipping of John Knoll; that any hour and any day he might die; and that he had to die of the whipping he got from John Knoll. . . . I asked him what made him say so; what made him say that he had to die; and he said that the pains from the whipping John Knoll gave him, from the whipping on his head and breast where John jumped on him with his knees; that pain...