State v. Martin
| Decision Date | 01 July 1926 |
| Docket Number | 5953. |
| Citation | 248 P. 176,76 Mont. 565 |
| Parties | STATE v. MARTIN. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Chris Martin was convicted of manslaughter, and he appeals. Reversed, and remanded for a new trial.
Timothy Nolan and Harlow Pease, both of Butte, for appellant.
L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for the State.
On the evening of September 12, 1925, Chris Martin and James Stevens engaged in a fight in front of Martin's home on Utah avenue in Butte. They were separated but almost immediately went into a dark alley near by and renewed the fight. In the alley at the time was another man, or two other men were present, and this man, or these men, took some part in the fight. It was so dark in the alley that a light had to be produced in order to see the participants. Martin and Stevens were separated again, but they repaired to the street immediately and renewed the combat. They were then separated for the third time, and Martin then went into his home. Stevens walked down the street 30 or 40 feet, turned retraced his steps in whole or in part, and sat down in front of a store. About this time the police officers arrived on the scene. Stevens, appearing to be badly hurt, was taken to St. James Hospital and Martin was arrested and taken to the city jail. It was then 9:30 p. m. When he arrived at the hospital, Stevens was apparently conscious, but was very weak, suffering from several wounds on the head, two in the breast and one in the abdomen. At 11 p. m., Dr. O'Rourke arrived at the hospital, examined the wounds, observed Stevens' appearance, and determined in his own mind that the man was in a dying condition, but did not mention the matter to Stevens. At that time the ambulance driver, a policeman, a nurse, and Mr. Rotering, deputy county attorney were present. Stevens was lying on an operating table with his eyes closed. Some one asked him how he felt but he only mumbled or grunted, and what he said, if anything, could not be understood. Mr. Rotering asked him who stabbed him, but Stevens made no reply. Dr. O'Rourke then shook Stevens by the shoulder, and said, "Who stabbed you?" and in a whisper Stevens said, "Chris Martin." Stevens died two or three days later from hemorrhage, shock, and general peritonitis induced by a knife wound in the abdomen and a like wound in the breast. Martin was charged with murder, was convicted of manslaughter and has appealed from the judgment and from an order denying him a new trial.
To make out a case sufficient to go to the jury it was incumbent upon the state to prove that Martin inflicted the knife wounds from which Stevens died. Martin testified that he did not have a knife and did not inflict those wounds; and, although there were 80 or 90 persons present who witnessed the two encounters in the street, no one testified that he saw Martin use a knife. Walter Hackett, a witness for the state testified that Martin "had something in his hand, but I couldn't say what it was"; and George Strohl also testified for the state that Martin had what "appeared to be a knife in his hip pocket." But each of these witnesses was so utterly discredited on cross-examination that it seems inconceivable that the jury believed either of them. The only other evidence which tends to connect Martin with the offense is the so-called dying declaration of Stevens, and the principal error assigned upon this appeal is the ruling of the trial court admitting that declaration in evidence.
Assuming for present purposes that Stevens actually made answer to the question propounded by Dr. O'Rourke, the testimony of the state's witnesses reiterating that answer to the jury was pure hearsay, but it was admissible hearsay if the proper foundation was laid. The rule admitting it is expressed in our statute as follows:
It would be idle for us at this late day to enter upon a discussion of the origin of the rule. Its history will be found in 3 Wigmore on Evidence (2d Ed.) c. 47. It will be observed that the rule requires, as a condition precedent to the admissibility of the declaration, preliminary proof of the concurrence of the following conditions: (1) That the declaration was made by a dying person, or, in the more flowery phrases of the courts, by one in extremis or in articulo mortis; (2) that the declaration was made under a sense of impending death; (3) that the declaration relates to the cause of the declarant's death, or, more exactly, to the cause of his dying condition.
For the purposes of this case we will assume that the record discloses satisfactorily that, at the time the statement was made, Stevens was a "dying person" within the meaning of the statute, although he did not die until two or three days after the statement was made, and that his statement related to the cause of his dying condition. We are then concerned here only with the second condition mentioned above, and the one question for determination is: Does the record disclose that the declaration was made by Stevens under a sense of impending death? The word "sense" as employed here means: Rational appreciation; recognition; apprehension; belief. The word "impending" means: Imminent; threatening to occur immediately; near at hand.
In 3 Wigmore on Evidence (2d Ed.) § 1440, the learned author says:
In support of the text, Dean Wigmore cites the following:
The declarant Peak v. State, 50 N. J. Law, 222, 12 A. 701, 706.
The prevailing rule in this country is stated succinctly in 30 C.J. 255, as follows:
"It is not enough that the statement be made when the declarant is in extremis; it is also...
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