State v. McKnight

• Decision Date: 21 January 1903
• Citation: 93 N.W. 63,119 Iowa 79
• Parties: STATE OF IOWA, Appellee, v. BEN MCKNIGHT, Appellant
• Court: Iowa Supreme Court

93 N.W. 63

119 Iowa 79

STATE OF IOWA, Appellee, v. BEN MCKNIGHT, Appellant

Supreme Court of Iowa, Des Moines

January 21, 1903

Appeal from Woodbury District Court.--HON. A. R. DEWEY, Judge.

INDICTMENT for murder. Conviction of murder in the second degree, and defendant appeals.

Affirmed.

Sullivan & Griffin for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for the State.

OPINION

WEAVER, J.

The deceased was wife of the defendant. She was injured, it is alleged, in an assault made upon her person by the defendant, about Friday, June 14, 1901, and died on Sunday, June 23, 1901. On Monday, June 17th, and again on Friday, June 21st., she made statements concerning the alleged assault upon her by defendant, which statements were admitted in evidence as dying declarations. It is earnestly contended by counsel that the admission of this testimony was erroneous, for the reason that there was no sufficient showing that the declarations were made by the woman under a sense of impending death. With the general rule of law as stated by counsel for appellant, and the authorities cited, we are not disposed to take issue. We think, however, upon a careful reading of the testimony, that, even under the rule advanced in argument, the evidence was properly admitted.

Without stopping to quote extensively from the record, it may be said that it is shown by several different witnesses that very soon after receiving her injury the woman became rapidly and alarmingly ill, and that as early as Monday thereafter she began to indicate her belief that her condition was hopeless, saying: "I can never get well. You don't know how bad I am hurt." "I will never get over it." Other witnesses, attempting to express the substance of her statements, say she "expected to die," and use other like expressions. These statements, taken in connection with the testimony of the physician and others showing that she was in fact very sick, and apparently fatally stricken, sufficiently indicate her consciousness that her death was at hand, and that she spoke under the solemn apprehension of impending dissolution. We have had recent occasion to consider the law concerning dying declarations (State v. Phillips, 118 Iowa 660, 92 N.W. 876), and think it unnecessary to enter upon any general discussion of that subject at this time.

II. One or more of the witnesses to the dying declarations were permitted to testify that the deceased, after stating the particulars of the alleged assault, further said, in substance, that he had assaulted her on a former occasion, and she was not yet well from the hurt then inflicted upon her by defendant. It is argued that the law which permits the use of dying declarations in evidence limits them strictly to the facts and circumstances attending the immediate injury from which the declarant is about to die, and that statements as to prior occurrences are inadmissible. This, we think, is a correct statement of the law. State v. Perigo, 80 Iowa 37, 45 N.W. 399; State v. O'Shea, 60 Kan. 772 (57 P. 970); Perry v. State, 102 Ga. 365 (30 S.E. 903); Montgomery v. State, 80 Ind. 338 (41 Am. Rep. 815); It appears, however, from the record, that before the close of the trial this evidence was withdrawn or stricken out upon the motion of the county attorney, and the error of its admission was thereby cured. Appellant makes the point in argument, that in view of the prejudicial character of the testimony, the court should have called the jury's attention to its withdrawal, and specially directed them to disregard it. Such direction is, without doubt, the better practice, and the trial court would doubtless have given it upon defendant's request. No such request was made, and the matter has no such vital relation to the essential elements of the crime charged that failure to instruct upon it without being asked so to do will justify a reversal.

III. Error is assigned upon the admission of testimony of nonexpert witnesses as to the appearance and condition of the deceased during the time between the alleged assault and her death, the particular point being made that these witnesses were not required to first state the facts upon which their statements or conclusions were based. The statements to which these criticisms are directed were to the effect that the deceased "appeared to be despondent," "did not seem hopeful," "had a fever," and other expressions of the same general nature. That the rule contended for is applicable in cases where nonexpert witnesses assume to express an opinion of the mental soundness or unsoundness of a person will be admitted, but the testimony here objected to does not come within that class, but, rather, within the well-recognized class of matters of mixed fact and conclusion, which may...