State v. Nelson

• Decision Date: 11 July 1974
• Docket Number: No. 11311,11311
• Citation: 220 N.W.2d 2,88 S.D. 348
• Parties: STATE of South Dakota, Plaintiff-Respondent, v. James LeRoy NELSON, Defendant-Appellant.
• Court: South Dakota Supreme Court

Page 2

220 N.W.2d 2

88 S.D. 348

STATE of South Dakota, Plaintiff-Respondent, v. James LeRoy NELSON, Defendant-Appellant.

No. 11311.

Supreme Court of South Dakota.

July 11, 1974.

Rehearing Denied Aug. 16, 1974.

Kermit A. Sande, Atty. Gen., Marvin Truhe, Asst. Atty. Gen., Pierre, for plaintiff-respondent.

Thomson, Wylde, Nordby, Friedberg & Rapport, St. Paul, Minn., Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant-appellant.

RENTTO, Judge. ^*

Defendant James LeRoy Nelson appeals from a judgment entered on a jury verdict finding him guilty of manslaughter in the second degree. It involved the death of Wayne Henry Sherwood, an inmate in the South Dakota penitentiary, on October 4, 1971, from strychnine poisoning. He was sentenced to a term of twenty years to be served concurrently with a prior sentence he was then serving in that institution. It is inferrable from the record that the prior sentence was imprisonment for life on another homicide.

As grounds for reversal of the judgment he urges that:

1. The trial court erred to his prejudice in receiving hearsay statements attributed to the deceased which were not admissible as dying declarations, and

2. The evidence is insufficient to justify the verdict, and

3. The trial court erred to his prejudice in receiving in evidence the preliminary hearing testimony of an absent witness.

He also complains that our second degree manslaughter statute, SDCL 22--16--20, is unconstitutionally vague and that it was error to allow the jury to consider manslaughter as a lesser offense necessarily included in the prosecution which was one for murder. These two matters are not urged as reversible error but are discussed only as a part of the totality of circumstances.

The information filed against the defendant charged him and Patrick Bernard Pickering, another inmate, jointly with the murder of Sherwood. However, they were tried separately. Pickering was tried first. His trial was held at Mitchell, South Dakota, on a change of venue. He was found guilty of murder and sentenced to imprisonment for life. This judgment was recently affirmed. State v. Pickering, S.D., 217 N.W.2d 877. The opinion was filed four days before oral arguments wee presented in this cause.

One of the grounds relied on in Pickering for reversal was the admission of the same hearsay statements urged in the first ground listed above. This evidence was given by prosecution witnesses Hempel and Wescott, two inmates, who were with Sherwood just before he died. The statements were held to have been properly admitted.

Concerning the admissibility of such evidence SDCL 23--44--4 provides:

'Dying declarations are statements of material facts concerning the cause and circumstances constituting the res gestae of any of the following felonies to wit: homicide, rape, as rape is defined in subdivisions (3) and (4) of § 22--22--1, and abortion, as abortion is defined in § 22--17--1, made by the victim voluntarily while sane and under the fixed and solemn belief that his death is inevitable and near at hand.

'In all prosecutions for the following felonies to wit: homicide, rape, as rape is defined in subdivisions (3) and (4) of § 22--22--1, and abortion, as abortion is defined in § 22--17--1, the dying declarations of the deceased, as defined in this section, are always admissible in evidence, provided the deceased would be a competent witness if living.

'All such declarations are also admissible in behalf of the defense.'

Except as to the cases in which such statements are admissible it is basically a codification of the rule at common law.

As indicated in Pickering it is for the court to determine the admissibility of dying declarations. 40 C.J.S. Homicide § 295d; 40 Am.Jur.2d, Homicide, § 374; Wharton's Criminal Evidence, 13th Ed., § 345. Because of infirmities inherent in such statements as evidence their admissibility should be clearly established. This seems to be our rule. State v. Mathis, 47 S.D. 577, 201 N.W. 153. See also 40 C.J.S. Homicide § 295a; 40 Am.Jur.2d, Homicide, § 376. Proving this is the burden of the prosecution.

Many of the facts germane to the utterance of the statements here questioned are he same as those on which they were predicated in the Pickering case. Consequently we will not repeat them. To those interested they are available in the opinion in that case. However, other facts pertinent to this issue will appear in our discussion of the issue of insufficiency of the evidence. As held in Pickering the trial court in ruling on the admissibility of a dying declaration exercises a discretion and we may disturb that determination only when there has been a clear abuse of discretion.

Under our state the statements must be voluntarily made and concern matter constituting the res gestae of the crime. In homicide prosecutions this restricts them to the facts leading up to or causing or attending the injurious act which resulted in the declarant's death. Wigmore on Evidence, 3rd Ed., § 1434; 40 Am.Jur.2d, Homicide, § 371; 40 C.J.S. Homicide § 298. The declarant at the time of making them must be sane and a competent witness if living. In addition to these the fundamental requirement is that he be under the fixed and solemn belief that his death is inevitable and near at hand.

From a careful study of the record we are satisfied all of these requirements were clearly established. That some of them were in response to inquiries does not render them involuntary. State v. Mathis, supra. As held in Pickering it is not necessary to show a statement by the victim that he was conscious of impending death. Such expectation may be inferred from the circumstances of his condition. The admission of these statements by the court was not an abuse of its discretion.

The thrust of his second ground is that the evidence is insufficient to establish that he knowingly aided Pickering in administering poison to Sherwood. SDCL 23--10--3 provides that all persons concerned in the commission of a felony must be prosecuted, tried and punished as principals, whether they directly commit the act constituting the offense or aid and abet in its commission.

While there are many statements concerning the meaning of the terms aid and abet, 22 C.J.S. Criminal Law § 88(2); 21 Am.Jur.2d, Criminal Law, § 119; Wharton's Criminal Law and Procedure (Anderson) § 114, we like the definition the trial court gave the jury in its Instruction No. 21. It there said:

'A person aids and abets the commision of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice the commission of such crime.'

This seems to encompass all that we said the terms meant in State v. Johnson, 81 S.D. 600, 139 N.W.2d 232, and State v. McCreary, 82 S.D. 111, 142 N.W.2d 240, but does it more succinctly.

Concerning defendant's participation in the offense involved it appears that he and Pickering were close friends and that there was animosity between Pickering and Sherwood. About 8 o'clock on the evening of his death Sherwood was sitting on a trash box watching the Monday night football game on TV with several other inmates including Hempel and Wescott, when he was approached by Pickering and Nelson. Pickering patted Sherwood on the head and asked if he could see him in the barber shop restroom which was on the same floor. After this Pickering and Nelson went toward the restroom, followed seconds later by Sherwood. While the three of them were there it appeared to one inmate that Pickering was trying to talk to Sherwood and he kept shaking his head as if to say 'No'. Then Pickering gave some blue pills to Nelson who indicated to Sherwood that they were 'okay' after which Sherwood took the rest of the pills from Pickering. He swallowed them with a liquid.

Sherwood soon returned to the trash box where he had been sitting. Pickering and Nelson were not with him. He began complaining about not feeling well and started to turn blue in the face. An inmate near him notified a guard but he did not respond until called again. Sherwood then inquired of inmate Hempel 'What kind were them blue pills that come in a capsule?' and said he just took some. He also said 'You don't think Nelson and Pickering would give me any bum pills, do you?' He complained of having trouble breathing and seeing. He didn't believe he could walk and tried to stand but was unable to. On a visit to the penitentiary at about noon that day, Mrs. Pickering had delivered some strychnine to her husband in an amber brown colored bottle.

While still on the trash box inmate Wescott asked him if he had taken any pills--and reminded him that he had previously told him that he was going to get ahold of some bad ones to which Sherwood responded 'You don't think Pat and him would do anything like that to me?', at which time he admitted that he had taken some pills from...