State v. Phillips
| Decision Date | 15 January 1938 |
| Docket Number | Cr. 143 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. When an affidavit for change of judges is filed in a criminal action and the applicant also asks for a change of the place of trial, the judge designated by the Supreme Court to act in said action has power to reject the application for change of place of trial as well as to determine the county to which the case is sent for trial in event the application is granted. Chapter 215, Session Laws of North Dakota for 1927.
2. Whether a change of place of trial should be granted rests within the sound judicial discretion of the trial court, and in the absence of an abuse of such discretion, the denial of the application is not error.
3. In homicide cases, evidence of statements made or acts done by the deceased which tend to show the existence of a design or plan to do a specific act on the part of the deceased is admissible when the design, or plan, and the act of the deceased sought to be shown, is relevant to the issue being tried.
4. Statements of the deceased not a part of her dying declarations and not shown to have been made in furtherance of a conspiracy, purporting to repeat conversations with the defendant, are hearsay coming within no exceptions of the hearsay rule, and are inadmissible.
5. The admissibility of dying declarations depends upon whether the declarant is conscious of the approach of what she then believes to be speedy and certain dissolution, and possesses intelligence, consciousness, and memory sufficient to know what she is saying and doing, and to understand clearly the import of what is said to her.
6. The question of admissibility of a dying declaration is primarily for the trial court to determine from the surrounding circumstances and the express language of the declarant.
7. It was error for the trial court to instruct the jury that evidence of statements of the deceased bearing upon her design or plan to have an abortion performed may be considered " for the purpose of showing that the abortion was probably done as planned."
8. Where the court has given a general charge on credibility, it is not error to refuse a special instruction on the credibility of the statements of the deceased, although the giving of such an instruction would not be improper.
Appeal from District Court, Towner County; John C. Lowe, Judge.
J. M Phillips was convicted of second degree murder, and he appeals.
Judgment reversed, and new trial ordered.
F T. Cuthbert and C. E. Joseph, for appellant.
An intention to repeal by amendment is never presumed but on the contrary the intention not to repeal is presumed and the original statute stands changed only by the express provisions of the amendment. State v. Craig, 54 N.D 5, 208 N.W. 394; State v. Tucker, 58 N.D. 82, 224 N.W. 878; State v. Duffy, 65 N.D. 671, 261 N.W. 661; State ex rel. Lucia v. Munson, 55 N.D. 892; Lowe v. District Ct. 48 N.D. 1, 181 N.W. 92; State v. Krpriva, 51 N.D. 778, 201 N.W. 167; State ex rel. Agneberg v. Peterson, 52 N.D. 124.
Repeals by implication are not favored. State ex rel. Coghlan v. Poindexter, 49 N.D. 201, 190 N.W. 818.
Repeals do not come by implication unless the provisions of the new statute are so contradictory and repugnant that the older provisions cannot stand with them. State v. Rodman, 57 N.D. 230, 221 N.W. 25; 25 R.C.L. 914; Sargent County v. Sweetman, 29 N.D. 256, 150 N.W. 876.
An amendment of an act operates as a repeal of its provisions to the extent that they are changed by, and rendered repugnant to, the amendatory act. 25 R.C.L. 923; Nedela v. Mares Auto Co. 110 Neb. 108, 193 N.W. 345.
The re-penactment of a statute after a judicial interpretation of it indicates an intention that the judicial interpretation shall stand as the law. Sopher v. State, 81 N.E. 913, 14 L.R.A.(N.S.) 172.
Statements or acts of a co-conspirator, before the conspiracy was formed or after its termination, or not in promotion thereof, though provable as admissions against such co-conspirator, may not be introduced against an associate in the conspiracy, on trial therefor, or for a crime alleged to have been perpetrated in pursuance thereof. State v. Gilmore, 151 Iowa 618, 132 N.W. 53, 35 L.R.A.(N.S.) 1084; State v. Crofford, 121 Iowa 395, 96 N.W. 889.
No man's connection with a conspiracy can be legally established by what others did in his absence, and without his knowledge and concurrence. United States v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; People v. Irwin, 77 Cal. 494, 20 P. 56; Cuyler v. McCartney, 40 N.Y. 221; Blain v. State, 33 Tex. Crim. Rep. 236, 26 S.W. 63; State v. Weaver, 57 Iowa 730, 11 N.W. 675, 35 L.R.A.(N.S.) 1087 et seq.
A dying declaration will not be admitted as evidence unless the declarant be sane and in his right mind. 1 R.C.L. 532; Com. v. Silcox, 161 Pa. 484, 29 A. 105; State v. Williams, 67 N.C. 12; Bensvides v. State, 31 Tex. 579; Mitchell v. State, 71 Ga. 128; McHugh v. State, 31 Ala. 317; McBride v. People, 5 Colo.App. 91, 37 P. 953, 86 Am. St. Rep. 640.
Consciousness of impending death is essential to render a dying declaration admissible. Underhill, Crim. Ev., 3d ed. §§ 171 et seq.; State v. Hanson, 53 N.D. 879, 207 N.W. 1000.
Where defendant was charged with having committed an abortion on deceased, statements made by her, several days prior to her death, in conversation with the defendant and a nurse employed by defendant, were properly excluded as hearsay. Howard v. People, 57 N.E. 442; Carter v. State, 87 N.E. 1081.
As a general rule the corpus delicti should be proved by evidence independent of the confession and before the confession is admitted in evidence. 1 Am. Jur. p. 147, § 40.
Dying declarations are only admissible as to actual facts which point distinctly to the cause of death, and the circumstances producing and attending it. Abbott, Proof of Facts, pp. 442, 443.
A statement by a witness that deceased had told him the day before she died that the doctor had used instruments on her is clearly hearsay and is inadmissible. State v. Clements, 14 P. 410; People v. Murphy, 4 N.E. 327; Bacon v. Charlton, 7 Cush. 581, 586; Barber v. Merriam, 11 Allen, 322; Roosa v. Boston Loan Co. 132 Mass. 439; Com. v. Leach, 156 Mass. 99, 30 N.E. 163.
The res gestae may be therefore defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. State v. Alcorn, 7 Idaho, 599, 64 P. 599, 97 Am. St. Rep. 252.
P. O. Sathre, Attorney General, and J. J. Kehoe, State's Attorney, for respondent.
The adoption of an amendatory act, specifically designating the statute as being amended, operates as a repeal of all parts of the statute amended which are not carried into the amendment. Fargo v. Ross, 11 N.D. 369, 92 N.W. 449; Donovan v. Duluth St. R. Co. 150 Minn. 364, 185 N.W. 388; People v. Lowell, 250 Mich. 349, 230 N.W. 202; Pierce v. Solano County (Cal.) 217 P. 545; Henry v. McKay (Wash.) 3 P.2d 145; State v. Wilder (Ind.) 197 N.E. 844; State v. Leader Co. (Mont.) 37 P.2d 561; 25 R.C.L. 907; 59 C.J. 925.
In order to justify a change of venue or a continuance in those jurisdictions where a continuance is authorized, the excitement or public prejudice must be such that its natural tendency would be to intimidate or swerve the jury, and as the court in which the case is pending can much better determine the propriety of a postponement on this ground than the appellate court, it requires a very strong showing to induce the upper court to interfere. 9 Cyc. 189; Walker v. State, 136 Ind. 663, 36 N.E. 366; State v. Gordon, 32 N.D. 31, 155 N.W. 59.
The matter of granting or refusing to grant a change of venue is largely in the discretion of the trial court. The appellate court will not interfere with such discretion in the absence of a showing that it has been abused. State v. Haworth, 24 Utah 398, 98 P. 155; State v. Carrington, 15 Utah 480, 50 P. 526; State v. McNabb, 60 S.D. 431, 244 N.W. 651; People v. Fuske (Cal.) 192 P. 552; State v. Potter, 60 N.D. 183, 233 N.W. 650; State v. Boggs, 166 Iowa 452, 147 N.W. 934; State v. Pomeroy (Or.) 46 P. 797; State v. Smith (Or.) 83 P. 865.
The general rule is that information acquired by a physician in attending his patient and necessary to enable him to prescribe or act for his patient is privileged, but the rule may not be converted into a protection and a shield for a person accused of the murder of the patient. Pierson v. People (N.Y.) 35 Am. Rep. 524; People v. Harris (N.Y.) 33 N.E. 65; Hauk v. State (Ind.) 46 N.E. 127; Thrasher v. State (Neb.) 138 N.W. 120; State v. Grimmel, 116 Iowa 596, 88 N.W. 342; Underhill, Crim. Ev. 4th ed. §§ 343 and 593; Wigmore, Ev. 2d ed. §§ 2321 and 2385.
An important reason for exempting dying declarations from the rule against hearsay evidence is that the solemnity of the circumstances under which such declarations are made naturally constitutes a guaranty of their truth equal to that which is afforded by the customary oath. 30 C.J. 252, 253, §§ 494 and 495.
The fact that the declarations were made under a sense of impending death may be inferred from the surrounding circumstances as well as be shown by the express language of the declarant. Underhill, Crim. Ev. 4th ed. p. 388, § 212; State v. Hanson, 53 N.D. 883, 207 N.W. 1000; State v. Kuhn, 117 Iowa 216, 90 N.W. 733; People v. Vukojevich (Cal.) 143 P. 1059; Macias v. State (Ariz.) 6 P.2d 423.
The opinion rule has no application to dying declarations. Wigmore, Ev. § 1447; Thomas v. State (Okla.) 164 P. 995.
The fact that the dying statements were part oral and part written was no...
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