State v. Randall Tubbs

• Decision Date: 10 January 1928
• Parties: STATE v. RANDALL TUBBS
• Court: Vermont Supreme Court

139 A. 769

101 Vt. 5

STATE v. RANDALL TUBBS

Supreme Court of Vermont

January 10, 1928

May Term, 1927.

Homicide---Dying Declarations as Exception to Hearsay Rule---Requisites of Dying Declarations---Necessity of Belief in Approaching Death, and Manner of Proving---Presumption of Sanity of Declarant---Burden of Evidence To Show Belief in Approaching Death---Preliminary Questions for Court in Relation to Dying Declarations---Admission of Dying Declaration as Finding that Proper Foundation Had Been Laid---Conclusiveness of Court's Finding When Supported by Sufficient Evidence---Harmless Error---Mental State of Deceased at Time of Making Dying Declarations Admissible To Determine Weight To Be Given Them---Practice as to Retiring Jury While Taking Evidence as to Admissibility of Dying Declarations---Dying Declarations Taken Through Interpreter---Dying Declarations Made in Response to Questions---Meaning of Rule That Dying Declarations Must Be Complete---Sufficiency as to Completeness---Necessity of Offer of Evidence When Excluded---Submission of Dying Declarations to Jury---Requested Instructions Inapplicable to Facts---Instructions as to Self-defense---Effect of Substantial Compliance with Requested Instruction.

1. Admission of dying declarations is one of exceptions to rule against hearsay evidence, and, under certain conditions, such declarations have always been admitted in cases of homicide both from necessity and because near approach of death is supposed to impress mind with as solemn an obligation to speak the truth as would administration of an oath.

2. Dying declarations, to be admissible in evidence, must be made under full and firm belief of near and approaching death.

3. Existence of belief of near and approaching death on part of declarant, necessary to make his statements admissible as dying declarations, may be inferred not only from his statements, but from his statements, the nature of his wounds, and other circumstances combined.

4. Where question of sanity of person making declaration is not raised, declarant is presumed to have been sane when declarations were made, but, when question is raised, sanity of declarant must be satisfactorily proved.

5. In prosecution for murder, deceased's declaration to brother that he was nearly half dead, if insufficient alone to support finding that deceased then had full and firm belief of approaching death, held admissible for court's consideration with other evidence in determining question.

6. Before dying declarations are admissible in evidence, court must find that, at time they were made, declarant was sane if question is raised, and that they were made under belief of near and approaching death.

7. In prosecution for murder, where evidence in case was sufficient to support finding that deceased was sane and believed that he was about to die when making statements admission of statements as dying declarations held tacit finding that foundation for their admission had been laid.

8. In prosecution for murder, court's tacit finding that foundation for admission of dying declarations had been supported by sufficient evidence, held not revisable.

9. In prosecution for murder, although question of proper foundation for admission of dying declarations was preliminary question for court to determine, and, upon respondent's request, evidence thereon should not have been heard in presence of jury, failure of court to have jury retire when evidence thereon was admitted, held not reversible error, where court found that proper foundation for admission of dying declarations was laid.

10. In prosecution for murder, mental state of deceased at time he made dying declarations, held admissible for consideration by jury with other evidence in determining weight to be given such declarations.

11. The better practice is for trial court to retire jury during receipt of evidence on preliminary matters relating to admissibility of dying declarations and then, if proper foundation for evidence is laid, to re-admit such of evidence as is proper for jury's consideration.

12. Error, if any, in admission of dying declarations which were taken through an interpreter, held harmless, where similar statements made by deceased and undisputed, and not subject to such objection, were received in evidence.

13. Fact that dying declarations are made in response to questions is no objection to their admission.

14. Rule that dying declarations must be complete does not mean that all of the affair of the death must be related, but means that statement must be complete as far as it goes, and if dying person finishes statement he wishes to make, it is no objection that he has told only portion of what he might have been able to tell.

15. Dying declarations held sufficiently complete to warrant admission.

16. Where court excluded question asked by respondent to witness on direct examination, and no offer was made to show what answer of witness would be, prejudicial error does not appear.

17. Supreme Court in considering exceptions is bound by record, and burden is upon respondent taking exceptions to produce record from which error appears.

18. When objections to question are sustained, except on cross-examination, to secure review of competency of testimony sought to be introduced, record must contain showing as to what testimony would have been had witness been permitted to answer.

19. Dying declarations properly received in evidence held properly submitted to jury for consideration with other evidence in case.

20. In prosecution for murder, exception to court's definition in charge of second degree murder, which left out elements of killing in affray or heat of passion, held without merit, where no claim was made below that fatal blow was thus struck, but respondent claimed that whatever he had done was done in self-defense.

21. In prosecution for murder, requested instruction as to right to take life in defense of habitation, held properly refused as inapplicable to evidence.

22. In prosecution for murder, requested instruction that one assaulted on his own premises without his fault at or near dwelling need not retreat although he can do so without increasing his danger, but may lawfully resist or even pursue his adversary until he frees himself from danger even to killing, if necessary, held properly refused.

23. Person, when assaulted, may only take life in self-defense when it reasonably appears to him that he is in danger of death or of serious bodily harm.

24. In prosecution for murder, requested instruction on self-defense, held defective and properly refused, in that it omitted element that, if party assaulted had other means of avoiding assault that appeared to him at time as sufficient and available and which were so in fact, he must resort to them and cannot use force in self-defense.

25. In prosecution for murder, refusal to charge that it was not necessary that respondent should reasonably fear for his life, but that reasonable fear of great bodily harm would justify slaying adversary if it reasonably appeared necessary to respondent, and he was not aggressor, held without error, in view of fact that court had already by its instructions substantially complied with request.

INDICTMENT FOR MURDER. Plea, not guilty. Trial by jury at the September Term, 1926, Rutland County, Chase, J., presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Judgment that there is no error in the record, and that the respondent takes nothing by his exceptions. Let execution be done.

Laurence, Stafford & Bloomer for the respondent.

Present: WATSON, C. J., POWERS, SLACK, and MOULTON, JJ., and THOMPSON, Supr. J.

OPINION

THOMPSON

The respondent was indicted and convicted of murder in the second degree for killing one Sam Carrara. On May 31, 1926, the respondent lived with his son Frank on a farm in Ira called the "Tubbs farm," or the "Perry farm." Sam Carrara and his brother Donato were Italians who cut wood for a living. They spoke broken English. In the early morning of May 31, 1926, they were seen going in the direction of the Tubbs farm. They had two axes tied together, a cross-cut saw, and two dinner pails with them. These were found later on or near the piazza of the house on the Tubbs farm. Soon after eight o'clock in the morning the Carraras were seen at the Tubbs farm in the company of the respondent. They were not see again by anyone other than the occupants of the farm until after five o'clock in the afternoon, when they were found lying on the dirt floor of the carriage shed on the Tubbs farm, a short distance from the house. Donato Carrara was dead. He had several abrasions and wounds on his face and head, among which was a puncture of the nasal septum that suggested a nail hole. He died from asphyxia caused by blood entering the respiratory tract from the nose and possibly from the mouth. Sam Carrara was lying near Donato and was unconscious. His left jaw was fractured, there were three fractures of his skull, both eyes were black, a part of his right ear was gone, probably caused by a sharp instrument, and there were scattered abrasions over the face. He was taken to the hospital at Rutland that evening and died there the next morning. He died from a fracture of the skull due to external violence with intracranial hemorrhage.

It appeared that after the bodies were found the respondent told different persons on different occasions that he struck each of the Carraras one blow with his fist, that he hit them because they were trying to run his business. The evidence tended to show that one blow from a man's fist could not cause anyone of the fractures of Sam's skull. It further...