State v. Roberts

• Decision Date: 06 September 1905
• Docket Number: 1,673.
• Citation: 82 P. 100,28 Nev. 350
• Parties: STATE v. ROBERTS et al.
• Court: Nevada Supreme Court

82 P. 100

28 Nev. 350

STATE v. ROBERTS et al.

No. 1,673.

Supreme Court of Nevada

September 6, 1905

Appeal from District Court, Washoe County.

Fred Roberts and others were convicted of murder, and appeal. Affirmed.

Huskey & Martinson and Wm. Woodburn, for appellants.

Jas. G Sweeney, Atty. Gen. for the State.

TALBOT J.

The defendants are three of the four who were convicted of murder in the first degree in Humboldt county, and on a former appeal were granted a new trial by this court because a juror who had expressed an unqualified opinion regarding their guilt or innocence had been allowed to serve. 77 P. 598, 28 Nev.--. Later the case was transferred to Washoe county, and Frank Williams, who had been indicted, tried, and convicted jointly with these defendants, was there given a separate trial. They have again been convicted of murder in the first degree, and again appeal.

On August 19, 1903, Jack Welsh quit work in a hay field near Winnemucca, and about 8 o'clock, or half past, that evening, in company with Albert Waldman, left that town on west-bound freight train No. 219. About 11:45 that night, after stopping at Mill City and Humboldt House this train slowed to a speed of from 2 to 4 miles per hour and passed freight train No. 220, east bound, at Zola, a side track about 4 miles east of Oreana, the first station east of Lovelock. Directly after leaving Zola, four men appeared upon the tops of the box cars and robbed Welsh and Waldman, and forced them off the train about 2 miles west of Zola, when it had reached a speed on the downgrade of from 30 to 35 miles an hour. As Welsh clung to the ladder on the side of the car and begged for his life, they stamped on his hands and shot him, until he fell to the ground. He called to Waldman, who had fallen first, and who, after a brief unconsciousness, came to him and went for assistance, but did not return until after he had been taken up and put in the caboose on a freight train about 7:30 in the morning, and taken to Winnemucca, where he arrived and was placed in the hospital a little after 9 o'clock that forenoon, and where he died at 7:15 that evening, 19 1/2 hours after he had been shot, and about 12 hours after he had been taken from the track, where he had lain for about 7 1/2 hours.

1. It is urged that the district court erred in admitting in evidence the following written dying declaration of the deceased: "My name is Jack Welsh. I am 20 years old. My home is in Palisade. I have no brothers. I know who shot me when I see them. The heaviest and shortest one of the lot shot me. There were five men who attacked me. Al. Waldman was with me. There were five men that attack me. 'Give me a match,' they says. 'I have no match,' says I. 'Throw up your hands, you son of a bitch,' and I did. They went through my pockets. The one that shot me had some kind of a shawl around his neck. I saw the fellow when he shot me the first two times. I was only four feet from him. This happened between 11 and 12 last night. I never saw them before that I know of. The tallest man shot at me, too. I never had any weapons of any kind. I was shot through the lungs, because the wound whistled when I moved. After I jumped off the train the heavy-set fellow shot me. I know it was him, because he was on the edge of the train and stamped on my hands. I believe I am going to die, and so I make this statement. J. C. Welsh."

Counsel for defendants objected to this statement upon the grounds that it was hearsay; that its admission would violate the constitutional right of the defendants to be confronted by the witnesses against them; that it does not come under the exception to the hearsay rule known as dying declarations, for to be admissible as such it must be made by one in extremis and fully conscious of impending death, and who has abandoned all hope of recovery; that dying declarations by one who was partially unconscious at the time he made them are inadmissible; and that Welsh did not sign his complete signature to the statement, because, when he had written to the last letter in his name, another at his request had made the "h ." That dying declarations must be made under a sense of impending death in order to be admissible is well illustrated by the cases cited in defendants' brief, and by many others; but this may be shown, not only by what the injured person said, but by his conduct and condition, and by the nature and extent of his wounds, and it is sufficient if these show that the declarations were made without expectation of recovery and under a sense of impending death, notwithstanding the declarant may not have said that he was without hope or that he was going to die. Mattox v. U. S., 146 U.S. 151, 13 S.Ct. 50, 36 L.Ed. 917; Anthony v. State, Meigs (Tenn.) 279, 33 Am. Dec. 143; State v. Evans, 124 Mo. 397, 28 S.W. 8; State v. Schmidt, 73 Iowa, 469, 35 N.W. 590; White v. State, 111 Ala. 92, 21 So. 330; State v. Sullivan, 20 R.I. 117, 37 A. 673; People v. Simpson, 48 Mich. 474, 12 N.W. 662; State v. Russell, 13 Mont. 164, 32 P. 854; People v. Taylor, 59 Cal. 640; Bell v. State, 72 Miss. 507, 17 So. 232; Com. v. Matthews, 89 Ky. 292, 12 S.W. 333; Puryear v. Com., 83 Va. 54, 1 S.E. 512; Johnson v. State, 47 Ala. 9; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150; Morgan v. State, 31 Ind. 194; State v. Fletcher, 24 Or. 295, 33 P. 575; Dixon v. State, 13 Fla. 639; Lester v. State, 37 Fla. 382, 20 So. 232; Jackson v. State, 56 Ga. 235; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; Com. v. Haney, 127 Mass. 459.

The controlling point here is a question of fact for the court--the state of mind of the deceased at the time he made the statement; for, if he were not then under a sense of impending death, the declarations would lack that solemnity and support which are necessary to make them admissible. In addition to other wounds, a bullet had entered the back about three inches from the spine, pierced the left lung and two walls of the stomach, shattered the seventh rib, and lodged in the intestines. The doctor probed, removed a splinter of bone, and opened the wound, so that about two pints of blood, which evidently came from the bullet hole in the lung, escaped from the pleura. This relieved a discharge of blood from the mouth, enabled the patient to breathe on the left side, eased his suffering to some extent, and prolonged his life, so that he lived for about eight hours after the operation. He thanked the doctor, and said he felt better; but, as he was aware of the serious nature of his wounds, this does not indicate that he had any expectation that he would survive. It is easy to distinguish between relief from pain and hope of recovery. State v. Evans, 124 Mo. 397, 28 S.W. 8.

In view of the injuries he had received and of which he was evidently aware, and of the various statements he made, a feeling and expression of relief from suffering does not imply that he expected to recover. Later, when in reply to questions the doctor gave him words of encouragement, which no one aware of the gravity of his condition likely believed, he shook his head as an implication that he was without hope of recovery. To render the statement admissible, it was not necessary for him to predict the hour, or the day, or the specified time he would die. It is apparent that he was conscious of his hopeless condition and that death was near, and, when he said in his written and verbal statements that he was going to die, he meant and realized that dissolution was close at hand. He had told Waldman that fatal night that he was shot through the stomach, and Merchant and others in the forenoon that he could not live, and other witnesses in the afternoon that he was going to die because he was shot through the lungs and could hear the wind whistle. It would seem that only his youth, his unusual vitality, and the hand of fate enabled him to survive long enough to make a statement and identify the defendants. If his dying declarations are not admissible, it is difficult to conceive of but few cases in which they could be accepted. Considering all he said, the mortal nature of his injuries, and his dying, yet conscious, condition, it is reasonable to conclude that he was aware of the near approach of death, and consequently that his statement was made under that sense of impending dissolution which leads to a belief in its truth and sanctions its admission.

2. The four defendants indicted were arrested at Lovelock, taken to Winnemucca, and two at a time, mingled with twelve or more other men, strangers to Welsh, arranged around his bed. When touched, he opened his eyes and was asked: "Do you recognize any of these men?" When his gaze came to Roberts, he looked him straight in the face and said "You shot me." When he saw Sevener, he said: "You are one, too. You helped to hold me up last night." And when he saw Gorman, he said: "You are one of them, too, that helped hold me up last night." It is claimed that the admission of these declarations of Welsh, identifying the defendants as the men who shot and robbed him, was error for different reasons. What we have already said in relation to the written statement makes them admissible as dying declarations. As such they are as definite and entitled to at least as much consideration as if Welsh had previously known them and had in their absence called them by name and asserted that they were the men who had shot and robbed him. The evidence does not indicate that Welsh was unconscious to any degree that would affect the admissibility or credibility of his statements. Although there was an indication of the approach of the lethargy which divides life from eternity, he was quick to recognize the good Samaritan who had given him a glass of water, and others, as well as the...