State v. O'Shea

• Decision Date: 08 July 1899
• Docket Number: 11401
• Citation: 60 Kan. 772,57 P. 970
• Parties: THE STATE OF KANSAS v. PATRICK O'SHEA
• Court: Kansas Supreme Court

57 P. 970

60 Kan. 772

THE STATE OF KANSAS v. PATRICK O'SHEA

No. 11401

Supreme Court of Kansas

July 8, 1899

Decided July, 1899.

Appeal from Sedgwick district court; D. M. DALE, judge.

STATEMENT.

On January 6, 1898, an information was filed in the district court of Sedgwick county charging Patrick O'Shea with an assault on James Dawson with intent to kill him. A trial of the charge resulted in a conviction and a sentence to the penitentiary for a term of eight years. He appealed from the conviction and judgment, and upon a review in the supreme court the judgment was reversed and a new trial ordered. ( The State v. O'Shea, 59 Kan. 593, 53 P. 876.) After the reversal and on September 13, 1898, Dawson died, after which a new information was filed, charging O'Shea with the murder of Dawson. At the trial the state offered in evidence what purports to be a dying declaration of Dawson, and the court admitted the greater part of it, stating that the excluded part might become competent in rebuttal. The part received at the opening of the trial is as follows:

"DYING STATEMENT OF JAMES DAWSON.

"Firmly believing in a God and in a hereafter, and realizing and believing and being advised by my physician, and fully realizing the same, and being convinced that I am mortally wounded and that I am about to die and meet my Creator, I desire to and do make this statement, which I make under the firm belief and with the knowledge that I shall never recover and that I am about to die: In the afternoon of November 14 1897, I went up to Paddy Shea's place in the north part of town, as I had frequently been there before, and spent some ten or twelve dollars for drinks and became partly intoxicated, and in the afternoon we had a little difficulty in which a gun was accidentally discharged--how or in what manner I do not know--after which we had some conversation with the officer, and Shea and I took several drinks, and we were friendly. We had no difficulty that I remember of in the afternoon. He went out to the car with me and assisted me on the car, and asked me to come back again, after which I came down town. I did not attempt to kill or harm Shea in any manner in the afternoon. I had no cause for it; always thought we were the best of friends. While down town I first missed my pocketbook, containing some $ 300, and I went back to Shea's place in the evening after it. The pocketbook was either taken out of my pocket or fell out of my pocket during the scuffle in the afternoon, and I thought Shea had it, and I went back after it. The pocketbook contained $ 300 and a receipt. Mr. Shea knew that I carried the money, and that I had it with me Sunday afternoon. When I went back in the evening I went back in a hack. The hack drove up to the front door and I got out. Knowing it was Sunday afternoon and that Paddy did not keep the front door open Sunday, I went around to the back door and knocked at the back door and a voice from the inside, which I recognized to be Shea, said, 'Who is there?' and I said 'Ed.,' as Paddy always called me 'Ed.,' and I was recognized and called by the name of Ed frequently. He said, 'All right; come around to the front door.' I went around to the front door, and met Officer Gamble at the northeast corner of the building. Gamble had been there in the afternoon and had drank some with us. As I stepped upon the porch the door was opened from the inside and I walked in. As I walked in, Paddy stepped up to the west end of the bar, and I said, 'Paddy, I lost my leather this afternoon,' meaning my pocketbook. Paddy said, 'What?' I said again, 'Paddy, I lost my leather here this afternoon, containing my money,' and he said, 'You are a God-damned lying son-of-a-bitch,' and pulled his gun from behind him and shot. I attempted to get out of the door, but the door stuck, or I could not open it quick enough, and as I was trying to open the door and get out he shot me again in the back and I fell right by the side or in front of the door. After I was down he gave me a kick in the ribs, which broke one of my ribs. At that time I had no gun with me at all and did not attempt to shoot Paddy but attempted to get away from him. All I went there for was my money which I lost there in the afternoon. I had always thought Paddy and I were the best of friends. I made him a present of a revolver in the afternoon of the evening he shot me and also of some jewelry, and I have frequently spent much money in his place and he has frequently taken me around town and introduced me to various people as his schoolmate and his friend, and, so far as I know, we were friends. I never in any manner or form, to my knowledge, attempted to harm Paddy; I had no reason to do so. At the time I went to Shea's place Sunday night, I had no gun with me and did not go there for any other purpose than to get my pocketbook and my money. I had no ill will against Paddy at all at the time he shot me, and have none now whatever, except to regret that he has shot me without any cause or provocation whatever. I did say, after I was shot, 'Paddy, what did you do this for?' I also asked him if I had any legs. I do not know why Paddy shot me unless he did not want me to get my pocketbook and money there. I think that I stated all that I remember and recall now of the transaction, at least all that comes to my mind now, and I make the above and foregoing statement without malice or ill will toward any one; I fully realize that my life is about ended and that I am about to go to the great beyond, and that I am on my death-bed, and that the wound that I received is about to end in my death, and that I am about to die, and I have made the above and foregoing statement with full realization that I am about to die and that I am on my death-bed and shall never recover.

JAMES E. DAWSON."

Objections were made to the reception of the declaration, and to every paragraph, sentence and word of the same, and special complaint is made of the portions of the declaration which are italicized.

After the testimony of the defendant had been offered, the state was permitted to read the remainder of the dying declaration, which was first omitted, and which is as follows: "The nickel-plated gun or white gun that Paddy said he found by my side was not my gun, and I never had it. It belonged to a man by the name of Black Jack. I never told McAlister in the evening that I was going to kill Paddy, or anything to that effect. I did not have any conversation with Mr. McAlister in the evening at all. Neither did I tell John Herrig that I was going to kill Paddy, nor any words to that effect. Neither did I tell any person at any time that I was going to shoot or kill Paddy or any words to that effect or meaning that. I got her to deed her interest in Paddy's property to him at Paddy's request. After I was shot I did not say to Paddy: 'Paddy, you was too quick for me,' or words to that effect. I did not say to Paddy or any one else: 'Paddy, I do not blame you for this.'"

Objections were made to rulings on testimony preliminary to the introduction of the dying declaration, and also to the exclusion of testimony tending to discredit and impeach the declaration itself. The trial resulted in a conviction for murder in the second degree, and the defendant was sentenced to thirty years in the state penitentiary. He appeals.

Judgment reversed and cause remanded for new trial.

A. A. Godard, attorney-general, S. B. Amidon, county attorney, and J. F. Conly, for The State.

Adams & Adams, and R. R. Vermilion, for the appellant.

OPINION

JOHNSTON, J.:

The first objection brought to our attention in this review is to the rulings of the court on challenges of persons called to serve as jurors. Some of them stated on their voir dire that they had formed opinions as to the commission of the offense charged, but it appears upon further examination that the opinions so formed did not extend beyond the fact that O'Shea had fired the fatal shots. The fact that Dawson was shot by O'Shea, and that death resulted from the shooting, was not disputed. Throughout the trial the...