State v. Trusty

• Decision Date: 26 May 1898
• Citation: State v. Trusty, 40 A. 766, 17 Del. 319 (Ct. of Oyer and Terminer of Del., New Castle Cty. 1898)
• Parties: STATE v. ALBERT TRUSTY
• Court: Court of Oyer and Terminer of Delaware, New Castle County

40 A. 766

17 Del. 319

STATE v. ALBERT TRUSTY

Court of Oyer and Terminer of Delaware, New Castle County

May 26, 1898

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Court of Oyer and Terminer, New Castle County;No. 25 to May Term 1898.

The prisoner was indicted for murder in the first degree, but at the trial the State asked for conviction of manslaughter only.The defendant was charged with causing the death of his paramour, Fannie Kelly, at No. 10 Lord street, in the City of Wilmington, Delaware, in the early morning of April 13, 1898 by pushing or throwing her over a lighted kerosene lamp thereby setting fire to her clothing and causing injuries from which she died at 6 o'clock on the evening of the same day.The evidence tended to show that on the night in question the deceased had been out with two of her associates--one Martha Duckery and Lee Rooley--in company with whom she returned to her home some time after midnight that Trusty, the defendant, was then upstairs in bed; that the deceased went upstairs to his room and began abusing him for spending money which she had given him for the purpose of buying her a pair of shoes; that she ordered him to leave the house, which he began to prepare to do, requesting her to get the lamp so that he could see to procure his clothing; that she then went down to the room below, where her said associates were, and, taking a lighted lamp, returned to Trusty's bedroom, where they again began quarreling, the deceased and Trusty being the only persons in the bedroom at the time; that soon thereafter those who were below heard a noise as of a heavy body falling in the room above, and immediately Fannie Kelly came rushing into the room with her clothing on fire: that the flames were soon extinguished and she was sent to the Delaware Hospital, where she died later the same day; that before the flames were extinguished Trusty came down stairs and left the house, half dressed, going to a former boarding place in the said city, where he spent the remainder of the night and the next day, until captured by the police.The prisoner claimed that the lamp was on the floor near the landing of the stairs; that the deceased was between him and the lamp, and that in gently pushing her away from him, she, being intoxicated, fell down the stairway over the lamp, which was overturned in the fall and which set fire to her clothing.

The witness Martha Duckery having testified that in about five minutes after the flames were extinguished the deceased made certain statements to her as to how the accident occurred, was asked by the Deputy Attorney-General what those statements were.Counsel for defendant objected on the ground that it was too long after the main occurrence and was not cotemporaneous with the facts and circumstances thereof, and not in the presence of the defendant.The state contended that it was a part of the res gestae.

Travellers' Ins. Co. vs. Mosely, 8 Wallace, 397;Commonwealth vs. McPike, 3 Cushing, 182;People vs. Vernon,35 Cal. 49;Elkins, Bly & Co. vs. McKean,79 Pa. St., 493;State vs. Lambright, 16 Criminal Law Magazine, 484; State vs. Frazer, 1 Houston's Criminal Cases, 182.

LORE, C. J:--

Under the circumstances of this case, the Court do not think this testimony is admissible.

The witness Harriet Johnson testified to the following conversation with the deceased shortly after the flames were extinguished, viz: "She said to me, 'Oh, Aunt Harriet, I'm going to die; I'm going to die.'I said, 'No, I guess not Fannie; pray; and she said, 'Oh, Aunt Harriet, I can't pray.'"

The State then offered to prove certain statements made by the deceased (as dying declarations) explaining how the occurrence happened.

Objected to by counsel for defendant.Objection overruled.

The witness then continued:

"I said, 'Fannie, how did this happen?' and she said, 'Bert throwed the lamp at my head and I dodged it and the lamp fell down the steps, and he shoved me down.'"

The witness Martha Duckery was recalled by the State to prove, as dying declarations, certain statements made by the deceased to the witness after the deceased had told Harriet Johnson that she was going to die.

Objected to by counsel for defendant.

The jury disagreed.

R. C. White, Attorney-General, and Peter L. Cooper, Jr., Deputy Attorney-General, for the State.

Julian Walker, for the defendant.

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

LORE, C. J

The rule as to the admissibility of dying declarations is very clearly stated in Section 158 of 1 Greenleaf on Evidence."It is essential to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated, at the time to me so made.It is enough, if it satisfactorily appear in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant's mind."

Here is an offer of a statement as a dying declaration under these circumstances: the decedent had previously made the declaration to a witness, according to the testimony of that witness, that she was going to die, and reiterated it.Afterwards, according to the testimony we already have before us, within thirteen minutes she repeats to this witness the declaration previously made that she was going to die.Under those circumstances that would clearly bring this within the rule that admits it as a dying declaration.The ground I put it on is this: That a declaration was made by the decedent to Mrs. Johnson that she was going to die, and within thirteen minutes another declaration was made, according to this witness, that she was about to die, and between those two declarations comes in this statement.

SPRUANCE, J., dissented on the ground that the witness had stated in reply to a question asked by him, that the alleged statements of the deceased were made by her before she said she was going to die.

The defendant's counsel excepted.

Walter Witsil, State Detective, was called to the stand by the State to prove certain admissions made by the defendant in the corridor of the prison in the City Hall shortly after his arrest and in the presence of several police officers.After testifying that there was nothing in the way of an inducement or reward held out to the prisoner nor threats made, the State asked the witness the following questions: "When you asked him how the woman came to her death and if he threw the lamp at her, what did he say?"

Objected to by counsel for defendant on the ground that the circumstances in the case--the defendant being in custody, in a prison, and surrounded by the police officers--were enough to...