State v. Weaver

• Decision Date: 24 March 1882
• Citation: 11 N.W. 675,57 Iowa 730
• Parties: THE STATE v. WEAVER
• Court: Iowa Supreme Court

11 N.W. 675

57 Iowa 730

THE STATE v. WEAVER

Supreme Court of Iowa, Des Moines

March 24, 1882

Appeal from Greene District Court.

THE defendant was jointly indicted with S. T. Horine for the murder of George W. Learned, and upon a separate trial was convicted of manslaughter. He now appeals to this court. The facts of the case, so far as they are involved in the questions decided, appear in the opinion.

REVERSED.

McDuffie & Howard and Russell & Toliver, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

BECK, J.

I.

Two witnesses were permitted to testify to threats made by Horine, who is jointly indicted with defendant, against the deceased. These threats were made four or five months before the homicide. There is no evidence tending to show that there was any conspiracy on the part of the two defendants against the deceased, or that there was any accord or concert in feelings and action against the deceased, prior to the conflict which resulted in his death. The evidence is clearly incompetent and its admission was prejudicial to defendant.

II. Declarations of the deceased in regard to the conflict which caused his death, made a few hours before he died, were admitted in evidence. To render declarations competent evidence against the prisoner, the law requires that it should appear they were made in the full belief of the deceased that he would not recover and that his death was impending. The State v. Nash & Redout, 7 Iowa 387. We think the proof intended, under this rule, to establish a foundation for the admission of the declarations of the deceased, is insufficient. It is not made to appear that he believed that he would not recover and that he was near the approach of death. During paroxysms of pain which he suffered, he more than once declared that he could not endure his sufferings and that they would cause his death. An information for the arrest of the defendants was prepared by a justice of the peace to which the deceased was sworn. The justice testifies that at the time, referring to the information, he used this language: "Before God, not expecting to live until night, every word is true." Other witnesses who were present state his declaration in this form: "Not knowing that I may live till night every word of it is true." After this declaration his physician gave him encouragement that he would recover. At the time he made the particular declarations, admitted in evidence, it is not shown that he expressed the belief that he would not survive, and there is no ground for presuming that he entertained such belief. The declarations, we think, ought not to have been admitted in evidence, as preliminary proof does not sufficiently show that they were made in the full...