State v. Wee

• Decision Date: 07 June 1900
• Citation: 61 P. 588,7 Idaho 188
• Parties: STATE v. YEE WEE
• Court: Idaho Supreme Court

61 P. 588

7 Idaho 188

STATE v. YEE WEE

Supreme Court of Idaho

June 7, 1900

CRIMINAL LAW-EVIDENCE.-The evidence examined and held to be sufficient to justify verdict of murder in first degree.

SAME-DYING DECLARATIONS.-An ante-mortem statement as to the cause of death, made by the deceased soon after receiving an injury from which he died, made when death was apparently imminent and while the deceased believed that he was about to die, is admissible in evidence as against the defendant, on the charge of murdering the deceased, although deceased had not been informed by a physician that he was about to die.

APPELLATE JURISDICTION.-Upon appeal in a criminal case, the jurisdiction of the appellate court is confined to a review of the case made in the trial court.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed.

Lyttleton Price, W. T. Reeves and P. M. Bruner (Hawley, Puckett &amp Hawley, of Counsel), for Appellant.

The evidence of Dr. Brown that he never at any time, told the wounded man that he was going to die or that he told him of his condition and in this entire record there is nothing to show that he knew, or ever suspected, that he was in danger of dying from the effects of the wound. We insist that before such statements are admissible as evidence it must be shown that the wounded man, at the time he made the statement, was under a sense of impending death and without any hope whatever of recovery. (Clark's Criminal Procedure, 525 526, and authorities there cited; People v. Glem, 10 Cal. 32; People v. Vernon, 35 Cal. 51, 95 Am. Dec. 49, and note; People v. Taylor, 59 Cal. 640; People v. Ah Len, 98 Cal. 133, 32 P. 880; People v. Sanchez, 24 Cal. 22; People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549.) Dying declarations should point distinctly to the cause of death, and to that alone. Any declaration made as to the cause of death and couched in such vague and indefinite expressions as to require aid by inference or supposition should be held inadmissible. (3 Rice on Evidence, 530; State v. Baldwin, 79 Iowa 714, 45 N.W. 297; State v. Center, 35 Vt. 378.) Another never varied rule in this regard is that dying declarations are restricted to the act of killing and to the circumstances immediately preceding it and forming part of the res gestae. Matters contained in a dying declaration are never competent unless they would be admissible if they came from the lips of a living witness. (Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; Benns v. State, 46 Ind. 311; Greenleaf on Evidence, c. 9.)

Samuel H. Hays, Attorney General, for the State, cites no authorities.

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

The appellant was tried upon information charging him with the murder of one Wee Waugh, alleged to have been committed in Blaine county in May, 1899, was tried and convicted, and sentenced to death. The appellant moved for a new trial which was denied, and has appealed from the order denying him a new trial and from the judgment of conviction. Several witnesses, all Chinese, testified that on the night of May 3, 1899, at about 9 o'clock they were at the store of Sam Waugh, in the quarter known as "Chinese Town," in Hailey, the deceased, Wee Waugh, being among the number, when appellant came into said store; that appellant had a paper sack on his hand; that soon thereafter a shot was fired, when the deceased Wee Waugh, exclaimed, "Wee shoot me Wee shoot me " A number of witnesses testified that at the time of the shooting the deceased was standing at the inside or back of the table, and that the accused approached the table on the other side from the deceased, leaned his arm on the table, and slightly raised his hand, whereupon the report of a firearm was heard, when the deceased exclaimed: "Wee shoot me Wee shoot me " Thereupon nearly all of the parties, including the accused and the deceased, ran out of the house. Immediately after the shooting a paper bag, similar in appearance to the one held in the hand of the accused, was found by the door of the store building, picked up and carried in the house by one of the witnesses, and there kept until morning, when it and a candle were turned over to the county attorney. It was shown that the candle was burning on the table between the deceased and the accused at the time the shot was fired, and that the candle then went out; that a piece was cut out of the candle, making a notch therein, that this notch was not in the candle before the shot. Said paper bag and candle were introduced as evidence before the jury. The appellant objected to the introduction of the paper bag, but did not object to the introduction of the candle. The introduction of both the candle and the paper bag in evidence is now assigned as error, on the ground that they were not sufficiently identified. We have carefully considered the evidence, and think that it was sufficient to identify the candle. Was it sufficient as to the paper bag? Wee Gwing testified that accused came in with a yellow bag, like the one exhibited, in his hand; that he saw the paper bag introduced in evidence, after the shot, out by the door. Chin Shu testified that the accused had a paper bag in his hand; that he pointed paper bag at deceased, but thought the paper bag held by accused was not as large as the one introduced in evidence. Gui Waugh testified: "I saw the paper bag before the shot went off. . . . Wee had it on his hand when the shot went off. He raised up the bag high enough for Wee Waugh. . . . I have seen a paper bag like this, but did not see this one before. I saw this bag right after the shot outside the door in front of Sam Waugh's store. I picked it up, and brought it in the house. It stayed in the house that night." The witness then stated that the paper bag remained in the house until the next morning, when the sheriff and county attorney went and took...