State v. Wensel

• Decision Date: 20 May 1889
• Parties: STATE v. WENSEL.
• Court: Missouri Supreme Court

11 S.W. 614

98 Mo. 137

STATE v. WENSEL.

Supreme Court of Missouri.

May 20, 1889.

MURDER — DYING DECLARATIONS — INSTRUCTIONS.

1. About five days before his death deceased sent for a justice of the peace to take his dying declarations. The justice asked deceased if he understood that there was no hope for his recovery, to which deceased replied that he did from the statement of his physician. The justice testified that deceased said nothing as to why he wished to make his dying statement, "except that he was conscious that there was no hope of recovery, and his friend had advised him to make it." The attending physician testified that when he told deceased that he could not recover from his injuries, he said: "I don't feel that way, but I have confidence in you, doctor." Held, that the statement of deceased to the justice was admissible as a dying declaration. RAY, C. J., dissents.

2. On a trial for murder it is error to charge that the jury must find defendant guilty of murder or acquit him, if there is evidence which would justify finding him guilty of a lower degree of crime. BARCLAY, J., dissents.

Appeal from circuit court, Ralls county; THOMAS H. BACON, Judge.

R. F. Roy, for appellant. John M. Wood, Atty. Gen., for the State.

RAY, C. J.

Defendant was tried at the August term, 1887, of the circuit court of Ralls county, upon an indictment charging him with murder in the first degree for the killing of Jacob Young. Upon arraignment he entered his plea of not guilty, and upon the trial was found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for the period of 30 years. He has appealed to this court, and assigns and urges several grounds for the reversal of the judgment, the first of which is that the trial court should have excluded the testimony of the witness J. W. Taylor, detailing the alleged dying declaration of the said Young. That testimony is as follows, to-wit: John W. Taylor testified: "I reside in Perry, Ralls Co., Mo., and am a justice of the peace; knew Jake Young. Dr. Moore notified me that Jake Young wished me to go there, and take his dying statement. I went there on the 26th of July, about four days after the cutting was done. Question. What, if any, conversation did you have with Jake Young concerning his near approaching death? Answer. I asked Mr. Young if he understood his condition; that there was no hopes of his recovery? He said that he did from the statement of Dr. Moore." The defendant here objected to any further testimony of statements made by Jake Young as dying declarations, on the ground that they do not appear to be dying declarations, but made six days before his death, and it does not appear that the deceased knew definitely that he was going to die. The court overruled the objection, and the defendant excepted, and the witness proceeded as follows: "He appeared suffering severely, and the conversation was frequently interrupted, and he said that he was sent for by Mr. Wensel to his place of residence to come to Mr. Harvey Young's about eight o'clock at night, and that he came over not expecting any trouble. That he came to Harvey Young's, and went into the living room, and sat down. That Mr. Wensel came out of another room, and commenced at once to talk rough to him; called him a God damned liar and son of a b — h, and asked him what he should have said about Miss Neva Young, Mr. Young said that he told him that he [Wensel] did say it, and that Wensel called him a liar, and made a pass at him. That in the first round their arms went up together. That there was no difference in the time of their striking. He said that he pushed Mr. Wensel, and immediately they came together. That when they raised their arms he pushed Wensel out from him, and immediately Wensel clinched him, and commenced cutting him. He said that he received a cut in the back, and suddenly felt himself deprived of the use of his limbs and sank to the floor, and that he saw Wensel throw a knife out the window." On cross-examination of this witness (Taylor) the following questions and answers, among others, were asked and given, to-wit: "Question. You are a justice of the peace and notary public? Answer. Yes, sir. Q. You went down to take his dying statement? A. Yes, sir. Q. Did he say anything to you about why he wanted to make his dying statement? A. Nothing more than I have detailed here, except that he was conscious that there was no hope of recovery, and his friend had advised him to make it."

The principle reason urged in this behalf is that when said dying statements were made said Young was not under the impression that his death was impending and inevitable. This is, we think, an important and perhaps difficult question under the facts, as the same are now preserved in the record, and one we feel required to consider at some length. "Where the death is the subject of the charge, and the circumstances of the death are the subject of the declarations," the testimonies usually denominated dying declarations are receivable in evidence, and are generally said to be admissible upon grounds of public necessity, and for the reason that persons in certain expectation of almost immediate death may fairly be supposed, in this solemn situation, to have no motive to speak falsely, but to have, on the contrary, strong motives to adhere to the truth, and to speak without disguise or malice. 1 Chit. Crim. Law, 569; Rosc. Crim. Ev. 35. But these testimonies are, in all cases, to be received with the greatest caution, and this for obvious reasons often stated, and which we need not restate at the present time. 1 Starkie, Ev. 26. The rule as to their admission is stated with some variety as to verbiage, but the meaning is, perhaps, substantially the same, that the declaration must be made under the expectation and settled conviction of death as the result of the wounds received, and after all hope of recovery is abandoned. 1 Greenl. Ev. 208: Best, Ev. 913. It is the impression of impending and almost immediate death that makes the statements admissible, and any hope of recovery, however slight, renders them inadmissible. Greenl. Ev. 208; Best, Ev. 913; State v. Simon, 50 Mo. 374, and cases cited. "And even the faintest hope of recovery" is a common form of expression employed in the authorities as sufficient for their exclusion. Best, Ev. 913, and cases cited in note; Adwell v. Com., 17 B. Mon. 310; State v. Nash, 7 Iowa, 347; Com. v. Densmore, 12 Allen, 537.

With these views and observations in view, we will now recur to the evidence, as preserved in the record before us, to ascertain, if we can, the state of mind under which said Young, afterwards deceased, made the statements or dying declarations in question. For this purpose it is allowable and legitimate, and sometimes necessary, to consider the nature and extent of the wounds inflicted, as well as the conduct of the party at the time, and the communications, if any, made to him by his medical advisers. 1 Greenl. Ev. 208. The wounds, as described by the doctor, consisted of several cuts, which were inflicted by an ordinary pocket-knife, the fatal one being described "as a transverse cut in the back, between the third and fourth dorsal divisions. The knife first struck the spinous process, and passed between the joints, and * * * severed the spinal cord." The point of the knife blade was taken by the doctor at the post mortem examination from this wound, which was necessarily fatal. The difficulty or fight occurred about 8 or 9 o'clock in the evening, and grew out of some damaging remarks which the deceased alleged defendant had made about a young lady. About 2 o'clock on the day after the difficulty, and some 16 hours after his first call and visit to Young, Doctor Moore informed him the wound, in his opinion, was fatal. After stating this announcement the doctor's testimony continues as follows: "Question. State whether or not, from your statement to him, that he must die, whether he considered he must die. Answer. Jake Young said — `According to my feelings, I am not able to say whether I am going to die, but, doctor, what you tell me I have confidence in, and I will look at my condition that way.' I told him that he would never get well, and his answer was that as to his feelings he did not feel that way, but he would have confidence in my opinion, and from that time he looked at it from that stand-point, — that he must die. He did not say that. He said, `I don't feel that way, but I have confidence in you, doctor.'" This testimony of Dr. Moore must be taken and considered in connection with that of J. W. Taylor, the justice of the peace, hereinbefore set out, detailing his conversation with Young, the deceased, and then denominated his dying statement.

The question then is, does the said evidence make it plain that said Young was, when he made his statement, under a full realization that the solemn hour of death had come, and was impending and near and inevitable? It may be observed that at no time did the deceased, so far as appears, use any expression or make any sign indicating any apprehension of death, either immediate or remote, unless the terms he employed, as above, to his physician, and those used in his said conversation with Taylor, the justice of the peace, may be held to so indicate. Some such independent expressions on the part of the declarant are usually found in the cases to which we have been referred and have examined. For example, in the case of State v. Draper, 65 Mo. 335, the physician testified that he told deceased that there was no hopes of his recovery, and that said Gilbert, afterwards deceased, believed what he told. But in addition Gilbert also told Carter, who testified to the dying declarations, "that he could not live till morning, or through the night." In the case of State v. Kilgore, 70 Mo. 546, Willingham, subsequently deceased, said: "I am dying, O Lord,...