State v. Wilmbusse

• Decision Date: 24 November 1902
• Citation: 8 Idaho 608,70 P. 849
• Parties: STATE v. WILMBUSSE
• Court: Idaho Supreme Court

70 P. 849

8 Idaho 608

STATE v. WILMBUSSE

Supreme Court of Idaho

November 24, 1902

INFORMATION-INDORSING NAME OF WITNESS.-Under section 2 of an act (5th Sess. Laws 1899, p. 125) requiring the district attorney to indorse on the information the names of all witnesses known to him, at the time of filing the same, and at such time before the trial of any case, as the court may rule or otherwise prescribe, indorse thereon the names of such witnesses as shall then be known to him it was not error to permit the prosecuting attorney to indorse the names of other witnesses on the information after the trial jury had been impaneled it being shown that such witnesses were unknown to him prior to that time.

DYING DECLARATIONS-COMPETENCY TO MAKE IT.-When a paper purporting to be a dying declaration is offered in evidence, it is not error to deny the motion of counsel for defendant to then and there introduce evidence of the incompetency of the person to make such declaration, opportunity being thereafter given to introduce such evidence.

MENTAL CONDITION OF DECLARENT-EVIDENCE.-Before a dying declaration is admitted in evidence, the competency of the person to make it must be shown.

EVIDENCE THAT DEATH WAS IMMINENT.-In establishing the competency of a person to make a dying declaration, it is proper to show what he said in regard to his hope of recovery or his belief that death was at hand.

RES GESTAE.-The statement of person a few moments after he had received a fatal shot, that the defendant fired such shot was a part of the res gestae, and was properly received in evidence.

WITNESS-COUNTY ATTORNEY.-A prosecuting attorney may be a competent witness for the state in a criminal action.

DYING DECLARATION.-A dying declaration, although not all written in the presence of the person making it, may be competent, where it is shown that the entire declaration was read to the deceased, and that he fully understood it and signed it as and for his dying declaration.

REJECTION OF OFFERED EVIDENCE.-It is not error to reject evidence showing that a deceased person was not competent to make a dying declaration two days after such declaration was made. The evidence must be confined to the competence of such person at the time the declaration was made.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Judgment sustained.

McFarland & McFarland, for Appellant.

It was error for the court to permit the county attorney to indorse the names of witnesses upon the information after the jury had been sworn to try the case. A number of said witnesses were sworn and testified against the defendant. The law provides that the names of witnesses be indorsed upon the information before trial. It cannot be done after the jury is sworn to try the case. (Laws 1899, p. 125, sec. 2.) This court has held that in civil actions attorneys should offer themselves as witnesses for their clients only in case of extreme necessity. (Sebree v. Smith, 2 Idaho 359, 16 P. 915.) The court should not have admitted the alleged dying declaration, because it was shown that a great portion of it had been prepared by County Attorney Graham before it was mentioned to Judge Brady, or spoken of, or thought of by him and without his having been previously consulted as to its contents, and because it was not first shown that the declarant believed he would not recover and that there was a prospect of "almost immediate dissolution" at the time of making and executing the declaration." (Greenleaf on Evidence, 14th ed., 158; Vaughn v. Commonwealth (Ky.), 19 S.W. 928; People v. Sanchez, 24 Cal. 17; United States v. Woods, 4 Cranch C. C. 484, F. Cas. No. 16,760; United States v. Veitch, 1 Cranch C. C. 116, F. Cas. No. 16,614.) Sheriff Dyer was put upon the stand to prove that on the sixteenth day of July, and just twenty-four hours after the dying declaration had been made and signed, that Judge Brady was in such condition and frame of mind as to render him incompetent to make a dying declaration, or to know or understand what he was going or saying. The defendant was entitled to the evidence and it was reversible error to reject it and overrule the questions. (McBride v. People, 5 Colo. App. 91, 37 P. 953; Mitchell v. State, 71 Ga. 128; Hays v. Commonwealth, 12 Ky. Law Rep. 611, 14 S.W. 833; People v. Beverly, 108 Mich. 509, 66 N.W. 379.)

Frank Martin, Attorney General, for the State.

The first error urged by appellant is that the court permitted the prosecuting attorney to indorse the names of witnesses upon the information after the jury had been sworn to try the case. The record shows that after the jury had been impaneled before any witnesses were sworn, the prosecuting attorney moved the court for permission to indorse upon the information the names of three witnesses; that he presented to the court his affidavit showing that he did not know of the said witnesses at the time of filing the information; that he had found out since filing it that they were material and necessary witnesses upon the part of the state, and upon that showing the court permitted the names of the witnesses to be indorsed upon the information. This question is discussed at length in several opinions of the supreme court of Montana, under a similar statute to ours, in which the court decided that a ruling of the lower court similar to the one here complained of was not error. Many decisions from the courts of other states are cited in these opinions from Montana. (State v. Schnepel, 23 Mont. 523, 59 P. 927; State v. Calder, 23 Mont. 504, 59 P. 903; State v. Sloan, 22 Mont. 293, 56 P. 364.) The next objection of appellant is that the court erred in permitting the prosecuting attorney, James Graham, to testify in regard to the dying declaration. Just wherein there was any error counsel does not point out and we are unable to discern. It seems to be a matter of necessity for the county attorney to testify as to how this declaration was taken, and upon what theory the admission of the evidence could be error we are at a loss to know. (State v. Seymour, 7 Idaho 548, 63 P. 1036.) Where insanity is set up as a defense it devolves upon the defendant to show by a preponderance of evidence that at the time he committed the offense his mind was in that condition that he could not know that he was doing wrong. (State v. Hurst, 4 Idaho 345, 39 P. 554; Kelch v. State, 55 Ohio St. 146, 60 Am. St. Rep. 680, 45 N.E. 6, 39 L. R. A. 737, also extensive note to this case.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

The facts are fully stated in the opinion.

SULLIVAN, J.

The defendant was tried and convicted of the crime of murder of J. C. Brady on the fifth day of July, 1901, and sentenced on December 30, 1901, to the state prison at Boise City for the period of his natural life. The defendant applied for a new trial, which was denied by the court. This appeal is from the judgment and order denying a new trial. Fourteen alleged errors are assigned, touching the admission and rejection of testimony, the insufficiency of the evidence to sustain the verdict, the giving of certain instructions to the jury, and the overruling of the motion for a new trial.

The following facts appear from the record: That the deceased, J C. Brady, at the time of the homicide, was the probate judge of Kootenai county; that in the summer of 1899 the defendant was brought before him on a charge of insanity; that, after the hearing, Judson Brady consigned the defendant to the asylum for the insane at Blackfoot, Idaho and thereafter appointed one Charles L. Sherwood as guardian of the property of the defendant. Several months after the defendant had been an inmate of said asylum, he escaped therefrom, and in a few days thereafter was apprehended at Ogden, Utah, and returned to the asylum, and remained an inmate there until the month of June, 1900, when he again escaped, and made his way back to Kootenai county, to his home or farm, near Rathdrum. The superintendent of the asylum wrote to the sheriff of said county of defendant's escape, and requested the sheriff to keep "an eye on him"; that, if he showed symptoms of a recurrence of his trouble, to take him in charge and to notify him (the superintendent). It also appears that after the last-mentioned escape the defendant was in and about Rathdrum from about the 1st of June to the 5th of July, 1901 and that on the night of the latter date, at about half-past 10 o'clock, the homicide occurred. It appears from the writing introduced on the trial as the dying declaration of Judge Brady that the defendant entered the judge's office at Rathdrum about the time and date last above mentioned, and said, "How do you feel to-night?" The judge answered: "Pretty fair. How are you?" Defendant then said, "Take that in your old face," and pulled out his pistol and fired. The defendant then put out the light and left the office. The ball struck the judge in the face, under the right eye, and went almost horizontally backward, and "lodged against the brain." "The base of the skull was penetrated and fractured." It appears that the deceased, after receiving the shot, got up out of his chair, went to the door, and partly fell down the front steps, where he was picked up. The following morning, July 6th, the deceased was taken to the Sacred Heart Hospital at Spokane, Washington, and died there about half-past 6 o'clock on the morning of the 17th of July, 1901, from the effect of said gunshot wound. The sheriff of Kootenai county and his wife were occupying a room over the jail, and about fifty or sixty feet from the office of the deceased, at the time the shooting occurred, and had just retired for the night when they heard the shot. On hearing the shot, they...