State v. Woodard, KCD
Decision Date | 03 March 1975 |
Docket Number | No. KCD,KCD |
Citation | 521 S.W.2d 498 |
Parties | STATE of Missouri, Respondent, v. Alvin C. WOODARD, Appellant. 27092. |
Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.
Defendant, Alvin C. Woodard, was originally convicted of second degree murder in the circuit court of Jackson County, Missouri. On Appeal to this court, the case was reversed and remanded for a new trial, State v. Woodard, 499 S.W.2d 553 (Mo.App.1973), because of prejudicial error in allowing the state to impeach its own witness by means of an extra-judicial statement of one of the state's witnesses as constituting substantive evidence in support of the elements of the offense charged. On retrial, defendant was found guilty by a jury of the crime of manslaughter (Section 559.070, RSMo 1969, V.A.M.S.). The jury was unable to agree upon a punishment and accordingly, the court assessed same at ten years imprisonment in the Department of Corrections. Defendant's sole assignment of error on the present appeal is the exclusion by the trial court of a purported dying declaration of the victim.
The record shows that the victim, Larry McNeal, was shot in a tavern in Kansas City, Missouri, by defendant, around 6:00 p.m., on November 13, 1971, and sustained a massive wound in his right groin from which he died seven days later. Following the shooting, decedent underwent surgery and regained consciousness in the early hours of November 14. At this time he conversed with his wife, Ann McNeal (also defendant's sister), and her testimony in material part is as follows:
The objection of the state was sustained upon the ground that defendant had not sufficiently proved decedent's belief of impending death and abandonment of hope of recovery and thus no proper foundation was laid for the admission of the dying declaration as an exception of the hearsay rule. Defendant offered to prove, that if the witness would have been permitted, to answer the question her answer would have been that deceased stated, 'A.C. didn't mean to do it.'
The matter of further proof of a proper foundation was reserved to defendant upon remand for a new trial. State v. Woodard supra, loc. cit. 499 S.W.2d 559. Upon new trial, decedent's hospital records, and reports of attending physicians, were received in evidence, along with the testimony of Dr. Thomas Fritzlen, M.D., consultant pathologist to the Jackson County Medical Examiner's office, which specifically was: ...
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...that he was dying, it is not necessary that the declarant so state or that death immediately follow the declaration. State v. Woodard , 521 S.W.2d 498, 500 (Mo. App. 1975). The declarant's subjective belief of death "may be inferred from the declarant's condition and other circumstances whi......
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