Territory v. Klehn

• Decision Date: 06 January 1889
• Citation: 1 Wash. 584,21 P. 31
• Parties: TERRITORY v. KLEHN.
• Court: Washington Supreme Court

21 P. 31

1 Wash. 584

TERRITORY v. KLEHN.

Supreme Court of Territory of Washington

January 6, 1889

Appeal from Fourth district.

Turner, Forster & Turner, for appellant.

J B. Metcalf, Atty. Gen., and W. B. Jones, for the Territory.

BURKE C.J.

John Klehn, the appellant, was indicted for the crime of murder in the first degree. He was tried upon that indictment convicted of manslaughter, and judgment was given against him. He appeals to this court. Upon the trial, the territory offered proof of the dying declarations of the deceased. Before admitting this evidence, the court properly instituted a preliminary examination as to whether the alleged declarations were made by the deceased under a sense of speedy death. This examination was not conducted in the presence of the jury; the court, on motion of the defendant having previously ordered the jury to retire. The examination made by the court seems to have been very full and thorough the testimony on this issue covering six pages of the record. The witness was cross-examined by counsel for defendant, and the court, being satisfied that the declarations were made by deceased under a sense of impending dissolution, ruled that they should be admitted in evidence. The defendant thereupon offered "to prove by other witnesses, before the testimony of this witness should go to the jury, the nature of the wound; that the intestines were not cut, and that the wound was not necessarily fatal; that nothing was said on the part of the attendants or physicians that would give rise to the belief in the mind of the deceased that he was going to die, but, on the contrary, expressions were indulged in by his physicians that he would recover, and that he expressed the belief that he might possibly recover." The court refused to hear this testimony, and appellant insists that this refusal was error. When the admissibility of dying declarations is brought in question, it is the duty of the court to determine, as a preliminary issue, whether the alleged declarations were made by the deceased in view of speedy death. The extent of such preliminary examination is a matter within the judicial discretion, and reviewable here only when it appears that such discretion has been abused. There was no abuse of discretion in this case. The trial court seems to have conducted this preliminary inquiry properly, and with a tender consideration for the rights of the defendant. The court had a right, in the exercise of a sound judicial discretion, to say how far the examination should extend, "in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant." ...