The State v. Wilks
| Decision Date | 03 June 1919 |
| Parties | THE STATE v. VIRGIL WILKS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon Charles L. Henson, Judge.
Reversed and remanded.
William B. Skinner and Patterson & Page for appellant.
(1) The court erred in refusing to exclude the testimony of Cora Knott as to the alleged dying declaration of deceased. Dying declarations are limited to the circumstance of the killing and by whom; they cannot include what went before or a separate and disconnected fact (with the act of killing) nor can they include an expression of opinion or belief, but are confined to statement of fact. In all cases it is for the court to pass upon the question of the competency of the statements and to the jury can only be left the degree of credit such declarations are entitled to, the same as any other item of evidence submitted for their consideration. 1 Bishop on Criminal Evidence, 1207, 1216; 1 Greenleaf, 156; Sherwood, pp. 836-838; Kelley (3d Ed.), par. 278; State v. Simon, 50 Mo. 370; State v. Draper, 65 Mo 335; State v. Chambers, 87 Mo. 408; State v Parker, 172 Mo. 191; State v. Spivey, 191 Mo 110; State v. Zorn, 202 Mo. 12; State v. Crane, 209 Mo. 328; State v. McCannon, 51 Mo. 160; State v. Vansant, 80 Mo. 76; State v. Elkins, 101 Mo. 344; State v. Brown, 188 Mo. 460; State v. Minor, 193 Mo. 613; State v. Horn, 204 Mo. 528. (2) The propriety of the admission of dying declarations is a preliminary question for the determination of the court before they are allowed to go to the jury. Wharton on Criminal Evidence (9 Ed.), sec. 297; 4 Ency. Evidence, 947; State v. Simon, 50 Mo. 375; State v. Johnson, 118 Mo. 504; State v. Zorn, 202 Mo. 32; State v. Crone, 209 Mo. 328; State v. Johnson, 118 Mo. 502; Lipscomb v. State, 75 Miss. 559. (3) The utmost caution should be exercised by the court in the admission of dying declarations, and the tendency of the courts is to greater stringency, rather than to any relaxation of the rules which permit the admission of this kind of evidence. 4 Ency. Evidence, p. 945. (4) Declaration must be complete to be admissible. 4 Ency. Evidence, p. 985; State v. Johnson, 118 Mo. 491. (5) Failure of witness to hear all that deceased said renders the declaration inadmissible. 4 Ency. Evidence, p. 986. (6) Only such statements are competent as would be competent if deceased were living and on the witness stand. 4 Ency. Evidence, p. 991; State v. Reed, 137 Mo. 135. (7) A mere expression of opinion or belief by a dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is a mere statement of opinion appear from the declaration itself or from other undisputed evidence showing that it was impossible for declarant to have known as a fact what he stated. 4 Ency. Evidence, p. 993; State v. Elkins, 101 Mo. 350; State v. Parker, 96 Mo. 382; State v. Chambers, 87 Mo. 406. (8) The question whether a declaration is opinion or conclusion of deceased is a question for the court. 4 Ency. Evidence, p. 993; State v. Williams, 67 N.C. 12; Binns v. State, 46 Ind. 311; McBride v. People, 5 Colo.App. 91; State v. Hays, 78 Mo. 318; State v. Johnson, 118 Mo. 503.
Frank W. McAllister, Attorney-General, and Thomas J. Cole, Assistant Attorney-General, for repondent.
(1) The statement of George Wilks that "Virgil killed me" was admissible as a dying declaration. State v. Rider, 90 Mo. 62; State v. Dipley, 242 Mo. 477; State v. Morgan, 1 Mo.App. 25, 28; State v. Evans, 124 Mo. 408; State v. Bradley, 34 S.C. 136; State v. Mace, 118 N.C. 1245; Smith v. State, 183 Ala. 23; Baker v. State, 187 S.W. 95; State v. Quick, 15 Rich. (S. C.) 349. (2) The fact that dying declarations are inconsistent with each other does not preclude them, but bears only on their weight as evidence. Moore v. State, 12 Ala. 764; Richards v. State, 82 Wis. 179; White v. State, 30 Tex.App. 655; Comonwealth v. Turner, 224 Mass. 236; 21 Cyc. 991.
WHITE, C. Railey and Mozley, CC., concur.
The defendant on a trial in the Circuit Court of Lawrence County was found guilty of murder in the first degree. He was charged with having killed his father, George Wilks. From that judgment he appealed to this court.
Virgil Wilks was 21 years old at the time of the trial in September, 1918. There was one previous trial of the case, in which the jury disagreed. George Wilks was 64 years of age, a farmer, and lived about five miles west of the City of Aurora, and about two miles north of Verona, in Lawrence County. He had a number of children, all of whom had married and left home, with the exception of Virgil. At the time of his death, November 21, 1917, his family consisted of himself, his wife, Virgil, and a hired boy 17 years of age by the name of Sid Pilkerton.
George Wilks lived in a house, fronting east, consisting of seven rooms. A southeast front room was the sitting-room; just west of that was the dining-room, and then the kitchen. On the north side of the house was the parlor in the northeast corner, and back of that three bed-rooms occupied the space to the rear of the house. Two of these bed-rooms opened into the dining-room, and the third one opened into the kitchen. George Wilks occupied the middle bed-room opening into the dining-room. On the evening of his death, November 21, 1917, the family ate supper as usual. Virgil Wilks left the table first, went out and hitched his horse to his buggy, and drove away. Soon after, Mr. Wilks passed from the dining-room into the sitting-room, and read the morning papers, which had arrived by the afternoon mail; Mrs. Wilks washed the dishes, and came into the room where he was; Sid Pilkerton went to bed in the room opening off the kitchen. Wilks, after reading the paper, went through the dining-room into his bed-room. Soon Mrs. Wilks heard the crash of glass, and other people in the neighborhood heard a shot. She and Sid Pilkerton rushed into the dining-room and found Mr. Wilks lying on the floor. He had been shot in the stomach while in the act of undressing in his bed-room, had run into the dining-room, and had fallen there. He had one pantsleg off and one on at the time he was found. He had been shot from outside of the house, through the window of his bed-room; the shot passed through a wire screen, broke the glass of the window, and tore a hole through a lace curtain. There was evidence to show that the shot was fired so close to the window that powder stains were found on the outside of the screen. The time at which the shot was fired was variously stated by the witnesses to be somewhere between 7:20 and 7:30 o'clock. Wilks died about 8:45 from the effect of the wound.
The evidence offered to connect Virgil with the murder of his father showed that in January, 1917, Virgil had left home and gone to Detroit, Michigan, where he remained until June, 1917, when he returned home. He then took charge of his father's farm, under some sort of an arrangement by which he purchased the live-stock. Evidence showed there had been differences between the father and son in regard to feeding the cattle. Charlie Wilks, a nephew of the deceased who lived a quarter of a mile away, testified that Virgil had mentioned the disagreements with his father and said, "I have had kill in my head here lately."
Wilks was shot with a number-four shot fired from a twelve-gauge gun. A box of cartridges of that size was in the house and some of the shells were missing. Virgil owned a twelve-gauge gun, which had disappeared and was never found after the murder. Virgil claimed it disappeared while he was absent in Detroit and he could not find it on his return home. The tracks of a rubber-tired buggy were shown to have been made from the road leading south, down a wide ditch which led in the direction of the Wilks home, where they turned some distance from the house and led out again. There was some similarity between those buggy and horse tracks to the ones made by the buggy and horse driven by defendant.
The defense was alibi. Defendant claimed he drove to Aurora after supper, to visit a girl with whom he was keeping company, by the name of Ethel Ashens. This girl and several other persons testified to seeing the defendant in Aurora about eight o'clock or before. The evidence tended to show that it took about fifty minutes to drive from the Wilks home to Aurora. There was testimony to the effect that Virgil Wilks's horse, on that evening, did not show any evidence of having been over-driven.
The telephone wire was cut in the yard, where it was attached to a tree. Bloodhounds were brought to the scene immediately. They took the trail and pursued it to the house of the nephew, Charley Wilks.
The defendant was informed of his father's injury a short time after he arrived in Aurora; he hurried home in an automobile, arriving there after the death. Nothing in his demeanor at the time indicating guilt is mentioned in the evidence.
The evidence apparently the strongest against the defendant and that which tends most nearly to connect him with the murder was the alleged dying statement of Wilks. The shot attracted the attention of some of the neighbors, and they were notified of the tragedy and soon began to arrive. Among those who arrived first was Mrs. Cora Knott, who lived about a hundred yards away. A little later W. R. Wilks, or "Doc" Wilks, a brother of the deceased, arrived. After Mrs. Knott arrived she heard the wounded man exclaiming and calling upon the Lord to save him, and among other things he made the statement which was offered and admitted as his dying declaration. Later, when the brother, Doc Wilks arrived, and the dying man had been placed on his bed, he made a different one to him. This...
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