Wilson v. State, 5959

• Decision Date: 24 April 1970
• Docket Number: No. 5959,5959
• Citation: 86 Nev. 320,468 P.2d 346
• Parties: Stanley WILSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 346

468 P.2d 346

86 Nev. 320

Stanley WILSON, Appellant, v. The STATE of Nevada, Respondent.

No. 5959.

Supreme Court of Nevada.

April 24, 1970.

Franklin Rittenhouse, Foley, Garner & Shoemaker, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and George H. Spizzirri, and Larry C. Johns, Deputy Dist. Attys., Las Vegas, for repsondent.

OPINION

BATJER, Justice.

At approximately 3:15 a.m., on December 8, 1967, Henry Feltus was struck with a blast from a shotgun. He died at approximately 4:30 a.m., that same morning. The appellant was accused of killing Feltus; tried before a jury; convicted of murder in the first degree; and sentenced to life imprisonment without the possibility of parole. This appeal is taken from that conviction.

During the early morning of December 8, 1967, Feltus was at Ruben's Supper Club in Las Vegas, Nevada. The appellant entered the establishment, approached Feltus and indicated he wanted to converse with him outside the premises.

At the trial, witnesses testified that they had observed the appellant and Feltus leave by the back door of Ruben's, and that within a matter of seconds they heard what was thought to be a gunshot. Cleveland Ramsey stated that shortly after he heard the gunshot he observed Feltus come back into the club through the back door. At that time Feltus was holding his side with his hand, blood was gushing out between his fingers, and his clothes were covered with blood from his chest to his feet. As Feltus made his way to the bar, Dorothy Mae Willings rushed to help him, and he said to her, 'Oh, Baby, I've been shot,' and fell to the floor near the bar. Ramsey testified that Feltus had a large hole in his right chest area. Vera Maxine Bullock, the wife of one of the co-owners of the club asked Feltus who had shot him. After he was given a drink of brandy Feltus answered that Stan had shot him. At approximately 3:30 a.m., Merlin John Dingle, an officer of the Las Vegas Police Department, arrived at the scene. The officer observed that Feltus, who was covered with blood from the top of his chest to his shoes, was moaning, gasping and thrashing around on the floor; that there were large quantities of blood pouring from a wound in his chest; and that it took three men to hold him down. Officer Dingle knelt down and stated, 'Henry, this is Dingle. Who shot you?' Feltus responded, 'Stan.' This response was given two or three times. Officer Dingle then asked, 'Do you mean Stanley Wilson?' The declarant nodded his head yes, and went 'Um, hum.'

Further attempts at conversation failed to evoke intelligible responses. Feltus died at 4:30 a.m., at the Southern Nevada Memorial Hospital. Dr. John C. Bovill testified that Feltus '(H)ad an obvious open massive wound of the right chest and you could see into the right chest, which is a little unusual.' The doctor further testified that Feltus was conscious after he had arrived at the hospital and concluded that Feltus had the type of wound that frequently would cause death.

The trial court conducted a hearing, outside the presence of the jury, where the state's witnesses testified to facts surrounding the dying declaration of Feltus. After that hearing the trial court concluded that the declaration was made when Feltus was in extremis; that he was conscious of that condition, and that the state had laid a sufficient foundation for the presentation of the dying declarant's testimony. Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965); State v. Telter, 65 Nev. 584, 200 P.id 657 (1948); State v. Scott, 37 Nev. 412, 142 P. 1053 (1914). Over the appellant's objection the state's witnesses were then allowed to repeat the testimony before the jury.

The appellant contends that the trial court erred when it admitted such declarations into evidence. He further contends that the prosecutor committed reversible error when he asked one of the appellant's witnesses whether or not he had been convicted of a felony without having acceptable proof of that fact, and that an additional error was committed when the prosecutor, upon cross-examination of the appellant, asked a question which indicated that the appellant was a pimp.

The appellant conceded that the declarant was in extremis and realized that he was dying when he stated that the appellant had shot him. He further concedes that the trial court properly followed and applied the law of this state when it allowed testimony of the dying declaration before the jury, but he contends that the trial court erred when it did not require the prosecution to affirmatively prove, beyond a reasonable doubt, that the declarant believed in an Almighty Being and a life hereafter. The appellant insists that this requirement be added in this case because testimony was presented which tended to prove that the victim was a pimp.

The appellant is asking this court to establish an additional rule which would require the state to prove, through the introduction of affirmative evidence, that the presumption of truthfulness raised by the declarant's awareness of impending death is believable beyond a reasonable doubt. This we refuse to do. He misconceives the function of the court and jury. Once the trial judge reasonably finds, from the evidence, that there is a sufficient foundation to admit the dying declaration, then the statement is presented to the jury to be considered and weighed along with the credibility of the declarant.

As a general rule an accused, during the presentation of his defense is free to introduce whatever relevant evidence may be available to establish that the declarant was a person of dissolute and immoral character and in that manner discredit the dying declaration. Here the appellant did introduce testimony discrediting the victim, but because it was apparently discounted or disregarded by the jury, he asks us to impose upon the prosecution a burden of proof unheard of in the common law and unsupported by any authority, although he purports to rely on Barber v. Page, 390 U.s. 719, 88 S.Ct. 1318, 20 L.Ed.2d (1968).

It has long been the established law in this state that dying declarations are competent evidence for or against the accused, upon preliminary proof of certain existing conditions. In State v. Scott, 37 Nev. 412 at 429, 142 P. 1053 at 1059 (1914) this court said: 'The question whether the alleged dying declarations were made under such circumstances as to render them admissible in evidence was in the first instance to be determined by the court upon the preliminary proof or predicate for their admission. All that was required to let the statements go to the jury was the making of a prima facie case that the utterances were made by the declarant when he was in extremis, and when he was fully conscious of that condition. However this may be, the ultimate facts and the weight, credence, and significance to be given to the statement when admitted is for the jury, and it is error...