Zipperian v. People

• Decision Date: 06 February 1905
• Citation: 33 Colo. 134,79 P. 1018
• Parties: ZIPPERIAN v. PEOPLE.
• Court: Colorado Supreme Court

79 P. 1018

33 Colo. 134

ZIPPERIAN v. PEOPLE.

Supreme Court of Colorado

February 6, 1905

Error to District Court, La Plata County; Jas. L. Russell, Judge.

Jacob Zipperian was convicted of murder, and appeals. Reversed.

W. A. Reese and Reese McCloskey, for plaintiff in error.

N. C Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

CAMPBELL J.

The defendant was informed against for the murder of Matter Luxsinger. The killing was admitted, and defendant pleaded self-defense. He was convicted of murder of the first degree and the jury fixed the penalty at imprisonment in the penitentiary for life, at hard labor. The principal questions argued by counsel are directed to rulings of the court below in giving and refusing instructions, in denying defendant's application for a continuance, to the overruling of his challenge for cause to a juror, and in admitting certain evidence offered by the prosecution.

1. The defendant's application for a continuance and the affidavits in its support are not set forth in the abstract of the record as our rules require, and for that reason alone the errors assigned to the ruling upon it might be disregarded. The evidence which is said to exhibit the disqualification of the challenged juror is found in the abstract, and in that respect the overruling of the challenge is thereby fairly presented. But as the judgment must be reversed for errors in giving and refusing instructions, it is not necessary to pass upon the objections assigned to these rulings of the court, which occurred before the jury was impaneled.

2. One of the exceptions to the rule which excludes hearsay evidence pertains to dying declarations. They are admissible in evidence 'where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration.' If made when the deceased is in extremis, with a belief entertained by him that his death is imminent and there is no further hope for him in this life, they may be admitted in evidence though the defendant was not present at the time they were made, and had no opportunity for cross-examination. 1 Roscoe's Criminal Evidence (8th Ed.) 55 et seq.; Wharton's Criminal Evidence (9th Ed.) § 276 et seq.; 1 Greenleaf on Evidence (15th Ed.) § 156 et seq.; State v. Gray (Or.) 74 P. 927. What are claimed to be the dying declarations of Luxsinger were offered by the people, and admitted by the court. The defendant objects to this ruling because, as he says, when the declarations were made Luxsinger did not believe that he was about to die, nor was it made to appear that he had given up all hope of recovery. He was shot by the defendant in the forenoon of November 13, 1903, and died about 4:40 in the afternoon of the following day. At different times during the day of his death, while not in express terms saying that he believed death imminent and that he had no hope of recovery, Luxsinger made other statements from which it is clearly apparent that such was his firm belief. About 3 o'clock on the afternoon of this day he made a voluntary statement, which was reduced to writing by a justice of the peace then present--several other witnesses also being present--and at its conclusion, which was about 40 minutes before death ensued, the writing was read over to Luxsinger, and he said it was true, though he did not sign the same, but expressed his willingness to verify it. This statement, as written out by the officer, in all substantial particulars corresponds to and harmonizes with what a number of witnesses testify that Luxsinger said about the shooting earlier in the day. Luxsinger was seriously wounded, having been shot by the defendant three times; two of the shots taking effect in vital parts of his body. Voluntarily, as well as in response to questions put to him, Luxsinger repeatedly said on the day of his death that he 'had got to die, and that he would never get over the shots which he had received,' that he was 'about dead,' and that he was 'done for.' To one of his friends he said: 'Well, Reese, they've got me this time.' To which his friend answered: 'Don't worry about that. You may get over this.' Luxsinger replied: 'No; I'll never get over this. I've got to die.' When one of the witnesses was about to put a teakettle on the stove for the purpose of warming water for him to drink, and the suggestion was made that the bottom of the kettle would be balckened if placed directly over the fire Luxsinger replied: 'I don't suppose it makes any difference. I'll never use it again, anyway'--and immediately replied, when the suggestion was made that the wounds were not so serious as he believed: 'Well, I'll never get over this.' In speaking of threshing some grain that he wanted to have done on the following day, he remarked that, while the threshing would not do him any good, 'it will do some one else some good'; that he was 'done for.' These and similar expressions were used by Luxsinger throughout the day and before he made the oral and written statements concerning the homicide which the court admitted in evidence. Mr. Greenleaf, at section 158 of his valuable work on Evidence, says that the admissibility of dying declarations does not depend upon the fact that at the time they were stated by the deceased to be made under a sense of impending death, but, if it satisfactorily appears in any mode that they were made under that sanaction, they are admissible. Our conclusion from the evidence is that Luxsinger believed at and before the time when he made these declarations that immediate dissolution was at hand, and that there was no hope of his recovery. The ruling of the court admitting the dying declarations was correct. Defendant also objects to the ruling under which, after the written statement was introduced, oral dying declarations made at other times were admitted. It was right.

Both kinds are competent. State v. Carrington (Utah) 50 P. 526.

3. The prosecution, by oral testimony of the district attorney, showed that before the homicide Luxsinger had caused to be filed an information against defendant for burglary, which was pending when the shooting occurred. This was competent evidence, tending to show motive for the killing. Kunde v. State (Tex. App.) 3 S.W. 325; Martin v. Commonwealth (Ky.) 19 S.W. 580; Williams v. State, 69 Ga. 11; Hodge v. State (Ala.) 12 So. 164, 38 Am.St.Rep. 145; State v. Geddes (Mont.) 55 P. 919.

4. In one of its instructions to the jury, the court, after stating that if the jury believed that the dying declarations were made under the safeguards which the law throws around them concluded with the direction that the jury might then consider such declarations in their deliberations. The defendant tendered several instructions to the court to the effect that the jury should give to dying declarations no more weight than they would to the testimony of a witness not...