Boyle v. State , 105 Ind. 469 ( 1886 )

Elliott, J. —

This case is here for the second time, Boyle v. State, 97 Ind. 322. One of the questions now argued by appellant’s counsel was decided adversely to the appellant on the former appeal, and to that decision we adhere, not simply on the ground that it is the law of the case, but for the further reason that we believe the point was well decided. The question of which we are speaking, and of which we say that it was well decided on the former appeal, arises upon that part of the dying declarations of the deceased, wherein, in replying to the question: “ What reason, if any, had the man for shooting you ? ” he said: “ Not any that I know of, he said he would shoot my damned heart out.” It was held that this was not the expression of an incompetent opinion, but was the statement of a fact, and we will not depart from that ruling. In the opinion given upon the former appeal, the following authorities were cited: Wroe v. State, 20 Ohio St. 460; Rex v. Scaife, 1 M. & R. 551; Roberts v. State, 5 Texas Ap. 141; Wharton Crim Ev., section 4.

The gravity and importance of the case, it is thought, justify us in referring to authorities that have come to our notice since the delivery of our former opinion, and in briefly discussing the question, although we do not deem it necessary to enter upon a very full discussion of the subject.

In Payne v. State, 61 Miss. 161, it was held that the statement of the deceased that the defendant shot him “without cause,” was not the expression of an opinion.

The statement of the deceased in People v. Abbott, 4 W. C. Rep. 132, was, that “ the man cut him with a knife, and that he had no cause for it whatever,” and it was held to be the statement of a fact.

The statement of the dying person in State v. Nettlebush, 20 Iowa, 257, was in answer to a question whether the shot was accidental or intentional, and the answer was that “ it was intentional.” The evidence was held competent, but without any discussion.

In Brotherton v. People, 75 N. Y. 159, it was held that the statement, that “ he, the deceased, did not at first recognize the defendant, but when the latter drew his pistol and commenced his pranks, he knew that it was the prisoner.”

These authorities fully sustain our former ruling, and neither our own search nor that of counsel has resulted in finding any opposing decisions, except that of Collins v. Commonwealth, 12 Bush (Ky.), 271. That case disposes of the whole question in a single sentence, refers to one authority— 1 Taylor Ev. 644 — and that authority goes no further than to declare what is undoubtedly the general rule, that an opinion expressed in a dying declaration is not competent.

The decision in People v. Fong Ah Sing, 5 Crim. Law Mag. 64, is that it is improper to permit narratives of previous occurrences to be given in a dying declaration. What was there said by the court, and all that was said upon the subject, was: “Dying declarations are restricted to the act of killing and to the circumstances immediately attending it, and forming a part of the res gestee. When they relate to former and distinct transactions, they do not come within the principle of necessity on which such declarations are received.” It is evident, therefore, that the case cited is not in point, and this is true of the other cases declaring a similar doctrine, that are cited by counsel.

There is no substantial difference in the meaning of the word “ cause ” and the word “ reason,” as used in this instance in the dying declarations of the deceased. The jury could not have misunderstood the import of the word as used in the question addressed to the deceased, nor could he, for it is quite clear that it asked and required him td state what cause there was for the killing. If it be held that a dying man may not declare in general terms that there was no reason or no cause for the act of his slayer, then it will be practically impossible to ever get before the jury a statement on that point, for it is not possible for any one, much less a dying man, to state all the circumstances and facts upon which the conclusion that there was no cause or reason for the killing is based. The truth is, that such a conclusion is not the expression of an opinion, but it is the statement of a conclusion of fact from observed facts, which, under all authorities, is competent in such a case as this. Bennett v. Meehan, 83 Ind. 566 (43 Am. R. 78); Yost v. Conroy, 92 Ind. 464, see p. 471 (47 Am. R. 156). The cases all agree that dying declarations are admissible in a case where the evidence would be competent if the declarant were on the witness stand, and if the statements of the deceased can, in any sense, be deemed the expression of an opinion, the opinion belongs to that class which the authorities agree a non-expert witness may express without stating the facts on which it is. based. Bennett v. Meehan, supra, and authorities cited, p. 569;. People v. Hopt, 9 Pacific Rep. 407. The cases upon this subject are very numerous, but most of them will be found in Lawson Expert and Opin. Ev. 468-534; Rogers Expert Test., pp. 6, 7,8; Best Ev., section 505; Wharton Ev., section 512; and Stephens Ev., art. 26.

It was not asserted in our former decision that an opinion found in a dying declaration is competent in a case where it. would not be so if expressed by a witness on the stand. On the contrary, the general rule that matters contained in a dying declaration are not competent unless they would be admissible if they came from the lips of a living witness, was declared and approved. Montgomery v. State, 80 Ind. 338 (41 Am. R. 815); Binns v. State, 46 Ind. 311.

What we decided in the former appeal and now reiterate is, that the evidence here objected to was competent because it would have been competent if it had come from a witness present in court. We need not discuss the general rules governing the admission of dying declarations — they are rudimentary — for the question here is, not what the general rules are, but whether the declarant’s statement was one that a witness on the stand would have been allowed to make. The declarations of Casey do not refer, as did the statement in Montgomery v. State, supra, to the purpose with which an act was done by another, but they simply declare that there was no cause for that act. A cause is often a fact, not merely an opinion, and it is here a fact.

The statement of the dying man was not an expression of an opinion as to the sufficiency of the cause or reason that the accused had for shooting, nor was it the expression of an opinion upon any subject, nor was it a narrative of a past occurrence, but it was the statement of a negative fact, namely, that there was no reason or cause whatever for the shooting. The declaration, does not assume to be the expression of an opinion, but it professes to be, and in truth is, the statement of a fact, for, if there was no reason or cause whatever, no opinion could be given as to its sufficiency or insufficiency. Whether there is any cause for an act must be a fact, but if it be conceded that there is a cause, then, whether it was or was not adequate might well be deemed matter of opinion.

As we have suggested, negative facts can only be proved by a denial, since to enter upon a process of elimination and exclusion would lead to an almost endless examination. If a negative fact like that here under discussion can not be proved by a general statement, then it would be necessary to enumerate every conceivable thing, and deny in detail that it existed: A practical science, such as the law is, requires no such procedure as that; if it did, it would be practically impossible to establish a negative fact. There are many instances in which what is in appearance a conclusion, but in reality a fact, may be stated in evidence. We suppose that it can not be doubted that where the issue is whether a verbal agreement was entered into, it is competent to state in general terms that there was no agreement. So, in a case where the question is whether liquor was or was not sold, it is proper for the defendant to deny the sale. So, too, it is perfectly competent for a party to state that he relied upon the representations of another. There are many cases, far too numerous to justify mention, in which it is proper to make a general statement in denial.

There is an essential difference between a statement denying a thing and one admitting the existence of a thing and qualifying its character. Thus, to declare that liquor was sold, but not illegally, or that a man was struck, but not unlawfully, would, so far as the qualifying words are concerned, be a conclusion; if, however, those words should be struck out facts only would remain.

Whether the defence in a case of homicide is insanity, self-defence, or an alibi, can not change the rule governing the admission of dying declarations. There is not one rule for defences of insanity, another for self-defence, and still another for the defence of an alibi, but there is one rule for all cases. The question in all cases is to be determined irrespective of the nature of the defence. It can not affect the question in this instance, that the defence was that of self-defence. It would violate settled principles of logic and of law to hold that the accused might by the character of his defence change the rule as to the admissibility of dying declarations.

The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the latter. Sylvester v. State, 71 Ala. 17; State v. Johnson, 76 Mo. 121; Lister v. State, 1 Texas App. 739.

A defendant in a criminal case, who elects to testify as a witness, is to be treated, so far as the cross-examination is concerned, as any other witness; this defendant did elect to testify as a witness, and hence is to be treated as any other witness upon cross-examination. He put himself in the position of a witness, and as a witness he must be regarded. Thomas v. State, 103 Ind. 419; Commonwealth v. Nichols, 114 Mass. 285 (19 Am. R. 346); State v. Ober, 52 N. H. 459 (13 Am. R. 88); Connors v. People, 50 N. Y. 240.

The cross-examination of a witness must be confined to the subject opened by direct examination. This settled rule does not, however, restrict the cross-examination to the specific facts developed by the direct examination, but does confine it to the subject of that examination. Where a subject is opened by the direct examination, the cross-examining counsel may go fully into the details of the subject, and is not confined to the particular part of it embraced within the questions asked upon the direct examination. A subject can not be so partitioned by a direct examination as to cut down the cross-examination to the specific matters developed by the questions of the counsel who conducts the examination in chief, for, once a subject is entered upon, it is opened to a full and detailed investigation on cross-examination. Bessette v. State, 101 Ind. 85; Wachstetter v. State, 99 Ind. 290 (50 Am. R. 94); Hyland v. Milner, 99 Ind. 308; DeHaven v. DeHaven, 77 Ind. 236, see p. 239.

In this instance, the accused, when on the witness stand, had given an account of his movements upon a day named, and it was proper to go fully into the subject upon cross-examination, and the State was not confined to the particular period of time designated in the questions asked on direct examination.

We agree with the counsel for the appellant, that where the accused goes to the jury upon the theory that he acted in self-defence, it is error to set up as the standard by which to determine whether he, in good faith, believed himself to be in danger, an ideal or imaginary man. Batten v. State, 80 Ind. 394. While we agree with counsel in their view of the legal proposition, we can not adopt the construction which they place upon the instruction, for, in our judgment, it will not bear that construction. The instruction does not, as counsel assume, set up an ideal man as the standard by which the jury must measure the conduct of the accused, for it directs their attention to real men and things.

The twentieth instruction given by the court reads thus: “ Malice may be proved by direct evidence, such as prior threats, or seeking an opportunity to perpetrate the act. This is called express malice, and proof of such malice in this case would be evidence of premeditation, and would make the case murder in the first degree, if otherwise made out beyond a reasonable doubt. Malice may also be implied from the act of killing; as if the killing is done purposely and without justification, legal excuse or reasonable provocation. And if the act is perpetrated with a deadly weapon so used as to be likely to produce death, the purpose to kill may be inferred from the act.”

The counsel for appellant treat this instruction as if it stood alone, and in doing so violate the elementary principles of logic as well as the settled principles of law. We have again and again decided that instructions are not to be disposed of by a process of dissection, but are to be taken as a whole. It would be unreasonable to expect that one instruction should cover an entire case, or that the jury should take the law from one of a series of instructions. Where an instruction stands alone upon one material point, neither explained nor qualified by any others, then it might with reason be affirmed that if it erroneously expressed the law there should be a reversal, but where it forms one of a series bearing upon a given question, and, taking the entire series together, the law is correctly stated to the jury, it is otherwise. Indiana, etc., R. W. Co. v. Cook, 102 Ind. 133; Hodges v. Bales, 102 Ind. 494; Walker v. State, 102 Ind. 502; Story v. State, 99 Ind. 413; Koerner v. State, 98 Ind. 7 ; Goodwin v. State, 96 Ind. 550 ; McDermott v. State, 89 Ind. 187; Achey v. State, 64 Ind. 56; Binns v. State, 66 Ind. 428.

Taking the instructions together, as we must do, they so fairly gave the law to the jury that the appellant has no just reason to complain. But, if the instruction stood alone, we do not believe that there is any error in it that would warrant a reversal, although it may, perhaps, be subject to verbal ■criticism. The express malice of which the instruction speaks is that evidenced by threats and the efforts to secure opportunities to slay the deceased, and it is certainly not error to charge the jury that the uttering of threats and the effort to secure an opportunity to kill the deceased may be regarded as evidence of premeditation. The only point wherein the instruction is justly subject to criticism is in that it tells the jury that such express malice “ would make the case murder in the first degree, if otherwise made out, beyond a reasonable doubt;” but, considered in connection with the other parts of the instruction, it is clear that the statement quoted could not have misled the jury. The meaning conveyed is, that, if all the other elements of murder in the first degree were proved beyond a reasonable doubt, then proof of previous threats and efforts to kill would make out a case of murder in the first degree. This is correct as an abstract proposition of law, for if all the other ingredients of the crime were proved, as purpose, malice, and the like, then premeditation .would be established by such express malice as the court referred to, namely, previous threats and efforts to secure an opportunity to kill. As the court had told the jury what were the essential ingredients in the crime of murder in the first ■degree, and had defined premeditation, the jury must have understood that the case was not “ otherwise made out,” unless premeditation, as defined by the court, was proved beyond a reasonable doubt, since premeditation, as they were expressly charged, was essential to the existence of the crime of murder in the first degree.

The twenty-seventh instruction is as follows: “In this case as in all other criminal cases, the law provides that the defendant is a competent witness in his own behalf, and that his testimony is to be received and weighed by the jury as in the case of the testimony of any other witness, and if in this case the defendant has elected to testify in his own behalf, and, in so doing, he has testified to the commission of any other or different crime from the one here charged in the indictment, you will not, nor have you the right to, consider such testimony for the purpose of punishing him for the crime here charged, nor must you talk about it in your jury room for that purpose, but must wholly free your minds from any such thing, and not permit it to prejudice you, or bias your judgment against the cause of the defendant. But you may consider such evidence, if any there be in this case, in determining what credibility should be given to the defendant’s testimony in this case.” The defendant, at all events, has no just cause to complain of this instruction. In his testimony he confessed that he had committed the crime of burglary, and that was a circumstance affecting his credibility. The testimony of a confessed burglar is not so free from suspicion as that of men guiltless of crime. It has-been the law in this State since 1852, that the conviction of an infamous crime may be proved against the credibility of a witness, and for hundreds of years it was the rule of the common law that the conviction of an infamous crime rendered a person incompetent to testify. The question is not, as it was in Farley v. State, 57 Ind. 331, what method of proving a conviction may be adopted, but the question is, what is the effect of the defendant’s voluntary admission that he had committed a crime ? The question in Fletcher v. State, 49 Ind. 124 (19 Am. R. 673), was not as to the effect of the admissions of a defendant that he had committed an infamous crime upon his credibility as a witness, but the question there was as to how far those admissions could be considered as tending to prove the crime for which he was on trial. It is evident, therefore, that neither of those cases is in point here.

We do not think that the thirty-first instruction given by the court is subject to the objections urged against it. If a man without provocation shoots another, and the shooting is not done in self-defence, and is accompanied by threats, it may, at least, be deemed murder in the second degree, and it is of such a killing that the instruction speaks. . At all events the defendant has no just reason to complain of the instruction, for, if there is error in it, the error is to the prejudice of the State, and not of the defendant. Murphy v. State, 31 Ind. 511; State v. Johnson, 102 Ind. 247; 2 Bishop Crim. Law, section 680.

The language used in the instruction implies that the killing must have been purposely done, for it can not be reasonably supposed that a killing, “ accompanied by threats,” was accidentally done, and it was to such a killing that the minds of the jury were directed by the court. But, if this were not so, still, the instruction as- applied to the evidence was correct, as there was no pretence that the shooting was accidental. The testimony of the defendant was that it was purposely done, but done in self-defence, so that there was no reason for the court to speak of an accidental shooting. Again, the instruction is to be considered in connection with those previously given, and they very clearly informed the jury that to constitute murder in the second degree the shooting must have been purposely and maliciously done. It is impossible, therefore, that the jury could have been misled, and unless it appears that they might have been misled to the prejudice of the accused, there can be no reversal. Epps v. State, 102 Ind. 539. The instruction does not, as did the instructions in Brooks v. State, 90 Ind. 428, and Norton v. State, 98 Ind. 347, attempt to state all the facts hypothetically, but states the general rule upon the subject of self-defence and adds, that, “If the defendant was in no danger of his life or of great bodily harm from the deceased at the time of the alleged killing, named in the indictment, and if from the situation, position and condition of the deceased, at that time, defendant had no reasonable grounds to believe and did not believe that he was in urgent and imminent danger of losing his life or suffering some great bodily harm, at the hands of the deceased, and under the circumstances he shot and killed the deceased with a deadly weapon, at the time and place laid in the indictment (if you find these things hereinbefore sot forth beyond a reasonable doubt), then and in that case the law will imply that such killing sprung rather from a bad and malignant heart, and if done without provocation, accompanied by threats, the law will imply that it was purposely and maliciously done.”

The whole instruction proceeds upon the theory that the killing must have been done purposely, and the jury could not have understood it differently. This we say, because it lays down the law of self-defence, and this, of course, implies that the killing was not accidental, but was intentional. Taken as a whole, the instruction, although somewhat confused and obscure, can not be understood as speaking of anything else than an intentional shooting.

If there was no provocation for the shooting, and if it was, as the instruction hypothetically assumes, accompanied by threats, then the law will infer the existence of malice. In State v. Johnson, supra, it was said: “ If an act is unlawful, and is of such a character as that the known or probable consequences of it would naturally be to produce serious bodily harm or endanger the life of the person against whom it was directed, the law would infer malice, and the crime would or might be murder.”

The court did not err in directing the jury that mere words do not constitute such a provocation as will reduce an unlawful killing from murder to manslaughter. Murphy v. State, supra; 2 Bishop Crim. L., sections 700, 704.

The prosecuting attorney, in the course of his argument, said: “ Will you believe this man, this person, who has told so many lies, and who has just seen the shadow of the gallows ! ” In so far as the statement of the prosecuting attorney criticises the testimony of the accused, it was proper, for he had testified as a witness, and had' been contradicted upon many material points. An accused who voluntarily goes upon the witness stand is subject to the same criticism as any other witness, and it is not improper to assail in argument his credibility when he has been contradicted. Thomas v. State, 103 Ind. 419. All that can be said to be improper in the statement of the prosecuting attorney is the words “ who has just .seen the shadow of the gallows,” and this we can not regard .as a sufficient cause for reversal. It is a general, indefinite statement, and is not a comment upon a former verdict, for it does not in terms refer to any verdict, and it is, therefore, •essentially different from a deliberate and direct comment upon a verdict rendered on a former trial. It is only where the misconduct in argument is of such a material character as makes it probable that it misled the jury, to the prejudice of the accused, that we can reverse. Epps v. State, supra; Anderson v. State, 104 Ind. 467; Shular v. State, ante, p. 289, and authorities cited ; People v. Hopt, 9 Pacific Rep. 407.

Filed March 4, 1886.

It would be doing great injustice to the fairness and intelligence of the jury to assume that they were misled by such a general and fugitive remark as that of the prosecuting attorney in this instance.

We have given the evidence a careful examination, and .find that it sustains the verdict upon every material point.

Judgment affirmed.