State v. Bohan , 15 Kan. 407 ( 1875 )

■The opinion of the court was delivered by

Kingman, C. J.:

The appellant wás tried for the murder of Thomas Anderson, and found guilty of murder in the second degree, and brings the-case to this court by appeal. In the argument attention is called to two errors of the court below. These alleged errors are, first, in not granting the motion for a change of venue, and second, in admitting the so-called dying declaration of William N. Anderson in evidence.

Did the court err in refusing to order a change of venue? The application was supported by the affidavits of the appellant, the sheriff, and the acting jailor of the county. These affidavits made out a prima fade case for removal, but the state read a great number (over ninety) affidavits, from citizens of each of the townships of the county, abundantly showing that there was no such state of feeling generally prevailing throughout the county as would prevent the accused from having a fair and impartial trial therein, or would even make it difficult to obtain an.impartial jury for the trial. Outside the village of Brookville, where the accused and the deceased had resided, and been generally known, there seems to have been no more feeling than usually prevails in any community where there is a homicide. Two lives were taken by violence. The better feelings of men were shocked by the event. Some intemperance of expression may be expected in such cases from men; but it is obvious, that where that feeling existed, it created no strong prejudice against the accused. The extracts from the two papers at Salina, while they in several important respects stated the facts more harshly against the accused than the testimony justified, yet they at the same time cautioned their readers that the statements made were gathered from reports, and must not be considered as being reliable, and that it was the duty of all to wait till the case was heard before forming their opinions. With this caution before the reader, the mistakes as to the facts would hardly create a prejudice against the accused in the minds of fair men. There were articles in the Brook-ville paper strongly tending to inflame the public mind, and perhaps so intended; but that paper had little circulation in the county outside of Brookville, and in several of the townships was not known at all. Following the decision in the case of The State v. Horne, 9 Kas. 119, we are of the opinion that there was no error in refusing a change of venue.

Was there error in admitting the dying declaration of William N. Anderson? It is so urged on various grounds, the principal of which are these: because, the preliminary proof did not sufficiently show that the person making the declaration was certain that the hand of death was on him; that he was not in possession of sound'mental faculties at the, time such declaration was’ made; that all the declarant said, was not reduced to writing, but only that part that the writer deemed relevant; and chiefly, because the dying declaration of William N. Anderson, made hours after the death of Thomas Anderson, is not competent evidence against the accused upon his trial on an information for the murder of Thomas Anderson only. As our conclusion on the last point suggested is decisive in the case, the consideration of the other points may be waived, especially as their decision depends upon questions of fact raised upon the record, rather than upon controverted points of law. The facts of the case bearing upon the question under consideration are substantially these: A little before four o’clock a.m., on the 3d of November 1874, the appellant shot Thomas Anderson and William N. Anderson. The shots (four in number) were in rapid succession, but a brief time intervening between the first and last shots. Of the wounds' then inflicted, Thomas Anderson died almost instantly, without uttering a word. William N. Anderson lived about seventeen hours, and sometime about noon made the statement admitted as a dying declaration. The appellant was tried on an information for the murder of Thomas Anderson only. On these facts the question arises, Can the dying declaration of one person' be received as proof of guilt against a party charged with murdering some other person ? In The State v. Medlicott, 9 Kas. 283, the rule on this point was thus stated: “Such declarations therefore are admissible only when the death of the person who made the declaration is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration.” In that case the question involved was, whether the deceased was in the full belief that he was in articulo mortis when he made the declaration; and the attention of the court was mainly directed to that question, and the part quoted need not have been stated. The court therefore feels no such embarrassment on account of what was said in that case as will interfere with a full examination of the question now. In 1 Phillips on Ev., 287, the rule is laid down thus: “Such declarations are generally admissible only where the death of the declarant is the subject of the inquiry, and where the circumstances of the death are the subject of the dying declaration.” And to the same effect the rule is laid down in the decisions generally. In a note to § 156, 1 Greenl. on Ev., Mr. Redfield states, that this evidence is not received upon any other ground than that of necessity, in order to prevent murder going unpunished; and that a misapprehension of the true grounds on which such testimony can be received, has sometimes led courts into error, as in England, where, at one time such declarations were admitted in other than murder cases. But these decisions have been overruled, as not correctly stating the law. The admission of this kind of testimony is an exception to the general rule that excludes • hearsay testimony. Its admission can be justified only on the ground of absolute necessity, growing out of the fact that the murderer, by putting the wituess, and generally the sole witness of his crime, beyond the power of the court, by killing him, shall not thereby escape the consequences of his crime. On no other ground can the admission of such testimony be justified. It is true that sometimes courts have given, as the reasons for' its admission, some of those limitations that have been established as safeguards to prevent the rule from being abused. Such statements are not sound, and are likely to lead to confusion, and in some cases they undoubtedly have done so. Necessity, then, being the only ground on which such testimony can be admitted, it remains to be seen whether that necessity exists so generally, or to so great an extent, where the death of any one else than the declarant is the subject of the inquiry, as to justify the adoption of a rule admitting such testimony. Cases may be suggested where the necessity appears to be strong. Thus, where a murder is committed, and a material witness of the crime, but not affected by it, and by whom alone it can be proven, is dying, and in that hour makes a declaration of the facts which he knows, and which took place months before. This declaration is made under circumstances equivalent to the sanction of an oath; but the accused cannot cross-examine, cannot call attention to other material facts not thought of by the declarant. No one will contend that this declaration can be given in evidence. The necessity exists, but it applies to a single case, and not to a class of cases, and therefore should not be made an exception to the rule excluding hearsay testimony. It would be as difficult to suggest a case where, as in this, two men are killed at or near the same time, that any necessity exists for the admission of the statement of the one whose death was not the subject of the inquiry, as it is in any other criminal case where a material witness is dead. This case is a fair illustration. If the declaration of William N. Anderson was necessary to convict the accused, then it could have been used on the trial for the murder of William N. Anderson. The accused was as guilty of his murder as of that of Thomas. There is then no necessity for extending the exception further than has already been done.: 1 Once break down the barriers established by the wisdom of our law, and extend the exception beyond the reason that permitted it, and it would let in a most dangerous species of evidence in a whole class of cases. The great weight of authority will bear out the rule as laid down in The State v. Medlicott. And reason is all in favor of holding the rule as there stated. In the cases of State v. Terrell, 12 Rich. (S. C.) 321, and of State v. Wilson, 23 La. An. 558, which greatly resemble this case, such evidence was admitted. The cases do not in our judgment rest on authority, and no satisfactory reasons are given for the ruling. These cases stand alone in this country, and we prefer to adhere to well-established rules, rather than follow decisions for which no reason is given, and which seem dangerous in their tendency. It follows that the evidence was improperly admitted. The learned counsel for the state however, suggests, that the case was abundantly made out in every particular against the appellant by other evidence. This may be so, and if so, it is a striking illustration of how unnecessary it was to introduce the dying declaration in this case. But what effect this evidence had upon the jury, and what effect the other evidence had, it is not the province of this court to decide; nor has it the means of doing so. The evidence was admitted after a long struggle, and may well have had more influence upon the jury than it would have upon this court. The evidence was vital, and as it was improperly admitted the judgment must be reversed, and a new trial ordered.

All the Justices concurring.