State v. O'Shea , 60 Kan. 772 ( 1899 )

The opinion of the court was delivered by

Johnston, J. :

The first objection brought to our attention in this review is to the rulings of the court on challenges of persons called to serve as jurors. Some of them stated on their voir dire that they had formed opinions as to the commission of the offense charged, but it appears upon further examination that the opinions so formed did not extend beyond the fact that O’Shea had fired the fatal shots. The fact that Dawson was shot by O’Shea, and that death resulted from the shooting, was not disputed. Throughout the trial the shooting and consequent death of Dawson were conceded, and the claim of the defendant was that the act was justifiable, being done in self-defense. Opinions upon matters not in issue do not disqualify the jurors entertaining’ them, and especially where, as in this case, it is shown that they have not formed or expressed an opinion as to the guilt or innocence of the defendant, and where there is nothing indicating that they cannot give the defendant a fair and Impartial trial. (The State v. Wells, 28 Kan. 321; The State v. Gould, 40 id. 258, 19 Pac. 739; The State v. Wells, 54 id. 166, 37 Pac. 1005.)

•The controlling questions in this case arise upon the admission .of statements contained in what is termed the “Dying Statement of James Dawson.” Objections which are deemed to be sufficient were made to every part of the dying declaration, and the contention is that many of the statements were mere hearsay conclusions, and such as cannot be shown in a dying declaration. There is good reason for the complaint that is made. Many of the statements are in relation to former transactions distinct from the act of killing. Some of them are matters of opinion or belief; some are mere conclusions as to a motive for the commission of the offense ; others would not have been competent if made by the declarant as a witness upon the stand. Although there was a great deal of testimony as to the killing and the circumstances connected with it, probably no testimony produced before the jury was so impressive and telling in its effect as the statements contained in the dying declaration. It is well known that jurors give great weight to statements made by those conscious of impending death and who, without hope or expectation of recovery, are supposed to be free from passion or prejudice or any motive which would induce a false or colored statement. It cannot be said, therefore, that the statements claimed to have been made by the deceased, and which were erroneously received, were immaterial or without prejudice.

The rule admitting such declarations, made without sanction of the oath, not in the presence of the defendant, and where there is no opportunity for cross-examination, is exceptional, and because it cannot be subjected to the ordinary tests it is necessarily restricted. It is limited to cases of homicide, and is confined to the act of killing and the circumstances immediately attending the act which form a part of the res gestee. Statements relating to former and distinct transactions, and embracing facts and circumstances not immediately connected with the killing, cannot be received. Mere conclusions, opinions and beliefs, which would not be received if the declarant were a witness, are not admissible. (The State v. Medlicott, 9 Kan. 257; State v. Draper, 65 Mo. 335; Lieber v. Commonwealth, 9 Bush, 11; Starr v. Commonwealth, 97 Ky. 193, 30 S.W. 397; State v. Shelton, 2 Jones [N. C.] 360; Nelson v. State, 7 Humph. 542; Hackett v. The People, 54 Barb. 370; Reynolds v. The State, 68 Ala. 502; The State v. Baldwin, 79 Iowa, 714, 45 N. W. 297; People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 233; Montgomery v. The State, 80 Ind. 347; Whart. Crim. Ev., § 288; 1 Greenl. Ev., § 156; 10 A. & E. Encycl. of L., 2d ed., 376.)

The statements of what occurred at O’Shea’s place in the afternoon before the shooting were separate and distinct transactions, and manifestly inadmissible. After these occurrences Dawson went to another part of the city, and did not return until nine o’clock at night, which was seven or eight hours later than the transactions of the afternoon. While these occurrences may be proper testimony for some purposes, if related by competent witnesses, they were not immediately connected with the killing, and therefore were not receivable as dying declarations. As said in Montgomery v. The State, supra, “matters which do not form part of the res gestee are not provable by dying declarations. The rule is confined to a statement of the circumstances connected with the fatal act and forming part of the same transaction. It is quite well settled that what occurs before or after the act has been done does not constitute a part of the res gestee, although the interval' of separation may be very brief.” The statements related to the matter of motive and state of feeling between the parties,' and were in direct conflict with the testimony given on behalf of the defendant. Statements to the effect that he had with him in the afternoon a pocketbook containing |300 ; that defendant knew that he carried it and had it with him ; that it was either taken or fell out of his pocket in the afternoon, and that he thought the defendant had it; that he went back at night after his money, etc., were especially prejudicial, as they, in a certain sense, attributed to the defendant the taking of the money, and suggested the motive that the defendant may have killed Lawson to conceal the larceny and to prevent the recovery of the money. '

The statements that they were friendly and had no difficulty in the afternoon; that he had always thought that he and the defendant were the best of friends ; that he had frequently spent much money at his place, and had been taken around and introduced by the defendant as a schoolmate and friend; that on the afternoon of the day he was shot he made him a present of a revolver and also of some jewelry, were wholly inadmissible as dying declarations, within the rules stated and the authorities cited. Prom these statements the jury might infer that there was no provocation or cause for the killing, nor any reason for the defendant to shoot in self-defense. Besides, they were objectionable in form, being largely opinions, beliefs and conclusions which would not have been competent testimony in the first instance if given by Dawson as a witness.

Equally objectionable were the statements- that he had never in any manner or form attempted to harm “Paddy,” nor had any reason to do so; that he had no gun with him, and did not go there for any other purpose than to get his pocketbook and money; and that he was shot without any cause or provocation whatever. The statements made by him, and which were introduced in rebuttal, contradicting the defendant and other witnesses, formed no part of the res gestee and could not properly be included in a dying declaration.

Testimony tending to show that the deceased frequently used profanity to the nurses and attendants just before his death, about the time the dying declaration was made, was offered by the defendant and excluded. In view of the character of the declaration and the statement by him that he firmly believed in a God and in a hereafter, and that he was about to die and meet his Creator, these statements were competent to contradict and impeach his declaration. The supreme court of the United States holds that such declarations may be contradicted and impeached in this manner. It decided that such “declarations by no means import absolute verity.” “ The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts ; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them.” In the same connection, the court stated that such declarations “ may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of reward or punishment.” (Carver v. United States, 164 U. S. 694, 17 Sup. Ct. 228.)

In Tracy v. People, 97 Ill. 101, it was held that “ when dying declarations are offered in evidence, it is competent for the accused to show by cross-examination of the people’s witnesses, or by other witnesses, that the deceased in making the statements was in a reckless, irreverent state of mind, and entertained feelings of malice and hostility toward the accused ; and proof of the indulgence in profane language at or about the time of making the statement is clearly competent for that purpose.” See also The State v. Elliott, 45 Iowa, 486; Commonwealth v. Cooper, 5 Allen, 494; Goodall v. State, 1 Ore. 333; Roscoe, Crim. Ev. 35.

Other objections were made to the rulings of the court, but we discover no prejudicial error in them, nor do they require special consideration. For the errors mentioned the judgment will be reversed and the cause remanded for a new trial.