Nanfito v. State ( 1939 )

Rose, J.

In a prosecution by the state in the district court for Douglas county, Sam Nanfito, defendant, was accused of murder in the first degree, having killed his wife. The specific charge was that, in Douglas county, Nebraska, January 10, 1938, he then and there feloniously,' purposely and of his deliberate and premeditated malice shot Santina Nanfito with a revolver and as á result thereof she died January 11, 1938. He pleaded not guilty and upon a trial the jury found him guilty of murder in the second degree. For that felony he was sentenced to the penitentiary for the term of his natural life. As plaintiff in error, defendant presents for review the record of his conviction. »

The shooting occurred at the Nanfito home in Omaha. Defendant testified he was cleaning his gun and that the shot was accidental. Santina Nanfito was taken promptly to the Nicholas Senn hospital and was examined there by Dr. N. H. Attwood, who testified she had suffered a gunshot wound in the left chest on a level with the breast; that the bullet passed through her body, went through the stomach, and across the top of the liver, causing a severe hemorrhage therefrom, and lodging beneath the skin; that he removed the bullet; that her death resulted from the gunshot wound.

The principal assignments of error are directed to dying declarations which the trial court admitted in evidence over the objections of defendant. The declarations contained among other statements the following, in substance: Defendant shot her at 10:30 in the forenoon of January 10, 1938. She was standing by the heating stove in the little room next to the kitchen combing her hair within three or four feet of defendant. Heard a shot and saw defendant with the gun in his hand; had nothing else in his hand; was not cleaning the gun; he helped her into a chair close by and said: “Finally, the day has come,” then ran towards his daughter’s house; the wife saw him again at a filling station and he said to her in presence of police officers: “Tina, Tina, I really didn’t want to do it.” Defendant and his wife had previously had trouble; he was jealous of her; she never could understand the reason for jealousy; had frequent quarrels during which he threatened to kill her; would only cost him $200 to get out of it; had six children by defendant; she had never called the police, but her children and neighbors had sometimes done so.

The declarations were made in the form of questions and answers reduced to typewriting and signed by declarant making her mark with the attending physician and nurse as witnesses, the latter holding the pen. Declarant spoke Italian and was not well versed in English. The questions were asked in English by a deputy county attorney, who called to his assistance a capable interpreter of both English and Italian, who was also an assistant in the office of the county attorney. He took an oath as interpreter and translated the questions in English into Italian and directed them to declarant. She replied in Italian and the interpreter translated the questions and answers into English. They were transcribed from shorthand notes into typewriting by the county attorney’s secretary and read to declarant and her answers as read were approved by her as correct.

One of the objections to the admission of the declarations in evidence was that no foundation was laid, there being no testimony before the court or jury to show that declarant was conscious of impending death. The admissibility of the evidence was a question of law for the court. Johnson v. State, 112 Neb. 530, 199 N. W. 808. The foundation was shown on the face of the exhibit containing the declarations. Asked therein if declarant realized the seriousness of her condition, she answered, “Yesreplying to other questions she said she did not think she had a chance of life; was prepared to meet her Maker; was a Catholic; had her confession and received Holy Communion; priest had given her the last Sacrament and last Rites of the Catholic Church. The circumstances related evidenced her sense of impending death. The declarations were voluntary. No improper influence was exerted. The rule of evidence applicable has been stated as follows:

“In a prosecution for murder, a statement by the victim of the homicide that he was shot by defendant may be admitted in evidence, if made under a sense of impending death, and the foundation for its admission may be shown by circumstances.” Johnson v. State, 112 Neb. 530, 199 N. W. 808.

Admissibility of the declarations was also challenged because they were made in a foreign language. They were made in the language familiar to declarant. “Dying declarations may be admissible, although they are given in a foreign language through an interpreter to the person writing them down.” 30 C. J. 260.

It is insisted further that declarant was not in a condition to make the declarations, owing to the effect of morphine administered for pain and to treatment for hemorrhages from gunshot wounds. The evidence is clear that, notwithstanding the medicine given, declarant was mentally alert, understood the questions and answered them intelligently under oath. The oath did not make the declarations inadmissible. 30 C. J. 260. They were made under a sense of impending death and the oath was unnecessary. The dying declarations were properly admitted in evidence.

Was the gun accidentally discharged? Defendant so testified, but he left evidence to the contrary. The question was one for the jury. With the gun from which the fatal shot was fired, with a bullet exactly like the one taken from the body of his wife, and with the dress worn by her at the time, the ballistic expert of the Omaha police department made scientific tests, which, with the powder stain on the dress, showed that the muzzle of the gun was within approximately one inch of the dress when the shot was fired. Defendant’s wife was then standing on her feet combing her hair, as already narrated, and the bullet entered her left chest on a level with her breast. That is not the way guns are held while being cleaned and the jury did not believe the defendant’s testimony that the shooting was accidental. There is evidence that defendant had recently threatened to kill his wife; that he had violently assaulted her; that he had kicked her and had chased her with a razor. The verdict has abundant support in the evidence.

Rulings in refusing requested instructions and in giving other instructions are assigned as erroneous, but the charge to the jury when considered as a-whole, as it should be, does not contain error prejudicial to defendant.

Affirmed.