State v. Murphy , 9 Nev. 394 ( 1874 )

By the Court,

Whitman, C. J.:

When the prosecution rested in this case, motion was made for appellant’s discharge upon the grounds — first, that there was no sufficient proof of the venue as laid in the indictment; second, that it was “not shown by any expert that the wound was dangerous orjmortal,. or that the death of the deceased was caused by the wound.” Although the proof would appear to have been already redundant on the first point of objection, the court allowed a witness to testify thereon, and this is assigned as error. To permit the supplying of proof on this point, had it been necessary, would have been eminently proper at any stage of the case, and its refusal would have been a refusal of justice. Certainly it could be no more error, if unnecessarily allowed.

To the second point it may be answered that no proof by experts was necessary, as seems to be held by counsel; and giving the objection its broadest scope, reference, to the transcript will show that deceased, a strong and apparently healthy man, was wounded by two pistol shots fired by appellant; that be immediately took to bis bed; suffered intensely for two days, and then died. If this, in absence of all opposing testimony, was not sufficient to go to the jury, it would be difficult to imagine adequate proof. It was properly submitted; and the jury decided by their verdict that it was conclusive upon the point, that the injury inflicted by the appellant was the proximate cause of death; and there is no showing that such decision was incorrect. It is also objected that evidence of so-called dying declarations was received against appellant’s objection. The evidence was certainly not within the rule of dying declarations, being mainly a recital of matters occurring several days before the shooting. But the objection is not sufficiently pointed, being “that it (the evidence) was hearsay, and that the proper foundation for such testimony bad not been laid by the witness.” The court decided, and properly, that the foundation was sufficient. All evidence of dying declarations must necessarily be hearsay; while the specific objection to the evidence offered should have been to the character of the testimony, as not touching the cause of, or circumstances surrounding, the approaching death.

Admitting the objection to have been specific, yet the evidence was not of a character calculated to prejudice the appellant; it was irrelevant; and the transcript teems with such; but in fact appellant settled bis own case by bis confession to the sheriff.

The record discloses no error, and the judgment of the district court is affirmed.