State v. Hunter ( 1925 )

ON PETITION FOR REHEARING May 1, 1925. 235 P. 645. OPINION A petition for rehearing has been filed, wherein it is insisted that the court erred in certain of its rulings. In the opinion we quoted the objection to the testimony which was made by counsel during the trial, and based our ruling upon the objection as made. In that opinion we said that, in view of the fact "that no objection was interposed upon the ground that the decedent did not believe himself to be in extremis," that point could not be urged in this court. We went a step further, however, and said that we thought it was satisfactorily shown that the trial court was justified in its conclusion. We are satisfied with both of the views expressed, but the first is conclusive, and as to that no point is made in the petition for a rehearing.

1. The next contention is that we overlooked that portion of the bill of exceptions containing the language used by the special prosecutor which, it is urged, constituted reversible error. It is true that we did not see this statement, and for very good reasons. In the first place, it is where no one would ever look for such a statement and, secondly, we were referred, on page 4, line 24, of the opening brief filed in behalf of appellant, to page 690 of the transcript of the testimony as the place where we would find the matter complained of, and where we did find what was quoted in our opinion and nothing more. On page 3 of the petition for a rehearing we are directed to page 2 of defendant's proposed bill of exceptions. The transcript of the testimony in this case consists of two volumes of nearly 700 pages of typewriting, to which is prefixed other matter, such as the information, instructions, etc., at the very end of which we find, on what is designated as page 90, the matter now complained of.

While we find in the record a statement of the language used by the special prosecutor, no objection or action appears to have been taken, save what was quoted in our former opinion and, as there shown, what was said and done was at the conclusion of counsel's argument rather that at the time the statement was made. It appears that the authorities are uniform in holding that this is too late. 16 C.J. 914, sec. 2267. But counsel says that, in view of the statement found on page 90, to the effect that the alleged error "was duly and regularly objected to and assigned as error by defendant's counsel," overcomes the record as quoted in our opinion. Counsel failed to quote the entire record, for it continues to read, "as appears on page 690 of the original transcript herein." This latter quotation qualifies the portion of the quotation relied upon, and brings it squarely within the ruling made in our opinion and restated above.

Counsel urge that we reconsider the evidence and particularly that discussed in the dissenting opinion herein, which was given by W.H. Robertson, wherein he stated that the deceased said he "thought it was ``Hallie'" who shot him.

2, 3. We do not think there is any real occasion for further consideration of the matter. In our original opinion we disposed of every objection made during the trial and urged in this court and, we think, correctly. The point made in the dissenting opinion to the effect that what one thinks cannot be the basis of a dying declaration is hornbook law, but no objection was made in the trial court on that ground, and hence cannot be the basis of an assignment of error here, or justify this court in reversing a verdict of twelve men and overriding the ruling of the judge. Furthermore, that statement is just one small scrap of the testimony. This court was created to consider and pass upon errors of the trial court, and it can hardly be said that an error was committed in the reception of evidence, unless a timely objection is made to it. Furthermore, that evidence purports to relate what was said immediately after the shooting and before the deceased was taken to his room, at which time it clearly appears that the deceased was in a frenzy. Besides, we have the testimony of Constable Berning and four or five other witnesses relating that the deceased clearly indicated that the defendant was the man who shot him. In the face of the testimony of these witnesses, we are unable to see any excuse for holding that the evidence does not justify the verdict, or wherein we can find excuse to override the plain provision of section 4 of article 6 of our constitution and section 7287, Rev. Laws, which provide that appeals in criminal cases can be taken on questions of law only.

Petition is denied.