State v. Teeter , 65 Nev. 584 ( 1948 )

I concur in the order of reversal for the reason that the dying declaration was improperly excluded. As to the knowledge and belief of the declarant that he was in extremis and as to whether he was in position to testify to the facts and circumstances of the shooting, see the foregoing opinion of Mr. Justice HORSEY. As to the objection made that the declaration of the decedent, the victim of the shooting, that there had been an accident, that he had been shot accidentally, was a statement of opinion and simply the conclusion of the witness, I am satisfied that under the factual situation appearing, the declaration must be considered a statement of fact. If the declarant's statement that it was an accident had been the result of his reasoning from collateral facts and conditions, such as that the defendant was of kindly disposition, that he would not do such a thing, that he was a friend of declarant, that there was no cause or reason for the defendant to shoot him, etc., then the statement would properly be classified as opinion or conclusion. It did not purport to be such under the circumstances and cannot be so considered. The fine line between a statement of ultimate fact and a conclusion of law is often hard to draw. Testimony as to ownership is technically a conclusion, yet it is readily admitted, although some authorities hold otherwise. Many of the simplest facts recited in everyday conversation, if subjected to fine analysis, are found to be conclusions. As to the present question, one illustration will convey my meaning. A person standing at the head of a stairway observes two persons descending below him. A woman is descending the stairs followed by a man a few steps above her. The woman falls and is killed. There being no question as to any intentional act on her part, one of two factual possibilities remains, either she fell accidentally or the man behind pushed her. Many probative facts may enter into each possibility. Direct testimony that the man pushed her would seem to be the testimony of a fact, yet technically this itself is a conclusion. The same observation applies to testimony that she fell accidentally. Language is not, under all circumstances and to all people, a perfect vehicle to carry some particular fact. Sometimes a technical conclusion is simply "a shorthand rendering of the facts." See cases gathered in annotation to State v. Meyer, 65 N.J.L. 237, 47 A. 486, 86 Am. St. Rep. 650 et seq. In any event, where the facts governing the admissibility of the dying declaration are in dispute it is the law of this state (State v. Scott, 37 Nev. 412, 142 P. 1053, despite the vigorous dissenting opinion of Mr. Chief Justice TALBOT) that those facts be submitted to the jury and not be determined preliminarily by the court. The prevailing opinion by Mr. Justice McCARRAN in the case cited can be read in no other way and is decisive of the point unless we choose to reverse it.