Sheehy v. Territory of Arizona

KENT, C. J. The defendant (the appellant here) was indicted for murder, and, on the trial, convicted of manslaughter. The homicide was not denied, but it was claimed by the defendant that it was done in self-defense. It is urged on this appeal that the trial court erred in permitting certain testimony to be given, which it is claimed was prejudicial to the defendant. It appears from the evidence that the deceased and the defendant, who were traveling together, each on horseback and both armed, just before the homicide had an unfriendly discussion over some differences between them, and that the deceased struck at the defendant with his hand or fist. Thereupon the defendant pulled his gun and shot twice at the deceased, inflicting wounds from which the deceased thereafter died. There was no testimony by any witness that the deceased actually drew his weapon, and most of the witnesses who saw the occurrence testified that they did not see the deceased make any attempt to do so; but there was some testimony on the part of the defendant that the deceased reached for his weapon, as if to draw it, just before the defendant shot at him. It is urged that the court erred in permitting the witnesses Parker, Bland, and Roth, who saw the occurrence, to give certain testimony. The assignments of error in respect to such testimony are as follows: 1. The court erred in permitting the witness Parker to testify, over the objections of the appellant, on behalf of the prosecution, as follows: “Q. Did you hear Dick [now de [273] ceased] say anything? — A. Yes, sir.- — Q. What did he say?- — • A. He just said— Judge Lovell: We object to that. By the Court: Overruled. (Exception.) Q. What did he say?— A. He [deceased] says, ‘Boys, I am shot.’ He asked us to get a doctor, and said, ‘You boys saw I didn’t attempt to draw my gun.’ — Q. Repeat that a little louder. — A. He says, ‘Boys, you all saw I didn’t attempt to draw any gun.’ By the Court: When was that? Mr. Ives: Q. How long after the shooting did you hear Dick make that remark? — A. It was right away — just as soon as I got to him. — Q. You rode up immediately after he fell? — A. Yes, sir.” 2. The court erred in permitting the witness Bland to testify on behalf of the prosecution as follows: “Q. What did you do after you saw Dick [deceased] fall from his horse? ■ — -A. I went to him. — Q. Did he [deceased] say anything that you heard?- — A. Yes, sir. — Q. What did he say? — A. He said he was shot, and he hadn’t — I think he said he didn’t know where; and he said, ‘I feel a burning sensation.’ — Q. Did he say anything else? — A. He said, ‘You boys all seen I didn’t try to pull no gun,’ or something like that — ‘pull no gun’— something to that effect.” 3. The court erred in permitting the witness Roth to testify on cross-examination as follows: “Q. What did Dick [deceased] say? — -A. Dick [deceased] said, ‘You seen I made no attempt to draw my gun.’ ” The question sought to be raised by appellant’s counsel is a very interesting one, — namely, whether the statement made by the deceased that he “did not attempt to draw his gun,” though made almost immediately after the shooting, and thus in point of time so closely identified with the occurrence, comes within the exception to the rule as to hearsay testimony, so as to make testimony that such statement was made admissible in evidence. The statement was not made as a dying declaration, and it is claimed by counsel for the appellant that the testimony is inadmissible because it was in no manner connected with or illustrative of the main fact, to wit, that the deceased was shot, and was not only the statement of an independent and collateral fact not illustrative of the shooting, and hence not admissible, but that the nature of the remark shows that it was self-serving, and the deliberate utterance of an afterthought, and hence, in any view, not admissible. [274] The question is a close and interesting one, but it is not necessary for us to determine whether or not the contention of the appellant is correct, for the state of. the record precludes us from reversing the judgment, even if the testimony was hearsay or improper. As to the first assignment of error, respecting the testimony given by the witness Parker, it is clear that the question objected to, to wit, “What did he say?” was a proper one— it being directed to a statement properly a part of the res gestee — and the objection to the question was therefore properly overruled. Likewise, in any view, as to the admissibility of the concluding part of the answer, the first portion thereof, to wit, “He says, ‘Boys, I am shot,’ ” was clearly admissible; it being directly connected with the main fact, and characterizing and explaining it. Such portion of the answer being clearly proper, if the last part of the answer, to wit, “You boys saw I did not attempt to draw my gun,” was objectionable, a motion should have been made to strike it out, and the jury told to disregard it. No such motion, however, was made, and no suggestion made to the court that this portion of the answer was sought to be excluded. Where a question is proper in form, and a part of the answer thereto is admissible, and the remainder of the answer is improper, a motion should be made to strike out the portion of the answer objected to at the time, for the original objection to the question does not go to the point, and, in the absence of such motion, the party cannot successfully urge in this court a reversal of the judgment on the ground solely that the court below allowed the original question over objection. Furthermore, the record shows that no claim was made in the court below that evidence of the statement now objected to was improper, for, when the witnesses Bland and Roth were interrogated as to the statement made by the deceased, and each gave substanstially the same answer as the witness Parker, although counsel knew from the former testimony what the answers would in all probability be,' no objection or motion of any kind, either to the questions as asked or the answers as given, was made; and although the appellant now, by his second and third assignments, attempts to predicate error in regard to the giving of this testimony, he cannot be heard in this court for the first time to urge objections thereto, and ask for a [275] reversal of the judgment for error in the court below that was not committed. The remaining assignments relate to the refusal of the court below to give, as requested, a large number of instructions to the jury. We find that the instructions requested were all fully covered by the charge the court gave upon its own motion. Where the court has fully and fairly covered in its charge, in substance, all the points and principles contained in specific instructions, to give the instructions as requested would be an unnecessary repetition, and it is not error •for the court to refuse to do so. The judgment of the district court is affirmed. SLOAN, J., and DOAN, J., concur. Note: As to how near the main transaction declarations must be made in order to constitute, part of the res gestee, see note to Ohio and M. R. Co. v. Stein, (Ind.) 19 L. R. A. 733.