State v. Brunetto

Vooriiies, J. The defendant was found guilty of murder, without capital punishment, and was sentenced for life to the State prison. The case comes up on two bills of exceptions and two motions for a new trial. 1. The first bill of exceptions was taken to the ruling of the court below in favor of the admissibility of the dying declaration of the deceased, although given in the absence of the prisoner. The reason for the rejection of heresay evidence is, that the party against whom it militates has not had the benefit of a cross-examination, and because the declarant did not speak under the sanction of an oath. An exception to this rule obtains, in cases of dying declarations, the sense of impending dissolution being considered as offering the necessary guarantees that the declaration is in accordance with the truth. Although it is indispensable that the whole declaration be given in evidence, if is not required that the party accused be present at the time it was given. Any other construction of the law would have the effect of shutting out this species of proof; for if the prisoner were present, it would bo unnecessary that such declaration should be in extremis in order to determine its admissibility in evidence. The defendant’s objection was, therefore, properly overruled. 2. The District Judge properly overruled the following question, propounded on behalf of the defendant to one of the State witnesses : “ From your knowledge of the character of the deceased, and from her conduct on the occasion of the conversation held with you by her, do you think she was under a religions sense of her responsibility to her Maker ? ” [46] Witnesses are to be examined on the facts of the case; and are not expected to give their opinions on the conclusions, which it is the provinoo of the court and jury to draw. 3. The first motion for a new trial is based on the allegation, “ that while the jury were deliberating upon a verdict in this case, and beforo they agreed to and rendered their verdict in court, they were permitted to intermingle, converse and eat with and at the same table with one Mr, Jlinohs, and several other gentlemen, whose names are unknown to affiant.” The second, or rather amended motion for a new trial, states: “ That since the filing of the original motion for a new trial in this case, new and material facts have been discovered, which are as follows: that while the jurors were out and were considering their verdict, brandy and other spiritous liquors were drank by several of the jurors; and that also at dinner said jurors partook freely of wine; and that after dinner a bottle of Champagne wine was bet by two of the jurors upon the price of the dinner, which said wine was drank by the jurors and the Deputy Sheriffs; and that the said dinner was paid for by the State.” The District Judge allowed the amendment, for the purpose of adding as an additional ground for a new trial, “ the above irregularity and misconduct of the jury as above set forth.” In truth both motions allege the irregularity and misconduct of the jury, with this difference, however, that the amended motion is more explicit on the subject. They both present for adjudication questions of fact, and, although they are accompanied by the testimony taken down by the Clerk, we cannot decide whether the conclusions of the District Judge were correct or erroneous. Our appellate jurisdiction in criminal matters is limited to questions of law alone; and it has been repeatedly decided that, as regards continuances and motions for new trials, this court would not, and could not, interfere with the ruling of the court of the first instance, “ unless brought before it in such a mode as to present for solution an unmixed question of law ;” (State v. Bass, 11 An., 478,) and also “that the only proper mode of bringing the subject before this court, is by bill of exceptions, which will show affirmatively on its face, that the ruling of the District Court was predicated exclusively upon a matter of law, in which the court erred.” 11 An., 422. In the case at bar, there is no bill of exceptions, showing that in the motion for a new trial the court below erred in any question of law, mixed or unmixed; and in the assignment of errors, there is no complaint whatever of any error of law committed to the prejudice of the prisoner; but it is alleged in so many words: “ That facts developed upon the motion for a new trial show the trial to have been irregular, and that the misconduct of the jury vitiated the verdict.” The proof of the irregularity and of the misconduct of the jury, may or may not be satisfactory. With this we have nothing to do; for that is a question of fact, which rests in the sound discretion of the District Judge, and is not subject to our revision; State v. Brette, 6 An. 657, 662; 6 An., 311; 7 An., 532; State v. Tucker, 10 An., 501. Had he decided erroneously any question of law connected with the matter, and had such decision been presented in proper shape before us, we might grant relief. It has already been decided, that the jury are entitled in all cases to necessary refreshments. 4 An. 27. This is a question of law which wo could decide; but what constitute necessary refreshments ? and whether the verdict is or is not to be affected in any given case, is certainly a question of fact, and, as such, cannot bo revised by this court. [47] It is, therefore, ordered and decreed that'the.judgment of the court below bo affirmed, with costs.