State v. Nocton

Sherwood, I. I. The first point for examination is the admissibility of the dying declarations already set forth. At first the trial court refused to admit them; but subsequently decided them to be competent. It belonged to that court to determine, as a preliminary question, whether such declarations were admissible,. Wharton’s Crim. Ev. [9 Ed.], sec. 297; State v. Simon, 50 Mo. 370. It is unnecessary to enter into the subject of dying declarations seeingthatthatsubject has so recently been fully discussed by us in State v. Johnson, 118 Mo. 491. The general rules applicable to the subject are' there laid down and the authorities cited which support them. The circumstances of this case show that Clune was fully impressed that his dissolution was close at hand. He had every reason to believe it, both from what he was frequently told by his medical advisers, and by the terrible pains to which he had been subjected for a week before the declaration was made, and that statement when made “was made between gasps.” This testimony when considered in connection with that portion of Dr. Elston’s testimony alreadly quoted, shows very conspicuously the admissibility of the declarations in question. The declaration, as shown by his direct statements as well as his answers to questions that he was without any hope of recovery and his reasons therefor, proceeds, after stating his name, to say that be believes he is “about to die.” This, with what had [550] gone before, was certainly sufficient as an indication of the impression made on dune’s mind. A declaration may be received in evidence even without such a formal statement. Thus, though “It is-essential to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated* at the time, to be so made. It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the-declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind. The length of time which elapsed between the declaration and the-death of the declarant furnishes no rule for the admission or rejection of the evidence; though, in the absence of better testimony, it may serve as one of the-exponents of the deceased’s belief, that his dissolution-was, or was not, impending. It is the impression of almost immediate dissolution, and not the rapid succession of death, in point of fact, that renders -the-testimony admissible.” 1 Greenleaf on Ev. [14 Ed.], sec. 158; 3 Russell on Crimes [9 Am. Ed.], *250; 6 Am. and Eng. Encyclopedia of Law, p. 108, et seq., and cases cited. On these grounds, we rule this point, in favor of the state. II. As to the instructions, no complaint is made-of them, they are in the usual stereotyped form, embracing murder in the first and second degrees, manslaughter in the third and fourth degrees and an. instruction relating to self-defense. In this connection, however, it is well enough to551 remark that tinder the more recent rulings of this court, defendant’s statement that he did not “intend to MU” Clune when shooting directly at him and hitting him three times when only six feet away, it not to he believed in the face of the incontrovertible physical facts thus disclosed by the evidence. State v. Nelson, 118 Mo. 124. And if defendant shot at Clune with intent to kill him, and as he had a right to do in his proper self-defense, then he certainly could not have been guilty of an unintentional killing, to wit, manslaughter in the third degree. State v. Pettit, 119 Mo. 410. But, inasmuch as defendant was convicted of murder in the second degree, no injury accrued to him in this regard, because by their verdict the jury have said that defendant intentionally killed Clune, and not in his necessary self-defense, and, therefore, he is prima, facie guilty of murder in the second degree. State v. Tabor, 95 Mo. loc. cit. 595, and cases cited. And under the ruling in State v. Gilmore, 95 Mo. 554 and State v. Bryant, 102 Mo. 24, the facts disclosed in evidence of defendant’s firing on his maimed and retreating adversary, shooting him in the back and. side, show very clearly, and despite all of his denials to the contrary, that it was not self-defense, but a fierce spirit of jealously and revenge that caused defendant to use his pistol as charged in the indictment. III. Several objections were made by defendant to the introduction of evidence on the part of the state and also to the rejection of evidence offered on behalf of the defense. a. It was entirely competent to introduce evidence to show that Jones attempted to bribe witnesses to leave the state so as not to be present at the trial of defendant Jones, and to this point the court by its instructions restricted it, and this was all that was necessary. [552] b.- The testimony of Sherlock was admitted as to an abrasion being on the face of defendant as if he had been struck a blow or had fallen; but certainly defendant’s self-serving statements when he came into the police station to surrender himself after perpetrating the murder, could not be received, and it was not, as is claimed, part of the res gestee. c. Jones was on trial as an accomplice of the defendant in the murder of Clune. For this reason her statement to Minnie Snyder that defendant was going to take a gun and kill Clune if he crossed him or said anything to him, was competent evidence as showing that Jones was conversant with defendant’s plans, intentions and threats towards Clune, and the ruling of the court limited the evidence of Snyder to Jones alone and excluded it as to defendant. This ruling was entirely correct. d. The point is made that the court below erred in excluding an answer to the question to Jones as to what Clune said about defendant when he started down the back stairway to open the door for him. What Clune said about defendant was sheer hearsay. If Clune at that time uttered a threat, this ought to have been brought to the attention of the court, and then if evidence of the threat were excluded, the point should have been saved. As the matter now stands, we are called upon to say that the court erred in excluding a threat, when it is impossible to say whether the court did so or not. We do not propose to use a mere conjecture as a basis on which to convict a trial court of error. He who alleges error must prove it. Bank v. Aull, 80 Mo. 199; Kruxberger v. Roiter, 91 Mo. 404; State ex rel. v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 176. e. It is claimed error occurred in permitting certain policemen to testify as to defendant’s reputa [553] tion for quarrelsomeness, but no objection was made to this testimony nor exception saved, and, therefore, can not be considered. It is singular that counsel would urge such pointless points as these. /. James Clune, in testifying, stated that his brother never carried arms, and thereupon defendant’s counsel asked witness: “He did not need to carry a revolver did he!” The answer to this question was properly stricken out. It would have been the mere opinion of the witness. Besides, it was subsequently established that Clune was a powerfully built man, and when drinking quarrelsome and turbulent, and from these facts the jury could draw their own inferences. g. Other errors are claimed to have occurred in •the ad'mission or exclusion of evidence, but they are •either too trivial to merit attention or else were cured by evidence subsequently admitted. IY. Affidavits were filed on behalf of defendant to show that ¥m. Poster was a good friend of Clune the deceased, etc., etc., in order to show that Poster should not have sat on the jury that tried defendant. These affidavits were met by counter affidavits of Poster and others and upon them the court passed, and this ruling being one of fact, it would require a very strong case indeed in order to induce us to reverse, in this regard, the action of the trial court. State v. Howard, 118 Mo. 127. But by saying this, we are not to be understood as ruling that a “good friend” of one who has been murdered, may not be a perfectly competent juror to try his assassin. Moreover, even if friendship for a murdered man renders a person incompetent to sit as a juror in the case of his murderer, there is a fatal objection to the affidavits in this instance, arising from the fact that it does not appear but what both, defendant and his counsel were conversant with the fact that Poster and [554] Clune were “good friends.” State v. Burns, 85 Mo. 47; State v. Howard, supra. No intendments are made in favor of affidavits of this sort, nor are they favored by the courts. Having carefully examined the record and finding no material error therein, we affirm the judgment. All concur.