THE STATE OF NEVADA, Respondent, v. JOHN MURPHY, Appellant
State v. Murphy
THE STATE OF NEVADA, Respondent, v. JOHN MURPHY, Appellant.
THE STATE OF NEVADA, Respondent, v. JOHN MURPHY, Appellant.
Criminal Law — Supplying Proof of Venue after Prosecution Rests-Where in a criminal case after the prosecution rested defendant moved for ms discharge on the ground that there, had been no proof of venue ; and the court thereupon allowed the State to call a witness and prove a venue : Held, eminently proper.
Murder — Proof by Experts of Mortal Character of Wound not Indis, pensable. In a murder case, when the proof was that deceased was a strong and apparently healthy man ; that he was wounded by a pistol shot fired by defendant; that he immediately took to his bed; suffered intensely for two days and then died; and it was objected there was no proof by experts that the wound was dangerous or mortal -or caused the death: Held, th'al the evidence of experts was not indispensable and that the proof as it stood was sufficient to go to the jury and, in the absence of showing to the contrary, justified a verdict against defendant.
Dying Declarations, What are Admissible. Dying declarations, which may properly be admitted, are such as touch upon the cause of, or circumstances surrounding, the approaching death.
Objection of “Hearsay” to Dying Declarations Not Available. A general objection to the introduction of dying declarations that they are hearsay, is not available, as all evidence of dying declarations must necessarily be hearsay.
Foundation for Introduction of Dying Declarations. It is sufficient foundation for the introduction of dying declarations to show that at the time of making them he was in expectation of death from the effects of his wound-
Objections to Evidence Should State Point of Exception. Where in a murder case a witness was asked to testify as to the dying declarations of deceased; and it was objected to such proposed evidence that it was hear say and that no proper foundation had been laid : Held, that the objection was not specific enough to cover the point that the declarations did not touch the cause of, or circumstances surrounding, the approaching death.
No Error in Admission of Unprejodicial Testimony, thoush Irrelevant. Where in a murder case testimony was admitted as to what purported to be dying declarations; but it also appeared in proof that defendant had piade a confession which warranted a conviction: Held, that though the declarations may have been irrelevant, the testimony could not have prejudiced defendant.
Appeal from tbe District Court of tbe Second Judicial District, Ormsby County.
Defendant was indicted for tbe murder of John K. McCallum by shooting bim witb a pistol on May 12,1874, at Carson City in Ormsby County. He was tried in August and convicted of murder in tbe first degree, and sentenced to be banged. He appealed from tbe judgment.
At tbe trial, after tbe prosecution bad rested, counsel for defendant moved for tbe discharge of tbe prisoner upon tbe grounds—
“First, that there is no evidence in the record proving that tbe crime bad been committed within tbe County of Ormsby and State of Nevada, or within tbe jurisdiction of this court;
“Second, that it is not shown by any expert that tbe wound was dangerous or mortal, or that tbe death of tbe deceased was caused by tbe wound.”
Tbe court overruled tbe motion on tbe second point, and on tbe first granted leave to tbe State to supply tbe proof of venue; and a witness was thereupon called who testified that tbe shooting was done in Carson City, as alleged in tbe indictment.
In tbe course of tbe examination of Thomas Wells, a witness for tbe prosecution, it appeared that deceased on tbe day before bis death and in tbe expectation of speedy dissolution (saying he had given up all hopes of recovery and knew he would die from the effects of his wound) made certain statements or declarations. Witness was asked to repeat them. Defendant objected on the ground that the proposed testimony, if any such statements were made, was hearsay and that the proper foundation for such testimony had not been laid. The objections were overruled and defendant excepted. Witness then testified:
“He [deceased] then told me that on the last Saturday previous to the shooting, at a wood camp up in the mountains in the vicinity of Spooner’s Station, he and defendant had a difficulty; that it commenced by the defendant throwing at deceased a whisky bottle, which, however, did not hit the deceased. Defendant then rushed upon him where he stood at a table. The deceased seized a mustard bottle, the mouth of which had been broken off; held it in his hand and struck the defendant over the head with it several times to keep him off from him [deceased]. That they were then separated and the defendant left, and he saw him no more until the occasion of the shooting. That deceased did not at the first difficulty at the camp nor at any previous time give the defendant any occasion to assault deceased as' he did. Deceased stated that he came to Carson from the camps on Sunday afternoon. That the reason.he left the camps and came to this town was because he wanted to evade Murphy; that just previous to leaving he was informed that Murphy had returned there. He also said that at'the time of shooting he had no weapon upon his person. This is a statement of what he said as fully as I can give it.”
S. E. Swift, sheriff of Ormsby County, also a witness for the prosecution, testified, among other things, as follows :
“ Murphy (the defendant) made a voluntary statement to me in regard to the difficulty. I had offered him no reward, nor threat, nor held out any inducement to him to obtain this statement. He said he was coming np the street when he saw deceased coming towards him. He thought deceased made a dem onstration as if he was going after his pistol. He said he (Murphy) drew his pistol, when deceased was standing, as he thought, sideways, towards him; and that he fired about the time deceased started to run. That they ran through Benton’s stable, and in the bach end of .the stable he fired his second shot and desisted. That he did not fire but two shots. That deceased looked over his (deceased’s) shoulder, and Murphy told him to run. I asked him if he fired anymore than two shots. He said no; he had fired off one previously. He also said the first shot took effect. This he told me a short time after he was confined in the jail. He also said deceased was between a post and himself, and that he (Murphy) thought deceased was going for his pistol at the time.”
Robert M. Clarice, for Appellant.
L. A. Buclcner, Attorney General, William Patterson and Thomas Wells, for Respondent.
By the Court,
Whitman, C. J.:
When the prosecution rested in this case, motion was made for appellant's discharge upon the grounds — first, that there was no sufficient proof of the venue as laid in the indictment; second, that it was "not shown by any expert that the wound was dangerous orjmortal,. or that the death of the deceased was caused by the wound." Although the proof would appear to have been already redundant on the first point of objection, the court allowed a witness to testify thereon, and this is assigned as error. To permit the supplying of proof on this point, had it been necessary, would have been eminently proper at any stage of the case, and its refusal would have been a refusal of justice. Certainly it could be no more error, if unnecessarily allowed.
To the second point it may be answered that no proof by experts was necessary, as seems to be held by counsel; and giving the objection its broadest scope, reference, to the transcript will show that deceased, a strong and apparently healthy man, was wounded by two pistol shots fired by appellant; that be immediately took to bis bed; suffered intensely for two days, and then died. If this, in absence of all opposing testimony, was not sufficient to go to the jury, it would be difficult to imagine adequate proof. It was properly submitted; and the jury decided by their verdict that it was conclusive upon the point, that the injury inflicted by the appellant was the proximate cause of death; and there is no showing that such decision was incorrect. It is also objected that evidence of so-called dying declarations was received against appellant's objection. The evidence was certainly not within the rule of dying declarations, being mainly a recital of matters occurring several days before the shooting. But the objection is not sufficiently pointed, being "that it (the evidence) was hearsay, and that the proper foundation for such testimony bad not been laid by the witness." The court decided, and properly, that the foundation was sufficient. All evidence of dying declarations must necessarily be hearsay; while the specific objection to the evidence offered should have been to the character of the testimony, as not touching the cause of, or circumstances surrounding, the approaching death.
Admitting the objection to have been specific, yet the evidence was not of a character calculated to prejudice the appellant; it was irrelevant; and the transcript teems with such; but in fact appellant settled bis own case by bis confession to the sheriff.
The record discloses no error, and the judgment of the district court is affirmed.