State v. Roberts

28 Nev. 350

• Court: Nevada Supreme Court
• Decided: July 15, 1905
• Docket: No. 1673
• Status: Published

Opinion

By the Court,

Talbot, J.:

The defendants are three of the four who were convicted of murder in the first degree in Humboldt County, and on a former appeal were granted a new trial by this court because a juror who had expressed an unqualified opinion regarding their guilt or innocence had been allowed to, serve. (27 Nev. 449.) Later the case was transferred to Washoe County, and Frank Williams, who had been indicted, tried, and convicted jointly with these defendants, was there given a separate trial. They have again been convicted of murder in the first degree, and again appeal.

On August 19,1903, Jack Welsh quit work in a hay field near Winnemucca, and about 8 o’clock, or half past, that evening, in company with Albert Waldman, left that town on west-bound freight train No. 219. About 11:45 that night, after stopping at Mill City and Humboldt House, this train slowed to a speed of from two to four miles per hour, and passed freight train No. 220, east bound, at Zola, a side track about four miles east of Oreana, the first station east of Love-lock. Directly after leaving Zola, four men appeared on the tops of the box cars and robbed Welsh and Waldman, and forced them off the train about two miles west of Zola, when it had reached a speed on the down-grade of from thirty to thirty-five miles an hour. As Welsh clung to the ladder on the side of the car and begged for his life, they stamped on his hands and shot him, until he fell to the ground. He called to Waldman, who had fallen first, and who, after a brief unconsciousness, came to him and went for assistance, but did not return until after he had been taken up and put in the caboose on a fréight train about 7:30 in the morning, and taken to Winnemucca, where he arrived and was placed in the hospital a little after 9 o’clock that forenoon, and where he died at 7:15 that evening, nineteen and a half hours after he had been shot, and about twelve hours after he had been taken from the track, where he had lain for about seven and a half hours.

1. It is urged that the district court erred in admitting in evidence the following written dying declaration of the deceased: "My name is Jack Welsh. I am 20 years old. My home is in Palisade. I have no brothers. I know who shot me when I see them. The heaviest and shortest one. of the lot shot me. There were five men who attacked me. Al. Waldman was with me. There were five men that attack me. 'Give me a match,’ they says. 'I have no match,’ says I. 'Throw np yourthands, you son of a bitch,’ and I did. They went through my pockets. The one that shot me had some kind of a shawl around his neck. I saw the fellow when he shot me the first two times. I was only four feet from him. This happened between 11 and 12 last night. I never saw them before that I know of. The tallest man shot at me, too. I never had any weapons of any kind. I was shot through the lungs, because the wound whistled when I moved. After I jumped off the train the heavy-set fellow shot me. I know it was him, because he was on the edge of the train and stamped on my hands. I believe I am going to die, and so I make this statement. J. C. Welsh.”

Counsel for defendants objected to this statement upon the grounds that it was hearsay; that its admission would violate the constitutional right of the defendants to be confronted by the witnesses against them; that it does not come under the exception to the hearsay rule known as dying declarations, for to be admissible as such it must be made by one in extremis and fully conscious of impending death, and who has abandoned all hope of recovery; that dying declarations by one who was partially unconscious at the time he made .them are inadmissible; and that Welsh did not sign his complete signature to the statement, because, when he had written to the last letter in his name, another at his request had made the "h.”

That dying declarations must be made under a sense of impending death in order to be admissible is well illustrated by the cases cited in defendants’ brief, and by many others; but this may be shown, not only by what the injured person said, but by his conduct and condition, and by the nature and extent of his wounds, and it is sufficient if these show that the declarations were made without expectation of recovery and under a sense of impending death, notwithstanding the declarant may not have said that he was without hope or that he was going to die. (Mattox v. U. S., 146 U. S. 151, 13 Sup. Ct. 50, 36 L. Ed. 917; Anthony v. State, Meigs (Tenn.) 279, 33 Am. Dec. 143; State v. Evans, 124 Mo. 397, 28 S. W. 8; State v. Schmidt, 73 Iowa, 469, 35 N. W. 590; White v. State, 111 Ala. 92, 21 South. 330; State v. Sullivan, 20 R. I. 117, 37 Atl. 673; People v. Simpson, 48 Mich. 474, 12 N. W. 662; State v. Russell, 13 Mont. 164, 32 Pac. 854; People v. Taylor, 59 Cal. 640; Bell v. State, 72 Miss. 507, 17 South. 232; Com. v. Matthews, 89 Ky. 292, 12 S. W. 333; Puryear v. Com., 83 Va. 54, 1 S. E. 512; Johnson v. State, 47 Ala. 9; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150; Morgan v. State, 31 Ind. 194; State v. Fletcher, 24 Or. 295, 33 Pac. 575; Dixon v. State, 13 Fla. 639; Lester v. State, 37 Fla. 382, 20 South. 232; Jackson v. State, 56 Ga. 235; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; Com. v. Haney, 127 Mass. 459.)

The controlling point here is a question of fact for the court — the state of mind of the deceased at the time he made the statement; for, if he "were not then under a sense of impending death, the declarations would lack that solemnity and support which are necessary to make them admissible. In addition to other wounds, a bullet had entered the back about three inches from the spine, pierced the left lung and two walls of the stomach, shattered the seventh rib, and lodged in the intestines. The doctor probed, removed a splinter of bone, and opened the wound, so that about two pints of blood, which evidently came from the bullet hole in the lung, escaped from the pleura. This relieved a discharge of blood from the mouth, enabled the patient to breathe on the left side, eased his suffering to some extent, and prolonged his life, so that he lived for about eight hours after the operation. He thanked the doctor, and said he felt better; but, as he was aware of the serious nature of his wounds, this does not indicate that he had any expectation that he would survive. It is easy to distinguish between relief from pain and hope of recovery. (State v. Evans, 124 Mo. 397, 28 S.W. 8.)

In view of the injuries he had received and of which he was evidently aware, and of the various statements he made, a feeling and expression of relief from suffering does not imply that he expected to recover. Later, when in reply to questions the doctor gave him words of encouragement, which no one aware of the gravity of his condition likely believed, he shook his head as an implication that he was without hope of recovery. To render the statement admissible, it was not necessary for him to predict the hour, or the day, or the specific time he would die. It is apparent that he was conscious of his hopeless condition and that death was near, and, when he said in his written and verbal statements that he was going to die, he meant and realized that dissolution was close at hand. He had told Waldman that fatal night that he was shot through the stomach, and Merchant and others in the forenoon that he could not live, and other witnesses in the afternoon that he was going to die because he was shot through the lungs and could hear the wind whistle. It would seem that only his youth, his unusual vitality, and the hand of fate enabled him to survive long enough to make a statement and identify the defendants. If his dying declarations are not admissible, it is difficult to conceive of but few cases in which they could be accepted. Considering all he said, the mortal nature of his injuries, and his dying, yet conscious, condition, it is reasonable to conclude that he was aware of the near approach of death, and consequently that his statement was made under that sense of impending dissolution which leads to a belief in its truth and sanctions its admission.

2. The four defendants indicted were arrested at Lovelock, taken to Winnemucca, and two at a time, mingled with twelve or more other men, strangers to Welsh, arranged around his bed. When touched, he opened his eyes and was asked: "Do you recognize any of these men?” When his gaze came to Roberts, he looked him straight in the face and said: "You shot me.” When he saw Sevener, he said: "You are one, too. You helped to hold me up last night.” And when he saw Gorman, he said: "You are one of them, too, that helped hold me up last night.” It is claimed that the admission of these declarations of Welsh, identifying the defendants as the men who shot and robbed him, was error for different reasons. What we have already said in relation to the written statement makes them admissible as dying declarations. As such they are as definite and entitled to at least as much consideration as if Welsh had previously known them and had in' their absence called them by name and asserted that they were the men who had shot and robbed him. The evidence does not indicate that Welsh was unconscious to any degree that would affect the admissibility or credibility of his statements. Although there was an indication of the approach of the lethargy which divides life from eternity, he was quick to recognize the good Samaritan who had given him a glass of water, and others, as well as the defendants, and his mind appears to have been clear. It is unnecessary to review the other objections to this testimony, when it is admissible for the reasons stated.

3. Exception on the ground that it was not res gestee was taken to the testimony of Waldman that, after they had been thrown off the train and it had gone so that he could barely see the red lights and the end of the caboose, Welsh said: "For God’s sake, Al., run and get help. I am shot through the stomach.” If there be a doubt as to whether this was a part of the res gestee, or properly admissible as a statement explaining Welsh’s physical condition, and showing that he was aware of the fatal nature of his injuries, as an aid to the introduction of his dying declarations made later, the testimony would still be harmless as the hearsay statement of a fact, the wound through the stomach, which was shown by competent testimony without contradiction, and which counsel for defendant openly admitted on the trial. It tended to prove nothing material which was not clearly established and frankly conceded. It brought no doubtful matter to the attention of the jury to influence their verdict against the defendants.

4. After Waldman had testified that after the robbery he went for assistance to Rye Patch, and there fell down, exhausted from the loss of blood, and knew nothing until the next morning, when he continued on to Oreana, objection was made, but there was no motion to strike out this testimony. The same is true in regard to the answer by the witness that he had received a wound upon the head. If it be conceded that this evidence was improper, and that the court ought to have stricken out the answers, if a motion to that end had been made, still it does not appear to have been prejudicial to the defendants, in view of their admission upon the trial, that Welsh had been robbed and shot, and had died from the injuries he received, and of the fact that they rested upon an alibi and conceded that the deceased had been wounded, as claimed by the prosecution. The only question for the jury was whether the defendants were the perpetrators of a crime which was acknowledged to have been committed, and in view of this and all the circumstances the testimony did not have a tendency to influence the jurors on this issue.

5. The district court admitted the testimony of a witness named Townsend, who stated that money, including three Mexican coin pocket-pieces, had been taken from him by these men that night a few miles west of Zola siding, on east-bound freight train No. 220. These coins were found upon one of the defendants when they were searched in the jail in Lovelock the next morning. In this connection it is claimed, and authorities are cited in their brief holding, that it is not proper to show that the defendants have committed other crimes not connected with the one for which they are on trial. It will readily be seen that this correct legal principle does not apply to the circumstances in this ease. This testimony was not introduced for the purpose of showing an independent robbery, and the fact that it had that tendency did not prevent its proper admission as one of the strongest and most material facts directly connecting the prisoners with the robbery and killing of Welsh. They claimed that they were in Lovelock all that night, and not on any train, and that it was too dark for them to be identified by the deceased and the witnesses, and consequently that the crime must have been committed by other persons unknown. It was the theory of the prosecution that the defendants had taken train No. 220, east-bound, from Lovelock,left it as it slowed at Zola siding, and returned on train No. 219. If they were upon No. 220, as the coins taken from Townsend thereon and found with them the next morning would indicate, they must have returned on No. 219, the train upon which Welsh was robbed and shot, for the evidence indicates that they were back in Lovelock soon after its arrival, and before they could have reached there in any other way. The testimony wás most material, direct, and important to show the presence of the defendants at the scene of the crime, and admissible, regardless of whether it indicated another offense, the robbery of Townsend. The court was particular to instruct the jury that they were not to consider the defendants guilty by reason of any crime not charged in the indictment. In Hope v. People, 83 N. Y. 418, 38 Am. Rep. 460, it was said: " But, where the evidence is relevant and material on the question of the guilt of the prisoner of the crime for which he is upon trial, it cannot be excluded merely because it also proves him guilty of another crime.” In State v. Kepper, 65 Iowa, 745, 23 N. W. 304, evidence of a distinct offense was involved in proving the identity of the defendant, and in Kernan v. State, 65 Md. 253, 4 Atl. 124, evidence of the movements of the accused was held not incompetent because proof of another crime. Other eases, holding that evidence showing the defendant guilty of an offense not charged is not on that account inadmissible if it tends to prove any fact which is an element in the crime for which he is on trial, are State v. Adams, 20 Kan. 311; McCartney v. State, 3 Ind. 353, 56 Am. Dec. 510; Swan v. Com., 104 Pa. 218, and many decisions cited in Abbott’s Trial Brief (Crim.) p. 411, and pp. 514 to 523, covering numerous offenses. In State v. McMahon, 17 Nev. 365, 30 Pac. 1000, on a trial for arson, evidence of other fires was properly admitted to show that the one for which the defendant was indicted was not accidental. A number of the decisions cited by the appellants are in cases where proof of the presence of the accused at the place of the crime could have been given as fully and clearly without evidence of facts indicating another offense.

6. Of the four photographs offered on the- trial, the one of the wound in the back after it had been opened by the knife of the surgeon was properly excluded by the court, because the bullet hole was no longer in the condition caused by the defendants. Of the three admitted, one shows the face of the deceased in the repose of death, and in it Conductor La Point was able to recognize the features of the man that was picked up at the end of the ties near Zola in the morning and taken to Winnemueea in the caboose on his train, and the others showed the entrances of the bullets on the arm and leg, and were illustrative and instructive in connection with the testimony of the doctor and other witnesses. If their tendency was to give a more vivid realization of the wounds than a verbal description, they were less gruesome than an exhibition of the man’s injuries to the jury in his real flesh and bone, which would have been permissible, if practicable. They had been taken the day after Welsh died, and were not especially repulsive, and there was testimony to their correctness. We are cited to some extreme cases where photographs were rejected on the grounds that witnesses had described what they would show, or that they would inflame and prejudice the jury — doctrines that we are not able to sanction, and which are not supported by the weight of authority. If juries cannot be intrusted with the pertinent facts for which litigants and offenders are responsible, however appalling they may be, and with the most accurate, instructive, and convincing evidence of those facts, it is time to abolish the jury system. Photography, engraving, and the art of picture-making are important factors in our civilization, and the courts in their search for truth should not be averse to accepting the benefits they bring. A glimpse at a photograph may give a more definite and correct idea of a building or of a person’s features than the most minute and detailed testimony. A child may learn more regarding the appearance of an animal it never saw by the sight of its picture than by listening to a lecture or reading a volume of description. When photographs are shown to be correct representations, and give a better and clearer understanding of relevant facts, it would seem on reason and principle that their use as evidence should be favored. It is generally held that they need not be taken by a professional photographer, and that any one who knows may testify regarding their correctness. That photographs of proven fidelity are properly received for the purpose of identification, for illustrating testimony and for giving a better impression of persons, places and tilings, and for more clearly showing material facts, has oftén been determined, as appears by the numerous cases cited in respondent’s brief, and at section 792 of Wigmore’s elaborate work on Evidence, at pages 414 to 419 of 17 Cyc., at page 513 of Abbott’s Criminal Trial Brief, and in Dederichs v. Salt Lake City R. R. Co., 14 Utah, 137, 46 Pac. 656, 35 L. R. A. 802.

Photographs of deceased persons were properly admitted in Wilson v. U. S., 162 U. S. 613, 16 Sup. Ct. 895, 40 L. Ed. 1090 (murder); Ruloff v. People, 45 N. Y. 213 (of deceased burglars after their bodies had been in the water two days); Com. v. Keller, 191 Pa. 122, 43 Atl. 198; State v. Windohl, 95 Iowa, 470, 64 N. W. 420 (of deceased after he was shot); Smith v. Territory, 11 Okl. 669, 69 Pac. 805 (corpse and wounds); People v. Fish, 125 N. Y. 136, 26 N. E. 319 (head and neck showing wounds); Marion v. State, 20 Neb. 240, 29 N. W. 911, 57 Am. Rep. 825; Lamb v. State (Neb.) 95 N. W. 1050; State v. Hossock, 116 Iowa, 194, 89 N. W. 1077. And of features, in Com. v. Morgan, 159 Mass. 375, 34 N. E. 458; State v. Ellwood, 17 R. I. 763, 24 Atl. 782; State v. McCoy, 15 Utah, 136, 49 Pac. 420; People v. Durrant, 116 Cal. 179, 48 Pac. 75; Beavers v. State, 58 Ind. 535; Taylor v. Warner, 88 Tex. 642, 32 S. W. 868; Com. v. Connors, 156 Pa. 147, 27 Atl. 366; Cowley v. People, 83 N. Y. 477, 38 Am. Rep. 464; State v. Holden, 42 Minn. 354, 44 N. W. 123. And of wounds, in Reddin v. Gates, 52 Iowa, 213, 2 N. W. 1079 (taken three days after injury).

And in Franklin v. State, 69 Ga. 42, 47 Am. Rep. 748, Chief Justice Jackson said: "A photograph of .the wound of the deceased was admitted as evidence over the objection of defendant. The throat of deceased was cut, the character of the wound was important to elucidate the issue, the man was killed and buried, and a description of the cut by witnesses must have been resorted to. We cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the wound on the photograph put before the jury. It would be more accurate than the memory of witnesses, and, as the object of all evidence is to show the truth, why should not this dumb witness show it? Usually the photograph is introduced to prove the identity of person, but why not to show the character of the wound? In either ease it is evidence. It throws light on the issue. (1 Bish. Crim. Proc. 1097; Wharton’s Crim. Ev. 544, and eases cited in both texts.)”

7. The defendant Sevener testified on his direct examination that he had served a term in the state prison at San Quentin, California, and had been released on July 20, 1903, one month previous to the commission of the crime with which he here stands charged. On cross-examination he admitted that he had been convicted and was known there under the name of Lawson. The court sustained an objection to the question: "What other pens have you been in, Mr. Sevener, besides the California San Quentin pen?” Exception is taken to the allowance of the next question: "Ever arrested for any other offense, except the one in California?” To this he answered .that he had been arrested in Vallejo "for being drunk with a bunch of shipmates.” The district attorney replied: "If that is a misdemeanor, I do not care anything about it. I want to ask you if you were ever convicted of a felony, except the one which you served for — a penitentiary offense, not a county jail offense. I do not care anything about those.” The objection to the question did not specify the ground that the witness could be interrogated only as to whether he had been convicted of felonies, and, if it had, we must presume that the court would have sustained the objection, and that the district attorney would have modified the question so as to limit it to convictions of felony, regarding which he evidently was seeking information. If the answer that he had been arrested for being drunk was harmful, which is not likely, under the disclaimer of the district attorney and the voluntary statement' of the witness that he had served for a felony, and the defendant did not want it to stand, he ought to have moved to strike it out for the reason that it did not show conviction of a felony, the ground which he had failed to specify in his objection to the question. The common-law rule, which prohibits any one from testifying who has been convicted of an infamous crime, was in force in this state prior to 1881. (State v. Foley, 15 Nev. 73, 37 Am. Rep. 458.) Since that year section 377 of our civil practice act (Comp. Laws, 3472) has provided that no person shall be disqualified as a witness "by reason of his conviction of felony, but such conviction may be shown for the purpose of affecting his credibility.” (State v. Ellwood, 17 R. I. 763, 24 Atl. 782.) Section 12 of the act relating to crimes and punishments (Comp. Laws, 4667) makes the rules for determining the competency of witnesses in civil proceedings applicable to criminal actions.

8. It is claimed that the evidence does not warrant the conviction of the defendant Boberts. The written statement of the dying man, made in the forenoon, that the shorter one shot him, was corroborated by his identification in the afternoon, when he singled Boberts out of more than a dozen strangers, looked him in the eye, and said: "You shot me.” Although Townsend did not see him, a brakeman saw him and three others on train No. 220 a short time before it reached Zola, and there is testimony that he was in Love-lock that evening. On the stand he stated that he was in Lovelock all that night with the other defendants. When cross-examined regarding his whereabouts between 11 and 12 o’clock that night, he said they were around different saloons in Lovelock during that hour, and not on any train. If so, it is probable that he and the other defendants could have clearly established an alibi. Waldman testifies that he, as well as the others, had his.face partly covered by a cloth around his chin. Waldman did not see him shoot Welsh; but, if he shot after Welsh fell to the ground, as declared in the dying statement, Waldman had already fallen from the train a half or quarter of a mile away, and it was not necessary for him to have taken an active part at the time of the robbery. The testimony that Boberts was in Lovelock in the evening, and was on train 220, and was not seen on train 219 until he appeared there with the other defendants, indicates that he left and returned to Lovelock with them, which could have been done in less than one hour. It is apparent that the evidence was quite sufficient to justify the jury in finding that he was one of the conspirators’ and participants in this midnight expedition of robbery and assassination.

The cause was carefully tried by court and counsel, the rights of the accused were well guarded, and the record shows no error prejudicial to them.

The judgment and order are affirmed, and the district court will fix a time for having its sentence carried into effect, and make the proper order for the execution of its judgment of death.