"Murder," He Said

By The Honorable A. F. Bray
Contra Costa County, California Broadcast Station
KLX, Oakland, California Number 199
Broadcast May 20, 1940

One of the interesting questions in homicide cases is when can statements made by the injured person out of the presence of the accused be admitted in evidence against the accused?

In Contra Costa County in 1867 a man named Smith met a violent death. In due time a man named Vernon was charged with killing him, and indicted for the crime of murder. At the trial the evidence showed that a man named Dainty lived near the residence of the prisoner. It sees that a short-time before the killing took place the prisoner and Smith had a quarrel. Dainty thought that he could be a peacemaker and would be able to waive the olive branch of peace between them and told Smith so. Thereupon, Smith suggested that Dainty and he go over to the prisoner's house and try and patch things up. Dainty said all right but he wanted first to change his clothes. Smith then said that he would go over to the prisoner's house and see if he was still up as this was about 9 o'clock at night, and if the prisoner was still in bed, he would tell him to get up to meet them, and for Dainty to come over as soon as he got dressed. Smith then went towards the prisoner's house.

Dainty dressed himself and started. He had only gone about one-half the length of his own porch when he heard a shot. He kept going towards the prisoner's house, and immediately heard three more shots in quick succession. When he got about half way to his destination, he met Smith walking rapidly towards him from the prisoner's house; that it was about half a minute and not exceeding three-quarters of a minute from the time Dainty heard the first shot until he met Smith. At this point in his testimony Dainty was asked by the District Attorney whether or not Smith said anything to him about the shooting. The prisoner's counsel objected on the ground that the prisoner was not present at this conversation, if any, and it would therefore be hearsay. This put up to the Court the determination of whether statements made by Smith in the absence of the prisoner, within one-half the three-quarter minute of the shooting could be considered a part of the matters which taken place with in the prisoner's house, when both Smith and the prisoner were present. The Court thought that it could and so held.

Dainty then testified that Smith said he had been shot treacherously by the prisoner, while he was sitting on the prisoner's porch waiting for him to come out; that what had happened was that when Smith got to the prisoner's house and called for him, the prisoner came to the door and when asked to meet with Smith and Dainty said, "Wait till I go and put my boots on." Thereupon Smith sat down to wait for him. Instead of going to put his boots on, the prisoner came out with a gun and while Smith was sitting with his back to the door, the prisoner shot him once in the back; that Smith then jumped up and started to run away. Whereupon the prisoner shot him three times more, all in the back. Smith lived about two days after the shooting and died from these wounds.

Now, on the face of things, if one believed Dainty's testimony as to what Smith had said about the shooting, there would not be much question but that the prisoner was guilty of murder in the first degree. Either because there was other testimony not given the report of the case, or what is more probable, because juries in those days were not much given to bringing in murder verdicts, as the taking of life was not always regarded too seriously, especially where, as here, there had been a quarrel of some kind between the two men, the jury did not take this case too seriously either, for they brought in a verdict of manslaughter only. Light as that finding was, the prisoner felt himself considerably aggrieved and immediately appealed, basing his appeal mainly on the claim that too long an interval had elapsed between the shooting and Smith's story to Dainty, to permit such story to be admissible in evidence, in view of the fact that the prisoner was not present when Smith told Dainty how it all happened. The prisoner claimed that the statements not made at the very time of the shooting but after the shooting had been concluded were not part of the affair and should have been kept away from the jury.

The Supreme Court held, however, that declarations or statements to be a part of the transaction or affair are not required to be precisely concurring in point of time with the principal fact, if they spring out of the principal transaction, if they tend to explain it, if they are voluntary and spontaneous, and if they are made at a time so near it as to preclude the idea of deliberate design. They are then to be regarded as contemporaneous and are admissible. The Court then held that the prisoner had been properly convicted and was even lucky to have gotten only a conviction of manslaughter when the circumstances really justified a more severe finding.


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