The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-01-03

appellants were under arrest upon a for
mer occasion, and that upon one OF these
occasions Mr.. Eyster himself called the pa
troll wagon, nor in permitting evidence TO
be admitted showing threats on the part of
the appellants, of a general nature, If Eyster
was included in those embraced In the
threats.
MRS OYSTERS TESTIMONY.
Upon the testimony of Mrs. Eyster the
court says: Mrs. Eyster. the widow Of
the deceased, testified in the trial of the
case. that she and her husband lodged up
stairs over the drug store in which Eyster
was shot; that she went upstairs to pre-
pare the bed for the purpose of retiring
for the night. leaving the appellants and
her husband in the store. Soon after reach
Ing the first room upstairs she heard the
report of a revolver which seemed to be
Immediately under where she stood; that
she ran down the hallway towards the
stairway leading TO the rooms above the
drug store, and when about midway of the
hall her husband fell into her arms and
] dragged him to the bed and he said:
Those two colored fellows stepped to the
do anU stenped back and shot me-"
The prosecution then propounded to the
witness the following question: ITO re-
fresh your recollection L will ask If he
were in there when you were there are the
ness answered, Those are the words he
These declarations were admitted in evil
dence over the objections of the appellants.
dence that the deceased was shot
assailant Immediately fed and was not
present ut the time these declarations We're
made. The declarations were admitted in
evidence upon the grounds that they were
a part Of the res geStae.
1t is contended by the appellant that in
admitting this evidence the trial court
erred.
1t is a familiar rule that whatever con-
stitutes q part of the res gestae-the act
under immediate investigation-is admissible
State. no uncertainty or confusion as to the
rule itself. = In the nature Of things,
it is diflcuit to perceive how. that which
occurs after the principal act is at an end
can constitute a part of the act under
Investigation. 1t has been settled in this
State that an act cannot be varied, quail
fled or explained either by declaration,
which amount to no more than a mere mar
isolated conversation held, or an isolated
act done, at a later period. In the case of
Jones vs. the State it was said: The
length of the interval of time between the
main fact and the statements cannot be
Important, if such time elapsed as to make
the statements. having regard to their form
and substance. mere narrative"
1t may now be regarded as the settled law
in this State that a declaration which
amounts TO no more IMAM a mere narrative
of a past occurrence is not admissible in
evidence as a part OF the res gestae.
OYSTERS DECLARATION.
The declaration of Eyster, when he met
his wife. that he was shot, was admissible,
because it was explanatory of mis- then con-
dition, but his other declarations as to who
shot him and the manner in which the
shooting occurred was a mere narrative Of
a past event. In admitting this evidence,
we think, the learned judge presiding at
the trial of this cause, erred.
The court also holds that it was error in
the trial court to instruct the jury that a
failure of the appellants to account for
their whereabouts during all the time with
in which the alleged crime might have
been committed, was a fact which might
be properly considered by the jury in con-
nection with any other evidence in the
case tending to prove guilt.
The court also holds that the trial court
erred. in not giving to the jury the in
structions prayed by the appellants upon
the doctrine of reasonable doubt. The
failure to instruct the jury that no convic-
ton could be had so long as any juror en-
tertained a reasonable doubt of the guilt
of the defendants is also held to be error.
er rulings of the trial court are complained
of as erroneous, but as they are of such a
character as that they may not arise upon
another trial of this cause, we deem 1t un-
necessary TO examine them"
For the errors above indicated the Judg-
ment in this case must be reversed.
The judgment in this cause is reversed
with directions to the Criminal Court of
Marion county to sustain the motion of
the appellants for a new trial.