The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-08-09
GROUND OF REVERSAL
Full Text of Supreme Courts
Opinion
IN PADDY SHEA CASE
Document on File in the Dis
triCt Court.


case The supreme court decision shows
khst Judge Dale allowed the dying dec
saration Of Dawson to go IN as testimony
In the trial in the district court, and at
khe same time refused to accept the tes-
kimouy in behalf of Shea showing that
Dawson was of bad disposition and a
vile character at the time he made the
declarations. Paddy Shea has been con-
victed and sentenced three times, and
each time the case was carried to the su-
preme court and reversed on Judge Dale.
The last opinion is probably the most i'm
portant yet sent down and is in full as
follows:
THE first objection brought to our at
tention in this review is the rulings Of
the court on challenges of persons called
to serve as Jurors. Some of them stated
on their voir dire that they had formed
opinions as to the commission Of the Of
Tense charged, but 1t appears on further
examination that the opinions so formed
did not extend beyond the fact that
OShea had fired the fatal shots. The
fact that Dawson was shot by O'Shea,
and that death resulted from the shoot
Eng, was not disputed. Throughout the
trial the shooting and consequent
death OF Dawson was conceded, and the
cain Of the deendant was that the act
ives justifiable, being done in self-defense.
Opinions in matters not in issue do not
disqualify the jurors entertaining them,
and especially where, as in this case, it
was shown that they had not formed or
expressed an opinion as to the guilt or
innocence Of the defendant, and where
there was nothing indicating that they
could not give the defendant a fair and
impartial trial The controlling ques-
lions in this case arise upon the admis-
sion Of the statements contained in what
IS termed the dying declaration Of Daw-
son. Objections which are deemed to be
sufficient were made to every part Of the
dying declaration, and the contention is
that many Of the statements were mere
hearsay conclusions, and such as cannot
be shown In a dying declaration. There
Us good reason for the complaint that is
made. Many of the statements are in
relation to former transactions distinct
from the act OF killing; some of them
are matters OF opinion or belief; some
are mere conclusions as to a motive for
the commission of the offense; others
would not have been competent II made
by the declarant as a witness upon the
stand. Although there was a great deal
OF testimony as to the killing and the
circumstances connected with It, proba-
bly, no testimony produced before the
Jury was so impressive and telling in its
effect as the statement contained in the
dying declaration. It Is well known that
Jurors give great weight to statements
made by those conscious Of impending
death. and who, without hope or expecta-
zion Of recovery, are supposed to be free
from passion or prejudice or any motive
which would induce a false or colored
statement. It cannot be said, therefore
that the statements claimed TO have been
made by the deceased. and which were
enormously received. were immaterial or
without prejudice. The rule admitting
such declarations, made without sanction
OF the oath, not in the presence Of the
defendant, and where there IS no oppor-
sunity for cross-examination. is excep-
doRal, and because II cannot be subjected
TO the ordinary tests II is necessarily
restricted. It Is limited in cases OF homi-
eide and is confined to the act Of killing
and the circumstances Immediately at
fending the act, which form a part of the
res gestae. Statements relating to for
mer and distinct transactions. and en-
bracing facts and circumstances not i'm
mediately connected with the killing. can
not be received. Mere conclusions, opin-
ions and beliefs which would, not be re-
ceived II the declarant were a witness.
are not admissible.
The statements OF what occurred at
O'Shea's place in the afternoon before
the shooting were separate and distinct
transactions and manifestly inadmissable.
After these occurrences Dawson went to
another part Of the city and did not re-
turn until 9 o'clock at night, which was
seven or eight hours later than the
transactions Of the afternoon. While
these occurrences may be proper testi-
mony Tor some purposes, II related by
competent witnesses, they were not i'm
mediately connected with the killing, and
therefore not receivable as dying dec
laratons. As said in Montgomery VS..
State, supra: Matters which do not form
part OF the res gestae are not proyabe
by dying declarations The rule Is CON-
lined to statement OF the circumstances
connected with the fatal act and form
ing part Of the same transactions. II Il
quite we'll settled that what occurs he
fore or after the act has been done does
not constitute part of the res cestaa
although interval of separation may he
very bgief." The statements related to
ahe matter OF motive and state of feeling
between the parties and were in direct
conflict with the testimony given on he
naf of the defendant. Statements To the
enect that he had with him in the after
noon a pocketbook containing 500: that
oeiendant knew that he had Il and car
Cieo II with him; that Il was either taken
or Ieu out OF his pocket in the after
moon. and that he thought the defend
ant had II; that he went back at night
after his money, etc, were especially pre-
Buoicia&' as 1t in certain sense attrib-
uted TO the defendant the taking Of the
snoney and suggested the motive that the
defendant may have killed Dawson IN
conceal the larceny and to prevent the
recovery OF the money.
The statements that they were friend
~ and had no difficulty in the afternoon.
that he had always thought that he ana
the defendant were the best Of friends.
that he had frequently spent nucb
money at his place: and had been taken
around and introduced by the defendant
rs his schoolmate and friend: that on the
afternoon Of the day he was shot he had
made him present Of a revolver and
also OF some jewelry. were wholly mad
missable as dying declarations within the
rules stated and the authorities cited.
From these statements the jury might in
Ter there was no proyocation or cause