Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-09


Lester State, 81 Fla. 382
J5ckson Y state. 66r0a ~ II !. 81
State '. Wilson, "a Kan. $50. IS Am.
r. Isl
Com. " Harvey, 127. Mass. 459
The controlling point here IS the
question OF fact for the Court, the
state Of mind of the deceased at the
time he made the statement, for Il
he was not then under sense Of Inn
pending death. the declaration would
lack that solemnity and support which
are necessary to make them admis-
slblc.
IN addition to other wounds bull
let 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 splinter nf
bone and opened the wound SO that
about two pints Of blood, which evi-
IDENTITY came from the bullet hole in
the lung, escaped from the pluera.
This relieved a discharge of blood
from the mouth, enabled the patient
to breathe on the left side, eased
his sufferings to some extent and pro-
lcnged his life SO that he lived tor
about eight hours after the Oepartion.
lie thanked the doctor and said he
felt better, bit as he was aware of
the serious nature OF his wounds this
does not indicate that he mad any cx-
pactation that he would survive. 1t
is easy to distinguish between relief
frcm pain and hope Of recovery. s
II C07
In view Of the injuries he had re-
oe.ysd and of which he was evidently
aware and of the various statements
he made, feeling and expression OF
relief from suffering does not imply
4 that he expected to recover. Later,
when in reply TIC 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 Ct recovery ID
render the statement admissible it
was net necessary for him to predict
the hour or the day OF the specified
time he would die. II is appare II
that he was conscious of his hopeless
condition and that death was near,
and when lie said in his written and
verbal statements that he was going
tc die he meant and realized that
dissolution was close at hand he
! mad told Waldnan that fatal night
| that he was shot through the stoma 81
and Merchant and others in the fore
moon that he could not live, ana 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 t.
| survive ls1g enough TO make aFstare-
Eent and identify the defendants. I
his dying declarations are not admis-
sable it is dificuls 10 conceive of onI
few cases in which they could be ac-
ceptei.. Considering all he said the
mortal nature Of his INJURIES and
mis- diving, vet conscious condition, It
is reasonab BILE TO conclude that he was
! aware of the near approach of death
and consequently that his statement
was made under that sense of i'm
pending dissolution which leads to :
belfer~in it's. truth and sanctions its
admission. -
2. The four defendants indicted
We're arrested at Lovelock. taken Il
Vim en- ucca and two at time min
gied with twelve or more ether men
strangers 10 Welsh arrange aroun,
his bed When touched he openat
4 MS eSes and asked, do you recos
Mise any of these men," When hi
bis gaze came upon Roberts he looke1
: him straight in the face and sale
c.
ener he said You are one too. yo
s. helped to hold me up last night,
+ and when he saw German he SAT-
You are one OF them too, that helpe
held ne up last night"
1t is claimed that the admissio
OF tll 3se declarations Of Welsh iden.
flying the defendants as the men VIII
t shot and robbed him was error fo
/ + aisrent reasons What we have d
t ready said in relation to the write
/ statement makes them admissible j
! 1 dying declarations As such they Al
: as definite and entitled to at lea
: as much consideration as if Welsh ha
previously known them and had
= iIheir absence called them by nan
, and asserted that they were the me
V who had shot and robbed him. tt
n evidence does not indicate that Wels
1 vas unconscious to any degree tn
e would affect the admissibility or ere.
; bility Of his statements. A'thoue
II there was an Indication Ct the a
ie proach of the lethargy which divid
life from eternity he was quick
q recognize the good samaritan WI
!. had given him glass OF water al
= cher as well as the defendants, al
4 his mind appears to have been Gle,
~ It is unnecessary to review the 9th
Il objections to this testimony, when
is admissible for the reasons state
"A ;. Exception on the ground that
!. was not res gestae was taken to t
20 testimony CT Waldman that after til
i had been thrown OF the train and
a had gone SO that he c3uld barely {
Il the red lights and the end Of |
- caboose, Welsh said. For Gods ga
- al. run and get help: l am 81
through the stomach" II there