People v. Brown

<p>[1] Criminal Law—Murder—Admission of III Will—Evidence.—In a prosecution for murder, evidence that shortly- after the shooting defendant exclaimed, “I got one of them and I will get the rest,” while not admissible as part of the res gestae, is relevant to the issue of the express malice, it being an admission of defendant tending to show ill will toward the decedent immediately after the fatal shots were fired.</p> <p>[2] Id.—Dying Declarations—Proper Foundation.—In this prosecution for murder, taking all the evidence together and considering all the attending circumstances, it was sufficiently shown that the dying declarations made by the deceased to his sister and admitted in evidence were made under the sense of impending death, and there was nothing to show a revived or subsequent hope of recovery.</p> <p>[3] Id.—Expressions of Opinion—Waiver of Objections.—Where a part of the dying declaration admitted in evidence was not the narration of a fact ibut an expression of the mere opinion or belief of the dying man, but the declaration was not objected to in the trial court upon the ground that any part of it consisted of conclusions or of statements of mere opinion, and no motion was made to strike out any of its objectionable features upon that ground, the objection cannot be raised on appeal.</p> <p>1. Presumption as to express malice from act of killing, note, 38 L. E. A. (N. S.) 1073.</p> <p>2. Admissibility of dying declaration of person for whose death accused is on trial, notes, 17 Ann. Cas. 287; Ann. Cas. 1913 412; Ann. Cas. 1917A, 612; Ann. Cas. 19180, 581; 25 A. L. R. 1370; 56 L. R. A. 382; 40 L. R. A. (N. S.) 1195.</p> <p>3. Admissibility of opinion of declarant as dying declaration, note, Ann. Cas. 1913E, 228.</p> <p>[4] Id.—Admission of Killing—Self-defense—Dying Declarations. The fact that defendant admitted the killing did not render the admission of the dying declarations of the deceased unnecessary, where the declarations tended to destroy the defendant’s claim that he shot in self-defense.</p> <p>[5] Id.—Excess Shots—Self-defense—Instructions.—The evidence having shown that each of the four shots fired by defendant took effect in the decedent’s body, and the trial court having instructed the jury clearly and fully as to the law of self-defense applicable to the circumstances of the case, it was not error to instruct them further that if, under all the circumstances as they would appear to a reasonable man situated as defendant was, the firing of one shot or more was all the force necessary to the defendant as a reasonable man to resist the assault upon him, then under such circumstances the firing of any additional shot or shots would not be justifiable by the law of self-defense.</p> <p>[6] Id.—Constitutional Privilege of Silence—Waiver.—A defendant in a criminal prosecution who takes the stand in his own behalf waives his constitutional privilege of silence; and if he testifies to the merits of the charge but withholds testimony of other facts which form a part of the charge against him and of which he is informed, he must expect to incur the discredit which the jury would naturally visit upon the ordinary witness pursuing a like course.</p> <p>[7] Id. — Testimony of Defendant — Weight — Erroneous Instruction.—In a prosecution for murder in which the defendant takes the stand and testifies to a collateral issue, but does not testify to any fact which constitutes a constituent element of the charge in issue, a requested instruction which deals with the right of the defendant to so testify, but which ends with the statement that the testimony of the defendant in a criminal action “is to be weighed by you in the same light as the testimony of any other witness in the case,” is properly refused, as this latter statement infringes upon the province of the jury.</p> <p>[8] Id.—Instruction Erroneous in Part—Rejection of Whole.—If any part of a single instruction should not have been given, the action of the trial court in rejecting the whole will be affirmed on appeal.</p>