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Before making this statement, Stewart had called on a negro man present to pray for him, and it clearly appeared otherwise that he was conscious of impending death. This being a civil case, however, these declarations are not offered as dying declarations. Dying declarations, as such, are admitted only in the case of a trial for the homicide of the declarant, and then on the ground that they were made in extremis. I Greenl. Ev. § 156. And Wharton says: "We may conclude, therefore, that such declarations are limited to criminal prosecutions when the subject-matter of the investigation is the declarant's death." Whart. Cr. Ev. (9th Ed.) § 288. But declarations made in extremis are often legal evidence in civil cases, for where they constitute part of the res gestæ, or come within the exceptions of declarations against interest, or the like, they are admissible, as in other cases, irrespective of the fact that the declarant was under apprehension of death. I Greenl. Ev. § 156. It is, of course, a general rule that the declarations of no man are admitted in evidence without the sanction of an oath and opportunity for cross-examination. But exceptions to the hearsay rule are as well established as the rule itself. There is much difficulty and much conflicting authority in the application of the exceptions. The declarations in this case are accompanied by the circumstances that usually accompany such declarations when admitted. The declarant is dead, and cannot be produced as a witness. The declarations were made without opportunity or cause for wariness or falsehood, and, besides, they were made under the sense of impending death; and, while not admissible, as we have said, as dying declarations, the fact that the declarant knew he was dying is looked on in the law in graver cases than this as dispensing with the necessity of an oath. The declarations of the individual made at the moment of a particular occurrence, where the circumstances are such that we may assume that his mind is controlled by the event, are received in evidence as a part of the res gestæ because they are supposed to be involuntarily forced out of him by the particular event, and thus have an element of truthfulness which they might not otherwise have. They must be undesigned declarations incident to a particular litigated act, and illustrative of such act. If one, immediately upon being shot, cries out, "I am shot! I am killed!" and names his assailant, these declarations would, without question, be admitted as a part of the res gestæ. In Com. v. Hackett, 2 Allen, 136, the victim was heard to cry out: "I am stabbed!" The witness at once went to him, and within 20 seconds after that heard him say: "I am stabbed. I am gone. Dan. Hackett has stabbed me." This evidence was held competent as a part of the res gestæ. While it is said that the declarations must be contemporaneous with the main fact, no rule can be formulated by which to determine how near, in point of time, they must be. No two cases are exactly alike, and the determination of this question is always inseparable from the circumstances of the case at bar. The transaction in question may be such that the res gestæ would extend over a day, or a week, or "a month." Rawson v. Haigh, 2 Bing. 99; Insurance Co. v. Mosley, 8 Wall. 397, 407, 19 L. Ed. 437; People v. Vernon, 95
Am. Dec. 58, note, and cases there cited. In this case the fatal capsule was handed to the victim in the afternoon, but not taken till bedtime. If Lipscomb, instead of giving him the capsule and prescription on the streets in the afternoon, had called at his house, and given it to him, and left a minute before it was swallowed, the declarations would have been brought nearer in point of time to the moment that Lipscomb had handed Stewart the medicine; but we cannot see that the rule as to the admissibility of Stewart's declarations would have been different. If one threw a bomb, which immediately exploded, and killed another, the declaration of the dying man as to who threw it would be a part of the res gestæ. If the assailant, instead of throwing the bomb, had placed it concealed, and fixed to explode in an hour or in 10 hours, when it exploded, the involuntary exclamation of the fatally wounded man, naming the person who had placed the bomb near him, would be, we think, a part of the res gestæ. So we do not think that these objections gain any weight from the length of time which elapsed between Lipscomb's act of handing the capsule to Stewart and his declarations. The declarations were made while Stewart was suffering from the effect of Lipscomb's act. The objection to the whole declaration, we think, was properly overruled.
That part of Stewart's declaration, "That he had been dead, and the good Lord had sent him back to tell me," was excluded by the court, and no question as to its admissibility is before us. Separate objections to other portions of the declarations were overruled, and exceptions reserved. The statement "that he was going to die," which is separately objected to, made 10 or 15 minutes before he died, was admissible as showing his physical condition. Such declarations are always received. Besides, it could not injure the plaintiffs. The statement "that Dr. Lipscomb had killed him with the capsule he had given him that night" is, we think, clearly admissible.
The next objection, as it appears in both the printed and original transcripts, is addressed to the statement "that Guy Jack had his life insured, etc." That Jack had insurance on Stewart's life is not a disputed question. This suit is to collect such insurance, and Jack admitted as a witness that he had $21,000 of insurance on Stewart's life when he died. Again, the part of the declaration reciting "that Guy Jack had his life insured" is unobjectionable. The court was justified in overruling the objection, even construing it to embrace the words "and that he hired Lipscomb to kill him," because the objection included evidence to which no objection could be well taken; for, if an objection covers any admissible evidence, it is properly overruled. Ú. S. v. McMasters, 4 Wall. 680, 18 L. Ed. 311. The only material part of the sentence to which it is claimed that this objection is addressed is "that he [Jack] had hired Dr. Lipscomb to kill him." If we are to treat this part of this sentence as covered by the objection, and as separately objected to, as it has been treated by counsel, though it is not set out in the objection, it presents a question difficult of solution. The words we have just quoted are not embraced in the objection, unless they are included by the addition, "etc.," to the objection. The objection is made that the declara
tion is "irrelevant, immaterial and incompetent." It may be doubted if these objections are sufficiently specific to require us to review the ruling on them. We learn from the argument for the plaintiffs in error that the objections to this statement, "That Jack had his life insured; that he had hired Lipscomb to kill him," -are that it narrates a past transaction; that the declarant could have had no knowledge of the fact stated; that it is mere opinion; in short, that it is hearsay, does not come properly within the exception as to the res gestæ. In Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437, the action was on an accident policy. The insured accidentally fell downstairs, receiving injuries from which he died. The circumstances of the accident were proved only by the declarations of the insured made to his wife and son. He was sleeping upstairs, and went down. When he came back, he told his wife he had fallen down the back stairs, and received injuries. He made similar declarations to his son. The supreme court held these declarations admissible as a part of the res gestæ. "To bring such declarations within the principle," said the court, "generally, they must be contemporaneous with the main fact to which they relate. But this rule is by no means of universal application." The court then quoted approvingly Baron Pork in Rawson v. Haigh, 2 Bing. 99, as saying:
"It is impossible to tie down to time the rule as to the declarations. We must judge from all the circumstances of the case. We need not go to the length of saying that a declaration made a month after the fact would, of itself, be admissible; but if, as in the present case, there are connecting circumstances, it may, even at that time, form a part of the whole res gestæ."
After quoting other cases, the court said:
"Here the principal fact is the bodily injury. The res gestæ are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted and were in progress. * * Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. In the ordinary concerns of life no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reas n. The want of this concurrence in the law is often deeply to be regretted. The weight of this reflection, in reference to the case under consideration, is increased by the fact that what was said could not be received as 'dying declarations,' although the person who made them was dead, and hence could not be called as a witness."
State v. Thompson, 132 Mo. 301, 34 S. W. 31, was a trial for murder, by poison contained in a luncheon claimed to have been handed deceased by the defendant. It was held that the statements of deceased, while eating the luncheon, as to how and from whom he received it, were admissible as a part of the res gestæ.
It cannot be said that Stewart certainly had no knowledge of the fact stated. He, Jack, and Lipscomb were at the rear end of Jack's store, talking, the afternoon that Lipscomb gave Stewart the capsule. Lipscomb was in Jack's store that afternoon. What knowledge Stewart had as to what occurred we cannot know. It is enough that
he makes the statement as a fact. The jury were, of course, not bound to believe the statement. If the circumstances indicated a want of knowledge in the declarant on the subject of the declarations, that would be considered as lessening or destroying the weight of the declarations. That would be for the jury. 1 Greenl. Ev. 160; People v. Taylor, 59 Cal. 640, 645. In Insurance Co. v. Mosley, supra, the court said, referring to the doctrine of res gesta: "The tendency of recent adjudications is to extend, rather than to narrow, the doctrine." And Lord Chief Justice Cockburn said: "People were formerly frightened out of their wits about admitting evidence, lest juries should go wrong. In modern times we admit the evidence, and discuss its weight." Reg. v. Churchwardens, etc., of Parish of Birmingham, I Best & S. 763; State v. Thompson, 132 Mo. 321, 34 S. W. 31. The fact that the defendant now is allowed to testify has greatly tended to liberalize the rule as to declarations claimed to be part of the res gestæ.
The case has been argued as if a specific objection had been made separately to that part of the declaration that Jack had hired Lipscomb to kill the declarant, and we have examined the case as if such objection had been made, and we are of opinion that, in view of all the circumstances, this case should not be reversed, because this declaration was admitted.
Other Objections to Evidence.
To make Lipscomb's acts evidence against Jack, it was necessary to show that they had conspired to defraud the defendant. It is not often that direct proof of such a conspiracy can be made. Usually it must be proved by a variety of circumstances. One circumstance, standing alone, may seem trivial; but, if it is relevant, it is evidence, and many circumstances may be convincing proof. It was admissible to prove Jack's relations to Lipscomb,-that they appeared to be unfriendly, but were in fact on good terms, and that they were connected in securing other fraudulent insurance. Jack's declarations that Lipscomb was a "very handy man for him to use in getting out bad insurance risks," and in fact any circumstance, were admissible that tended to show they were acting in concert. Objections to such evidence were all properly overruled. It is, of course, true that evidence of another and distinct crime committed by a defendant, in no way connected with the one for which he is on trial, is inadmissible. If, however, the evidence is relevant, if it tends to prove the commission of the offense for which the defendant is on trial, it must not be excluded because it also shows that the defendant has committed another offense. Wood v. U. S., 16 Pet. 342, 10 L. Ed. 987; Wallace v. State, 41 Fla. 547, 26 South. 713; Barnett v. Insurance Co., 115 Mich. 247, 73 N. W. 372.
One of the issues submitted to the jury was whether Jack secured the insurance on the life of Stewart in good faith to secure a debt Stewart owed him, or did he procure it for improper purposes, and with criminal motives. On such issue it was admissible, considering the evidence of Lipscomb's connection with Stewart's death, for the defendant to show that Jack and Lipscomb were engaged in the
business of procuring fraudulent insurance, and that the insurance on Stewart's life was a part of such scheme. State v. Brady (Iowa) 69 N. W. 290, 36 L. R. A. 693; Beberstein v. Territory (Okl.) 58 Pac. 641; People v. Summers, 115 Mich. 537, 73 N. W. 818; Carroll v. Com., 84 Pa. 107; Whart. Cr. Ev. (9th Ed.) 31; 3 Greenl. Ev. 15.
After Stewart's death, Jack made proof to secure the insurance money on his life by sending a statement to Lipscomb, to be signed by him. Lipscomb was at that time in jail, charged with Stewart's murder. The record also shows that incidents occurring between Jack and Lipscomb, and statements and declarations made by Lipscomb after Stewart's death, were received in evidence. It is urged here that there was error in receiving this evidence, because, if a conspiracy had been established to kill Charles T. Stewart, the same had been accomplished, and that no declarations or conduct of Lipscomb could be admissible in evidence against Guy Jack after the accomplishment of the conspiracy. The fallacy of this position is that the conspiracy did not have for its aim and end the killing of Stewart. The purpose of the conspiracy was to get the insurance on his life. If this could have been accomplished without Stewart's death, he probably would not have been poisoned. His death was an incident, but not the end, of the conspiracy. If, after his death, part of the insurance money had been collected, and divided between Jack and Lipscomb, can any one doubt that such evidence would have been admissible as tending to show the conspiracy and its purpose? The court did not err, we think, in admitting proof of the conduct of Lipscomb, after the death of Stewart. Holt v. State (Tex. Cr. App.) 46 S. W. 829; State v. Byers (Mont.) 41 Pac. 708.
Charge of the Court.
The entire charge of the court is in the bill of exceptions. The bill of exceptions shows that plaintiffs reserved an exception to the whole charge. Such exception to the entire charge, consisting, as in this case, of several closely printed pages, cannot avail to secure a reversal.
This exception is also reserved: "We also except to the language read by your honor from the book." The bill of exceptions does. not, show what language was read from the book. The assignment of error following this exception purports to set out what was read by the trial judge as a part of his charge. But we cannot consider statements of fact in the assignment of errors not based on the bill of exceptions. Unless the bill of exceptions certified by the judge showed what was read as a part of his charge, and the exception thereto, the question is not before this court for review.
The court was requested by the plaintiff to charge the jury that they "must be satisfied beyond a reasonable doubt arising from the evidence that Guy Jack was implicated in the murder." The court said, "I do not think that is the law, and I decline to give the instruction." This is a civil case. The defendant, by plea, averred that Guy Jack, the plaintiff, aided and abetted Lipscomb or procured. him to murder Stewart, the insured. The burden was on the defend