Barnett v. People, 54 Ill. 325 (Ill.)

Mr. Justice Walker

delivered the opinion of the Court:

It is urged that the evidence in this case fails to sustain the verdict of the jury; that it does not establish the guilt of accused beyond a reasonable doubt, or that Seets was killed at the time and place charged. It appears, from the evidence, that there was no reasonable doubt of enmity existing between deceased and accused before the death of the former, and that they left town in the same wagon. Just before they left, accused stated, he had learned that Seets had threatened to whip him, and was then advised not to go with him, as there were two of the Seets’, but he affirmed he would go, as his son was with him. In the afternoon of the same day, and after they had left town together, and but a short time afterwards, deceased was found by the roadside, stabbed in the left side, from which wound he afterwards died. The evidence shows that deceased had with him and on his person, a butcher knife, in a belt.

Just before his death, Seets stated that James Barnett had stabbed him with his own knife, and when accused was arrested he threw a knife behind him, to his son, answering the description of the knife carried by deceased. Again, when the party came to arrest him, the next day, he said he knew their business. This evidence all points strongly, if not conclusively,

to plaintiff in error as the guilty party. If considered alone, it would be of the very highest character of circumstantial evidence, even if the dying declarations were not considered.

But it is sought to establish a doubt on the dying declarations, as the son of accused accompanied him, and bore the same name as his father. He was a lad of about sixteen years of age, and of ordinary size, and was generally called by a different name. It is urged that the statement, that James Barhett had stabbed him, might as well apply to the son as the father, they both bearing the same name, and thus creating a doubt as to which of the two the accusation was intended to apply. If this was all the evidence in the case, then it might be that there would be a doubt. But the other circumstances of the case free it from such a doubt. No motive is shown to render it probable that the son did the act. No quarrel is shown to have existed between deceased and the young man, nor is any reason assigned why we should infer that he is guilty. Human experience shows that sane persons never commit such acts, unless impelled by strong motives. Had any existed to induce the lad to kill deceased, it would have manifested itself before or after the homicide. There is no evidence in this record to create a reasonable probability that the son perpetrated the crime, but, on the other hand, all the evidence points directly to the father.

It is next insisted that the dying declarations of deceased were not admissible as evidence. In answer to this declaration it is only necessary to say, that in numerous similar cases determined by this court, it has been deliberately held that they are admissible when made in the manner required by the rules of evidence. To be admissible, the party making them must be under the belief that his dissolution is near at hand, and without hope of recovery, and the party must be free from mental aberration. The evidence shows that deceased was entirely conscious, and fully impressed with the fact that his death was certain and was near at hand. They were made under such circumstances as rendered them competent evidence,

and they were properly admitted. The case of The Chicago & Great Eastern Railroad Co. v. Marshall, 48 Ill. 475, was a civil action. In that case, in accordance with the common law rules and practice, it was held that such declarations were not admissible in civil cases, but it in nowise limited its application to criminal cases, as had been previously determined by this court. That case has no bearing on this.

It is next urged, that the court below erred in admitting evidence of what Hardy Seets swore at the examination of the prisoner before the justice of the peace. Hardy Seets was dead when this case was tried in the court below, but the witness heard and remembered his testimony. The rule as to the admissibility of evidence is the same in civil and criminal trials, except, in the latter, dying declarations may be received. Watson’s ease, 2 Starkie’s R. 155; Roscoe’s Crim. Ev. 1. Hor does the supposed constitutional objection arise to such evidence, as the witness was confronted with the accused, and he was afforded an opportunity of cross examination in the examining court. On a trial in the United States circuit court, before Mr. Justice Washington, in a capital case, the evidence of a deceased witness was proved and no objection taken to its admissibility. United States v. Wood, 3 Wash. C. C. R. 440. And in the case of Iglehart v. Jernegan, 16 Ill. 513, it was held that the substance of what a deceased witness testified to on a former trial was admissible, and the precise words used by the witness need not be proved. And this is the rule announced in other eases determined by this court. This is, however, the first time the question has been presented in a case of homicide, but the rule being the same as to the admissibility of this character of testimony in civil and criminal cases, as we have seen, there was no error in admitting this evidence.

It is next insisted, that the court below erred in giving the first of the people’s instructions, because, it is urged, it was calculated to mislead the jury. A careful inspection of the instruction fails to render the objection apparent. It informs

the jury that if they believe, from the evidence, that the defendant was guilty of murder, that would not justify them in acquitting him of manslaughter, as in such case, the law only regarded him as guilty of manslaughter. In ordinary cases, this instruction would be erroneous, but it must be considered in the light of this record. When we see, from the record, that accused had been previously tried under the same indictment, and had been convicted of manslaughter, and acquitted of murder, the meaning and propriety of the instruction are obvious, as a party can not be tried a second time for the same offense. He could not be convicted on this trial for murder, but a new trial having been granted on the conviction for manslaughter, he might be, and was, properly tried again for the latter named crime. And although the proof might show that the crime was perpetrated deliberately and with malice, still, after such an acquittal, the conviction could only be for the lower grade of crime. This rule was announced in the case of Brennan v. The People, 15 Ill. 511, and governs the case at bar.

The objection taken to the fifth of the people’s instructions, is disposed of in the consideration we have given to the evidence of dying declarations. In holding them to be admissible, it follows that the instruction was proper, and disposes of that question. Nor do we perceive any objection to the sixth. It correctly informed the jury, that if they believed that deceased was of sound mind and fully impressed with the belief that he would die in a short time, when he made the declarations, that such declarations would be entitled to the same weight as if they had been made under the sanction of an oath. This is the substance of the instruction, which is manifest from its inspection, and it but announces the law which permits such evidence to be given, because the apprehension of immediate dissolution is presumed to be fully as impressive as the solemnity of an oath. It does not pretend to determine whether they should give much or little weight to the evidence, but such weight as they would have given had deceased been

present and sworn to the same facts. We do not see that this instruction was calculated to mislead the jury.

We are unable to perceive any error in this record, and the judgment of the court below must be affirmed.