Munshower v. State

Miller, J., delivered the opinion of the Court. The appellant was indicted and tried for the murder of James L. Wetsell, and the jury, by their verdict, found him guilty of murder in the first degree. At the trial, his counsel took three exceptions to the rulings of the Court upon questions of evidence, which this appeal brings up for review, and we shall dispose of them in their order. First Exception.

The State proved that early on Tuesday morning, the 5th of August, 1819, Wetsell left the house of Knode, where he was making his home, and proceeded up the public road towards Emmittshurg. On the Sunday following, Wetsell not having made his appearance, Knode went to the house of one Rentzell, where the prisoner was staying, and inquired of him whether he had seen anything of Wetsell, and the prisoner said he saw him on Tuesday, talked with him on the hill, when he left, saying he was going to Tom Shorb’s, and from there to town, and that he, the prisoner, then went to Motter’s Station. On Tuesday, the 12th of August, Wetzell’s body was found buried in Myers’ woods, with a wound in the hack of the neck — two holes close together as though both barrels of a gun had been fired at once into the neck— and the face was torn away. About sixteen feet from the grave there was a small ravine which presented marks and the appearance of having been first used for the burial of the body; there were leaves in the place, and some leaves had been raked out.

The State then proved by Thomas Shorh, that on the afternoon of the 4th of August, he saw the prisoner in Knode’s woods sitting near the road, and he went to him and talked with him; he asked witness if he had seen anything of Wetsell, and witness answered no, and said, why don’t you go-to the house? to which the prisoner replied, I am not going there, Sarah (meaning Knode’s wife and Wetsell’s sister) makes such a fuss, she knows my business better than I do; that a short time afterwards prisoner met witness near the barn ¹⁹ on Kane’s place and asked him if lie was going to Zacharia’s, and they went together as far as Tom’s Creek; on the way they had some talk about the gun the prisoner was carrying; he shot a squirrel with the left hand barrel, reloaded it, and remarked that he kept the right hand barrel for long range, it shot better. Upon cross-examination this witness was asked whether on Monday the eleventh, before the body of Wetsell was found, he had, in a conversation with Otho Grimes, in the public road, near the house of John McCarthy, told Grimes that James Wetsell had been murdered and buried under leaves in Myers’ woods, and that his head had been mashed in? The Court, upon objection made by the State, refused to ■allow the question to he answered, and to this ruling the prisoner excepted. Counsel for the appellant contend that an answer to this question was admissible for the purpose of discrediting the witness; that if he had answered the question in the negative he would have been contradicted and discredited by the impeaching witness, and if he had answered in the affirmative it would have evidenced the possession of knowledge that the guilty party alone would he likely to have, and this would have discredited him.

They admit that on a trial for murder the admissions or declarations of third persons that they killed the deceased are not evidence, hut they insist that if such third persons, on being examined as witnesses, implicate the prisoner by their testimony, evidence of their declarations that they were guilty of the offence is admissible to discredit the witnesses. This proposition is broadly stated in 1 Whart. Cr. Law, sec. 662, and runs through all the editions of that valuable hook.

The only authority, however, cited in its support is the case of Smith vs. The State, 9 Ala., 990 . An examination of that case has convinced us that the learned author has fallen into error in stating the proposition thus broadly, or has misapprehended the deci- ²⁰ sion actually made by tbe Court. In that case, Smith, a slave, was on trial for the murder of Edmund, another slave, and the witness, Sam, had been tried and acquitted the day before of the same murder. On the trial of Smith, Sam was examined as a witness by the State and denied any knowledge of the murder of Edmund, or of the participation of Smith in it, but stated some circumstances tending to implicate Smith.

The prisoner’s counsel then offered to prove, that while the trial of Sam was in progress, he, being at the time in jail, became alarmed and desired Neal, a white man then present, to request the jailor to send for his master, and then stated in Neal’s presence that he, Sam, had wrongfully accused the boy Smith of the murder of Edmund, and he wished so to tell his master, that he did not wish to die with a lie in his mouth, and cause the innocent to suffer, and the question was, whether this was admissible in evidence on the trial of Smith for any purpose. The opinion of the Court was delivered by Ormond, J., and he says — “ In my opinion it was mere hearsay. It appears that Sam had previously stated,'that Smith, a few days after the death of Edmund, had told him that he killed Edmund with a gun-barrel, and it appears to me very clear that the only rational meaning that can be put upon the declarations of Sam, in jail, is, that he had accused Smith falsely to his master-. His own trial was then in progress, he apprehended it would terminate fatally, and was thxxs impelled to make the confession.

It cannot, in my opinion, by any just rule of interpretation, be construed into an admission that he was himself guilty of the murder of Edmund. This being the true meaning of the declaration, if Sam, when Smith was on trial, had repeated the false charge against him, the admission made in jail would certainly have been competent testimony to discredit him.” This is' all the Court decides in reference to the admissibility of these declarations, for the purpose of discrediting the ²¹ witness, and it simply amounts to this, that where a witness has testified to any matter of fact, material to the issue, about which he has made a different statement to others, such statement, if denied by him, may be given in evidence to discredit or impeach him. This proposition is so plain and well settled as not to need this authority to support it, and that this was all the Court intended to decide, is perfectly obvious from what follows, for the learned Judge proceeds to say, that as Sam, in his testimony did not repeat the charge, but denied any knowledge of the participation of Smith in the murder, he was of opinion the admission made in jail “ was not testimony for any purpose,” and he then adds: — “It appears that Sam, in his testimony, had detailed some facts calculated to connect Smith with the murder, or as stated in the bill of exceptions, ‘ tending to implicate Smith,’ but his testimony as to these independent facts could not be impeached by proving that he had previously made a false declaration about Smith which he afterwards recanted, such declarations having no connection with the facts deposed to. It is an established rule of the law of evidence, that collateral matters cannot he thus introduced for the purpose of impeaching a witness.” But the decision goes still further, and the Judge says: — “Conceding, however, the true meaning of these declarations of Sam in jail to be an admission of his own guilt, and that he had killed Edmund himself, it does not, as I think, vary the case in the slightest degree.

The question to- be ascertained was, whether Smith was guilty of the murder, and any fact or circumstance tending to prove that another was the guilty actor would be clearly competent, as its tendency would be to disprove the guilt of the accused. But I think it is perfectly clear that these declarations were not facts but mere hearsay; not made under the sanction of an oath; not obligatory on the person making them; and certainly could not he testimony either for or against any one else.” ²² In his dissenting opinion, Goldthwaite, J., thought the evidence offered was admissible, but he does not place his decision upon the ground that it was admissible for the purpose of discrediting the witness. He says: — “The effort of the prisoner was to show such a condition of facts and circumstances as to create the impression on the minds of the jury that Sam, in point of fact, was the murderer, the evidence against himself being, as stated, entirely circumstantial. I apprehend, although it may be true, that the confession of a third person of his guilt is not evidence in favor of another when standing alone, and unaided by other facts or circumstances, yet that it is so, whenever the party confessing is connected with the crime by strong presumptive circumstances.” In the present case there is nothing to bring the supposed declaration of Shorb to Grimes within the doctrine even of this dissenting opinion.

The declaration, if ever made, stands alone, for the record discloses no facts or circumstances whatever, tending to connect Shorb with