
    UNITED STATES vs. WILLIAM D. CROSS.
    Criminal Law ; Murder ; Statements oe Deceased ; Unwarrantable Offer of Evidence by Prosecution.
    A wholly unwarranted offer, made in the presence of the jury on a trial for murder, of an alleged statement of the deceased as to who shot her, which was neither a part of the ves gestas nor a dying declaration, and which though rejected was again and equally unwarrantably renewed in a subsequent portion of the trial will be ground for reversing the verdict when it appears that the effect of such offers was not counteracted or obliterated, and that it was not only probable but almost certain that their effect upon the jury was prejudicial to the accused.
    Criminal Docket.
    No. 17,699.
    Decided March 9, 1891.
    Justices Hagner, James and Montgomery sitting.
    Motion by defendant for a new trial on a bill of exceptions in a trial of an indictment for murder.
    
      Judgment reversed.
    
    The facts are stated in the opinion.
    Messrs. Maurice Smith and Joseph Shillington for defendant:
    “Facts or circumstances relied upon to establish the principal fact or such as are necessary to the conclusion sought must be proved, otherwise no sufficient foundation is laid for the process of inference or presumption which is to follow.” Jenigar vs. State, 10 Texas Appeals, 547.
    “The minds of the jury are grievously open to prejudices, and the production of a bloody knife, a bludgeon, or a burnt piece of rag may sometimes, by exciting the passions or enlisting the sympathies of the jury, lead them to overlook the necessity of proving in what manner these articles are connected with the criminal or the crime, and they consequently run no slight risk of arriving at conclusious, which, for want of some link in the evidence, are by no means warranted by the facts proved.” Taylor, Evidence, section 557 ; Phillip’s Evidence, Vol. I, 5.
    “ As a condition precedent to the admissibility of evidence, either direct or circumstantial, the law requires an open and visible connection between the principal and evidentiary facts, whether they be ultimate or subaltérnate. This does not mean a necessary connection — that would exclude all presumptive evidence — but such as is reasonable and not latent or conjectural. In this our judicial evidence partakes of the very essence of all sound municipal law, and preserves the lives, liberties, and properties of men by placing-an effectual rein on the imagination of those entrusted with the administration of justice, and preventing .decisions or remote inferences and fancied analogies. Best Evidence, section 90. Corfield vs. Parsons, 1 Crompton & Meeson’s Reports, 730.
    “There must be some evidence of the identity of the person whose admissions are offered in evidence with the party in question.” 1 Greenleaf Ev., Vol. 1, Sec. 171, n. 2.
    Cases involving the question of identity: People vs. William, 29 Hun., 520; Crooks vs. State, 27 Texas Appeals, 198 ; State vs. Bishop, 73 N. C., 44; Marshall vs. State, 5 Texas Appeals, 273. The case of Douglass vs. Mitchell’s Executors, 35 Pa. Stat., 444, is useful in illustrating the uncertainties of presumptive evidence, its force, value and weakness.
    It is submitted that before the declarations testified to by Maier, as proceeding from some unknown man whom he passed on the street, were receivable there should have been some evidence tending fairly to identify the defendant .as the person who spoke the words. ,
    “If the minds of the jury were then nicely balanced, were wavering between the guilt and innocence of the defendant, this objectionable testimony was sufficient to turn the scale in favor of conviction.” State vs. Rothschild, 68 Mo., 55.
    It is a well settled principle of law that “ the prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly or by implication shows but a part of the res gestee if it appears that the evidence of the rest of the transaction is attainable.” Hurd vs. The State, 25 Mich., 405 ; Weller vs. People, 30 Mich., 23; Thomas vs. People, 39 Mich., 312; People vs. Gordon, 40 Mich., 716; People vs. Brown, 17 Mich., 429; Reg. vs. Holden, 8 C. & P. 606; Reg. vs. Stroner, I, C. &. K., 650 ; Bish. Crim. Prac., Sec. 293.
    3. Remarks of the prosecuting attorney in his closing-argument to the jury:
    Counsel in using the words “ beating and kicking ” James Curry to death went outside the testimony and assumed that Curry’s death was accomplished in that manner when in fact there was no proof of the means employed and it was not attempted to offer the indictment in evidence. The defendant, in response to a question by the prosecuting attorney whether he did not kill said Curry by kicking him to-death, denied that he did, aud the prosecuting attorney had no right to contradict him and assert that he did.
    By so doing it was equivalent to charging the defendant with another offense besides that on trial and telling the jury how it was committed. Wharton, Criminal Pleading and Practice, Secs. 840, 852, and 853, and cases cited in note 2 ; Dillingham vs. Scales, 14 S. W. Rep., 566 ; Perkins vs. Guy, 55 Miss., 153; Cavanaugh vs. State, 56 Miss., 299; Martin vs. State, 63 Miss., 505; Long vs. State, 56 Ind., 182 ; Ferguson vs. State. 49 Ind., 33; Wharton Criminal Pleading and Practice, Sec. 561; Epps vs. State, 102 Ind., 539; Pettite vs. People, 8 Col., 518; Curtis vs. State, 6 Cold., Tenn., 9; I. Graham and Waterman, New Trial, 56; Anderson vs. George, 1 Burrows, 352; People vs. Spooner, 1 Denio, 343.
    The remarks of the (chief) justice presiding did not erase the impression made upon the minds of the jury by the reference or cure the error. It is impossible to measure the effect of remarks of that kind. A direct assertion that a man’s death was accomplished in that inhuman and brutal manner was calculated to prejudice the defendant with the jury.
    Mr. Charles H. Armes for the United States:
    To make vituperation and abuse ground for the reversal, it must appear that the remarks indulged in were grossly unwarranted and improper, that they were of a material character and calculated to injuriously affect the defendant’s rights. McConnell vs. State, 22 Tex. App, 354 ; Pierson vs. State, 18 Tex. App, 524; State vs. Bauer, 10 Mo. App, 111; Scott vs. State, 7 Lea, Tenn., 232; Price vs. Commonwealth, 77 Va, 393.
    In this instance no abuse or remark in any way exceptionable wore uttered by counsel, but the witness’ own testimony only was quoted as uttered, and it went before the jury under instructions of the court then and there given.
    In no event, where the judgment is clearly right under the evidence, will a conviction be reversed for intemperance of speech of the prosecuting officer. Wilson vs. Com, 94 Ill., 299.
    To grant a new trial upon the ground of newly discovered •evidence, it should appear that the newly discovered evidence is so material that it would probably produce a different result if a new trial were granted. U. S. vs. Cornell, 2 Mason, 110; Jones vs. State, 48 Ga, 163; Phillips vs. State, 62 Ga, 296 ; Presser vs. State, 77 Ind, 274 ; Duvall vs. State, 8 Tex. App, 370.
    And the newly discovered evidence must be such as could not have been secured by reasonable diligence at the former trial. Wharton, Cr. P. and P, 862, and note.
    
    The newly discovered evidence must not be merely cumulative. People vs. McDonald, 47 Cal, 134; O’Shields vs. State, 55 Ga, 696; Puryear vs. State, 66 Ga, 753; Sahlinger vs. People, 102 Ill., 241; Collins vs. People, 103 Ill, 21; Kinney vs. State, 108 Ill., 519 ; Winsett vs. State, 57 Ind, 26; State vs. Redemeir, 71 Mo., 173; State vs. Willoughby 76 Mo., 215; State vs. Emory, 79 Mo., 461.
    Nor is it sufficient when the object of the newly discovered evidence is merely to impeach the character or credit of a witness. Wallace vs. State, 28 Ark., 531; Redman vs. State, 40 Ark., 445 ; Higgins vs. People, 98 Ill., 519 ; Wharton vs. State, 66 Ga., 690; Dear vs. State, 14 Mo., 348 ; Evans vs. State, 67 Ind., 68; Morrell vs. State, 89 Ind., 275.
   Mr. Justice Montgomery

delivered the opinion of the court:

The defendant stands convicted of the murder of his wife, Hattie.

We have reached the conclusion that the conviction must be set aside and a new trial ordered, and therefore it is not important to notice any of the points made at the argument, excepting that upon which the reversal is based, and those which are likely to arise at a subsequent trial.

The undisputed facts were that in the early part of the evening next preceding the death of the wife, she and her husband were walking by themselves on a somewhat unfrequented street; that some controversy or dispute was going on between them, which ended in her being shot with a revolver.

No one witnessed the shooting and no direct evidence as to who fired the shot could be given. The prosecution claimed that it was done by the defendant, while the defense contended that she herself did it.

The occurrence which impels us to vacate the verdict happened substantially as follows:

Before the case of the prosecution was rested, the mother of the defendant’s wife was recalled as a witness and interrogated, as to a conversation with the daughter, on the morning after the shooting. She testified that she did have a talk with her at that time.

The prosecutor then, without attempting to show a mental condition which entitled her statement to be received as a dying declaration, asked the witness to state what the daughter-said as to who shot her. Upon objection, the question was not pressed, but instead, the prosecutor then, after stating substantially that he knew he was not then entitled to the proof, but did not know as the counsel for the defense were aware of it, proceeded to examine the witness as to the mental condition of the patient, as to her apprehension of impending death.

The witness testified in substance that at 6 o’clock in the morning, at her (witness’) house, several blocks away from the place, and ten or eleven hours after the time of the shooting, she (witness) was trying to get the daughter to take medicine; that the patient objected, whereupon the mother said to her, “Hattie, take your medicine; you don’t want to die and leave your mother and sister and brother,” to which the daughter replied: “ You have got plenty left; there is Ruth and Amy.”

Upon this slender predicate, she was again asked to state who shot her. Again objection was made and sustained.

At the close of the defendant’s testimony, this witness was again recalled and asked to state the conversation with the daughter as to who shot her, and again defendant’s counsel objected, and again the objection was sustained.

Neither of these offers should have been made and for the first and the last of them there was no excuse whatever.

The statement made by the daughter to the mother could not be received as evidence unless offered as part of the case of the prosecution, and unless it was part of the res gesta:, or made under circumstances entitling it to be received as a- dying declaration.

Clearly it was not part of the res gestos. It is equally clear that it was not entitled to be proven as a dying declaration,

If it be admitted that the second offer was justifiable, the others should not- have been made, and each offer was in substance a statement by the "prosecution, that the witness would, if allowed, testify that her daughter told her that the defendant shot her.

It is impossible that these offers should not have prejudiced the case with the jury coming as they did from the public prosecutor, whose duty it was to act only in furtherance of justice and to stand entirely impartial between the prosecutor and the prisoner. Hurd vs. People, 25 Mich., 416; Wellar vs. People, 30 Mich., 23.

The jury well understood that when the fatal shot was fired there were but two persons in the world who knew who did it; one was the defendant and the other the injured woman.

It is not only probable, butalmost certain, that the prisoner was prejudiced by these offers. If so, and if, as seems manifest, the first offer was not only unwarranted, but known to be so by the prosecutor, and if, as seems manifest, the renewal of the offer in rebuttal was wholly without warrant, and inasmuch as the effect of such offers was not then and there counteracted or obliterated as far as possible, the conviction, if unreversed, must result in the taking of the life of a human being. We are of the opinion that the verdict should not be allowed to stand.

Martin vs. State, 68 Miss., 507 ; State vs. Hascall, 6 N. H., 352; Curtis vs. State, 6 Caldwell (Tenn.), 11; Cooley Const. Lim., 311.

For the reason stated at the outset, -we feel called upon to consider but one other point, and that is as to the admission of the testimony of the witness Maier, who testified against objection, that on the evening in question he met near the corner of Seventh and D streets a colored man and woman, and heard the man threaten to shoot the woman if she followed him.

We have nothing to do with, and no opinion to express about, the credibility of this testimony, and we can only determine whether testimony had been given which fairly tended to show that the colored man was the defendant, and the woman his wife.

Witness swore that he went from his home in Anacostia, about 2 miles, to his mother’s on Seventh Street between D and E, S. W., by a route which took him south along Maryland avenue to Seventh street and thence up Seventh to D, and thence along D street to Ninth; that he left Anacostia •a little after 6 o’clock and walked a mile to the street cars at the Navy Yard; that he then boarded a car and rode to Maryland avenue at the foot of the Capitol, and then walked up that avenue and to his mother’s by the route above stated. He then declares that it “ must have been somewhere after 7,” when he met the man and woman. And then that he “ struck his mother’s house * * * between ten and fifteen minutes of 8.” '

So, if the witness was reliable, and if defendant and his wife left her mother’s as defendant swore, “ after seven,” or as the mother testified, “ about half-past seven,” then it is not only possible, but it was quite probable, that witness did meet them as was claimed.

Besides, the threat to which he testified was substantially like the one which other witnesses testified that defendant was making, and on the whole, we think there was evidence which fairly tended to show that defendant was the man referred to by the witness.

We think there was no error in receiving this testimony, but for the other reasons the conviction must be set aside and a new trial granted.  