Summary
In S. v. Moody, 3 N.C. 31, 2 Am. Dec., 616, it is said the declarations must be that of a dying man "or one so near his end that no hope of life remains.
Summary of this case from State v. JordanOpinion
(Spring Riding, 1798.)
On an indictment for murder, the declarations of the deceased have sometimes been received; but then they must be the declarations of a dying man, of one so near his end that no hope of life remains, for then the solemnity of the occasion is a good security for his speaking the truth, as much so as if he were under the obligation of an oath; but if at the time of making the declarations he had reasonable prospects and hopes of life such declarations ought not to be received. In this case the declarations were made by the deceased the day after he was wounded, six or seven weeks before his death, and were rejected.
INDICTMENT for the murder of one Mason; not guilty pleaded, and upon the trial the Attorney-General offered in evidence the examination of the deceased taken upon oath and subscribed by him before a justice of the peace on the day after he had received the wounds. He died six or seven weeks afterwards. It was offered as the declarations of the deceased.
PER CURIAM. Declarations of the deceased have sometimes been received, but then they must be the declarations of a dying man, of one so near his end that no hope of life remains, for then the solemnity of the occasion is a good security for his speaking the truth, as much so as if he were under the obligation of an oath; but if at the time of making the declaration he has reasonable prospects and hope of life, such declarations ought not to be received, for there is room to apprehend he may be actuated, by motives of revenge and an irritated mind, to declare what possibly may not be true.
HAYWOOD, J. Though it may not be proper to receive this paper as containing the declarations of the deceased, it may be a question whether it may not be received as an examination taken on oath before a justice of the peace, pursuant to the act of Assembly prescribed for such depositions in cases of felony. When regularly taken pursuant to the act, and the witness afterwards dies, it may be read (32) in evidence; more especially if the party to be affected by that testimony were present at the examination, as the prisoner was in the present case.
Badger for the prisoner: I perceive it cannot be read, because the justice says he believes the deceased was first examined and what he said taken down, and then he was sworn to the truth of the contents. He should have been first sworn to tell the whole truth and then what he said taken down. As he was sworn, he might have sworn truly, and yet not to all he knew.
I cannot think this paper is receivable at any rate. How is it possible a man can be a witness to prove his own death?
thinking there might be something in Badger's objection, did not insist upon receiving the testimony.
So it was rejected.
NOTE. — See S. v. Poll, 8 N.C. 442, where it was held that the declarations of a deceased person that he was poisoned by certain individuals, not made immediately previous to his death, but at a time when he despaired of his recovery, and felt assured his disease would prove fatal, were admissible as dying declarations.
Cited: S. v. Blackburn, 80 N.C. 478; S. v. Shouse, 166 N.C. 308.