Summary
In Baylis v. State, 182 Miss. 794, 183 So. 527, the deceased said several times that he was going to die; one or more time he said he thought he was going to die; and another time he said he believed he was going to die.
Summary of this case from Houston v. StateOpinion
No. 33230.
October 10, 1938.
1. HOMICIDE.
In prosecution for murder, testimony of deceased's wife that, during the day and a half which elapsed between knifing and death, deceased had said several times that he was going to die or believed he was going to die, but was too sick to talk about it all the time and slept most of the time under influence of a hypodermic, held not to authorize admission of wife's testimony concerning deceased's dying declarations.
2. CRIMINAL LAW. Homicide.
In murder prosecution, defendant was entitled to a preliminary hearing in the jury's absence concerning the competency of evidence of deceased's dying declarations, and was entitled to exclusion of such evidence unless the judge was convinced of its competency beyond every reasonable doubt.
3. HOMICIDE.
Though preponderance of evidence controls in determining whether there was probable ground for a search without search warrant, so as to make evidence obtained by such search admissible, competency of evidence of dying declarations must be shown beyond a reasonable doubt.
APPEAL from the circuit court of Lawrence county; HON. J.C. SHIVERS, Judge.
John Arrington, of Monticello, Ovie L. Berry, of Mendenhall, and Martin Farr, of Prentiss, for appellant.
We respectfully submit that the dying declaration was improperly admitted as evidence; that it did not meet the requirements of the law in Mississippi. The whole law of dying declarations has so recently been discussed so thoroughly and so exhaustively, both in the controlling and dissenting opinions in the Dean case, 160 So. 584, that we do not think the court would desire any further research or citations. To be competent, dying declarations must have been made: (1) Under the realization and solemn sense of impending death. (2) They must have been the utterances of a sane mind. (3) They must be restricted to the homicide and the circumstances immediately attending it and forming a part of the res gestae. (4) It is not admissible unless it would be competent and relevant if it were the testimony of a living witness. (5) Great caution should be observed in the admission of dying declarations and the rules which restrict their admission should be carefully guarded.
Lipscomb v. State, 75 Miss. 559; Dean v. State, 160 So. 584.
In Bell v. State, 72 Miss. 507, 17 So. 232, the wife testified that she saw the deceased when they brought him home; that he said: "I know I will die in a very few days, for I can't live this way. Ed Bell killed me. I know it." The court ruled this was not sufficient to meet the rigid tests.
We must remember that declarations of this sort are always made known to the courts through friends or relatives of the deceased. It often happens that the exact words and the exact meanings cannot be accurately remembered or conveyed and it may be and often is, we submit, that the whole scene is colored to fit in with the requirements of the law.
People v. Falletto, 202 N.Y. 494, 96 N.E. 355.
It is not enough that the statement be made when the declarant is in extremis; it is also essential that it be made when he has abandoned all hope of recovery from the injury inflicted by the accused and is under the firm conviction that his death is inevitable and is near at hand.
30 C.J. 255, sec. 498b; McNeal v. State, 115 Miss. 678, 76 So. 625; People v. Robinson, 2 Parker, Cr. R. (N.Y.) 235; Bell v. State, 72 Miss. 514; Lea v. State, 138 Miss. 761, 103 So. 368; Hathorn v. State, 138 Miss. 11, 102 So. 771; Smith v. State, 161 Miss. 430, 137 So. 96.
We most respectfully submit that the predicate attempted to be laid by the testimony of Lillie James did not meet the requirements to admit the statement as a dying declaration.
The court will understand that this witness, Mrs. Davis, was introduced and her testimony given to the jury without any preliminary hearing to test its admissibility, and we say the court committed reversible error there. As the court will note, there was no opportunity given the defendant to either go on the stand in person or to rebut the evidence on the dying declaration, that is on the admissibility of it.
We submit that the whole matter should have been tested on a preliminary inquiry, both the state's evidence and the defendant's and from this whole evidence, in the absence of the jury, the court should have tested it as to its competency as a dying declaration.
1 Wharton's Crim. Evidence (10 Ed.), sec. 275 (b), page 531, and footnote 8, page 532; State v. Elliott, 45 Iowa 486; Bell v. State, 72 Miss. 514.
The deceased merely stated an opinion. The declaration did not purport to give any facts connected with the cutting, but only the inference or opinion of the wounded man. This was not admissible.
Mose v. State, 35 Ala. 421; Ben v. State, 37 Ala. 103; 1 Greenleaf on Evidence, sec. 159; Roscoe's Crim. Ev., 27, 33.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Appellant argues that the dying declaration which was used in this case was not properly qualified to show its competency as evidence. It is said that the statement was not made under the realization and solemn sense of impending death. There appears to be no conflict so far as the facts surrounding the making of this dying declaration are concerned. Here was a negro badly cut. The only way he could get any relief came by way of the hypodermic route. He was making the statement that he was going to die; that he was cut to death; that he would never be any better. He was continually complaining that even with the hypodermics he was unable to rest. There is no dispute as to any of these conditions.
Bell v. State, 72 Miss. 507, 17 So. 232; Wiltcher v. State, 99 Miss. 374, 54 So. 766; House v. State, 94 Miss. 107, 48 So. 3; Early v. State, 128 Miss. 715, 91 So. 417.
In the early case of McDaniel v. State, 16 Miss. (8 S. M.) 401, 47 Am. Dec. 93, this court said that the declarant at the time of making his declaration, does not have to accompany it by saying that he is conscious of impending dissolution.
Lewis v. State, 9 S. M. 115.
The declarant was shown to have been badly wounded, knew that he would not get any better, and repeatedly stated that he had been cut to death. He was shown to have been in great pain and suffering. He never, at any time, expressed any hope of recovery. His death actually occurred within a short time after the wound. All of these attendant circumstances indicate that declarant was fully conscious of the fact that death was closing in upon him. At any rate, the evidence was sufficient to justify the trial court in admitting the declaration as testified by Lilly James, the wife of deceased, and this court will not reverse the trial court's finding in this respect unless and until it is shown that such finding was manifestly wrong.
Scott v. State, 166 Miss. 6, 148 So. 239.
As a general rule, all parties should be heard at the preliminary inquiry. If the defendant has any evidence to rebut the showing made by the state, it is his duty to present it at that time. This appears to be the rule in all cases where the competency of the evidence is determined by the court before allowing it to go to the jury.
Wilkerson v. State, 134 Miss. 853, 98 So. 770; Perkins v. State, 160 Miss. 720, 135 So. 357; Weatherford v. State, 164 Miss. 888, 143 So. 853; Lee v. State, 137 Miss. 329, 102 So. 296; Ellis v. State, 65 Miss. 44, 3 So. 188.
The record does not indicate that the defendant ever requested the court to allow him, or his witnesses, to testify relative to the dying declaration. There was, therefore, no refusal on the part of the trial court to allow this character of testimony as was the case in Warren v. State, 174 Miss. 63, 164 So. 234, and no error can be claimed here with the record as it is.
Assuming that the defendant was entitled to another preliminary inquiry when Mrs. Davis' version of the declarations was offered, this court will not reverse because it was denied him, if the record shows that all the testimony was, in fact, competent.
Pickett v. State, 155 Miss. 386, 124 So. 364.
We submit the declaration was one of fact and not an opinion.
Beauchamp v. State, 128 Miss. 523, 91 So. 202; McNeal v. State, 115 Miss. 678, 76 So. 625; House v. State, 94 Miss. 107, 48 So. 3.
Argued orally by Geo. L. Martin, for appellant.
Appellant was indicted and convicted in the Circuit Court of Lawrence County of the crime of the murder of one J.W. James, and upon the jury's being unable to agree as to the punishment he was sentenced to the penitentiary for life. From that judgment appellant prosecutes this appeal.
Appellant is a negro and so was the deceased. The wound from which the deceased died was inflicted on a Saturday night. He lived until the next Monday morning about eleven o'clock, when he died as a result of the wound which was inflicted with a knife. The negroes had what is commonly known as a fish fry at China Lee School in Lawrence County. They were in three or four groups. The evidence showed without any substantial conflict that there was no justification for the stabbing. The question was as to the identity of the guilty person.
Four witnesses, Hartwell, Jackson, Hartzog, and Ratliff, testified that appellant came to the group where the deceased was and inflicted the death wound without any provocation whatever.
On the other hand, the witnesses, Swan Ward, and Van Ward, and Sanders, testified that appellant was not present in the group at the time the wound was inflicted, that he was some distance away, and several witnesses testified that the main witness for the state, Hartwell, was not present nor situated so he could have seen the occurrence. The state offered the wife of the deceased to prove a dying declaration made by him. On a preliminary inquiry by the court in the absence of the jury, she was permitted to testify, over appellant's objection, that her husband stated more than once between the time he was wounded and his death that appellant inflicted the wound that caused his death, and did so without cause.
Her qualifying evidence was substantially as follows: that her husband said several times he was going to die, that one or more times he said he thought he was going to die, and at another time he said he believed he was going to die. "He did not talk about it all the time, he was so sick, he couldn't. The doctor gave him a hypodermic and he slept most of the time."
We are of the opinion that such declarations failed to come up to the requirements of the law. Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230; Dean v. State, 173 Miss. 254, 160 So. 584, 162 So. 155; Bell v. State, 72 Miss. 507, 17 So. 232; Lea v. State, 138 Miss. 761, 103 So. 368; Hathorn v. State, 138 Miss. 11, 102 So. 771; Smith v. State, 161 Miss. 430, 137 So. 96; People v. Falletto, 202 N.Y. 494, 96 N.E. 355.
In the latter case the Court of Appeals of New York put in very clear and forceable language the same principles declared by our court in the cases above referred to. That court said: "Dying declarations are dangerous, because made with no fear of prosecution for perjury and without the test of cross-examination, which is the best method known to bring out the full and exact truth. The fear of punishment after death is not now regarded as so strong a safeguard against falsehood as it was when the rule admitting such declarations was first laid down. Such evidence is the mere statement of what was said by a person, not under oath, usually made when the body is in pain, the mind agitated, and the memory shaken by the certainty of impending death. A clear, full, and exact statement of the facts cannot be expected under such circumstances, especially if the declaration is made in response to suggestive questions, or those calling for the answer of `Yes' or `No.' Experience shows that dying declarations are not always true. As we said in People v. Corey, 157 N.Y. 332, 349, 51 N.E. 1024, 1029: `It has happened that a dying declaration, accusing the defendant, made one day, was contradicted by another dying declaration of the same person made on a subsequent day, stating that the defendant "did not do it." Moore v. State, 12 Ala. 764, 46 Am. Dec. 276. So dying declarations have been shown to be positively untrue. White v. State, 30 Tex. App. 652[ 30 Tex.Crim. 652], 18 S.W. 462.' Men sometimes lie, even when facing death, as has frequently been known of convicts about to be executed; and the motive of self-exoneration which induced them to lay the crime on some one else might move a declarant to say that the accused was the aggressor by committing the first assault. Experience shows that dying persons have made self-serving declarations, such as false accusations, in order to destroy their enemies, and false excuses, in order to save their friends."
The court, therefore, erred in admitting her testimony. The testimony of Mrs. Marvin Davis in reference to the dying declaration made by the deceased in her presence was admitted over applicant's objection. Mrs. Davis' husband was a section foreman of the Illinois Central Railroad Company, and the deceased was a section hand in his employ and had been for sixteen years. He resided in one of the section houses near the home of the said foreman. Mrs. Davis was with him several times between the time he was wounded and his death. The ground of the objection was that before the admission of the testimony the judge should have held a preliminary inquiry, in the absence of the jury, as to its competency. This had not been done. The objection was on that ground. Appellant, under the law, was entitled to a preliminary hearing, and, in addition, to have the testimony ruled out unless the judge was convinced of its competency beyond every reasonable doubt. Scott v. State, 166 Miss. 6, 148 So. 239; Owens v. State, 59 Miss. 547; Lipscomb v. State, supra.
The attorney-general argues, however, that the testimony was shown to be competent beyond reasonable doubt, and, therefore, appellant was not harmed for lack of the preliminary hearing; that such a hearing would have reached the same result — the testimony would have gone in. To sustain that contention Pickett v. State, 155 Miss. 386, 124 So. 364 is relied on. That was a prosecution for a felony. Material evidence was obtained by search without a search warrant. One of the questions was whether there was probable cause for the search. That question had not been decided by the judge in the absence of the jury. The court refused to reverse upon that ground stating, "When objection to the evidence is made on the ground of the absence of a search warrant, or in case of felony on the sufficiency of the evidence to show probable cause, the court should hear the evidence out of hearing of the jury and permit all the evidence to be then offered; still it is not reversible error to refuse to do so, if the evidence is in fact competent, as no prejudice results to the defendants."
Whether that case is controlling on the question here, we decline to decide. However, we think it well to notice this difference. On the preliminary hearing, whether there is probable ground for the search without a search warrant for the preponderance of the evidence controls. While on a hearing of cases like the one in hand, the competency must be shown beyond a reasonable doubt.
We reverse on the first ground and leave this question open because its decision is not necessary in this case.
Reversed and remanded.