Opinion
December, 1934.
Judgment of the County Court of Kings county convicting the appellant of the crime of manslaughter in the second degree, and order, reversed on the law, and a new trial ordered. The decedent did not say in formal words that he had abandoned hope. It was necessary that he be in that state of mind to make his statement a dying declaration. The statement of the decedent "I am dying," taken in connection with the circumstances, may and probably did indicate that he had abandoned hope of surviving his wounds. It should have been submitted to the jury, with proper instructions, as a question of fact to be determined by them as to the decedent's state of mind, so that they might consider his statement as a dying declaration, if at the time he made it he thought he was about to die and had no hope of recovery, and was making a solemn statement concerning the assault made upon him and the person who committed it; or to reject such evidence if they believed that he had not abandoned hope of living at the time he made the statement. The jury received no such instructions. It was prejudicial error to charge, "The law says that a declaration made under those circumstances is fully as solemn as one given under oath." ( People v. Falletto, 202 N.Y. 494, 499, 500.) Lazansky, P.J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.