Batten v. Commonwealth

• Decision Date: 21 November 1949
• Citation: 56 S.E.2d 231,190 Va. 235
• Parties: BATTEN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

56 S.E.2d 231

190 Va. 235

BATTEN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 21, 1949.

Rose Batten was convicted in the Circuit Court for the City of Clifton Forge, Earl L. Abbott, J., of voluntary manslaughter, and she brought error.

The Supreme Court of Appeals, Miller, J., reversed the judgment, and held that the admission of certain statements made by accused as dying declaration and the exclusion of certain other testimony constituted reversible error.

Hale Collins, R. C. Stokes, Covington, for plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, Henry T. Wickham, Assistant Attorney General, for the Commonwealth.

Before GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

MILLER, Justice.

On Sunday, November 9, 1947, about 8 o'clock in the evening, Marion Piercy Anderson entered the Chesapeake and Ohio Railroad Hospital, Clifton Forge, Virginia, asked for medical aid and collapsed. When a physician arrived, he was unconscious. Upon examination he was found to be suffering from two.32 calibre bullet wounds, one of which proved fatal. He died at 1:45 a. m., Saturday, November 15, 1947.

An autopsy disclosed that had he been operated upon his life could not have been saved. The fatal bullet had pierced the abdominal cavity, severing and destroying beyond repair the blood vessels that furnish the necessary supply of blood to the small bowel. That, in turn, caused a sloughing away of the bowel and peritonitis inflammation of the lining of the abdomen. Death at some early date was inevitable.

Immediately after Anderson's entry into the hospital, Rose Batten was found seatedin his automobile in front of that building. She was crying and hysterical, but attempted to give an account of how the wounds had been inflicted, which, if true, would have absolved her of unlawful homicide. She was, however, indicted for murder, convicted by a jury of voluntary manslaughter and sentenced to five years imprisonment.

The material assignments of error pertain to the admissibility of evidence.

The Commonwealth contends that three statements made by Anderson at different times were properly admitted as dying declarations. Accused asserts that none of them measure up to dying declarations and that prejudicial error was committed when they were received.

To establish the circumstances immediately surrounding the shooting and to prove that the wounds were wilfully inflicted, the Commonwealth offered the testimony of Ann Gabbert and Wanda Anderson, sisters of deceased. Their evidence in this respect constitutes a recital of three alleged dying declarations made in the hospital. One was made to Ann Gabbert at 10:00 p. m., Sunday, November 9th, about two hours after infliction of the wounds. The second on Monday, November 10th, to Wanda Anderson and testified to by her. The last statement was made in the presence of both sisters on Thursday, November 13th, about thirty-six hours before Anderson's death.

The statements were objected to by accused on the grounds that Anderson was not in extremis when the first two were made, nor was it sufficiently proved that he was conscious of impending death without hope or expectation of recovery at any time. In short, accused maintains that no proper foundation was established for the introduction of all or any of the statements.

The setting, circumstances and contents of Sunday's declaration follow: While the nurse was out of the patient's room this conversation passed between brother and sister: "Well, that night he started vomiting and I got up to hold the pan for him and I was wiping his forehead, and when I finished wiping his forehead and he was through vomiting, he said, 'Ann, I'm dying', said, 'I don't think I'll live until morning'. He said, 'I want you all to take care of mom for me'. And I said, 'Where did it happen'. And he said, 'At the Shell service station. I was out for a pack of cigarettes and when I came back and started to get in the car she shot me'. And that was all he told me at that particular time."

Monday's statement is best disclosed by a question propounded to Wanda Anderson and her answer thereto. "Q. What was the statement he made to you, if any? A. Well, I asked him if he remembered how it happened and he said, 'Sure, I remember how it happened.' He told me that he had stopped the car and got out of the car and as he started to get back in the car, that she shot him, and said, 'Then she shot me the second time before I could get the gun away from her'. Then he said he hit her beside of the head and knocked her out and he either put the gun under the front seat or in the back of the car, he didn't remember which. Then he drove to the hospital."

The last remark voiced in the presence of and testified to by both sisters and as recited by Ann Gabbert is: "He said he knew he had to get her and take the gun from her to keep her from shooting or she would put all of the bullets in him, and he said when he taken the gun from her he either put it under the front seat or in the back seat, he didn't remember. * * and he said after he taken it from her, it's a wonder he hadn't turned it on her and shot her but he was glad now he didn't do it."

Before these several statements were offered in evidence, Dr. Emmett, an able physician and surgeon who was attending Anderson and who was called by the Commonwealth, had testified that the patient rallied from the immediate shock of his wounds to such an extent that the doctors were hopeful of his ultimate recovery. That witness said: "* * * he responded very completely to restorative measures and we hoped that his abdominal problem was not particularly severe. It was a day or two--two or three days in the con-valescense in which it appeared that he was going to get by all right."

The Chief of Police of Clifton Forge had testified that he interviewed Anderson several times. His first interview was on Sunday night just after the patient had regained consciousness; the others were on occasions over a period of three or four days. On the first visit, in response to an inquiry as to who shot him, Anderson answered, "I haven't been shot." On the subsequent interviews, he made the same or a similar reply to each inquiry about who shot him. The witness says that Anderson "left him under the impression that no one had shot him."

Other testimony given by Ann Gabbert, relative to what Anderson said at a late hour on Sunday night and after the first alleged dying declaration had been made, is somewhat contradictory of or at variance with his announced belief and apparent conviction that he was dying. It is: "Well, he was telling me about her shooting him up there in his arm and then, later on in the night, he said he felt pretty good, when the nurse asked him how he felt, he said he felt pretty good except his stomach hurt him so bad. And she said, 'Don't you know why your stomach hurts'? And he sort of looked at her. And she said, 'Well, you've been shot in the stomach.' And he sort of looked at her like he didn't know what she meant."

It is definitely true that deceased received a mortal wound and that his life could not have been saved. When the first statement was made it was but a short time after he had regained consciousness from the immediate shock of the wound. He was in pain, vomiting and perspiring. In truth and in fact, he was then in extremis though his death did not occur for slightly more than five days.

While there are some slight circumstances tending to refute the contention that he then contemplated early death, the above recited facts, coupled with the expressed meaning of the declaration, justify the conclusion that he was in extremis, known to him and that he then despaired of all hope and expectation of recovery. That he was in the immediate presence of the Grim Reaper is factually true. Fairly construed, his voiced belief and conviction was, "I have a rendezvous with Death * * *" and that appointed hour is before tomorrow's dawn.

The circumstances proved incident to Sunday's statement constitute the necessary foundation for its introduction as a dying declaration and measure up to the test deemed requisite by Professor John B. Minor, at p. 288, in his Exposition of the Law of Crime and Punishment: "Dying declarations are admissible only in case of...