Bennett v. State

• Decision Date: 25 November 1913
• Citation: 63 So. 842,66 Fla. 369
• Parties: BENNETT v. STATE.
• Court: Florida Supreme Court

63 So. 842

66 Fla. 369

BENNETT v. STATE.

Florida Supreme Court

November 25, 1913

Error to Circuit Court, Jackson County; D. J. Jones, Judge.

Ollie Bennett was convicted of manslaughter, and brings error.Affirmed.

Syllabus by the Court

SYLLABUS

To render dying declarations admissible, the trial judge must be fully satisfied that the deceased declarant, at the time of their utterance, believed that his death was imminent and inevitable, and that he entertained no hope of recovery.This absence of all hope of recovery, and appreciation by the deceased of his speedy and inevitable death, is a preliminary foundation that must always be paid to make such declaration admissible.It is a mixed question of law and fact for the presiding judge to decide before permitting the introduction of the declaration itself.It is not necessary that such preliminary foundation should be proven by express utterances of the deased, but it may be gathered from any circumstance or from all the circumstances of the case.

Before testimony is admissible to impeach a witness by showing that he had made statements on another occasion that were contradictory of his present testimony, a proper predicate must be laid for such impeaching testimony by calling the attention of the witness to be impeached to the alleged contradictory statements, and to the occasion when it is alleged they were made, and by affording him an opportunity to explain, confess, or deny such supposed contradictory statements.

While section 4094 of the General Statutes of 1906 requires that testimony of witnesses at a coroner's inquest must be reduced to writing, and, though the coroner disregards this statute and fails to take down in writing the testimony of the witness at such inquest, yet this does not forbid the coroner or any one else who heard the testimony at said inquest and clearly remembers it from afterwards testifying orally as to what said testimony was in any cause to which it was pertinent and relevant.

COUNSELAmos E. Lewis and Thos. E. Walker, both of Marianna, for plaintiff in error.

T. F West. Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

TAYLOR J.

The plaintiff in error, hereinafter referred to as the 'defendant,' upon an indictment charging him with murder in the first degree, was tried in the circuit court of Jackson county and convicted and sentenced for manslaughter and seeks reversal of such judgment by writ of error.

A witness for the state testified to an ante-mortem statement made to him by the deceased as to the facts relative to how when, and where and from whom he received his death wound, this ante-mortem statement was objected to on the ground that no proper predicate had been laid for its introduction, but the court overruled the objection and admitted the dying declaration in evidence, and this ruling constitutes the first assignment of error.The predicate laid for the introduction of this declaration by the deceased was in substance as follows: The physician who attended him, and who reached him first within seven or eight hours after he was shot, testified that after making a careful examination of the wound in the arm and side of the deceased, and after he and another physician had cut the deceased open and found the tissues of the stomach all torn up and lacerated by the shot, and after he had sewn up the opening made by him and the other physician, he told the deceased that if he had arrangements to make or anything to say that he had better attend to it as he did not have long to live.That the deceased then told him that he knew he was going to die.That before that the deceased repeatedly told him that he was going to die, and that he tried to encourage him in every way that he could not to believe that he was going to die, but that he was unable to do so.That the deceased said all along that he was going to die, and said he knew he had a death would, and that he had told his parents he was going to die.And that he did die within two or three days after receiving the wound.We think this was a sufficient predicate for the admission of the dying declaration of the deceased.

In Copeland v. State,58 Fla. 26, 50 So. 621, it was held that: 'To render dying declarations admissible, the trial judge must...