Boyle v. State

• Decision Date: 04 March 1886
• Citation: 105 Ind. 469,5 N.E. 203
• Parties: Boyle v. State.
• Court: Indiana Supreme Court

105 Ind. 469

5 N.E. 203

Boyle

v.State.

Supreme Court of Indiana.

Filed March 4, 1886.

Appeal from Allen circuit court.

Colerick & Oppenheim, for appellant.

C. M. Dawson, for appellee.

Elliott, J.

This case is here for the second time. Boyle v. State, 97 Ind. 322. One of the questions now argued by appellant's counsel was decided adversely to the appellant on the former appeal, and to that decision we adhere, not simply on the ground that it is the law of the case, but for the further reason that we believe the point was well decided. The question of which we are speaking, and of which we say that it was well decided on the former appeal, arises upon that part of the dying declarations of the deceased wherein, in replying to the question, “What reason, if any, had the man for shooting you?” he said: “Not any that I know of. He said he would shoot my damned heart out.” It was held that this was not the expression of an incompetent opinion, but was the statement of a fact, and we will not depart from that ruling. In the opinion given upon the former appeal the following authorities were cited: Wroe v. State, 20 Ohio St. 460;Rex v. Scaife, 1 Moody, 551; Roberts v. State, 5 Tex. App. 141;Maine v. People, 9 Hun. 113; Whart. Crim. Ev. § 294. The gravity and importance of the case, it is thought, justifies us in referring to authorities that have come to our notice since the delivery of our former opinion, and in briefly discussing the question, although we do not deem it necessary to enter upon a very full discussion of the question.

In Payne v. State, 61 Miss. 161, it was held that the statement of the deceased that the defendant shot him without cause was not the expression of an opinion. The statement of the deceased in People v. Abbott, 4 Pac. Rep. 769, was that “the man cut him with a knife, and that he had no cause for it whatever,” and it was held to be the statement of a fact. The statement of the dying person in State v. Nettlebush, 20 Iowa, 257, was in answer to a question whether the shot was accidental or intentional, and the answer was that “it was intentional.” The evidence was held competent, but without any discussion. In Brotherton v. People, 75 N. Y. 159, it was held that the statement that “he [the deceased] did not at first recognize the defendant, but when the latter drew his pistol, and commenced his pranks, he knew that it was the prisoner.”

These authorities fully sustain our former ruling, and neither our own search nor that of counsel has resulted in finding any opposing decisions except that of Collins v. Com., 12 Bush, 271. That case disposes of the whole question in a single sentence, refers to one authority, (1 Tayl. Ev. 644,) and that authority goes no further than to declare, what is undoubtedly the general rule, that an opinion expressed in a dying declaration is not competent. The decision in People v. Fong Sing, 5 Crim. Law Mag. 57, is that it is improper to permit narratives of previous occurrences to be given in a dying declaration. What was there said by the court, and all that was said upon the subject, was:

“Dying declarations are restricted to the act of killing, and to the circumstances immediately attending it, and forming a part of the res gestœ. When they relate to former and distinct transactions, they do not come within the principle of necessity, on which such declarations are received.”

It is evident, therefore, that the case cited is not in point, and this is true of the other cases declaring a similar doctrine that are cited by counsel.

There is no substantial difference in the meaning of the word “cause” and the word “reason,” as used in this instance, in the dying declarations of the deceased. The jury could not have misunderstood the import of the word as used in the question addressed to the deceased, nor could he, for it is quite clear that it asked and required him to state what cause there was for killing. If it be held that a dying man may not declare, in general terms, that there was no reason, or no cause for the act of his slayer, then it will be practically impossible to ever get beforethe jury a statement on that point, for it is not possible for any one, much less a dying man, to state all the circumstances and facts upon which the conclusion that there was no cause or reason for the killing is based. The truth is that such a conclusion is not the expression of an opinion, but is the statement of a conclusion of fact from observed facts which, under all the authorities, is competent in such a case as this. Bennett v. Meehan, 83 Ind. 566;Yost v. Conroy, 92 Ind. 471, see page 471. The cases all agree that dying declarations are admissible in a case where the evidence would be competent if the declarant were on the witness stand, and if the statement of the deceased can, in any sense, be deemed the expression of an opinion, the opinion belongs to that class which the authorities agree a non-expert witness may express without stating the facts on which it is based. Bennett v. Meehan, supra, and authorities cited, 569; People v. Hopt, 9 Pac. Rep. 407. The cases upon this subject are very numerous, but most of them will be found in Lawson, Exp. Ev. 568; Rogers, Exp. Test. 6-8; Best, Ev. 657; 1 Whart. Ev. § 612; and Steph. Ev. 103.

It was not asserted in our former decision that an opinion found in a dying declaration is competent in a case where it would not be so if expressed by a witness on the stand. On the contrary, the general rule that matters contained in a dying declaration are not competent unless they would be admissible if they came from the lips of a living witness was declared and approved. Montgomery v. State, 80 Ind. 338;Binns v. State, 46 Ind. 311. What we decided on the former appeal and now reiterate is that the evidence here objected to was competent because it would have been competent if it had come from a witness present in court. We need not discuss the general rules governing the admission of dying declarations,-they are rudimentary,-for the question here is not what the general rules are, but whether the declarant's statement was one that a witness on the stand would have been allowed to make. The declarations of Casey do not refer, as did the statement in Montgomery v. State, to the purpose with which an act was done by another, but they simply declare that there was no cause for that act. A cause is often a fact, not merely an opinion, and it is here a fact. The statement of the dying man was not an expression of an opinion as to the sufficiency of the cause or reason that the accused had for shooting, nor was it the expression of an opinion upon any subject, nor was it a narrative of a past occurrence; but it was the statement of a negative fact, namely, that there was no reason or cause whatever for the shooting. The declaration does not assume to be the expression of an opinion, but it professes to be, and in truth is, the statement of a fact; for, if there was no reason or cause whatever, no opinion could be given as to its sufficiency or insufficiency. Whether there is any cause for an act must be a fact; but if it be conceded that there is a cause, then, whether it was or was not adequate, might well be deemed matter of opinion.

As we have suggested, negative facts can only be proved by a denial, since to enter upon a process of elimination and exclusion would lead to an almost endless examination. If a negative fact, like that here under discussion, cannot be proved by a general statement, then it would be necessary to enumerate every conceivable thing, and deny in detail that it existed. A practical science, such as the law is, requires no such procedure as that. If it did, it would be practically impossible to establish a negative fact. There are many instances in which what is in appearance a conclusion, but in reality a fact, may be stated in evidence. We suppose that it cannot be doubted that where the issue is whether a verbal agreement was entered into, that it is competent to state, in general terms, that there was no agreement. So, in a case where the question is whether liquor was or was not sold, it is proper for the defendant to deny the sale. So, too, it is perfectly competent for a party to state that he relied upon the representations of another. There are many cases,-far too numerous to justify mention,-in which it is proper to make a general statement in denial.

There is an essential difference between a statement denying a thing and one admitting the existence of a thing, and qualifying its character. Thus, to declare that liquor was sold, but not illegally, or that a man was struck, but not unlawfully, would, so far as the qualifying words are concerned, be a conclusion. If, however, those words should be struck out facts only would remain.

Whether the defense in a case of homicide is insanity, self-defense, or an alibi, cannot change the rule governing the admission of dying declarations. There is not one rule for defenses of insanity, another for self-defense, and still another for the defense of an alibi, but there is one rule for all cases. The question in all cases is to be determined irrespective of the nature of the defense. It cannot affect the question in this instance that the defense was that of self-defense. It would violate settled principles of logic and of law to hold that the accused might, by the character of his defense, change the rule as to the admissibility of dying declarations.

The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the latter. Sylvester v. State, 71 Ala. 17;State v. Johnson, 76 Mo. 121;Lister v. State, 1 Tex. App. 739.

A defendant in a criminal case who elects to testify as a witness is to be treated, so far as the cross-examination is concerned, as any other witness. This defendant did elect to testify as a witness, and hence is to be treated as any other witness upon...