CARVER V. UNITED STATES

• Decision Date: 04 January 1897
• Citation: 164 U. S. 694
• Court: U.S. Supreme Court

Carver v. United States

No. 588

Submitted December 15, 1896

Decided January 4, 1897

164 U.S. 694

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF ARKANSAS

Syllabus

In a trial for murder, if the declarations of the deceased are offered, the fact that she had received extreme unction has a tendency to show that she must have known that she was in articulo mortis, and it is no error to admit evidence of it.

Where the whole or a part of a. conversation has been put in evidence by the government on the trial of a person accused of the commission of crime, the other party is entitled to explain, vary, or contradict it.

When the dying declarations of the deceased are admitted on the trial of a person accused of the crime of murder, statements made by the deceased in apparent contradiction to those declarations are admissible.

This was a writ of error to review the conviction of the plaintiff in error for the murder of one Anna Maledon at Muskogee, in the Creek Nation of the Indian Territory. The conviction was a second one for the same offense, the first having been set aside by this Court upon the ground that improper evidence had been received of an alleged dying declaration. 160 U. S. 553.

The evidence tended to show that Carver, a man about twenty-five years of age, was grossly intemperate in his habits, and upon the day the homicide took place had been drinking a mixture of hard cider and Jamaica ginger, and was so intoxicated that he could hardly walk; that deceased, who had been his mistress for several years, had agreed to meet him in the evening at a certain mill crossing in Muskogee. They met at about half-past eight, when he soon began to threaten her that he would, before daylight, kill her and one Walker, of

Page 164 U. S. 695

whom he appeared to have been jealous. He was armed with a revolver, and his conduct indicated that he was crazed with liquor. During his walk with the deceased, he met a man whom he drove off at the point of his pistol, and amused himself by firing it off at a lot of cattle, which were within range. Meeting one Crittenden, the deceased, believing that Carver was unfit to care for her and accompany her, asked Crittenden, with whom she was acquainted, to take her home. Crittenden started with them, when Carver got out his pistol again, flourished it about, and fired it off twice, once in the air and once in the ground. After walking some fifty yards or more, Carver again took out his pistol, flourished it around, and, either intentionally or accidentally, shot deceased in the back and mortally wounded her.

MR. JUSTICE BROWN, after stating the facts in the foregoing language, delivered the opinion of the Court.

1. Defendant's fourth and fifth assignments of error were taken to the action of the court in permitting the district attorney to prove that a Catholic priest was summoned for Anna Maledon, "that she took the sacrament after she was shot," and that he "performed the last rites of the Catholic Church in her behalf." We see no objection to this testimony, and think it was within the discretion of the court to admit it. Alexander v. United States, 138 U. S. 353, 357. Dying declarations are an exception to the general rule that only sworn testimony can be received, the fear of impending death being assumed to be as powerful an incentive to truth as the obligation of an oath. The fact that the deceased had received extreme unction had some tendency to show that she must have known that she was in articulo mortis, and if the

Page 164 U. S. 696

jury were of opinion that the fact that she received it lent an additional sanctity to her statement, it was no error to admit evidence of it. If not, it could do the defendant no harm. It was one of the facts showing the circumstances under which the declaration was made that the government was entitled to lay before the jury. In Regina v. Howell, 1 Den.C.C. 1, the deceased had received a gunshot wound, and repeatedly expressed his conviction that he was mortally wounded. Evidence that he was a Roman Catholic, and that an offer was made to fetch a priest, which he declined, appears to have been received without objection as tending to show that he did not think his end was approaching, but his declaration was held to have been properly received. In Minton's case, cited by counsel in Howell's case, the fact of a person's having received extreme function was considered evidence that she thought herself in a dying state.

2. The sixth assignment of error was taken to the refusal of the court to permit the defendant to prove by Mary Belstead and Mary Murray the declarations of defendant, and what he said to deceased, and what she said to him at the place of the fatal shot immediately after the shot was fired for the reason that the same was part of the res gestae, and was also a part of the conversation given in evidence by the government witnesses. We fail to understand the theory upon which this testimony was excluded. Hays and Brann, two witnesses for the government, had testified that they had heard the shots fired and the scream of a woman; that Brann started for the place, and met defendant running away; that defendant went back towards the woman, and then returned again, when Brann caught him and took him back to the woman, about thirty yards. About this time, Hays came up, and both testified as to the conversation or exclamations that were made between deceased and the defendant. Defendant's two witnesses, Belstead and Murray, appear to have come up about the same time, and whether the conversation that took place between defendant and deceased at that time was part of the res gestae or not, it is evident that it was practically the same conversation to which the government's witnesses had testified. If it were competent

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