Cooper v. State
| Decision Date | 21 January 1907 |
| Citation | 89 Miss. 351,42 So. 666 |
| Court | Mississippi Supreme Court |
| Parties | GEORGE COOPER v. STATE OF MISSISSIPPI |
November 1906
FROM the circuit court of Claiborne county, HON. JOHN N. BUSH Judge.
George Cooper, the appellant, was indicted for the murder of one Joseph Nesmith, was tried and convicted of manslaughter, and sentenced to the penitentiary for five years, from which conviction and sentence he appealed to the supreme court.
Appellant's chief assignment of error was the admission in evidence on the trial, of a written statement containing in part Nesmith's alleged dying declaration, made about five or six hours before his death, and written down by an attendant physician. Appellant's objection to the introduction of the writing was based on the grounds that it contained only such part of the dying man's statements as the physician at the time of writing considered material, and that the declaration in any form was incompetent because of the dying man's mental condition at the time it was made.
The attendant physician testified that at the time such statement was orally made Nesmith was conscious and rational, and capable of making intelligent statements, but desirous of talking about immaterial things; that the writing of the statement occupied about twenty minutes, and before it was concluded the declarant had become dazed and was in a stupor and if left alone would have gone to sleep. The physician further testified that he wrote the statement, not at the request of declarant, but of other persons present, using his own language instead of the language of declarant, and writing down merely the substance of such parts of the dying man's statements as he, the physician, considered material; that when the writing was concluded it was necessary to shake declarant to arouse him from the sleep into which he had fallen, before the statement could be read to him; that he, the physician, could not say whether the declarant made his mark or whether some one else made it for him.
When the paper containing the statement was offered in evidence the court ordered certain parts of it stricken out as incompetent, and allowed it to go to the jury in an expurgated form, over appellant's objection.
Reversed and remanded.
J. McC. Martin, for appellant.
The so-called dying declaration, offered in evidence in expurgated form by the prosecution, was incompetent. As first offered, it stated in substance that appellant fired upon Nesmith, the declarant, the shot striking declarant in the left breast; that declarant was unarmed. And, in addition, it stated that, These sentences, set off by quotation marks, were stricken out of the statement, and thus expurgated it was placed before the jury.
The physician, Dr. Jones, in seeking to write the dying declaration, wrote a paper not dictated by the dying man. He used his own language, not the words of Nesmith. He consulted with persons other than the dying man, and wrote at the suggestion of others than Nesmith. He could not testify whether Nesmith made his mark to the alleged dying declaration, or how the signature was affixed.
The condition of Nesmith was throughout that of a man not in his right mind. It was necessary to arouse him from sleep or stupor frequently while the declaration was being written and read. Moreover, the physician stated on the stand: The statement was not written at Nesmith's request. And as presented to the jury, the declaration was a judicially emasculated paper, penciled in his own language by a physician, for a man who, when it was written, had been dying all day, was practically unconscious of his actions, and who admittedly never formally affixed his signature thereto.
The general rule is that evidence of such nature is only admissible, in any instance, where the death of deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration. Roscoe's Crim. Ev. (8th ed.), vol. 1, p. 57. In order to judge of the state of mind of the dying man the whole of the circumstances must be looked at. Ibid., p. 57.
"The general principle on which this species of evidence is admissible is that they are declarations made in extremity when the party is at the point of death, and every hope of this world is gone; when every motive for falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful being considered by the law as creating an obligation equal to that imposed by a positive oath administered in a court of justice." 21 Cyc., 976; Payne v. State, 61 Miss. 161; Westbrook v. People, 126 Ill. 81. "A dying declaration must be complete, and go to the jury as a whole or not at all." ...
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