Dean v. State
| Decision Date | 27 May 1935 |
| Docket Number | 31454 |
| Citation | 162 So. 155,173 Miss. 254,160 So. 584 |
| Court | Mississippi Supreme Court |
| Parties | DEAN v. STATE |
April 8, 1935
APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.
Sarah Ruth Dean was convicted of murder by poisoning, and she appeals. Affirmed.
On suggestion of error. Suggestion overruled.
Affirmed.
Gardner & Denman, of Greenwood, and J. J. Breland, of Sumner, for appellant.
No motive was shown.
The dying declaration of a person is simply part of the evidence and can be impeached or discredited by any admissions made by the deceased at any time prior to the alleged dying declaration, although such admissions would not be held competent themselves as the dying declaration.
2 Wigmore on Evidence, sections 1017 and 1018; Nelms v State, 13 S. & M. 500; 30 C. J. 280, sec. 522; 1 R. C. L., Impeachment, pages 548 and 549; 16 A.L.R. 411.
Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported in all the circumstances of the case.
Railroad Co. v. Jackson, 92 Miss. 517; Houston v State, 117 Miss. 311; Stewart v. Coleman, 120 Miss. 28; Stevens v. Stanley, 153 Miss. 809; Walters v. State, 153 Miss. 709; Wesley v State, 153 Miss. 357; Crichton v. Halliburton & Moore, 154 Miss. 284; Tarver v. Lindsey, 161 Miss. 389; Weathersby v. State, 165 Miss. 207; 23 C. J., sec. 1791.
Homicide may not be imputed to a defendant on the basis of mere suspicions, though they are the suspicions of the dying.
2 Wigmore on Evidence, sec. 1445; Shepard v. U.S. 54 S.Ct. 22; People v. Falletto, 202 N.Y. 494; New York Law Journal, Thursday, February 15, 1934, volume 91, No. 38; Lipscomb v. State, 75 Miss. 559, 584, 607.
The declaration must be a statement of fact within the knowledge and observation of the declarant.
Jones v. State, 79 Miss. 318-320; Berry v. State, 63 Ark. 382; McNeal v. State, 115 Miss. 678; 133 Miss. 266; 67 N.C. 12; 125 N.C. 712; 63 N.Y. 36; 149 Ky. 705; 235 Ky. 670; 202 N.Y. 494; 278 Mo. 481; 25 A.L.R. 1359; 63 A.L.R. 567; 21 L.R.A. (N.S.) 840; 2 Wigmore on Evidence, sec. 1447-n.
This court in Marley v. State, 109 Miss. 718, lays down the rule that a dying declaration must be restricted to the act of killing and the circumstances immediately attending the act which form a part of the case. This is the general rule recognized everywhere so far as the authorities show.
There are a great number of cases in various jurisdictions that support appellant's contention that evidence in this case fails to prove the defendant guilty beyond every reasonable doubt.
State v. Sullivan, 17 A.L.R. 905; People v. Millard, 18 N.W. 562; Page v. State, 151 Miss. 151; Vaughn v. State, 19 Ala. 511, 993 So. 256; Davenport v. State, 144 Miss. 275; Hunt v. State, 108 Miss. 588; 16 C. J. 935, sec. 2299.
The alleged dying declaration is not competent for the following reasons: (a) it was not made at a time when the declarant was under the solemn sense of impending death; (b) the evidence shows that the deceased was not capable of making a rational dependable statement at the time of the alleged dying declaration; (c) because parts of the declaration testified to by the witnesses not a part of the res gestae were such as to inflame the jury and to arouse prejudice and passion against appellant.
30 C. J. 262 and 263, sec. 504; McNeal v. State, 115 Miss. 678, 76 So. 625; Fannie v. State, 101 Miss. 380, 38 So. 2; Bell v. State, 72 Miss. 507, 17 So. 232; Shepherd v. U.S. 54 U. S. S.Ct. 22; Hayes v. State, 73. Tex. 58, 164 S.W. 841; White v. State, 136 So. 420.
Certain hypothetical questions propounded by the counsel for the state to medical experts were not based upon material facts proven in the case.
Prince Cates v. State, 171 Miss. 106, 157 So. 95; Earp v. State, 38 So. 288; Prewett v. State, 106 Miss. 82, 63 So. 330; People v. Millard, 33 Mich. 75, 18 N.W. 562; People v. Vanderhoof, 38 N.W. 38; Prentiss v. Bates, 88 Mich. 567, 50 N.W. 637; Wittenberg v. Onsgard, 78 Minn. 342, 81 N.W. 14, 47 L.R.A. 141; Vosburg v. Putney, 14 L.R.A. 226; Fisher v. State, 145 Miss. 133; Floyd v. State, 166 Miss. 40.
The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure.
Fisher v. State, 145 Miss. 133; State v. Thomas, 55 So. 416; Green v. State, 97 Miss. 834; Lamar v. State, 64 Miss. 682.
J. J. Breland, of Sumner, for appellant.
The evidence introduced by the state in its case in chief was insufficient as a matter of law to show the guilt of the appellant beyond a reasonable doubt.
7 R. C. L. 774; Joe v. State, 6 Fla. 591, 65 Am. Dec. 579; Wills on Circumstantial Evidence, 177, 189, 190; Pitts v. State, 43 Miss. 472; People v. Millard, 53 Mich. 63, 18 N.W. 562.
It is the general rule, as we understand the law, that the competency of a dying declaration is a question to be determined by the trial judge, in the absence of the jury, and the credibility and weight of such testimony, like any other testimony, is for the jury.
Lipscomb v. State, 75 Miss. 559, 23 So. 210; Owens v. State, 59 Miss. 549; Simmons v. State, 61 Miss. 257; Holly v. State, 55 Miss. 430; Ellis v. State, 65 Miss. 48, 3 So. 189.
As a foundation for the admission of a statement as a dying declaration, it must be shown that it was made by decedent under a sense of impending death and without hope of recovery.
30 C. J. 263, sec. 504; McNeal v. State, 115 Miss. 678, 76 So. 625; Lipscomb v. State, 75 Miss. 559, 23 So. 210; Haney v. State, 129 Miss. 486, 92 So. 627; Lee v. State, 103 So. 368; Wilkerson v. State, 124 Miss. 854, 98 So. 770; 1 R. C. L. 539, sec. 82; Smith v. State, 137 So. 96; Bell v. State, 72 Miss. 507, 17 So. 232; Jones v. State, 79 Miss. 309, 30 So. 759; Berry v. State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v. Griffith, 149 Ky. 405, 149 S.W. 825; Shepherd v. U.S. 78 L.Ed. 196.
No declaration, or any part of it, is admissible unless competent and relevant, if made by living witnesses.
Lipscomb v. State, 75 Miss. 559, 23 So. 210; McNeal v. State, 115 Miss. 678, 76 So. 625; 56 L.R.A., Extra Ann., page 372; People v. Tayloe, 59 Cal. 649; Montgomery v. State, 80 Ind. 339; People v. Alexander, 161 Mich. 645, 126 N.W. 837, 21 Ann. Cas. 150; 10 Amer. & Eng. Enc. Law (2 Ed.), page 282, et seq.; 21 Cyc. 975; People v. Armstead, 30 Mich. 431; Worthington v. State, 56 L.R.A. 353, 92 Maryland, 222, 48 A. 355, 84 Am. Rep. 506; State v. Myer, 65 N. J. L. 237, 47 A. 486, 86 Am. St. Rep. 637; Fitzsimmons v. State, 1 Shannon Cas. 505; Starr v. Commonwealth, 97 Ky. 193, 197 S.W. 397; Malone v. State, 72 Fla. 28, 72 So. 415; Ratliff v. State, 19 Ala.App. 505, 98 So. 493; Humber v. State, 19 Ala.App. 451, 99 So. 68; Johnson v. State, 94 Ala. 35, 10 So. 667; White v. State, 136 So. 420; Baker v. Commonwealth, 106 Ky. 212, 50 So. 54.
The court below erred in admitting in evidence the testimony of Dr. W. F. Hand, state chemist, with reference to the chemical analysis of the viscera taken from the dead body of Dr. Kennedy.
Payne v. State, 151 Miss. 513, 118 So. 605.
The hypothetical questions failed to meet the requirements of law as decided by this court.
Cates v. State, 171 Miss. 106, 157 So. 95; People v. Vanderhoof, 38 N.W. 38; People v. Millard, 53 Mich. 75, 18 N.W. 562; Earp v. State, 38 So. 288; Pruitt v. State, 106 Miss. 82, 63 So. 330; 5 Encyc. of Evidence 615; Reed v. State, 62 Miss. 405.
Where the testimony for the state is unreasonable as a whole, and strongly contradicted by circumstances and direct testimony, it is the duty of the court to grant the defendant a new trial.
Davis v. State, 132 Miss. 448, 96 So. 307; Hollifield v. State, 132 Miss. 446, 96 So. 306.
A. F. Gardner, Sr., and Richard Denman, both of Greenwood, and J. J. Breland, of Sumner, for appellant.
One of the conditions essential to the admissibility of the dying declaration is that the declarant must be in extremis.
30 C. J. 254, sec. 497-a; McLean v. State, 12 So. 405; Bell v. State, 72 Miss. 507, 17 So. 232; Lewis v. State, 9 S. & M. 115.
It is not enough that the statement be made when the declarant is in extremis, it is also essential that it be made when he has abandoned all hope of recovery from the injury inflicted by accused and is under firm conviction that his death is inevitable and near at hand.
30 C. J., page 255, sec. 498-b, pages 251, 257, sec. 493, page 253, sec. 495-b, page 263, sec. 504; 1 R. C. L. 538; Boyd v. State, 84 Miss. 414, 36 So. 525; Merrell v. State, 58 Miss. 65; Brown v. State, 32 Miss. 433; Lambeth v. State, 23 Miss. 322; Nelms v. State, 21 Miss. 500, 53 Am. Dec. 94; McDaniels v. State, 16 Miss. 401, 47 Am. Dec. 93; Haney v. State, 92 So. 627, 129 Miss. 486; McNeal v. State, 115 Miss. 678, 76 So. 625; Reeves v. State, 106 Miss. 885, 64 So. 836, Ann. Cas. 1917A 1425; Fannie v. State, 101 Miss. 378, 58 So. 2; Guest v. State, 96 Miss. 871, 52 So. 211; Ashley v. State, 37 So. 960; Harper v. State, 79 Miss. 575, 31 So. 195, 56 L.R.A. 372; Brown v. State, 78 Miss. 637, 29 So. 519, 84 Am. St. Rep. 641; Joslin v. State, 75 Miss. 838, 23 So. 515; Bell v. State, 72 Miss. 507, 17 So. 232; Starks v. State, 6 So. 843; Lewis v. State, 9 S. & M. 115; Sparks v. State, 113 Miss. 266, 74 So. 123; Owens v. State, 59 Miss. 547; Green v. State, 43 Fla. 552, 30 So. 798; People v. Cassesse, 251 Ill. 422, 96 N.E. 274; Tibbs v. Commonwealth, 158 Ky. 558, 128 S.W. 871, 28 L.R.A. (N.S.) 665; State v. Cutrera, 143 La. 738, 79 So. 322; State v. Daniels, 115 La. 59, 38. So. 894; Regina v. Jenkins, L. R. 1 C. C. 191; Reg v. Osman, 15 Cox C. C. 1; Ealy v. State, 128 Miss. 715, 91 So. 417.
We are of the opinion that the only logical conclusion which can be reached from all of...
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