Dickason v. State
| Decision Date | 27 April 1918 |
| Citation | 202 S.W. 922,139 Tenn. 601 |
| Parties | DICKASON v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Tipton County; S. J. Everett, Judge.
Anthony Dickason was indicted for murder, found guilty in the second degree, and brings error. Reversed and remanded for new trial.
Jno. A Tipton and Simonton & Gwinn, all of Covington, for plaintiff in error.
W. H Swiggart, Jr., Asst. Atty. Gen., for the State.
The plaintiff in error was indicted for the murder of Vesper Granderson. He was found guilty of murder in the second degree, and has appealed in error to this court.
We express no opinion on the facts of the case since it must be reversed and remanded for a new trial for certain errors of law occurring below.
The action of the trial court in admitting a statement of Granderson, made just prior to his death, as a dying declaration is vigorously assailed by counsel for plaintiff in error.
Granderson was shot at close quarters, with a shotgun, in the abdomen. His wound was very large, of a desperate nature, and the intestines were exposed and protruded. He received this wound late in the evening and lived until the following day. A doctor was summoned on the night of the shooting and visited Granderson and made an examination. The doctor administered a dose of morphine on this visit, but did nothing further at that time. He returned with another physician the following morning. They again examined Granderson, and concluded that he had no chance whatever to recover, unless an operation was performed upon him. They thought that he had a mere chance for recovery if an operation was performed--about one chance in a thousand, as the physicians expressed it.
The doctors told Granderson that he would have a bare chance for recovery if he submitted to an operation. He protested against the operation; said it was no use; that he was going to die. After some further talk he ceased objecting to the operation and made the statement admitted in evidence. He never at any time, however, manifested any hope, and while the anæsthetic was being administered again protested; said it was useless, and he was going to die.
It is urged by counsel for plaintiff in error that these circumstances indicate that Granderson had not relinquished hope of recovery. It is said that otherwise he would not have permitted the operation, and it is submitted that unless the declaration was made when the declarant was without any hope of recovery and believed death imminent and inevitable, such declaration is not competent.
The rule of evidence relied on by plaintiff in error is well established in this state. Smith v. State, 9 Humph. (28 Tenn.) 9; Anthony v. State, Meigs (19 Tenn.) 265, 33 Am. Dec. 143; Baxter v. State, 15 Lea (83 Tenn.) 657, and other cases.
We think, however, this rule is not applicable to the facts before us. We believe that Granderson regarded his death as inevitable and imminent at the time he made the declaration and that he was without hope of recovery.
The sense of impending death may be shown by the language of the deceased, or inferred from the character of the wound, or set up by the testimony of physicians or other attendants. Baxter v. State, supra; Anthony v. State, supra; Smith v. State, supra; Brakefield v. State, 1 Sneed (33 Tenn.) 215; Logan v. State, 9 Humph. (28 Tenn.) 24; Nelson v. State, 7 Humph. (26 Tenn.) 542.
As tending to establish the consciousness of impending dissolution, our cases have attached much importance to the character of the wound.
In the case before us the injuries of the wounded man were of a desperate nature, and he could scarcely have contemplated them with any expectation of life. Moreover, he expressed to the doctors his belief that he would die, and did not appear to have any faith whatever in the operation.
We do not think the bare circumstance that a person so wounded agrees to an operation indicates that such person entertains a hope of recovery. The patient is often too weak to resist the suggestion of attendant physicians, or he may yield for the sake of his friends or family. His mere consent to the operation cannot overcome other circumstances strongly indicating his sense of his condition.
There was some controversy among the witnesses below as to the circumstances under which this declaration was made, and this controversy is sought to be reopened here by counsel for plaintiff in error. There was an effort to impeach the testimony of one of the witnesses testifying to the surroundings of deceased and his mental status at the time of the declaration.
In this state the admissibility of dying declarations is a question for the court:
To like effect is Bolin v. State, 9 Lea (77 Tenn.) 516.
In Smith v. State, supra, this court reversed the action of the trial judge who found that deceased possessed the requisite consciousness of dissolution. This court thought the evidence offered did not warrant the judge in reaching this conclusion.
The competency of a dying declaration is ordinarily a mixed question of law and fact. While this court, therefore, has power to review the action of the trial judge in such a matter, it being merely a question of the admissibility of evidence, we very seldom do so. Where the fact of the declarant's condition depends on the credibility of witnesses examined by the judge, great weight is to be attached to his conclusion. This court will not reverse, unless there is manifest error. Such is the rule in most appellate tribunals. Some hold the action of the trial court conclusive. Gipe v. State, 165 Ind. 433, 75 N.E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Swisher v. Com., 26 Grat. 963, 21 Am. Dec. 330; Wigmore on Evidence, § 1442; 1 R. C. L. 537, note, 8 Ann. Cas. 544.
In the course of his charge referring to the dying declaration the court below used this language:
"Such statement or declaration stands...
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Omohundro v. State
... ... illustrations of the principle referred to by the court in ... Powers v. McKenzie ... [109 S.W.2d 1165] ... are to be found in our criminal cases. In this state the ... admissibility of dying declarations is a question for the ... court alone, without the aid of the jury. Dickason v ... State, 139 Tenn. 601, 202 S.W. 922. In cases of search ... and seizure it is always the duty of the judge, when ... objection is made because of an unlawful search, to ... determine, in the absence of the jury, as a matter of law ... whether such evidence is competent. Goodwin v ... ...
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... ... courts of high repute and of authoritative writers on the law ... of evidence. Wigmore on Evidence, Third Edition, § 681; ... Editorial Note, 85 A.L.R. 870. The practice is like that ... obtaining in determining the admissibility of a dying ... declaration, Dickason v. State, 139 Tenn. 601, 202 ... S.W. 922, or of evidence procured in a search. Goodwin v ... State, 148 Tenn. 682, 257 S.W. 79 ... A ... confession being admitted, its weight is of course a matter ... for the jury. That is, the jury is to determine whether ... defendant ... ...
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Wooten v. State
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Crittendon v. State
...wounded is clearly to be inferred from his own statement to the doctor, and the character and severity of his injury. Dickason v. State, 139 Tenn. 609, 202 S.W. 922. would be a question for the determination of the trial judge whether the deceased made his statement under the consciousness ......