Fitzgerald v. State

• Decision Date: 12 November 1881
• Citation: 11 Neb. 577,10 N.W. 495
• Parties: FITZGERALD v. STATE OF NEBRASKA.
• Court: Nebraska Supreme Court

11 Neb. 577

10 N.W. 495

FITZGERALD

v.STATE OF NEBRASKA.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error to the district court for Cass county.Sam M. Chapman, Willet Pattinger, and T. M. Marquett, for plaintiff.

No brief on file.

C. J. Dilworth, Atty. Gen., for the State, cited 1 Greenl. Ev. 158; State v Wilson, 24 Kan. 189;Hill's Case, 2 Gratt. 607;Dunn v. State, 3 Pike, 229;Moore v. State, 12 Ala. 764;Starkey v. People, 17 Ill. 17;Brookfield v. State, 1 Sneed, 215;Robbins v. State, 8 O. S. 138, 163; Kilpatrick v. Com. 7 Casey, 199;Young v. Com. 6 Bush, (Ky.) 313.

MAXWELL, C. J.

The plaintiff was indicted for the murder of Daniel McNeill, and convicted of manslaughter, and sentenced to imprisonment in the penitentiary for ten years. He now prosecutes a writ of error to this court. A large number of errors are assigned, but one of which will be considered.

Objection is made to the admission of the dying declaration of Daniel McNeill as evidence, upon the ground that it does not appear that he had given up all hope of living at the time he made the same. From necessity, dying declarations of a deceased person are admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. The rule is based on the presumption that in a majority of cases there will be no other equal or as satisfactory proof of the same facts; and in many cases it would be impossible otherwise to fix the actual commission of the crime. But the fact that they are hearsay evidence; that there is no opportunity for cross-examinations by the parties against whom they are offered; that they may have been made under a feeling of injury or resentment, and a desire to place the worst possible construction upon the conduct of the accused; and that he has no opportunity to ask questions tending to extenuate his conduct,--render it necessary that such declaration should be received only in cases where a sufficient foundation has been laid.

As a condition precedent to the admission of such declaration, therefore, it must be made to appear to the court that it was made under a sense of impending death. But the deceased need not state, at the time of making the same, that in his opinion he was about to die. Nor does the time which elapses between the time the declaration was made and the death of the declarant become material, provided that at the time the declaration was made he believed he was about to die. The test seems to be, was the declaration made under a sense of impending death? If so, the declaration is admissible; the solemity of the occasion being considered by the law as creating an obligation equal to that imposed by an oath in court. In the case at bar, the fatal wound...