Gardner v. State

• Decision Date: 04 March 1908
• Citation: 55 Fla. 25,45 So. 1028
• Parties: GARDNER v. STATE.
• Court: Florida Supreme Court

45 So. 1028

55 Fla. 25

GARDNER v. STATE.

Florida Supreme Court, Division A.

March 4, 1908

Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.

Josephine Gardner was convicted of manslaughter, and brings error.Reversed.

Syllabus by the Court

SYLLABUS

Under an indictment for homicide, where the state seeks to introduce a dying declaration of the deceased in evidence, it should be first shown to the satisfaction of the court that at the time the declarations were made the deceased not only considered himself in imminent danger, but that he evidently believed he was without hope of recovery.The circumstances under which the statements were made must be shown, in order that the court may determine whether the statements are admissible as dying declarations.

The utmost care and caution should be exercised by the court in the admission of dying declarations, since such declarations are necessarily a species of hearsay evidence, and their admission in evidence is an exception to the general rule of evidence, which requires that the witness shall be sworn and the defendant given privilege of cross-examination.

Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a preliminary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon in entitled to great weight, every presumption being in favor of its correctness; but such ruling is subject to review by an appellate court, though it will not be disturbed, unless it clearly appear to be erroneous.If the appellate court is clearly convinced that the trial court committed error in admitting such dying declarations, it is its duty to pass upon such ruling, when the same is properly assigned as error, and to reverse the judgment, if necessary for the furtherance of justice.

Dying declarations are substitutes for sworn testimony, and must yield to the general rules governing the admissibility of evidence; and nothing can be admitted as evidence in such a declaration to which the declarant would not be permitted to testify on the witness stand, had he survived.

It is error to admit in evidence a copy of a dying declaration taken down by a justice of the peace, over the objection of the defendant, when the absence of the original has not been satisfactorily accounted for and explained, especially where the original would not be admissible.

It is error to deny a motion to strike out certain portions of a dying declaration that give the opinion of the deceased as to the intentions of the defendant, when such motion is properly restricted to such objectionable portions of the declaration.

COUNSEL

Daniel Campbell & Son, for plaintiff in error.

OPINION

SHACKLEFORD C.J.

Josephine Gardner, the plaintiff in error, was indicted for manslaughter, tried and convicted at the fall term, 1907, of the circuit court for Walton county, and sentenced to a term of imprisonment in the state prison for six years.From this judgment and sentence she seeks relief here by writ of error.

The first assignment is as follows: 'The court erred in permitting the state attorney to offer and read in evidence what purported to be a copy of the dying declarations made by the deceased, over defendant's objection.'

Previous to the offer and introduction of the paper in question in evidence, the state had introduced evidence to the effect that the deceased and the defendant were living together as husband and wife, and that the tragedy in which the deceased lost his life was enacted at his house in Walton county late in the afternon of Friday, the 24th day of May 1907; that the defendant was at home talking with Tom Johnson, one of the state witnesses, when the deceased came up to the house, and an altercation ensued between him and the defendant, though what occasioned it is not disclosed by the evidence; that the deceased picked up a rake, with which he threatened and also thrust at the defendant, who finally ran outside of the yard with the deceased in pursuit of her though he had put down the rake; that she had a pistol in her possession at the time deceased came to the house, and while he was still pursuing her, and had gotten within about five steps of her, and was gaining upon her, she, without turning round, threw the pistol on deceased and discharged it at him wounding him in the abdomen, from the effects of which wound he died early the following Sunday morning.We deem it unnecessary to further set out the details.

The state then introduced as a witness D. E. Douglass, who testified that he held the position of justice of the peace in Walton county, and was acquainted with both the defendant and the deceased, and then the following proceedings took place during his examination:

"Q.Do you know where Walter Gardner is now?A.Yes, sir; I suppose he is dead.I didn't see him after he died.I saw him before he died.Q.Did you see him after he was shot?A.Yes, sir; the next morning after they said he was shot the evening before.Q.That is the last time you saw him?A.Yes, sir.Q.State whether or not that was after he was shot on Friday.A.Yes, sir.Q.At that time did he make any statement to you about being shot?A.Yes, sir; he made a statement.Q.Now, at the time he made that statement to you, did he state anything to you about what his condition was--whether he was going to get well or die?A.He said he wasn't.Q.He said he wasn't going to get well?A.Yes, sir; he said he wasn't going to live.Q.Did he express any hope of recovery?A.No, sir; he said he knew he couldn't stand it long.Q.Then did he make any statement to you about the shooting?A.Yes, sir; I asked him some questions about who shot him and all about it.Q.Did you write down the questions you asked him?A.Yes, sir.Q.Did you write down the answers he made you?A.Yes, sir.Q.What did you write that down in?A.I had a little book with me I put them down in.Q.You had a little book with you, and you wrote the questions down in that?A.Yes, sir.Q.Now look at this paper (counsel hands paper to witness).A.Yes. sir.Q.You didn't have it with you at that time?A.No, sir; I didn't.I had a little book and lead pencil.Q.Are these questions and answers an exact copy of the questions and answers you made at this time?A.Yes, sir; the exact questions and answers.'

'Mr. Kehoe: We desire to offer this as a dying declaration of Walter Gardner.

'Mr. Campbell: Is it signed by him?

'Mr. Kehoe: No.

'Whereupon the attorney for the defendant objected to the admission of the same in evidence, because it is shown to be a copy of what he may have had in a book, and it has not been sufficiently shown that this party was in a position to make a dying declaration.And the said judge did then and there deliver his opinion and decide that the same was admissible in evidence, to which ruling of the court the said defendant, by her attorneys, did then and there except.

'Dying declaration read to the jury as follows:

"State of Florida v. Josephine Gardner.

"Testimony of Walter Gardner taken 25th day of May, A. D. 1907.Q.What was the quarrel about.A.Nothing much; she was mad with me.Q.Did she shoot you on purpose?A.She did.Q.Was it accidental?A.No, sir; she shot me a purpose, and I want her punished for it.Q.Whose pistol was it?A.Mine; but I didn't think she would shoot me with it.Q.Was you trying to hit her with the rake?A.I did have it, but had it down before she shot me.Q.How far was she when she shot you?A.About as far as to the side of the wall (about five feet).Q.Do you think you will get over it?A.No; I can't live, but I want her punished for she tried to kill me.

"State of Florida, County of Walton.

"I. D. E. Douglass, a justice of the peace in and for the county of Walton, do hereby certify that the above is a true statement made to me by the deceased, Walter Gardner, on the above date.This 31st day of May, A. D. 1907.

"[L. S.]

D. E. Douglass.

"Justice of the Peace, Sixth Justice District, Walton County, Florida.'

'Mr. Kehoe: 'Q.Mr. Douglass, where was Walter Gardner at the time he made the statement to you?A.There at his own house.Q.The day after he had been shot the evening before?A.Yes, sir.Q.Did you propound these several questions to him?A.Yes, sir.Q.These answers I have read, did he make these very answers?A.Yes, sir.Q.Youwrote down the questions and answers, and these are the questions and answers as made then?A.Yes, sir.Q.Do you know anything more about this case?A.No, sir.'

'Cross-examination: 'Q.Who was with you?A.I don't know that there was anybody with me.Jim Blackwell, Quarterman McCaskill, Dan Jackson, Steven McCaskill--I don't remember.A pretty good crowd was there.Josephine herself was there, I think.Q.What was your purpose in going there?A.To take his testimony.Q.What time of day was it?A.As near as I can recollect, it was between 8 and 9 o'clock in the morning.Q.When was it he told you he could not stand it long--he could not get over it?A.He told me himself.I asked him.Q.When was it, I say?A.When I was taking down the testimony.Q.When were you taking down the testimony?A.Yes, sir.Q.Before or after?A.Before I took it down--while I was taking it.Q.And he didn't express any hope of getting well?A.No, sir.Q. Didn't he say he hoped he would get well?A.I don't think he did.Q.This was on Saturday morning?A.Yes, sir.'

'Redirect examination: 'Q.Did you see Josephine out there when he made this statement?A.Yes, sir; around and about I seen her, but we made her go out of the room while he made this statement.Q.Youmade her go out of the room while h...