Green v. State

• Decision Date: 23 July 1901
• Citation: 43 Fla. 552,30 So. 798
• Parties: GREEN v. STATE.
• Court: Florida Supreme Court

30 So. 798

43 Fla. 552

GREEN v. STATE.

Florida Supreme Court

July 23, 1901

Error to circuit court, Wakulla county; John W. Malone, Judge.

Henry Green and Casper Green were convicted of murder in the third degree, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. It is error to admit in evidence, as a dying declaration, a writing not signed by the deceased, but certified to by a justice of the peace as containing the statement made by the deceased, in the absence of testimony that the deceased did make the statement contained in the writing, and believed at the time his death was imminent, and that he entertained no hope of recovery. Such a paper should not be admitted per se as independent evidence of a dying declaration.

2. When the prosecution offers a dying declaration of the deceased in evidence, it should first be shown to the satisfaction of the court that at the time the declaration was made the deceased not only considered himself in imminent danger of death, but must be without hope of recovery, and the circumstances under which the statement was made should be shown in order that the court may determine whether the statement should go to the jury as a dying declaration.

COUNSEL

Nat. R. Walker, for plaintiffs in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

Plaintiffs in error and one Enos Green were indicted for murder in the second degree, and upon the trial Henry and Casper were convicted of murder in the third degree, and Enos was acquitted. The convicted parties have sued out writ of error to have the case against them reviewed in this court.

Patrick Lee was shot in a house where a 'festival' was going on, and died. The court admitted as a dying declaration an oral statement of the deceased in reference to who shot him and the way in which it was done made to a witness named Wheeler Donaldson, over an objection by the defendants that the proper predicate had not been laid. The witness Donaldson testified to certain statements of the deceased as to his living, made just before he died. The state also offered in evidence the following writing viz.:

'State of Florida, Wakulla County. I, Patrick E. Lee, of St. Marks, Wakulla county, state of Florida, being of sound and clear mind, and believing that I am about to die, do make this my ante mortem statement concerning the shooting and wounding from which I believe that I will die. Casper Green first started the row with me, and Casper and the girl Josephine Taylor saw me, and settled the question. Enos Green then comes in the house, and takes it up, and says, 'Lee, I want to see you.' He says, 'Casper is my brother, and I want you to treat him right.' I says, 'Enos, I am not bothering you, and if you keep on bothering me we will have a row;' and he says, 'All right, I don't care;' and says, 'Come outside, we are man for man; you come on out here.' I went on outdoors, and thought we would talk the matter over. He says, 'We are man for man, and we will settle this matter.' He wanted to jump on me, and I said, 'Man, go to h---, G--- d--- you; you can't whip me; it will take all you people to whip me.' Then Abe Jugger called me in the house, and told me not to have any fuss here. Casper grabbed me in the collar, and pulled me up side the wall, and threw his pistol in my face, and I cut him off with my pistol; that is, I shot him. I shot once, and had four cartridges in my pistol. Henry Green shot me first, while Casper Green had me in the collar. I did not see Henry shoot me, but believe he did, and lots of the people here saw it. Casper shot me in the stomach. I am positive as to that. When Casper shot me, I turned around, and then, as soon as I broke away, I came on up to the house.

'The foregoing ante mortem statement of the said P. E. Lee was made before me this the 23d day of September, A. D. 1900.

'R. E. Pate, Justice of the Peace.

'[Seal 1st J. P. Dist., Wakulla Co., Florida.]'

Defendant objected to this paper going in evidence, on the grounds that it did not show the deceased to be conscious at the time that his death was imminent, and that he entertained no hope of recovery,...