Hawkins v. State

• Decision Date: 12 January 1904
• Citation: 57 A. 27,98 Md. 355
• Parties: HAWKINS v. STATE.
• Court: Maryland Court of Appeals

57 A. 27

98 Md. 355

HAWKINS v. STATE.

Court of Appeals of Maryland

January 12, 1904

Appeal from Criminal Court of Baltimore City; Henry Stockbridge Judge.

William B. Hawkins was convicted of manslaughter, and appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, SCHMUCKER PAGE, PEARCE, and JONES, JJ.

Roland B. Harvey, for appellant.

Atty Gen. Rayner, for the State.

PEARCE J.

The appellant in this case, William B. Hawkins, was convicted of manslaughter by an abortion performed on Caroline M. Briele. During the trial three exceptions were taken, the first being to the admission of an alleged dying declaration proved by the mother of the deceased, the second being to the subsequent refusal to strike out this proof by Mrs. Briele and the third to the admission of a similar declaration proved by Dr. Reiche. These all present the single question of whether they were made under a sense of impending death, and will all be considered together. Mrs. Briele testified: That her daughter was looking badly on Saturday and Sunday, and that on Monday she wished her to stay at home, but she went as usual to her work as a dressmaker, but said she would return at noon if she did not feel better, and that she did return at noon. That she sent for Dr. Reiche to see her daughter, and that he came and left some medicine for her, but that she did not complain of suffering, and he made no examination. That the next morning her daughter called to one of the children, "Tell mamma to come up quick." That she found her lying across the bed, and she said: "Oh, mamma, do get me help. If you don't send for the doctor, I will die." That this was between 11 and 12 o'clock, and the doctor got there about 1 o'clock. That she kept repeating: "Oh, mamma, I am dying. I have had an abortion;" and that she could see death in her daughter's eyes. That Dr. Reiche sent for Dr. Prentiss to make an examination, and he came that afternoon some time, and made an examination. That while waiting for Dr. Prentiss to come she constantly said she knew she was dying; and that she died about 6 or 7 o'clock Wednesday morning. At this point the state offered her declaration as to the cause of her death, made on Tuesday, concurrently with her declaring that she knew she was dying, and, the objection to this being overruled, the first exception was taken. Mrs. Briele then testified that her daughter said that she went to Mrs. Bell Haslem's to have an abortion operation performed, but she would not do it, and sent for Dr. Hawkins, and he performed the operation. On cross-examination Mrs. Briele said that when she went upstairs Tuesday morning her daughter said: " 'Oh, mamma, get the doctor. I am dying. I know I am dying.' I asked, 'What is the matter?' and she said she had abortion performed, and I said, 'Oh my! by whom?' and then she told me." Here counsel for the defense moved to strike out so much of Mrs. Briele's testimony as refers to her daughter's declaration that Dr. Hawkins performed the operation, and, his motion being overruled, the second exception was taken. Dr. Reiche, the family physician, testified: That he was called in Monday night. That the girl laughed, and said there was nothing the matter with her, and he made no examination. That he was called in again in the middle of the day on Tuesday, and that as soon as he saw her he knew she was suffering agony. That she said: " 'Oh, doctor, I am dying now. I want you to relieve me.' I said: 'What is the matter? You said last night there was nothing.' She replied, 'I will have to tell you there was an abortion performed.' She was in intense agony. I found a hard tumor on the abdomen. She told me all the time she was dying, and I must help her, and I gave her a hypodermic injection, and told her she would be relieved in a little while, and sent for Dr. Prentiss, as her case was not 'in my line of practice.' " That he was called in about four o'clock next morning. That she then said she was dying fast, and she died about an hour and a half later. That both before and after stating to witness the cause of her suffering she repeatedly said she was dying, and said he must do something for her. Here the state offered her declaration, which was admitted over the objection of counsel for defense, and Dr. Reiche testified she said the operation was performed by Dr. Hawkins and Mrs. Bell; that he asked her whether a man or woman did it, and she said both did. To the ruling under which this was admitted the third exception was taken.

The admissibility of dying declarations under circumstances nearly the same as the present has recently been considered in the case of Worthington v. The State, 92 Md. 222 48 A. 355, 56 L.R.A. 353, 84 Am.St.Rep. 506, and that case we thought at the argument was conclusive of this. The importance and responsibility, however, in cases where life or liberty is involved is such that we have been led to review the Worthington Case, and to re-examine the authorities upon the question. It is suggested, rather than contended, by the appellant, that no sufficient foundation was laid for the admission of the declaration in this case, because it does not certainly appear that the declarant spoke under a sense of impending death, and without any visible hope of recovery. That the declaration would be inadmissible if there is evidence of any expressed or clearly visible hope of recovery is undoubtedly true, since the obligation to speak the truth would not be that supposed to be created when every hope of this world is gone, and is not in legal contemplation equal to that imposed by a positive oath in a court of justice. But is there evidence of any...