Lea v. State

• Decision Date: 06 April 1925
• Docket Number: 24706
• Court: Mississippi Supreme Court
• Parties: LEA v. STATE. [*]

103 So. 368

138 Miss. 761

LEA v. STATE. ^[*]

No. 24706

Supreme Court of Mississippi

April 6, 1925

Division B

APPEAL from circuit court of Lincoln county, HON. E. J. SIMMONS Judge.

Charlie Lea was convicted of manslaughter, and he appears. Reversed and remanded.

Reversed and remanded.

Naul & Yawn and J. H. Sumrall, for appellant.

Except for the alleged dying declaration, improperly admitted in evidence in this case, the state wholly failed to present anything to the jury which would, by the wildest stretch of the imagination, indicate that a crime had been committed by the appellant, and, therefore, our attention will first be directed to a discussion of said alleged dying declaration, in an attempt to show that under the well-recognized rules and principles laid down by the courts from time immemorial, this alleged dying declaration was improperly admitted in evidence; and, therefore it is safe to assume that the erroneous verdict of conviction was brought about by this one principal error of the court. 1 R. C. L 537; McDaniel v. State, 8 S. & M. 401.

The ordinary rules that are invoked for the determination of the admissibility of evidence generally, or the competency of the witness testifying, are applicable to the admissibility of dying declarations, and to the competency of the declarant at the time he made the declaration. Hence whatever would exclude the testimony of the witness if living, will exclude his dying declaration, and whatever would render a witness if living, incompetent to testify, will make the declaration inadmissible by reason of such incompetency, and, therefore, dying declarations ought to be admitted with scrupulous care. They have not, necessarily, the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subject to cross-examination, and is in no terror of prosecution for perjury. 1 R. C. L. 537.

The facts testified to in this case by the several witnesses introduced by the state in their attempt to qualify this alleged dying declaration, when accepted with the most force possible to apply to them, do nothing more than indicate that the deceased constantly and habitually and at all times during his confinement in the hospital, extending over a period of more than thirty days, indicated a lack of hope for ultimate recovery; and we respectfully submit that it is a well-established rule that such general statements made by a person suffering from wounds are not sufficient to show the extreme consciousness of impending dissolution necessary to make any declaration of such person admissible. 1 R. C. L. 539.

Another general rule universally subscribed to, which is directly applicable to the facts in this case as disclosed by the record, and which qualifies and limits the only evidence introduced in an effort to qualify this pretended dying declaration for admissibility is as follows: "It is to be borne in mind, however, that it is quite common for a person who is injured, or very ill, to say that he will not recover, or that he will die, when there is no good or sufficient reason for the apprehension, and when he is not conscious that he is in any real danger. Such expressions are often the result of impatience, restlessness or great suffering. It is necessary for the declarant to believe that he is about to die as evidence of a sense of impending death." 1 R. C. L. 545.

Applying the last announced rule to the facts disclosed by this record, it is manifest that the evidence introduced by the state, through the nurses who attended the deceased during his confinement in the hospital, only indicated that the deceased, from the time of his arrival at the hospital, constantly indulged in language indicating only lack of hope of final recovery; and certainly under the rule last announced this testimony is not sufficient to give such sanctity to this pretended dying declaration as is required by the law to make same admissible.

After considering this testimony we believe that the court will agree that it is manifest that the witness, Miss Beasley, being the person to whom the alleged statement was made, is necessarily the proper person to testify as to what the state of mind of the declarant was at the time the alleged statement was made; she being the only person who knows what induced the statement made to her, and she fails to state that the declarant knew of his impending death, and depends only on her supposition, or opinion as to whether or not he heard the final statement claimed by any witness to be made as to the fact that declarant was in fact dying at that time.

30 C. J., page 266, states the following rule: "That the declarant's belief that death was impending could not be shown by the bare conclusion of the witness that the declarant knew he was going to die in a short time, and that the opinion of the witness that the deceased was under a religious sense of responsibility to his maker is inadmissible." See Wilkerson v. State, 134 Miss. 853; Haney v. State, 129 Miss. 486; Jim Hathorn v. State, 102 So. 772.

J. L. Byrd, Assistant Attorney-General, for the state.

The ADMISSIBILITY OF THE DYING DECLARATION. The circuit judge followed the rule laid down by this court in Wilkinson v. The State, 134 Miss. 853, and in the absence of the jury determined from the evidence that the statement sought to be introduced was a declaration made in extremis and was in fact a dying declaration. The evidence showed first that the deceased never had any hope of ultimate recovery, but on the other hand shows that he believed that he was going to die. There can be no question as to this when we review the testimony on this point.

Another objection is made as to the manner of taking the dying declaration by the nurse and her reduction of it to writing, and the argument is that it was gotten by stealth and taken down in writing without the knowledge of the deceased, and that, therefore, it was rendered incompetent and inadmissible. We submit that it was not incompetent or inadmissible. The record shows that on the day the declaration was made and reduced to writing, that the nurses had told the deceased that he was a very sick man and would probably not live through the day. In other words, that he was going to die shortly, to which he responded, "Yes,--I reckon so." And that in a few minutes he began to tell one of the nurses about how the tragedy occurred, and the head nurse coming up at the time heard the statement and got a piece of paper and reduced it to writing. It is true that the record does not show that the dying man knew that she was reducing his statement to writing, but we know of no rule of law which requires him to know this, nor do we think it material whether his statement was ever read to him. There is no rule of law that we can find after diligent search which makes either of these things necessary before the statement is admissible.

The question, and the only question, is, was the deceased laboring under the belief of impending dissolution? If so, the declaration was properly admitted.

Of course, we have no criticism of the numerous textbooks and cases cited by learned counsel for appellant for they correctly announce the general law as to the admissibility of dying declarations, etc., but we submit that the state fully met all of the burden placed on it by the laws quoted, and that, therefore, an analysis of these authorities would serve no good purpose and would lengthen this brief for no purpose. We submit, therefore, that his dying declaration was properly admitted.

M. S. McNeil, also for the state.

This court, in the case of Guess v. The State, 96 Miss. 871, laid down certain recognized rules governing the introduction of dying declarations. That the dying utterances here were made by a sane mind and were restricted to the homicide and the circumstances immediately attending it cannot be questioned in this case. The sole remaining question for the consideration of this court in determining the admissibility of this evidence is: "Were the statements made under the realization and solemn sense of impending death?"

During the entire time that this witness attended the deceased there was never a single instance that he ever held out any hope of recovery. Miss Berry had the opportunity of observing the deceased for one month and three days before his death; she conversed with him daily, and gave it as her positive opinion, based upon these observations, that the deceased was laboring under the conscious belief of impending dissolution. Not only is this true, but on one occasion the deceased called for a Bible, and one not being available, she carried him a prayer book, and he requested her to read to him a prayer, which she did.

Tested by every principle laid down by the authorities, I am unable to see how appellant can seriously contend that the dying declaration offered in this case failed to meet a single requirement of the law. Each of the foregoing witnesses offered upon this subject had occasion to observe the...