Lester v. State

• Decision Date: 12 May 1896
• Citation: 20 So. 232,37 Fla. 382
• Parties: LESTER v. STATE.
• Court: Florida Supreme Court

20 So. 232

37 Fla. 382

LESTER v. STATE.

Florida Supreme Court

May 12, 1896

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

Richard Lester was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Dying declarations in cases of homicide form an exception to the rule against the admissibility of hearsay evidence. To render such declarations admissible, the judge must be fully satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarant of his speedy and incvitable death, are a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law and fact for the judge to decide, before permitting the introduction of the declaration itself. The judge hears all pertinent evidence that exhibits the state of mind of the deceased at the time of making the declaration, settles any conflicts in such testimony, and, if fully satisfied that it was made under such circumstances as render it legally admissible, it should be admitted. It is not necessary that such preliminary test should consist of express utterances but it may be gathered from any circumstance or from all the circumstances of the case.

2. While the dying declarations of the deceased are admissible in evidence in homicide cases when shown to have been made under proper circumstances, and, when admitted, are entitled to their appropriate weight as evidence, yet they are open to observation and impeachment in any of the modes by which the evidence of the deceased could have been impeached had he been alive and testifying under oath. They may be impeached by showing that the general reputation of the deceased for truth and veracity in the community in which he lived was bad, and that he could not be believed under oath.

3. Great care should always be observed by the trial judge to avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially or by innuendo, of conveying any intimation as to what view he takes of the case, or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.

4. Where there is evidence for the defendant in a murder trial tending to show that he took the life of the deceased in self-defense, while the latter was making a murderous assauit upon him, previous threats made by the deceased of a determination to kill the defendant become admissible, as they tend to corroborate the fact of the assault by the deceased.

5. Chapter 4400, Laws approved May 30, 1895, entitled 'An act to amend section 2908 of Revised Statutes of Florida relating to sworn statement of accused,' is not unconstitutional because of any failure of its title to express its subject.

6. Under the provisions of section 1092, Rev. St., only such charges as were actually given can be excepted to through the medium of a motion for new trial. Refusals to give requested instructions cannot be excepted to in this manner, but exceptions to such refusals must be taken and noted at the time of such refusals; otherwise, they cannot be considered on writ of error.

COUNSEL

Ellis & Love, for plaintiff in error.

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

OPINION

TAYLOR J.

The plaintiff in error was indicted and tried at the fall term, 1895, of the circuit court of Gadsden county, for the crime of murder, and was convicted of murder in the third degree, and sentenced to 20 years' imprisonment in the penitentiary, and comes here for relief on writ of error.

The first, second, third, and sixth assignments of error question the propriety of the admission in evidence of the dying declaration of the deceased. The defendant contends that the evidence adduced by the state as the groundwork for the admission of the ante mortem statement of the deceased did not sufficiently show that the deceased had lost all expectation or hope of recovery before making the statements admitted in evidence, as to make them legally admissible. This contention cannot be sustained. Dying declarations in cases of homicide form an exception to the rule against the admissibility of hearsay evidence. The law regards the declarant, when in the presence of imminent and inevitable death, as being under as solemn an inspiration to tell the truth as though he were pledged thereto by oath. To render such declaration admissible, however, the court must be satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law and fact for the court to decide before permitting the introduction of the declarations themselves. The judge hears all pertinent evidence that exhibits the state of mind of the deceased at the time of making his assertions, as to whether he appreciated his near and inevitable approach to death, and as to whether he was without any hope of recovery; and, if satisfied by such evidence that the declaration was made under such circumstances as makes it legally admissible, it should be admitted. Should there be conflict in the evidence touching such preliminary test for the admission of such declaration, it is the judge's duty to weigh and settle it. It is not necessary that the evidence upon such preliminary test should consist of express utterances of the deceased to the effect that he knew he was going to die, or could not live, or would never recover. It may be gathered from any circumstance, or from all the circumstances of the case, and is sufficient if the evidence upon such test question fully satisfies the judge that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death. 1 Rosc. Cr. Ev. (8th Ed.) p. 53 et seq.; State v. Nash, 7 Iowa, 347; Dixon v. State, 13 Fla. 636; Roten v. State, 31 Fla. 514, 12 So. 910; 1 Greenl. Ev. (15th Ed.) §§ 156-162, inclusive; People v. Gray, 61 Cal. 164. These principles were fully observed and acted upon in this case. There was some slight conflict in the evidence adduced as to the state of the deceased's mind when making the declarations admitted in proof, but we think the evidence was sufficient to show that he was entirely without hope of recovery, and fully impressed with the belief that his death was imminent and inevitable, and that the dying declarations were not erroneously admitted.

At the trial, after the defendant had introduced testimony to the effect that the defendant had given the deceased the gunshot wound of which he died, while the deceased was making efforts, in the defendant's yard, to shoot the latter with a pistol, the defendant introduced one Frank Baker, who testified 'that he heard the deceased say, on the Sunday before he was shot, that he and the defendant had in a sort of manner settled the fuss that they had in Mrs Shepard's oat field, before Justice Clark, but that it would not be decided until one of them was killed.' On the state attorney's notion, the judge struck this testimony out, and refused to admit it, and this ruling constitutes the fourth assignment of error. In this ruling, the court erred. It tended to show the deceased...