Lipscomb v. State

• Citation: 75 Miss. 559,23 So. 210
• Court: Mississippi Supreme Court
• Decision Date: 19 February 1898
• Parties: W. H. LIPSCOMB v. STATE OF MISSISSIPPI. [*]

23 So. 210

75 Miss. 559

W. H. LIPSCOMB v. STATE OF MISSISSIPPI. ^[*]

Supreme Court of Mississippi

February 19, 1898

December 1897

FROM the circuit court of Kemper county HON. G. B. HUDDLESTON Judge.

The facts are stated in the opinions.

Motion overruled.

J. H Currie, for appellant.

The objection to this remarkable dying declaration could not have been more specific than it was. The declaration consists of one thing. It relates to the same subject, was made at the same time, and therefore it could not be separated. It was impossible to cut off a part of the poisoned meat and let another part go to the jury. The whole of what the man stated was proper to be considered or none. It will not do in a case like this to pick out a word or sentence which purports to state an isolated fact and leave out the rest. It is absurd and improper to consider even the testimony of the holy scriptures by such a rule, much less human testimony. It is a fixed rule that the whole of a confession must be introduced if any part is offered, and it is an injustice to the defendant to allow a part to be offered and to exclude the other, which would shed light on the whole.

In the case of Bell v. State, 72 Miss. 507, this court used the following language, which applies with peculiar force in this connection: "To give to the words which the observation of mankind teaches are frequently used in a different sense, an inflexible significance, even though it be a natural one, would be to do violence to the plain dictates of common sense, and would often result in serious injustice. Words are but the exponents of thought, and the effort must be to determine whether in the particular instance the thought suggested by their use was that of the speaker." In view of this strong statement, and in the light of common sense, we submit that it is wholly immaterial that this alleged declaration does not purport on its face to be the expression of an opinion that Guy Jack had hired the defendant to poison the deceased. It must be perfectly apparent to an unbiased mind that this unfortunate man in his dying moments never intended to state positively that Dr. Lipscomb had poisoned him or that Jack had hired him to kill him. He did not intend to be so understood, and it is the rankest injustice, not only to the defendant, but to the dying man himself, to attempt to give to his words, by reason of any literal interpretation, a significance which he never intended them to have. Does the court, for one moment, suppose that this man, who was about to be ushered into the presence of his Maker, intended that his words should be construed to mean that he had personally seen the risen Lord, and that he had been sent back with a message, or that he knew that Dr. Lipscomb had poisoned him because Guy Jack had hired him to do so? Now, it is an established rule that a dying declaration must be confined to facts, and that they must not be hearsay, must not be based upon opinion or speculation, but must be competent as evidence. They must be such as the declarant would be permitted to testify to if alive. We would ask the court if it could be possible to conceive that this unfortunate man could be brought back to life and placed upon the stand as a witness and sworn, whether he could have been convicted of perjury in making the statements attributed to him. Of course he could not. Any jury would say, any court would say, that he did not intend to be understood as stating facts positively and as of his own knowledge, but that he was giving merely his opinion; that he had such opinion, and whether it was reasonable or not is wholly immaterial. He merely meant to say, looking backwards at all the facts, that it was perfectly apparent to him that these things were true; that he was morally convinced they were true. He wishes you to be impressed with that fact, but not as a statement of a positively known fact, because the answer to all this is that he would not have taken the medicine if he had known what counsel now seek to have him state as a positive fact.

Opposing counsel refer to the case of Walker v. State, 39 Ark., 221, but if the court will read Jones v. State, 52 Ark., 345, it will be seen that the case referred to was practically overruled, and the only sensible rule on the subject is announced in the latter case, that "a mere expression of opinion by the dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is a mere opinion appears from the statement itself or from other undisputed evidence, showing that it was impossible for the declarant to have known the facts stated."

We also refer the court to the case of Berry v. State, 63 Ark., 382, which is directly in point, and where an opinion very much more positive than the one in question was held to be incompetent. There no question was raised as to a message from the Lord, and the like, but the man's inference from the fact that the whisky he had voluntarily drunk was poisoned, and had killed him, was excluded. We also refer to the splendid opinion of the supreme court of North Carolina, in the case of State v. Williams, 67 N.C. 12, and to Binns v. State, 46 Ind., 31. These cases lay down and discuss fundamental rules which are applicable here, and before which this alleged dying declaration must be dissipated as the mists before the rising sun. No case cited by opposing counsel is like the one at bar. The only case like it in its essential features is that of Berry v. State, 63 Ark., above referred to, Considering the gravity of the question, the solemnity of the occasion, and the tremendous importance of this question, not only to the defendant, whose life is at stake, but to the cause of human liberty, we wish to enter the most earnest and solemn protest against the admissibility of such testimony as is relied upon here, to take away appellant's life. The idea of hanging a man on this kind of testimony is to us perfectly horrible. It is apparent what a tremendous weight it had. Surely, surely it is not proper, even if some words or sentence might have been selected and held as competent [which we deny] to allow the whole case to be made out, the motive to be established, by such testimony, admitted in this way.

We call the attention of the court to the manifest errors in the instructions given for the state. We also call attention to the manifest error in excluding from the jury the written report of the autopsy. A great deal of testimony was taken as to this autopsy, and, after being explained and re-explained, the defendant desired the paper itself to be taken out and considered by the jury, but this was refused, and in positive violation of the plain statute on the subject. Code 1892, § 730.

W. R. Harper, on the same side.

The court below erred in refusing to allow the jury, at defendant's request, to carry out with them the written report of the physicians who held the autopsy, the same having been admitted in evidence by the court. The court below failed to avail itself of the evidence of the negro who was present at the time the alleged dying declaration was made. This was error. Bell v. State, 72 Miss. 512. The declarant must have been in such a state of mind as to have had a clear understanding of what he was saying. Binfield v. State, 15 Met., 484. The declarations of one deprived of full consciousness are not admissible. Mitchell v. State, 5 Ga., 125; McHugh v. State, 31 Ala. 317. A mere expression of opinion is inadmissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself or from evidence showing that it was impossible for the declarant to have known the fact stated. Jones v. State, 52 Ark., 345; Binns v. State, 46 Ind., 311; State v. Arnold, 13 Ire. L., 184; State v. Parker, 92 Mo. 312. If the declarant's due appreciation of impending death can be determined from the statement itself, his mental state and capacity to testify may be determined from the same evidence. Thus tested, it seems clear that declarant was in such a mental condition as to render his statement incompetent. It seems clear that those words of his, "I have been dead, and the good Lord sent me back to tell you, " are the expressions of a mind already torn from its moorings; that they are the result of hallucination, of delirium, and unfit for evidence. A healthy, sane, conscious mind would not, in this day and time, undertake to state, as a fact, that it had been dead, and had returned to deliver a message. The declaration does not purport to state facts nor even to express an opinion, but purports to be merely a message sent by the Lord through the agency of declarant. Such a statement made by a witness on the stand would be objectionable as being mere hearsay.

The statement or declaration is not separable. it is so linked and connected together that it must stand or fall as a whole. To separate it would be to put into the mouth of declarant a statement that he never made. Such a garbling is not permissible. Statements are only separable when they refer to different subjects. All or none that is said about the same subject must be admitted.

The ninth instruction given for the state is erroneous. It authorized a verdict against appellant on testimony which engenders "full conviction" of guilt, and does not require that appellant's guilt should be established beyond a reasonable doubt. This is in the face of repeated decisions of this court. This error is not cured by other instructions, but when read into the other instructions, tend to vitiate them, in that testimony engendering "full conviction" is thus made sufficient to establish guilt throughout.

The fifteenth, sixteenth and...