Mills v. State
| Citation | 264 So.2d 71 |
| Decision Date | 29 June 1972 |
| Docket Number | No. Q--276,Q--276 |
| Parties | Clarence MILLS, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and William E. Whitlock, III, Asst. Atty. Gen., for appellee.
Plaintiff has appealed a judgment of conviction and sentence based upon a jury verdict finding him guilty of second degree murder. By his sole point on appeal he contends that the trial court erred in admitting into evidence over his objection an alleged dying declaration made by the victim shortly prior to his death.
The deceased was found in the weeds beside a country road early on a Sunday morning with his throat slashed from ear to ear and his trachea completely severed above his voice box. He had apparently been lying in this position for the greater part of the night and had lost a considerable amount of blood. Although when he attempted to talk his speech was gurgling and somewhat incoherent, he was nevertheless heard to say that the person who cut him was his brother, the appellant herein. He was still alive when picked up by an ambulance and taken to a hospital but was completely unconscious upon arrival. The doctor who examined him testified that upon his initial observation of the deceased, there was barely a spark of life present; that all vital signs had essentially ceased and the patient was in profound shock. The deceased at that time had no blood pressure nor pulse and his respiration had practically stopped. The deceased was pronounced dead at 9:20 a.m. on the morning he was found in this critical condition, which was within two or three hours after he made the declaration accusing appellant of having inflicted the fatal wounds upon him. The doctor testified that from his experience he had found that people with wounds as serious as those inflicted upon the deceased in this case had a sort of sixth sense of disaster and had a feeling that they were going to die.
At no time after the deceased was found lying beside the road in such a critical condition did he audibly state that he fully appreciated the seriousness of his wounds or that he felt that death was inevitable. It is appellant's position that, because of the absence of any evidence tending to establish the foregoing factors, no proper predicate was laid which would justify admission into evidence of the accusatory declaration made by the decedent shortly prior to his death.
It is the established law of this state that before a dying declaration may be admitted in evidence, there must be proof from which the jury could reasonably conclude that the declarant entertained no hope of recovery and realized that death was imminent. This is a mixed question of law and fact to be decided by the presiding judge before permitting the introduction of a dying declaration. 1 It has been held, however, that the apprehension by the defendant that he entertains no hope of recovery and feels that death is imminent need not necessarily be established by statements of the declarant but may be proved by the facts and circumstances existing at the time the declaration is made. In this connection our ...
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Teffeteller v. State
...See also Covington v. State, 145 Fla. 680, 200 So. 531 (1941); Johnson v. State, 113 Fla. 461, 152 So. 176 (1934); Mills v. State, 264 So.2d 71 (Fla. 1st DCA 1972). In the case sub judice, Moore's initial cry that he was "going," coupled with the statements from attending Doctors Knight, Sc......
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Collier v. State
...262 (1948); Johnson v. State, 113 Fla. 461, 152 So. 176 (1934); Morris v. State, 100 Fla. 850, 130 So. 582, 583 (1930); Mills v. State, 264 So.2d 71 (Fla. 1st DCA 1972). ...