People v. Johnson, 91

• Decision Date: 27 June 1952
• Docket Number: No. 91,91
• Citation: 334 Mich. 169,54 N.W.2d 206
• Parties: PEOPLE v. JOHNSON.
• Court: Michigan Supreme Court

Page 206

54 N.W.2d 206

334 Mich. 169

PEOPLE v. JOHNSON.

No. 91.

Supreme Court of Michigan.

June 27, 1952.

George Squire, Detroit, for appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty. County of Wayne, Ralph Garber, Chief Asst. Pros, Atty., Garfield A. Nichols, Thomas J. Foley, Jr., Asst. Pros. Attys., Detroit, for the People.

Before the Entire Bench.

BUSHNELL, Justice.

Defendant Walter Johnson was granted leave to appeal from a life sentence imposed after his conviction by a jury of murder in the second degree and from the denial of his delayed motion for a new trial.

On October 13, 1937, while working at the Briggs Manufacturing Company, Johnson injured his finger. Shortly thereafter, at about midnight, there was a change of shift. Johnson, a Negro, who was the last man to check out, was confronted by a mumbling hostile group of white men standing around the door. The testimony is not too clear as to what happened, except that Johnson and John Ozinkowski, whom he had charged with responsibility for his injury, exchanged words and blows. Another employee, Reed Rogers, intervened and either kicked or struck Johnson, or tried to do so. During the affray, Johnson struck Rogers twice with a knife, and walked away. Neither man had known the other prior to the assault.

Rogers did not realize that he had been seriously wounded. However, he was given first aid, and then taken to the receiving hospital. It was determined that he had a lacerated ear and a wound in his abdomen which required an operation.

The next day Rogers was questioned by an assistant prosecuting attorney in the presence of a stenographer. In response to a question he said:

'So he made one lick at the white fellow, and I caught his arm, and he didn't touch him, and he turned around and said 'You want some, you son-of-a-bitch,' and that's when he stabbed me in the belly, and I didn't realize I was stabbed for a second until I went to raise up my clothes and there was a clot of blood falling out of them.'

He was then asked if he realized that he was a pretty sick man, whether he made 'this statement' in fear of impending death, and whether he would make the same statement if he thought he was going to get well. To all these questions, Rogers answered 'Yes'. Johnson was then brought in by a police officer and Rogers identified him as the man who cut him.

Rogers died three days later. A Wayne county medical examiner who performed the autopsy stated: 'The cause of death was a right upper lobar pneumonia following a stab wound of the abdomen.'

Johnson, on appeal, attacks the admission of the so-called 'dying declaration,' and the court's instructions to the jury. He argues denial of due process, the confusion of the trial judge regarding the verdict and the sentence and failure of proof beyond a reasonable doubt.

It is fundamental that a 'dying declaration' is inadmissible in evidence, unless made under a solemn belief of impending death. People v. Simpson, 48 Mich. 474, 477, 12 N.W. 662, and People v. Bradfield, 300 Mich. 303, 307, 1 N.W.2d 550. That the declarer lived for several days after making the statement is not controlling. People v. Denton, 312 Mich. 32, 35, 19 N.W.2d 476. Neither is it necessary that such statement be taken immediately after the injury nor that notice of an intention to take the statement be given the accused. People v. Beverly, 108 Mich. 509, 511, 66 N.W. 379. Before admitting the hearsay statement as a dying declaration, the court must make a preliminary investigation in order to determine whether the person making the statement was in fact in extremis at the time and believed that his death was impending. People v. Fritch, 210 Mich. 343, 347, 178 N.W. 59. These essential facts may be proved like any other facts in the case and in the light of the existing and surrounding circumstances. People v. Simpson, 48 Mich. 474, 477, 12 N.W. 662.

The opinions of this court vary as to the quantum of proof necessary to establish these preliminary facts. Some seem to indicate that any evidence in this respect is enough. Hurd v. People, 25 Mich. 405, 417; People v. Knapp, 26 Mich. 112, 117; and People v. Lonsdale, 122 Mich. 388, 81 N.W. 277. Others say that the court must be 'satisfied'. People v. Simpson, 48 Mich. 474, 478, 12 N.W. 662; People v. Weaver, 108 Mich. 649, 66 N.W. 567; and People v. Fritch, 210 Mich. 343, 178 N.W. 59. Others seem to indicate a degree of satisfaction. For example: 'To say he did not sense impending death would accord him less than ordinary intelligence.' People v. Arnett, 239 Mich. 123, 132, 214 N.W. 231, 234, and People v. Gorman, 252 Mich. 603, 605, 233 N.W. 430. Other courts have accepted three widely divergent views. See annotated cases in 96 A.L.R. at page 621.

A well stated rule by the New York Court of Appeals reads as follows:

"Dying declarations are dangerous, because made with no fear of prosecution for perjury and without the test of cross-examination, which is the best method known to bring out the full and exact truth.' * * * It is for those salutary reasons that extreme caution is required of the trial court before a dying declaration is received in evidence--the fundamental requirement being that 'preliminary to the admission of such evidence * *...