Richardson v. State

• Decision Date: 30 October 1920
• Citation: 80 Fla. 634,86 So. 619
• Parties: RICHARDSON v. STATE.
• Court: Florida Supreme Court

86 So. 619

80 Fla. 634

RICHARDSON v. STATE.

Florida Supreme Court

October 30, 1920

Error to Circuit Court, Putnam County; J. T. Wills, Judge.

Nat Richardson was convicted of murder in the first degree, and he brings error.

Reversed.

See also, 86 So. 253.

Syllabus by the Court

SYLLABUS

Dying declarations admissible only where declarant has abandoned all hope of recovery, but expressed utterances by declarant are not essential. Evidence of dying declarations is admissible only in cases where the declarant has abandoned all hope of recovery from the injury received at the hands of the accused and is convinced that his death is inevitable and near at hand. But in passing upon the question of whether the declarant was in such mental state at the time of making the declaration as to render it admissible under the foregoing test, resort may be had to all the circumstances of the case and expressed utterances are not essential.

Whether sufficient predicate has been laid for admission of dying declarations is for trial court; ruling as to sufficiency presumed correct and not disturbed unless clearly erroneous. Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon is entitled to great weight, every presumption being in favor of its correctness, but such ruling is subject to review by an appellate court, though it will not be disturbed, unless it clearly appear to be erroneous.

Premeditated design to effect death essential element of murder in first degree. Premeditated design to effect death is an essential element of the crime of murder in the first degree, and where the evidence offered is insufficient to establish this element of the crime, a judgment upon a verdict finding the defendant guilty of murder in the first degree will be reversed.

COUNSEL

J. V. Walton, of Palatka, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

WEST J.

Plaintiff in error, referred to in this opinion as defendant, was indicted on a charge of murder in the first degree. He was found guilty as charged and sentenced to be hanged. Motion for a new trial was denied. Writ of error was taken from the judgment imposing sentence, and the case is here for consideration by this court.

The first assignment of error challenges a ruling of the trial court admitting in evidence over objection of defendant a written statement purporting to be a dying declaration of deceased. This statement is as follows:

'State of Florida, County of Duval,

'Jacksonville.

'I, Ray Butts, realizing that I am about to die, and that it is impossible for me to recover, and being conscious of my condition, and in the very article of death do make this my dying declaration and state the following to be the truth the whole truth and nothing but the truth I started back to the cab and met negro on cab steps. I asked him what he wanted and he started to draw his pistol from his bosom. I then drew my pistol and shot twice before he fired, his first shot struck me either in the face or shoulder I don't know which after I fell he shot me in the buttox. I had been warned that two negroes were on my train and they were dangerous and to be careful. That is the reason I did not take any chance and shot first.

'Ray his X mark Butts.

'Witnesses:

'J. E. Butts.

'O. K. Robinson.

'Geo. E. Welch.

'Subscribed and sworn to before me, a notary public, this 28th day of September, A. D. 1919.

'Frank P. Beddow,

'Notary Public, State of Florida.

'[Notarial Seal.]

'My commission expires July 6, 1920.'

The contention made in support of this assignment is that no sufficient predicate had been established for the admission in evidence of a dying declaration.

Evidence of dying declarations is admissible only in cases where the declarant has abandoned all hope of recovery from the injury received at the hands of the accused and is convinced that his death is inevitable and near at hand. But in passing upon the question of whether the declarant was in such mental state at the time of making the declaration as to render it admissible under the foregoing test, resort may be had to all the circumstances of the case and expressed utterances are not essential. Copeland v. State, 58 Fla. 26, 50 So. 621; Lester v. State, 37 Fla. 382, 20 So. 232; Richard v. State, 42 Fla. 528, 29 So. 413.

The deceased, who was a train conductor, was shot by the defendant in Palatka, and was taken from Palatka to Jacksonville, where he died on the following day from the wounds received. Dr. Pittman, one of the physicians who treated deceased and operated upon him in an effort to save his life, as a witness in behalf of the state, decribed the wounds upon his body and his condition at the time. From the evidence of this witness it appeared that the bladder and intestines of the deceased were pierced by a ball from the pistol of defendant with which deceased was wounded, and that at the time of the operation, which was performed soon after he reached Jacksonville on the same day that he was wounded, his 'abdomen was full of blood from internal hemorrhage.' This witness was present at the time the dying declaration offered in evidence was made. He testified that deceased 'was suffering pain but fully conscious at the time the statement was made and absolutely understood what he was doing.'

The deputy sheriff who obtained the dying declaration, as a witness for the state testified that he 'wrote the statement and read it over to Mr. Butts (the deceased) and he swore to it in the presence of a notary public.' On cross-examination this witness said:

'I wrote the statement just as Mr. Butts told me, and then read it to him and asked him if that was exactly as it was. He dictated it and I wrote it just as he told me. Dr. Pittman, a physician at St. Luke's Hospital, Mr. Beddow, a notary public, Mr. Robinson, Dr. Welch, and the nurse getting ready to administer the ether, were present. They held it up a few minutes. Mr. Butts knew he was going to be operated on.'

The notary public before whom the declaration was sworn to, as a witness for the state, testified that he heard the deceased when he dictated the statement to be writen and heard it read to him; that deceased could not sign it because of the wound in his hand, 'but he held the pen.'

Upon this showing the statement set out above was offered and admitted in evidence. In Malone v. State, 72 Fla. 28, 72 So. 415, this court said:

'Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon is entitled to great weight, every presumption being in favor of its correctness, but such ruling is subject to review by an appellate court, though it will not be disturbed, unless it clearly appear to be erroneous.' Lowman et al. v. State, 85 So. 166, and cases cited.

The statement offered contained the essential requirements of the preliminary showing necessary to make it admissible as a dying declaration. It had been shown that deceased was 'fully conscious' at the time he made the statement and absolutely understood what he was doing; that it was dictated by him, read to him after being written, and therefore no error in admitting There was therefore no error in admitting it at that time.

When the state had rested, Dr. Pittman was recalled by the defendant for further cross-examination. At that time he testified as follows:

'Mr. Butts understood that he was to be operated upon. We told him the operation was a serious one, that his condition was serious, and he understood that he was in a serious condition. I do not think anything was said to him about the success of the operation; that we did not know that the ultimate result of the operation might be; gave him to understand that he would better make the statement before the operation as he might not survive the operation. I do not know that he had abandoned hope of recovery at the time of making the statement. I do not know whether he had or not.'

Dr. Welch, a physician who attended deceased at Palatka and accompanied him to the hospital in Jacksonville, was called as a witness for defendant. Upon the point under consideration he testified as follows:

'I was present when the dying declaration was made in Jacksonville and signed, and I signed it as a subscribing witness. I do not recall whether Conductor Butts dictated the whole of that declaration or not. At the time he started to make his declaration I was in there, but I did not know I was going to have any part in it at all. Several were present. The deputy sheriff came in and asked him to make a statement. He talked with Dr. Pittman first, getting permission to obtain this statement, and I heard nothing that was said to Mr. Butts prior to his making the statement. The first thing that attracted my attention is that Butts stated that he shot the negro first. That was the first time I heard that he had shot the negro first, and that is all that I paid any particular attention to. I do not know whether Mr. Butts was informed that he was going to die. I went to Jacksonville with Conductor Butts. Well, I think hope was held out to him as to the outcome of the operation; that hope was held out. Whether he was told at that time by the doctors present I do not know.'

When this testimony had been given, counsel for defendant moved the court to strike the dying declaration which had...