State v. Bordeleau

CourtSupreme Judicial Court of Maine (US)
Citation108 A. 464
PartiesSTATE v. BORDELEAU.
Decision Date03 January 1920

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Alexander J. Bordeleau was convicted of murder, and he excepts. Exceptions overruled, and judgment entered for the State.

Argued before SPEAR, HANSON, DUNN, MORRILL, WILSON, and DEASY, JJ.

Guy H. Sturgis, Atty. Gen., Bernard Archibald, of Houlton, and William R. Roix, County Atty., of Presque Isle, for the State.

John P. Deering, of Biddeford, and Charles P. Barnes, of Houlton, for respondent.

MORRILL, J. The respondent has been convicted of the murder of one Moses Tozier, committed on the 16th day of November, 1917. At his trial counsel for the state proposed to offer in evidence certain declarations of the deceased, as dying declarations. The presiding justice directed the jury to retire, and in their absence heard the testimony of five witnesses, and then ruled that the deceased had, at the time of making the declarations, given up all hope of life, and that the declarations were admissible. To this ruling respondent has exceptions.

The jury was then recalled, and the same witnesses, and an additional witness, were examined in the presence of the jury as to the condition of the deceased, his realization of impending death, and were permitted, against objections by respondent's counsel, to give in evidence declarations of deceased as to details of the assault, naming the respondent as his assailant. To this ruling, admitting said declarations in evidence before the jury, respondent also has exceptions.

Counsel accept the general principle that the solemnity of the situation of a person under the conviction that he is about to die, with all hope of recovery gone, supplies a circumstantial guaranty that his statements are in accordance with the truth, notwithstanding they are not sanctioned by oath, and that cross-examination is impossible. "As this guaranty consists in the subjective effect of the approach of death," to use the language of Mr. Wigmore (2 Wigmore on Ev. § 1439), it must appear to the presiding justice that at the time of making the statements the deceased must be conscious of the certainty of approaching speedy death; if any hope of recovery remains, the declarations are inadmissible; nor is it sufficient that the deceased has only the belief that he may ultimately die of his injuries. To quote from a case on respondent's brief:

"The person making the declaration shall have a complete conviction that death is at hand. * * * Death, shortly to ensue, must be an absolute certainty, so far as the consciousness of the person making the accusation is concerned." Beasley, C. J., in Peak v. State, 50 N. J. Law, 222, 12 Atl. 701.

But the actual period of survival after making the declaration is immaterial. It is the consciousness of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible. These propositions are supported by the authorities. 1 Greenleaf on Ev. § 158; Phillips on Ev. (2d Am. Ed.) 235; Coweri & Hill's Notes, No. 453; 2 Wigmore on Ev. § 1438 et seq.; 4 Chamberlayne on Ev. § 2831 et seq.

This consciousness of impending death, this phase of mind, may be establiahed by any relevant evidence. The range of competent evidence is wide. It may include evidence of the physical condition of the declarant at the time of making the statement, from which the inference may be legitimately drawn that the declarant had a conscious sense of impending death, as well as evidence of the declarant's conduct and declarations, 1 Greenleaf on Ev. § 158; 4 Chamberlayne on Ev. § 2831 et seq.; 2 Wigmore on Ev. § 1442.

The Attorney General apparently agrees with counsel for respondent that the determination of the presiding justice, upon the preliminary hearing, that the alleged dying declarations were admissible presents a question of law, and may be reviewed on exceptions. Com. v. Roberts, 108 Mass. 290, 302. We express no opinion thereon, but proceed to consider the case as presented.

Upon the preliminary hearing in the absence of the jury the presiding justice heard the testimony of five witnesses, Pearl E. Morgan, Daniel H. Perry, Edna Rogerson, Johnson Morgan, and Dr. George W. Upton. The bill of exceptions includes a transcript of the testimony of Harold S. Merry and Dr. Frank H. Jackson, the medical examiner. The bill does not affirmatively show when the testimony of Merry and Dr. Jackson was heard. It is stated in the brief for the state, and does not appear to be controverted by the defense, that these witnesses were called and examined before the jury retired. This is plainly to be inferred as to Dr. Jackson from the testimony of Dr. Upton, when reexamined before the jury, that he had heard Dr. Jackson's testimony as to the conditions that he found and the cause of death, and agreed with his conclusions.

What then was the scene as presented to the presiding justice?

In mid-afternoon of the day following the assault, the deceased, a man about 65 years old, spare of figure, about 5 feet 8 inches tall, is found lying diagonally across a bed in an upstairs bedroom of his house. He was in his shirt sleeves, wearing his trousers and leather topped lumberman's rubbers. He was partly covered by the bedclothes. He was conscious. Upon his head were six distinct cuts, such as could be made by a blunt instrument with small striking surface. Five of these wounds were complicated by compound fractures of the skull. "These compound fractures," to quote the medical examiner, "were situated chiefly in the top and back part of the head. There was one line of fracture that ran from the most prominent portion of the skull practically through from before, backward through the skull into the frontal bone itself, and from each of these blows there were radiating lines of fractures. Practically the whole top of the skull was more or less broken up." The head and hands of the man were covered with dried blood. His clothes and the bedclothes were smeared with dried blood. Upon the floor was a pool of blood about 1 foot by 2 feet, which had dried, and around this spot were spots of dried blood, such as might be made with the hand. Into this room comes Pearl E. Young, an acquaintance of nearly 40 years. To the inquiry as to how he felt, the deceased replied, "Awfully bad; he pounded me all up; I am all in;" and later he said that he was going to die. In a few minutes other friends and a physician arrived; as he is held up upon the bed in the arms of a friend, and while the doctor is dressing the wounds upon the head, he said: "Let me back, Dan; I am awful sick. I will die anyway. Let me die in peace." Shortly afterwards he told the witnesses the details of the assault, and named the respondent as his assailant. This was on Saturday afternoon. He retained consciousness until about 10 o'clock Sunday night, and died about 4 o'clock...

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4 cases
  • State v. O'Clair
    • United States
    • Maine Supreme Court
    • 14 d3 Junho d3 1972
    ...person tending to show the cause and manner of death even though not made in the presence of the accused murderer (State v. Bordeleau, 1920, 118 Me. 424, 108 A. 464; State v. Chaplin, 1972, Me., 286 A.2d 325); declarations constituting a verbal part of the act itself (Inhabitants of Deer Is......
  • Commonwealth v. Polian
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 d1 Dezembro d1 1934
    ...also, Coghlan v. White, 236 Mass. 165, 128 N. E. 33;Hart Packing Co. v. Guild, 251 Mass. 43, 46, 146 N. E. 238. Compare State v. Bordeleau, 118 Me. 424,108 A. 464;State v. Compo. 108 N. J. Law, 499, 158 A. 541, 85 A. L. R. 866. But this practice does not change the nature of the question. I......
  • State v. Chaplin
    • United States
    • Maine Supreme Court
    • 24 d1 Janeiro d1 1972
    ...respect to the admission of dying declarations and the respective roles of the presiding Justice and the jury. State v. Bordeleau (1920) 118 Me. 424, 426, 428, 108 A. 464, furnishes some assistance but leaves unanswered as many questions as it answers. In Bordeleau our Court stated some of ......
  • State v. Sprague
    • United States
    • Maine Supreme Court
    • 8 d3 Novembro d3 1978
    ...cause such death, or knowing that death will almost certainly result from his conduct . . . ." 2 In State v. Bordeleau, 118 Me. 424, 426, 108 A. 464, 465 (1920), this court elaborated upon the degree of belief of impending death necessary to satisfy the foundational "(I)t must appear to the......

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