State v. Clark

• Decision Date: 22 December 1908
• Citation: 63 S.E. 402,64 W.Va. 625
• Parties: STATE v. CLARK.
• Court: West Virginia Supreme Court

63 S.E. 402

64 W.Va. 625

STATE v. CLARK.

Supreme Court of Appeals of West Virginia.

December 22, 1908

Error to Circuit Court, Summers County.

Frank Clark was convicted of murder in the second degree, and he brings error. Affirmed.

Osenton & McPeak, T. G. Mann, and W. H. Sawyer, for plaintiff in error.

The Attorney General and R. F. Dunlap, for the State.

MILLER J.

The indictment charged defendant with the murder of T. P Withrow. The jury found him not guilty of murder in the first degree, but of murder in the second degree, as charged; and the judgment was that he be confined in the penitentiary for the term of 12 years. Nineteen alleged errors committed in his trial are assigned, but, in the brief of counsel, some are not discussed or seriously urged, although counsel say they believe they are entitled to the careful consideration of the court. We have considered them all in passing to those specially relied upon.

First as to the prisoner's motion to quash the indictment. The ground of the motion was that it was found upon illegal and incompetent evidence, reciting on its face that it was "found *** upon the information of the dying statement of T. P. Withrow, sworn in court and sent before the grand jury to give evidence to that body." There may have been more than one dying declaration. Was this evidence legal and competent? The general rule is that an indictment must be based upon legal evidence, and without it an indictment should not be returned. 20 Cyc. 1346. But as this authority says: "While this rule is laid down for the guidance of grand juries, they are not as a matter of fact held to the same technical rules of evidence as petit jurors, where their action is being passed upon by the courts." And in the same connection: "It is very generally conceded that the mere fact that some illegal or improper evidence has been received before the grand jury, or that certain witnesses examined were disqualified to testify, will not invalidate an indictment where other legal evidence was received in its support." But this question must be presented by plea in abatement, upon which an issue of fact as to the competency and sufficiency of the evidence may be tried. 22 Cyc. 205, and cases cited in note 14. No such plea was filed, and consequently we have not before us, by bill of exception or otherwise, the dying declaration presented to the grand jury.

The sole question, then, is whether, as a matter of law, a dying declaration is competent evidence upon which to found an indictment for murder. We think the answer should be in the affirmative. We need not cite authorities for the proposition that dying declarations are admissible evidence on a trial for murder; but they are generally limited to such facts as the declarant could have testified to if living. 4 Elliott on Evidence, § 3033, p. 324; State v. Meyer, 86 Am.St.Rep. note, p. 640. It may be that a proper predicate should be laid for the admission of such declarations, when not admissible as part of the res gestae, the same as upon the trial before the jury. It does not appear whether or not such foundation was laid before the grand jury. True, the names of no witnesses are indorsed on the indictment, but this requirement of the statute has been held directory only, not mandatory. State v. Enoch, 26 W.Va. 253; State v. Shores, 31 W.Va. 491, 7 S.E. 413, 13 Am.St.Rep. 875. A dying declaration, if competent, is entitled to the same consideration as if the witness was living and examined upon his oath before the jury. We see no reason, therefore, why an indictment may not be found upon such evidence. The law is "that, if there was any legal evidence before the grand jury, the court will not inquire into its sufficiency; nor will it quash the indictment in such a case because some illegal evidence was also received." 22 Cyc. 206; State v. Woodrow, 58 W.Va. 532, 52 S.E. 545, 2 L.R.A. (N. S.) 862, 112 Am.St.Rep. 1001. Upon the face of the indictment, therefore, we conclude that there was no error in overruling the motion to quash.

The second and third assignments of error relate to the admission of the testimony of Dr. Cooper, and of Dunlap, the prosecuting attorney, relating to the condition of the deceased at the time of his dying declaration. It is claimed this was evidence for the court, and not for the jury. This is true; but as the evidence was received to lay the foundation for admitting the dying declaration, the court committed no reversible error in receiving the evidence in presence of the jury. State v. Cain, 20 W.Va. 679.

The other errors assigned, but not especially urged, will be sufficiently covered by our response to those which are argued and relied on. The first of these is that there was no sufficient foundation laid for the admission of the dying declaration of the deceased. The rule is that dying declarations, to be legal and competent evidence, must appear to have been made when the declarant was under the sense of impending death, and without any expectation or hope of recovery. 1 Greenleaf on Ev. §§ 156-161; 4 Elliott on Ev. §§ 3032, 3033; 4 Ency. Dig. Va. & W.Va. Rep. 847, 848. The solemnity of the situation is regarded as a substitute for the solemn obligation of an oath administered in a court of justice. Swisher v. Commonwealth, 26 Grat. 964, 21 Am.Dec. 330. And the burden of laying a proper predicate for the admissions of such declarations is upon the one offering them. 4 Elliott on Ev. § 3033; Hill v. Commonwealth, 2 Grat. 594.

Was proper foundation laid in this case? In the beginning of the trial, oral evidence of the loss and contents thereof, and of the condition of the deceased at the time of making his dying declaration, was received. Later the writing was found and admitted in evidence, and the oral evidence of the contents thereof was stricken out, but not what deceased had said to witness regarding his condition at the time of making the dying declaration. We think this proper practice. The writing was the best evidence, the oral evidence secondary only. When the writing was found, it was proper to substitute it in place of the oral evidence. State v. Meyer, 86 Am.St.Rep. note 5, and cases, 642, 643. In the written declaration, signed and sworn to by deceased, he says "I realize my serious condition and that death is imminent, and that death is liable to occur at any minute. The doctor has told me this." It is conceded that, if this recital in the paper itself represented the true state of the declarant's mind, the paper was properly admitted; but it is claimed that the oral evidence of the witness Dunlap, who was present and interrogated the deceased, and reduced his declaration to writing, shows that words not used by declarant were employed. For example, the word "imminent" was probably not the word used by him, but one selected by Dunlap to convey the meaning of the deceased. It appears, however, that after the paper was thus prepared it was read over to declarant, adopted and sworn to by him. But it is claimed the evidence of Dr. Cooper tends to contradict or impeach the written statement. His evidence was that he asked deceased what he though of his condition; and, as is usually the case, he did not seem to have any opinion as to how serious his condition was, that he was comfortable then, but that he went on to tell him of the shot he had and the injuries done, and there was practically no hope for him; that he "didn't say to him there was absolutely none, but probably made use of the expression that it wasn't one in a hundred, or something of that kind"; that he told deceased this about half an hour before he made his statement to Dunlap. He also testified that deceased was shot in the abdomen, the ball or balls making as many as 21 holes in the bowels, severing also some large blood vessels, all likely to cause death; and, besides these, other wounds from other shots fired in other parts of his body were of a serious character. The evidence of Dunlap is positive that deceased understood his condition, and that he had no hope of recovery; that after the statement was prepared it was read over to declarant, signed, sworn to as prepared, and adopted by him. It is not necessary that the exact words of declarant should be used. State v. Baldwin, 15 Wash. 15, 45 P. 650. The answers he gives may even be responsive to leading questions, and the words actually employed, though not those actually used by declarant, may be subsequently ratified by him. State v. Meyer, 86 Am.St.Rep. note, pp. 643, 644, 647, citing, among other cases, Vass v. Com., 3 Leigh, 786, 24 Am.Dec. 695; Carver v. U. S., 160 U.S. 553, 16 S.Ct. 388, 40 L.Ed. 532; State v. Evans, 124 Mo. 397, 28 S.W. 8. It was a question of law for the court, from all the evidence, whether or not the declaration should go in evidence. Swisher v. Com., supra; State v. Cain, 20 W.Va. 679; Vass v. Com., supra. If the condition of the wounded party, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death, and conscious of his condition when he made them, such declarations should be admitted in evidence by the court as making a prima facie case. Jones v. State, 130 Ga. 274, 60 S.E. 840; Robinson v. State, 130 Ga. 361, 60 S.E. 1005; State v. Franklin, 80 S.C. 332, 60 S.E. 953, 954; State v. Gallman, 79 S.C. 229, 60 S.E. 682, 685. It was clearly shown, we think, that the declarant was in articulo mortis at the time he made his declaration. He had been mortally wounded; this was the doctor's opinion, confirmed by the death of decedent about four hours later. While the doctor says he had not told deceased there was absolutely no hope, he admits he told him...