State v. Elias

• Decision Date: 21 April 1939
• Docket Number: No. 31840.,31840.
• Citation: 205 Minn. 156,285 N.W. 475
• Parties: STATE v. ELIAS.
• Court: Minnesota Supreme Court

285 N.W. 475

205 Minn. 156

STATE v. ELIAS.

No. 31840.

Supreme Court of Minnesota.

April 21, 1939.

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Rose V. Elias was convicted of manslaughter in the first degree, and she appeals.

Order reversed and new trial granted.

Kleve J. Flakne and John Ott, both of Minneapolis, for appellant.

J. A. A. Burnquist, Atty. Gen., M. Tedd Evans, Asst. Atty. Gen., and Ed. J. Goff, Co. Atty., and Arthur Markve, Asst. Co. Atty., both of Minneapolis, for respondent.

GALLAGHER, Chief Justice.

Defendant was convicted of manslaughter in the first degree. She appeals from an order denying her motion to set aside the verdict of the jury and the judgment and sentence of the court and to grant a new trial.

Reduced to its simplest terms, the indictment accuses defendant of killing her husband, Joseph Elias, on July 18, 1937.

Elias and his wife lived in St. Louis Park in this state. On the evening in question defendant went to Hopkins where she was later joined by her husband. On the way home they quarreled and it appears that decedent slapped his wife. Arriving home the quarrel continued. There is considerable controversy as to the details of what then occurred. During the trouble Elias was stabbed. Defendant applied first aid measures and later called a doctor who caused him to be removed to St. Mary's Hospital in Minneapolis. On the following morning Drs. Murphy and Regnier, the attending physicians, determined that an operation was advisable. It was performed that evening and a few hours later Elias died.

Numerous errors are assigned. It will not be necessary to discuss all of the assignments for the reason that one is determinative of the appeal. Reference will be made to some of the others.

1. Over defendant's objection a statement purporting to be a dying declaration of decedent, was offered and received in evidence. It embodies decedent's version of the unfortunate incidents surrounding the injury which resulted in his death. That part of the statement most damaging to defendant, inasmuch as it conflicts with a material point in defendant's testimony, reads: "We went home and I undressed and went to bed. Later on she came and stood over me and challenged me. I told her to get away and go to bed either up here or downstairs. The next thing she hit me with something sharp in the left side. I jumped up to protect myself. She came for me again and I kicked her. She fell down. I grabbed a knife or something sharp. That is when I got stabbed in the hand. Then she got excited and ran downstairs and called the doctor. It was about 12:30 A. M."

The statement was made in the presence of Dr. E. A. Regnier, deputy sheriffs Fred Kraemer and Joseph Schutta, and a stenographer attached to the hospital staff. The stenographic notes taken by the stenographer were immediately transcribed and, according to the testimony of those present, the transcribed statement was read to Elias and signed by him in the presence of Kraemer and Schutta. At the top of the statement, in longhand, appear these words: "Dr. E. A. Regnier first told the patient before making statement that he is in a serious condition and might die tonight."

The question presented is: Was there sufficient foundation to permit the introduction as evidence of the so-called dying declaration?

In prosecutions for homicide the dying declarations of the deceased as to the cause of his injury or as to the circumstances which resulted in the injury are admissible if it be shown, to the satisfaction of the trial court, that they were made when the deceased was in actual danger of death and had given up all hope of recovery. 2 Dunnell, Minn. Dig. (2 Ed. & Supps.) § 2461; State v. Cantieny, 34 Minn. 1, 24 N.W. 458; State v. Pearce, 56 Minn. 226, 57 N.W. 652, 1065; State v. Mueller, 122 Minn. 91, 141 N.W. 1113; State v. Findling, 123 Minn. 413, 144 N.W. 142, 49 L.R.A.,N.S., 449; State v. Hunter, 131 Minn. 252, 154 N.W. 1083, L.R.A. 1916C, 566; People v. Sarzano, 212 N.Y. 231, 106 N.E. 87. Dying declarations reduced to writing from facts drawn out from the deceased and afterwards written down by another and read to the deceased, he assenting to the truth of the written statement, are also admissible. State v. Cantieny, supra.

To make a dying declaration admissible, something more is required than that declarant realize the seriousness of his condition and the possibility of death. The testimony offered as a dying declaration whether in the form of an oral or a written statement, must have been spoken without hope of recovery and in the shadow of impending death. This state of mind must be exhibited in the evidence and not left to conjecture. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196. In this case Mr. Justice Cardozo, speaking for the court, 290 U.S. at page 100, 54 S.Ct. at page 24, 78 L.Ed. 196, said: "Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be `a settled hopeless expectation' (Willes, J. in Reg. v. Peel, 2 F. & F. 21, 22) that death is near at hand, and what is said must have been spoken in the hush of its impending presence. Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917; Carver v. United States, 160 U.S. 553, 16 S.Ct. 388, 40 L.Ed. 532; Id., 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602; Rex v. Perry, [1909] 2 K.B. 697; People v. Sarzano, 212 N.Y. 231, 235, 106 N.E. 87; 3 Wigmore on Evidence, §§ 1440, 1441, 1442, collating the decisions. Despair of recovery may indeed be gathered from the circumstances if the facts support the inference. Carver v. United States, supra; Wigmore, Evidence, § 1442. There is no unyielding ritual of words to be spoken by the dying. Despair may even be gathered, though the period of survival outruns the bounds of expectation. Wigmore, § 1441. What is decisive is the state of mind. Even so, the state of mind must be exhibited in the evidence, and not left to conjecture. The patient must have spoken with the consciousness of a swift and certain doom."

This court has considered the circumstances under which dying declarations may be received and has recognized and followed the rule as laid down in Shepard v. United States, supra. In State v. Cantieny, supra, it said [34 Minn. 1, 24 N.W. 463]: "The facts and circumstances to which we have referred seem to us to have been sufficient to warrant the conclusion of the court that the declaration was made under a conviction of impending death, and without hope of recovery. It was therefore properly allowed to go to the jury."

To the same effect see State v. Mueller, supra, and State v. Pearce, supra. Courts of other states recognize and follow the same rule. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196; People v. Sarzano, 212 N.Y. 231, 106 N.E. 87; Peak v. State, 50 N.J.L. 179, 12 A. 701; Commonwealth v. Roberts, 108 Mass. 296; State v. Knoll, 69 Kan. 767, 77 P. 580; People v. Hodgdon, 55 Cal. 72, 36 Am.Rep. 30; Biggs v. Com., 150 Ky. 675, 150 S.W. 803; Lea v. State, 138 Miss. 761, 103 So. 368.

It is for the court to consider from the evidence whether the declaration was made under circumstances rendering it admissible and to determine whether it should go to the jury as evidence. 1 Phillipps, Ev. 296-298; Steph., Dig. Ev. c. 4, art. 26; Wharton on Homicide (3d Ed.) § 648; State v. Cantieny, supra. The weight to be given dying declarations is for the jury. State v. Pearce, supra; State v. Mueller, supra. See, also, 52 L.R.A.,N. S., 152.

We next approach the question whether deceased, when he made the statements now challenged, spoke without hope of recovery and in the shadow of impending death so as to make his statement admissible as a dying declaration. Dr. Regnier, one of the attending physicians, testified that when he realized the seriousness of Elias' condition he told the latter that he did not know whether he would survive the operation; that there was a good chance that he would not recover; and that his condition was so serious that a statement ought to be taken. He also testified that the sheriff's office was notified and that, about an hour later, a statement was taken in the presence of himself, two deputy sheriffs, and a stenographer. The doctor further testified that just prior to the taking of the statement he again said to Elias: "Your life is really in the balance. If it becomes necessary to undergo a major operation, then your chances of recovery become very remote" and that Elias said he understood. The doctor also testified that Elias authorized...