State v. Green v. Meek
Decision Date | 07 May 1929 |
Docket Number | (No. 6325) |
Citation | 107 W.Va. 324 |
Parties | State v. Green v. Meek |
Court | West Virginia Supreme Court |
1. Homicide Admissibility of Dying Declaration is Exclusively for Court.
The admissibility of a dying declaration, in evidence, is exclusively a question for the court. (p. 329).
(Criminal Law, 17 C. J. § 3593, p. 263, N. 79.)
2. Same Great Caution Must Be Observed in Admission of Dying Declarations.
Great caution should be observed in the admission of dying declarations and the rules environing their admission should not be relaxed. (p. 329).
(Homicide, 30 C. J. § 503, p. 261, N. 9.)
3. Criminal Law Ruling of Trial Court on Question of Fact Supported by Evidence Will Not Be Disturbed Unless Clearly Wrong.
Where competent evidence supports the ruling of the trial court on a question of fact, its ruling will not be disturbed unless clearly wrong. (p. 329).
(Criminal Law, 17 C. J. § 3593, p. 263, N. 79.)
4. Homicide Dying Declaration at Time Declarant Was Suffering From Shock and Under Influence of Morphine, and Containing Disconnected and Irrational Statements, Was Inadmissible.
When it appears that the declarant was suffering severely from shock and was under the influence of large doses of morphine, and the statements in the declaration are disconnected and irrational, the declaration should not be admitted. (p. 330).
(Homicide, 30 C. J. § 507, p. 268, N. 78.)
Error to Circuit Court, Cabell County.
Green V. Meek was convicted of murder in the first degree, and he brings error.
Reversed; new trial awarded.
John S. Marcum, A. A. Lilly, John Perry and John H. Meek, for plaintiff in error.
Howard B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.
The defendant was tried in the common pleas court of Cabell county upon the charge of murdering Thomas Stafford. He was found guilty of murder in the first degree, with a recommendation of punishment in the penitentiary. He was sentenced to life-time imprisonment by the trial court. The circuit court of Cabell county found no error in the judgment and the defendant obtained a writ of error here.
The defendant and the deceased were on bad terms. They owned contiguous properties, and the deceased had claimed that it was difficult to keep his property rented because of bees and dogs kept by the defendant. At one time the defendant had paid the deceased $25.00 as damages for loss of tenants. The killing seemingly grew out of the demand of the deceased for additional damages. The evidence discloses threats by each against the life of the other. The defendant claims that the deceased had shot at him prior to the day of the homicide, and on the morning of that day attempted to enforce his demand for additional damages with a pistol. The tragedy occurred on a street in Huntington. There were no eye witnesses. The defendant testifies that he was walking along the sidewalk and was overtaken by the deceased in an automobile. The defendant's description of the affair is as follows:
A dying declaration of the deceased was admitted in evidence, which is as follows: '
This declaration was written from notes of Mrs. Ann Rady, a stenographer. She testified that she was at the bedside of the deceased about 4:35 P. M., of the day he was shot; that Quinlan asked the deceased "if he realized that his hope of living was but a few hours longer''; that the deceased replied, "Yes, I know that I do not have long"; that she then took down in shorthand all the questions asked and the answers of the deceased and that the double x appearing at several places in the declaration indicates incomplete sentences. Quinlan does not mention in his testimony that he interrogated the deceased as to his condition, but states his recollection to be that Dr. Kappes said in effect to the deceased that he didn't have long to live. Dr. Kappes' testimony on this point is: '
Error is charged to the admission of this declaration. Much eloquent ink spreads the altruistic theory that a sense of imminent death has a beneficent effect upon the veracity of the declarant. See Hill v. State, 41 Ga. 484. An equal or greater amount perhaps has flowed in opposition to that theory. Bailing v. Com., 110 Pa. St. 100. In practice, such declarations have been found to furnish an "unreliable and unsatisfactory character of proof", and juries are accustomed to attach to them "undue importance." Mitchell v. State, 71 Ga. 128. "Dying declarations have every element of dramatic evidence", says Wharton, and as such "they possess an impressiveness out of all proportion to their evidentiary value." Wharton's Crim. Ev. (10th Ed.), p. 529. They have been termed "a dangerous innovation" upon the rules of evidence. Marshall v. C. & G. B. B. Co., 48 Ill. 475, 95 Am. Dec. 561, 563. But they are tolerated upon the grounds of necessity and public policy. 1 R. C. L., p. 529, sec. 70; 30 C. J., p. 252, sec. 495. Consequently, courts are admonished that the facts upon which their admissibility depends should be closely scrutinized, and the rules environing their admission should be stringently applied. 4 Ency. Ev. 945-6. In Lipscomb v. State, 75 Miss. 559, a leading case, those rules are summarized as follows: "(a) They must have been made under the realization and solemn sense of impending...
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