State v. Jeswell

• Decision Date: 28 May 1900
• Citation: 46 A. 405,22 R.I. 136
• Parties: STATE v. JESWELL.
• Court: Rhode Island Supreme Court

46 A. 405

22 R.I. 136

STATE

v. JESWELL.

Supreme Court of Rhode Island.

May 28, 1900.

Pedro Jeswell was convicted of murder, and petitions for a new trial. Petition denied.

Willard B. Tanner, Atty. Gen., for the State. Augustus S. Miller and Harry O. Curtis, for defendant

TILLINGHAST, J.The defendant, who on the 10th day of January, 1899, was convicted of the crime of murder, now petitions for a new trial on the grounds that the verdict was against the evidence, and that the justice presiding at the trial erred in permitting the state to offer in evidence a paper purporting to be the dying declaration of George G. P. Collins, the person whom the defendant is charged with having murdered.

We will first consider the question raised regarding the admissibility of the paper referred to. Harmon S. Babcock was called as a witness by the state, and testified that he was a coroner in East Providence, and that he saw the deceased after he was wounded, and took his ante mortem statement. This statement was thereupon produced by the witness, and, after being read by the justice presiding, was allowed to be offered in evidence, against the defendant's objection. The paper was as follows: "I, George G. P. Collins, of Seekonk, Mass., being in the fear and expectation of death, do make the following statement as my dying declaration: I was hurt in Rumford. R. I., on Newman avenue, at about half past 12 a. m. on October 2, 1898. I got into an argument with another party on the car,—electric car. He got off at one end, and I got off at the other. He came around and stabbed me. I could not state what the weapon was. I had not struck him, or done anything of the kind. I don't know his name. He had a soft, black hat on, and he had a brownish suit, with a short coat He was a man about my height, —5 ft, 11 in.; a man of fair, fresh, lightish complexion. He had black eyes, I think. I should say he was either French or Italian. He came up in front of me when he stabbed me. He got on the car again, I think, after he had stabbed me. Quite a number of Rumford people on the car,—Victor Carlson, Alfred Johnson, Samuel Lindruth. [Signed] George G. F. Collins, his mark. Subscribed and sworn to this 3rd day of October, A. D. 1898, Rhode Island Hospital, city and county of Providence. Before me, Harmon S. Babcock, Notary Public." Defendant's counsel took the point that the paper was not admissible because there was no evidence to show that Collins believed himself to be beyond the hope of recovery and in a dying condition at the time, and they therefore insisted, and now Insist, that the ruling was erroneous. Gen. Laws, c. 287, § 15, provides that: "Whenever the coroner has notice that there is in his town any person who has been injured by the criminal act, omission or carelessness, of another, and that said person believes that his death is impending from such injury, said coroner may take the statement of such person concerning the manner in which and the person by whom, such injury was inflicted; and the statement so taken shall be reduced to writing and, if practicable, in the presence of the injured person." It is clear that the principal object of this statute is to obtain and preserve the dying statement of a person whose injuries have been caused by the criminal act of another, to be used as evidence in the prosecution of the person accused of the crime. But, independently of the statute, a dying declaration, in which the circumstances of the injury received are the subject thereof, taken by a magistrate, is always admissible in evidence against the accused, if it is clearly made to appear that the declarant fully believed that his death was imminent at the time of making the declaration. Oral and unsworn declarations of the injured person are also admissible in evidence, if it appears that they were made in view of impending death, on the ground that when one is in the "expectation of immediate death all temptation to falsehood, either from interest, hope, or fear, will be removed, and the awful nature of his situation will be presumed to impress him as strongly with the necessity of a strict adherence to truth as the most solemn obligation in a court of justice." Whart. Cr. Ev. (8th Ed.) § 276; 1 Greenl. Ev. (13th Ed.) §§ 156, 157, and cases in note; State v. Dickinson, 41 Wis. 306. See, also, Maine v. People, 9 Hun, 113; Starkey v. People, 17 111. 17; Kilpatrick v. Com., 31 Pa. St. 198; State v. Swift, 57 Conn. 496, 18 Atl. 664; Com. v. Cowper, 5 Allen, 495; Com. v. Casey, 11 Cush. 421. Such declarations are admissible as evidence against the accused, not because they constitute an exception to the constitutional right of the defendant to be confronted with the witnesses against him, but because they were admissible at common law, "and there is nothing in the...