State v. Proctor

• Decision Date: 14 June 1954
• Docket Number: No. 43765,No. 1,43765,1
• Citation: 48 A.L.R.2d 724,269 S.W.2d 624
• Parties: STATE v. PROCTOR
• Court: Missouri Supreme Court

Page 624

269 S.W.2d 624

48 A.L.R.2d 724

STATE v. PROCTOR.

No. 43765.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 12, 1954.

Lawrence J. McKin and Samuel J. Kevrick, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Defendant, who shot and killed Blanchie Warren, was convicted of second degree murder and sentenced to 35 years in the penitentiary. He contends that the trial court erred in refusing to admit in evidence an alleged dying declaration.

On October 5, 1952, six persons were in Louise Wallace's apartment; some of them had been there since 9 a. m. and others had arrived at various times thereafter. They, other than deceased, had been drinking whiskey and gin, but the evidence tends to show that no one was intoxicated. About one o'clock deceased, Blanchie Warren, who had been there before for a brief time returned and joined in an argument which was in progress between defendant and Louise Wallace. Those present described the events immediately preceding the shooting in various ways. Suffice, for our purposes, to state that Louise Wallace went to a closet from which she took a pistol and, either a scuffle ensued among her, defendant, and deceased, or defendant simply jerked the pistol from Louise's hand. In any event, all of the state's witnesses who testified on the subject stated that at the time the fatal shot was fired, defendant was standing at least 3 1/2' or 4' from deceased and that the scuffle, if any, had terminated well before the shot was fired. Deceased fell to the floor immediately. One of the witnesses spoke to her between the time she fell and the time the police arrived a few minutes later. This witness said, 'I asked her--we all call her Ducky--I said, 'Ducky, you dead?' And she said, 'Mmhmm." A police officer testified that when he arrived, shortly after the shooting, deceased was lying on the floor and bleeding from a wound in her neck; that she told him that she 'was suffering from a pain in her neck' and that she was not able to move 'the lower extremities of her body or her arms'; but that deceased said nothing as to whether she expected to live or die. Deceased was placed in the ambulance section of a cruising patrol car and conveyed to a hospital. On the way, she said to a police officer in the car that 'she was called to her aunt's home at that address, and when we arrived there the aunt, who was Louise Wallace, and her common-law husband Proctor were involved in an argument. She inquired what the nature of the argument was and her aunt told her they were arguing about Proctor's legal wife coming there, and during the argument the aunt, Louise Wallace, got the pistol from the closet in the living room and she and Proctor tried to get the gun away from her and during the scuffle the gun was accidentally discharged.' Deceased said nothing at that time to indicate her mental state as to her consciousness of impending death.

Upon arrival at the hospital, deceased was first seen by Dr. Adams, apparently in the emergency receiving room. He said, 'there was a gunshot wound of the neck * * * I thought there was some involvement of the trachea, I had her rushed right up to female surgery so she could go to the operating room as soon as possible.' Dr. Davis, who was one of the doctors who attended deceased from the time she entered the hospital until she died on October 13, said the bullet had entered the neck and exited in the region of the upper quarter of the right scapula; that there was damage to her spinal cord and there was blood in the pleural cavities; that she was unable to talk during the entire time she lingered; that a traecheotomy was performed so she could breathe; that she was in a serious condition from the time she entered the hospital; that she was paralyzed from the neck down; that such paralysis could have occurred immediately when the bullet struck the spinal cord. Dr. Davis testified, without objection, that 'I didn't hear anyone or didn't advise her as to how serious she was, although I do believe that she was aware of her condition. Q. You do believe she was aware of the seriousness of her condition? A. I do. Q. And that she could die at any time as a result of it? A. Yes.'

The trial court excluded in whole and in part the statement made to the police officer above quoted on the ground that it was not shown that the statement was made by the declarant under a consciousness of impending death and after hope of recovery had been abandoned, and on the further ground that the statement that the gun was accidentally discharged was a conclusion which the witness, if alive and on the witness stand, would not be permitted to state.

A statement to be admissible as a dying declaration must have been made by the declarant in extremis and in the belief of impending death after hope of recovery has been abandoned. State v. Strawther, 342 Mo. 618, 624, 116 S.W.2d 133, 136[2, 3]. The declaration may be in narrative or question and answer form; and it is the impression of almost immediate death and not the rapid succession of death in fact which renders a declaration admissible. State v. Kelleher, 201 Mo. 614, 637, 638, 100 S.W. 470, 477. An explanatory statement by the declarant as to the presence of a sense of impending death need not be made in express language. It is sufficient if the sense of impending death and the abandonment of hope of recovery appears by any means. The despair of recovery may be inferred from the circumstances if the facts in evidence support the inference. 'The surrounding circumstances may, and frequently do, speak as loudly as the oral word. It is enough if, from all the circumstances, it satisfactorily appears that such was the condition of the declarant's mind at the time of the declarations. The declarant's belief in imminent death may be inferred from the nature of his condition, his evident danger, the character of his injury, the administration of the last rites of the church, the conduct of the declarant, and other circumstances which indicate his apprehension of imminent death.' 26 Am.Jur., Homicide, Sec. 420, p. 447; State v. Evans, 124 Mo. 397, 409, 28 S.W. 8, 11; State v. Anderson, Mo.Sup., 34 S.W.2d 25, 26[2-5]; State v. Kelleher, supra.

Whether a statement has been made when declarant was conscious of impending death and after he had abandoned hope of recovery is a question to be determined by the trial court at a preliminary hearing. State v. Custer, 336 Mo. 514, 517, 80 S.W.2d 176, 177[1, 2]. However, after the trial court has determined on preliminary hearing 'the character of the statements as dying declarations * * * for the purpose of determining their admissibility,' the ruling of the trial court that the statement is admissible does not have 'the effect of precluding consideration by the jury of the question of declarant's belief when he made the statements * * *.' State v. Custer, supra, 80 S.W.2d 180. The Custer case established the rule in this state that whether a certain statement is in fact a dying declaration is a question for the jury under proper instructions from the court, even though the trial court has so determined on preliminary hearing. The Custer case overruled prior Missouri decisions holding that a trial court's preliminary determination that a certain statement was a dying declaration was conclusive.

Dying declarations are admissible in favor of the defendant as well as against him. State v. Livingston, Mo.Sup., 204 S.W. 262, 263. Usually, however, the question in an appellate court is whether the trial court erred in admitting an alleged dying declaration offered by the state. And it may often be that this hearsay testimony is the only evidence connecting a defendant with the crime charged. Thus, because it is hearsay and its admission may be the determinative factor in depriving one of his life or liberty, trial courts, and appellate courts on review, must be 'exceedingly careful that there should be a rigid adherence to the principles upon which, and the preservation of the constituent elements from which,' statements are admitted as dying declarations. State v. Johnson, 118 Mo. 491, 501, 24 S.W. 229, 231. It is important then, that a jury not even hear the contents of a purported dying declaration unless the party offering it has shown on preliminary hearing by substantial evidence of clear probative value that the alleged statement was made under a consciousness of impending death and after hope of recovery had been abandoned.

Before deciding whether there was sufficient evidence adduced in the instant case to have required the trial court to have submitted to the jury whether deceased's statement to the police officer was in fact a dying declaration, we should first determine whether the opinion of Dr. Davis (that deceased was aware of the seriousness of her condition and aware of the fact that that condition could result in her death at any time) has any probative value as evidence. We find no Missouri case on the question except State v. Anderson, supra. There, the court discussed the testimony of a doctor who had related what had been said to him by deceased. In holding that the statement was admissible as a dying declaration, against the objection that it was not shown that declarant expected immediate dissolution, the court said at 34 S.W.2d 26: 'Dr. McRaven, of course, could not give his opinion as to what he thought she believed about it, but his story indicates that she knew she was going to die.' That statement was obviously dictum in that case. Dr. McRaven had not given his opinion as to the state of mind of declarant and the question was thus not before the court for decision.

There is a division of authority in the various jurisdictions on this proposition. In 40 C.J.S., Homicide, Sec. 295, p. 1266, this statement is...