Swisher v. Commonwealth

• Citation: 67 Va. 963
• Parties: SWISHER v. THE COMMONWEALTH.
• Decision Date: 30 September 1875
• Court: Supreme Court of Virginia

67 Va. 963

SWISHER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

September 30, 1875

1. J receives wounds in a fight with S on the 8th of January, and on that night he expects to die very soon, and makes certain statements in relation to the fight. He lives until the 18th encouraged to entertain some hope of recovery by his physician, and probably having some hope. On the trial of S for the murder of J, the statements of J on the 8th of January are competent evidence as his dying declarations.

At the May term 1875 of the Circuit court of Rockbridge county Daniel T. Swisher was indicted for the murder of James Jarvis, by cutting him with a knife. The prisoner was tried at the same term of the court. On the trial evidence was introduced by the commonwealth, tending to prove that after an altercation on the 8th of January, 1875 between the deceased and the prisoner, a fight took place between them on the same day about 7 p. m.; and at its termination, the deceased was found to be cut or stabbed in two places in his body; of which wounds he afterwards died on the 18th of the same month. And then the Commonwealth proposed to prove certain statements made by the deceased during the night of the 8th of January; to which the prisoner by his counsel objected, until a proper foundation for their introduction was laid. And thereupon a number of witnesses were examined by the judge in the absence of the jury. This testimony is set out in the opinion of Judge Christian.

The court was of opinion that the testimony was sufficient to authorize the admission of the evidence, as the dying declarations of the deceased; and the same was submitted to the jury; and the prisoner excepted.

The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and he was sentenced by the court in accordance with the verdict. The prisoner thereupon applied to a judge of this court for a writ of error; which was awarded.

J R. Tucker, W. A. Anderson and T. N. Williams, for the prisoner.

The Attorney-General for the commonwealth.

CHRISTIAN J.

This is a writ of error to a judgment of the Circuit court of Rockbridge.

The prisoner in his petition, and his counsel at the bar here assign but one ground of error, and that is, that the Circuit court erred in overruling the objection of the prisoner to the introduction of the dying declarations of the deceased.

The alleged ground of the objection is, that no sufficient foundation for their introduction had been laid.

The rule of law on this subject is well settled, that to render dying declarations admissible evidence, they must be shown to have been made when the declarant is under a sense of impending death, and without any expectation or hope of recovery. When this is made to appear by proof, or by the circumstances of the case, dying declarations to identify the prisoner, or to establish the circumstances of the res gestæ , or to show transactions from which death results, are always admissible, to have the same weight as if made under the sanctions of an oath. For it is considered that when an individual is in expectation of impending death, all temptation to falsehood, either of 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 of an oath administered in a court of justice. As was said in Dunn v. The State, 2 Pike's R. 229, cited in 1 Wharton 671: " When every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth--a situation so solemn and awful, is considered by the law as creating the most impressive of sanctions." Whether the dying declarations sought to be introduced were made under a sense of impending death, without any expectation or hope of recovery, is always a question to be determined by the court on all the circumstances of the case. 1 East P. C. 357; 1 Stark. Ev. 523; Bull's case, 14 Gratt. 613.

Let us now apply these well established rules of law to the case at bar. In a fight between the prisoner and the deceased, which occurred about seven o'clock P. M. on the 8th of January 1875, the deceased was stabbed in two places in the body, of which wounds he died on the night of the 18th January 1875.

The declarations of the deceased, offered as evidence, were made on the night of the 8th, about two hours after he received his wounds: and the question was, whether at that time he had a consciousness of impending death, and then had no hope of recovery. It becomes necessary therefore to examine the testimony of the witnesses who saw him on the night of the 8th, before and at the time the declarations offered in evidence were made. George Smith, who seemed to have been present just as the fight closed, proved that deceased seemed badly hurt; said he was cut to pieces; called out to his brother to kill the prisoner if he could; that he then walked from the place where he was wounded to the shop of the witness, which was 112 feet, and thence 55 feet further, into the house of witness, who sent for two physicians. Deceased said he could not live until the doctors came unless there was haste made. Said again he could not live, believed he would die before the doctor came; lost a good deal of blood; his pulse was weak.

Another witness, father of the deceased, proved he saw deceased about 25 minutes after he was wounded; was then at Smith's house. Deceased said he was badly cut. Witness told him he was excited. He replied he was not excited, and that if any of the family wished to see him they must be got there as soon as possible. He said he would not get over it. This was before the doctors came: frequently said during the same night he could not get over it.

Another witness proved that she saw deceased at Smith's house about 15 minutes after he was wounded. He looked as if he would die; she feared he would from his appearance. He repeated several times he would die: said, " I think I am going to die; " and afterwards, " I will die: I will never recover." All this was about an hour before Dr. Alexander came. When his father spoke of sending for Dr. Morrison, deceased said he would die. When he said he was going to die, witness told him not to think so; that if it was ordered he should die, the doctors would so tell him; that he must not be unnecessarily frightened. He made no reply then; but afterwards witness heard him say he would die. Witness thought that deceased thought he would die; and it was not a mere exclamation of pain, but the expression of an opinion.

Dr. Alexander proved that he reached the deceased about 10 o'clock on the night of the 8th January 1875; dressed his wounds; found him excited; that he was wounded in two places, one between the 6th and 7th rib on the left side, and the other in the abdomen; found him pale, but not from loss of blood: said nothing to deceased of his condition, and heard him say nothing; gave him morphine, and he went to sleep sitting in a chair. While attending on deceased, witness was sent for to see prisoner, who was cut in his hand, and on returning to deceased found Dr. Morrison with him.

Dr Morrison proved, that he reached deceased about 11 o'clock of the night of the 8th January. He had lost some blood; was under prostration due to shock from his wounds. * * * * When witness first saw deceased he was pale, had clammy sweat and was much prostrated; but reaction had already begun to set in. He thought when witness first saw him, he was going to die. Witness told him he might get well or might die. Witness (who was a surgeon in the Confederate army), told deceased he had seen many men no worse hurt than he was get well. Deceased was obviously encouraged by this, as witness thought. Afterwards, later in the night, about 1 o'clock, witness was called from another room whither he had gone, to see deceased, where some attendants had undertaken to lay him down on a pallet. The effect was to pass the discharge from his wound into his lungs, suffocating him, and making respiration very distressing. Witness replaced him in his chair, where he was more comfortable; found him no worse, and he revived again, talked, and witness thought he was better. He said however, he would die, and his wounds reasonably justified that opinion. Witness then left him for the night, being satisfied he was not then in immediate danger. The next morning he was much revived; no doubt he felt better, and obviously was satisfied he was better. For five or six days witness had good hope deceased would recover; would say to him when he visited him-- " Jim, I hope you will get well; " and he would answer--" I hope so too." He said the morning after he was wounded, he felt better, and repeated the same thing on my several visits. Witness did not remember that deceased ever said in so many words, he thought he would recover; but he was certainly hopeful in opinion of witness. Witness was much encouraged about him, when about four days after he was wounded his bowels were favorably operated on. When on witness's first visit, deceased said " he thought he was going to die," witness encouraged him, felt his pulse, told him he was not dying, and he certainly was not then in a dying condition, and that as badly hurt men as he, witness had seen get well. On the night of the affray deceased frequently said he would die, and that this was not an...