Syllabus
by the Court.
Where a
dying person makes no declaration that he knows his danger or
is conscious of his impending death and there is nothing in
his conduct, or that of those present, understandingly
acquiesced in by him, from which such consciousness of
impending death may be ascertained, yet, where it is
reasonably to be inferred from the terrible character of the
wound and his state of illness that he was sensible of his
danger and conscious of impending death, his statements, made
under such circumstances, relative to the homicide, are
properly admitted as a dying declaration.
Under a
statute (Comp. Laws, § 3002) providing, "when the jury
retires to consider its verdict it shall be allowed to take
the pleadings in the cause, the instructions of the court
and any instruments of writing admitted as evidence, except
depositions," it is error to permit the dying
declaration, which has been reduced to writing, to be taken
to the jury room for investigation and examination by the
jurors.
Appeal
from District Court, Bernalillo County; before Justice Ira A
Abbott.
Dick
Eagle was convicted of murder, and he appeals. Reversed and
remanded.
Frank
H. Moore and H. F. Raynolds, for appellant.
Frank
W. Clancy, Atty. Gen., for the Territory.
WRIGHT
J. (after stating the facts as above).
Considering
the assignments of error in the order of importance rather
than in the order discussed in the brief, we find that the
second error complained of relates to the admission in
evidence of the dying declaration of Santiago Eteewa. The
general rules governing the admissibility of dying
declarations are too well established to need any lengthy
discussion. In the case of Blackburn v. State, 98
Ala. 63, 13 So. 274, the court in discussing this question
uses the following language: "Such declarations are not
admissible unless they appear to have been made under a sense
of certain and impending death. It is not what the court
which passes upon their admissibility, may believe the
character of the deceased was; for, although it may appear to
the court, or to any one capable of thinking rationally, that
there was no possible hope of recovery, yet the question,
aside from that is, what was the state of the declarant's
mind when the declarations were made, did he appreciate the
fatal character of his injury, and were his declarations
uttered under the sense and solemnities of impending
dissolution. If so, then, when the death of the deceased is
the subject of the charge, and the circumstances the subject
of the dying declarations, they may be admitted in evidence,
otherwise not." Walker v. State, 52 Ala. 192;
Kilgore v. State, 74 Ala. 7; Ward v. State,
78 Ala. 441; Hussey v. State, 87 Ala. 121, 6 So.
420. See, also, Wharton on Homicide (3d Ed.) §§ 631, 632,
634, 637; Underhill on Criminal Evidence, §§ 102-104,
inclusive; 4 Encyclopedia of Evidence, pp. 922-930.
An
examination of the evidence in this case discloses the fact
that the evidence upon which the admission of the dying is
predicated is contained wholly in the testimony of Dr.
Dillon, Mr. Allen, and Mr. Bibo, the notary public who took
the statement. "Q. Describe what you found--what his
condition was? A. Well, I found a wound, a bullet wound,
supposed to have entered--about--the point of entrance about
half an inch to the left of the ensiform appendage, and it
ranged downward. The bullet had left the body at about the
mid scapular line, posteriorly just above the brim of the
pelvis. Q. Stand up and show where it went in and went out.
A. (Witness demonstrating). The bullet entered about here
(indicating). Q. Yes? A. About half an inch to the left of
the top of this little cartilage that comes down on the
breast bone, and it came out right about there (indicating)
just above this pelvic bone. The wound where the bullet had
entered was a small puncture--aperture--from which there had
been little blood, if any--external bleeding--but the wound
here was a large gaping wound from which there was bleeding
when I examined him. That day there was no intestinal
discharge; but the second time I saw him there was a
discharge of the intestinal contents at the point of exit of
the bullet. Further examination showed that there had been
marked internal hemorrhage. The abdomen was markedly
distended. His temperature was subnormal, about 96 I think.
His heart action--the heart was rather rapid, about 88 to 90,
varying. The man was conscious, but in a rather
semiconscious, or rather dazed condition. He was not fully
normal. He vomited blood; vomited all the nourishment we
could give him, and even vomited water, and later he
developed an almost incessant hiccough, or, rather, it would
come on and last for probably 30 minutes or an hour, and then
subside for a little while and then return again. Q. Can you
state from the course and direction or from the point of
entrance and point of exit of the bullet what organs were
traversed by the bullet? A. Not absolutely. *** Q. From that
examination of him and your attendance upon him state, if you
can, what was the cause of his death? A. I think the chief
lesion, or chief cause of death, was peritonitis, due to the
bullet wound. Q. The primary cause of death, then, was the
bullet wound? A. The bullet wound; yes, sir. Q. What was your
professional opinion as to the character of the wound--that
is, as to whether it was--it would be fatal or not, when you
first saw him? A. I told his friends that I thought he would
die in a few days." Nowhere in this testimony does it
appear that Dr. Dillon told Eteewa of his condition, or in
his presence,
in any manner, indicated that Eteewa could not recover.
Mr
Allen testified as to the character of the wound to the same
general effect as did Dr. Dillon, and, in addition thereto,
testified with reference to what was said and done in the
presence of Eteewa at the time of the taking of the
deposition, as follows: "A. It was only a few words. I
was only there just a short time, and I told him that I was
going back. I made up my mind to send for a notary or bring a
notary at once and take his statement. I told him I would be
back in an hour or so. I sent a messenger for Mr. Bibo and
returned to McCarty's in an hour or so--two or three
hours, and he made a second statement similar to the first
one. The Court: That was to Mr. Bibo? A. Yes; to Mr. Bibo,
and I was present. Q. You were present? A. I was present. I
told him that I was going to bring a justice of the peace, or
Mr. Bibo. Q. There was nothing said directly as to whether he
would get well or would not? A. No, sir; I did not mention it
to him. Q. How was his condition the second time as compared
with the first? A. Well, about the same, as far as I could
see, he had taken no nourishment or anything of the sort.
They told me--about the same, and I did not see any material
difference in the length of time. Q. Was this statement
supposed to be after the doctor had been there? A. The doctor
was there at the same time--at my first visit. The doctor
lived in Laguna and went home. I returned with Mr. Hunt and
Mr. Bibo. Mr. Bibo met me there. The doctor and I were there
together on other matters. Q. Mr. Allen, from your
observation of his condition at the time that Mr. Bibo was
there, what, if any, opinion did you form as to whether he
would live or die? *** A. I thought he would die. Q. Describe
his appearance, and what indications there were that led you
to the opinion. A. Well, his ghastly appearance--his face,
and his pulse was very weak. Q. Anything else about his
appearance that you noted specially at that time? The Court:
What appearance of blood about him? A. Very little of it on
the outside, I think. He was bleeding internally--very little
on the outside. He had...
