State v. Johnson , 118 Mo. 491 ( 1893 )

Shekwood, J.

I. Complaint is made that the two witnesses, Mrs. Keene and her daughter, were allowed to testify, though their names were not indorsed on the indictment. But this objection was not opportunely taken and could not be raised for the first time in the motion for a new trial. State v. Roy, 83 Mo. 268; State v. Griffin, 87 Mo. 608.

II. A more serious objection to the testimony of these witnesses is in regard to the alleged dying declarations of deceased. Was their testimony, as delivered, •competent to establish such declarations? One rule xegarding such declarations, well established in this state and elsewhere, is that in order to make them ■admissible in evidence, there must not only be an ■actual nearness of death but an absolute conviction of it in the mind of the declarant. Beg. v. Dalmas, 1 'Cox’s Criminal Cases, 95.

It is not enough that the declarant should have thought that he should ultimately never recover; the •declaration should be made under an impression of almost immediate dissolution. Rex v. Van Butchell, 3 Carrington and Payne, 629; Reg. v. Forester, 10 Cox’s Criminal Law Cases, 368; 1 Greenleaf on Evidence [14 Ed.], sec. 158; Starkie on Evidence [10 Ed.] 38, and cases cited; People v. Green, 1 Parker’s Criminal Reports, 11; State v. Simon, 50 Mo. 370; State v. McCanon, 51 Mo. 160; State v. Partlow, 90 Mo. 608; Brown v. State, 32 Miss. 433; Starkey v. People, 17 Ill. loc. cit. 21, and cases] cited; Wharton on Homicide, .sec. 747.

It is this fact of nearness of death, combined with another fact, one equally as important, a profound and settled belief in such nearness of dissolution — that redeems such declarations from the domain of hearsay and dispenses with opportunity for cross-examination, one of the most indispensable tests and analyses afforded for sifting the statements of an ordinary witness. As this great safeguard of the truth of testimony cannot be thrown around such declarations, «courts have been exceedingly careful that there should be a rigid adherence to the principles upon which, and the preservation of the constituent elements from which, they are formed. This view is aptly presented. by Turley, J.: “Testimony of this character is only-admitted from necessity, and an abuse of it is guarded against by the law with most minute particularity. There is no one principle better established than that such declarations shall not be received, unless the proof' clearly shows that the deceased was in extremis (perhaps the words in articulo mortis which are used by some of' the authorities to express this condition, are more-accurate), and that he. or she, at the time of making them, was fully conscious of that fact, not as a thing-of surmise and conjecture or apprehension, but as a fixed and inevitable fact.” Smith v. State, 9 Humph. 9.

The principle, as stated by Lord Chief Baron, Eyre, on which this species of evidence is admitted^ is-“that they are declarations made in extremity, when the party is at the point of death, and when every hope-of this world is gone; when every motive to falsehood, is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.” Woodcoch’s case, 2 Leach, 563.

Touching the same subject, Byles, J.,said: “Dying declarations ought to be admitted with scrupulous, and, I had almost said, with superstitious, care. They have-not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subject to cross-examination, and is in no peril, of prosecution for perjury. There is also great danger of omissions, and of unintentional misrepresentations, both by the declarant and the witness, as this case-shows. In order to make a dying declaration admissible, there must be an expectation of impending and almost immediate death, from the causes then operating. The authorities show that there must be no. hope whatever.” Reg. v. Jenkins, L. R., 1 C. C. R. 191.

The case at bar does not meet the requirements of the rule mentioned. Two men get down in the public road and engage in a fight; after scuffling awhile one falls, or is knocked, to the ground, the other one gets on top of him and the under one, on the representation - that he has swallowed a chew of tobacco, is allowed to get up. Gletting on his feet, he walks a quarter of a mile, gets up behind his companion and rides home, and on the way there laughingly says he was not hurt. After he reaches home, however, he grows sick and vomits up the chew of tobacco, and then, while vomiting, tells his wife and daughter he is going to die, etc., etc. The nauseating effects of tobacco when swallowed need no comments; it is matter o'f common knowledge, and, therefore, of judicial notice. Besides, the witness, Mrs. Keene, was not allowed to tell her story in her own way; she was continually having leading suggestions and questions offered to her by the officiousness of the prosecuting officer. At the time deceased made these declarations he was without a physician; had no external indications of injury, and no one had apprised him that he was in danger. He may have been “conscious,” and, though conscmis, still may have been entirely without any absolute conviction and fixed belief of “almost'immediate dissolution.” As Judge Wag-neb appropriately observes in State v. Simon, 50 Mo. loc. cit. 375: “Any person who has been accustomed to attend on those who are injured, or are very ill, knows how common it is for them to say that they will never recover, or that they will die, when there is no good or sufficient reason for the apprehension, and they are not conscious themselves that they are in any real danger. Such expressions are often the result of impatience, restlessness or great suffering. But, at the same time, let the attending physician inform them that there is no hope and that they must die, and they will be perfectly startled.”

III. There are other objections to the admission of the declarations. First. They are clearly fragmentary. Wharton’s Criminal Evidence, sec. 299; Wharton on Homicide, sec. 770. Second. And though the substance of dying declarations are admissible, yet this is not so where such declarations are incomplete. Here the witnesses do not pretend to give either the words or the substance of what deceased said, or all that he said. Third. Nor does it appear that .the declarant stated as part of his alleged dying declarations, who it was that struck him the' blow and knocked him down. Mrs. Keene says he made such a statement when he first came into the house, but she does not state that this information was repeated when the alleged dying declarations came to be made.

IV. The propriety of the admission of dying declarations is a preliminary question for the determination of the court before they are allowed to go to the jury. Wharton on Criminal Evidence [9 Ed.], sec. 297; State v. Simon, supra. In the present case this course was not pursued, but the testimony was allowed to go directly to the jury without any preliminary determination by the court. But, even if the evidence to establish such declarations is admitted in the usual way, still, if improperly permitted to go to the jury, this is an error which can be corrected on appeal. State v. Simon, and Wharton on Criminal Evidence, supra.

V. As already seen, there was other evidence tending to establish defendant’s guilt beside the eroneously admitted declarations; but it cannot be* determined how much influence the latter had, either on the verdict or on the amount of the punishment assessed. State v. McCanon, supra.

Eor the errors aforesaid, the judgment should be reversed, and the cause remanded.

Burgess, J., -concurs; Gantt, P. J., in a separate opinion as to paragraph 2.