People v. . Smith , 104 N.Y. 491 ( 1887 )

The defendant was jointly indicted with one Alexander Sweeney, in the Court of General Sessions in the city of New York, for the murder of John Hannon, by shooting with a pistol, April 7, 1885. He was separately tried, and was convicted of murder in the first degree. The transaction took place at about six o'clock in the evening, at a shanty at the foot of Thirty-eighth street, in the city of New York, where the deceased was employed as a watchman in the street cleaning department. The deceased was at the time sitting or lying on a bench in the shanty, and a man named Tracy was in the room, sitting by and leaning upon a table. Tracy saw Smith and Sweeney enter the door, and he pretended to be asleep. He testifies that they had some conversation in a whisper, which was followed almost immediately by the report of a pistol, and they then turned and left the place. Tracy, seeing that Hannon was shot, followed the two men and pointed them out to officers, who arrested them. The shooting was done on Tuesday evening. Hannon was taken the same evening to Bellevue hospital and died there the Saturday following. It was found that a ball had penetrated the skull, over the right eye, entering the brain.

There was no controversy on the trial that the shot proceeded from a pistol in the hands of the defendant. The defense was that the shooting was unintentional and accidental. The testimony of the defendant, who was sworn as a witness in his own behalf, tended to support this explanation. The theory of the prosecution was that it was a deliberate and premeditated murder, committed by Smith and Sweeney, acting in concert, from enmity, each having a grudge against the deceased. The prosecution, in support of this theory, proved that Smith and Sweeney had known each other from boyhood and were intimate friends, and were also acquaintances of the deceased. For the purpose of showing the hostility of Sweeney to the deceased the prosecution was permitted, against the objection of the defendant's counsel, to show that a fight had occurred between them on the day before the homicide. It was also shown by the evidence of the mother and sister of the deceased that about two years prior to the homicide an altercation took place between the defendant and the deceased, during which the former drew a pistol, and that on that occasion the defendant threatened to kill Hannon "if it is twenty years to come." The people further, to support the indictment, offered evidence of declarations made by the deceased to his mother at the hospital, on Wednesday morning, the day after the shooting, and also to his sister on Thursday morning.

The principal and serious allegations of error relate to this evidence, first, as to whether the declarant made the declarations under a sense of impending death, within the rules governing the admission of dying declarations, and, second, whether the court committed a legal error in permitting declarations of the deceased to be proven in the first instance, not relating to the immediate circumstances of the death, and which the court subsequently ordered to be stricken out. In respect to the first question, viz., whether the deceased at the time of making the declarations was in such condition of body and mind, and had such a sense of impending dissolution as to make his declarations admissible, we entertain no doubt. As the sequel proved, he had received a mortal wound. His conversation with his mother indicated that he considered his condition hopeless. He said: "Yes, mother, I am shot; mother, will you take me home; the Bellevue people are good; they are good enough, but they can do nothing for me." The mother said: "Johnny, the doctor don't say so, the doctor says you will get well." He said: "Mother, lift me up, kiss me, kiss me, because I am going to die; the bullet that Pete Smith put in my head, it is in it, and it will fetch me and leave you without your only son." There was other conversation not necessary to repeat. Suffice it to say that all his statements as to his condition, indicate that both on Wednesday and Thursday mornings he had a settled conviction that he was fatally wounded and that death was imminent.

It would not be profitable to go over the cases as to the preliminary proof necessary to entitle dying declarations to be given in evidence Each case differs in its circumstances, and the cases are not all reconcilable. The rule admitting dying declarations is anomolous, and courts are strict in requiring that, before admitting them, it shall be made clearly to appear that the declarant was, in fact, resting under the shadow of death from the fatal stroke, and so believed, entertaining no hope of recovery. The circumstances proved in this case bring it within the rule, according to the best considered authorities. (Reg. v. Howell, 26 Law J. [M.C.] 43;Reg. v. Jenkins, 11 Cox. Cr. C. 250; Reg. v. Peel, 2 Fost. F. 21; 3 Russ. on Cr. [4th Eng. ed.] 250 et seq.; 1 Greenl. Ev. chap. 9.)

The more serious question arises in respect to the alleged error of the court in admitting declarations made by the deceased in relation to matters not the proper subject of proof by dying declarations. The course of the trial upon this point, as disclosed by the record, was this: The mother of the deceased, on being called and sworn as a witness for the people, was asked by the prosecuting attorney to state the conversation she had with the deceased at the hospital on Wednesday morning. The defendant's counsel interposed an objection that it was not "in the nature of an ante mortem, and was inadmissible." The court replied, "I cannot determine whether it is or not until I hear it." On the defendant's counsel repeating the objection, the court stated, "Mr. Palmer, rather than you should interrupt at every question put to the witness, you may consider an objection and exception to every question put to the witness." The witness was again asked to state the conversation, when the defendant's counsel asked the court if it had decided to admit declarations of Hannon when not in fear of imminent death, and the court replied that it had not, adding, "How do I know as yet but that they were made in anticipation of immediate death?" The defendant's counsel then asked to be permitted to cross-examine the witness on that point, but the court denied his request, saying that when the district attorney got the statement of the witness, the defendant's counsel could then cross-examine, and the court would decide whether it came within the rule, and to this ruling an exception was taken. The district attorney then proved by the mother, the declarations of the son heretofore stated, and said, "Now I think we have laid the foundation for declarations." The court then took up the examination of the witness, and she proceeded, in answer to the questions of the court and the district attorney, to give testimony occupying four printed pages of the case, narrating the whole conversation with her son. Much of the evidence was elicited by answers to specific questions as to declarations having no relation to the res gestæ of the homicide. After an examination of the witness, covering twenty printed pages, embracing many subjects other than the interview at the hospital, the court directed the stenographer to read to the jury from his stenographic notes a part of the evidence of the witness pointed out by the court, of the conversation with her son, which embraced the evidence which has been detailed, showing Hannon's expectation of death, and also his declarations as to the circumstances of the murder, and directed that the further evidence of the witness of what transpired at the interview, should be stricken out and disregarded by the jury. The portion of the evidence directed to be read to the jury is inclosed in black lines in the error book, and occupies about a printed page of the testimony. Following the testimony admitted, is the testimony stricken out, which occupies three printed pages. In the testimony stricken out is the following to a question by the mother: "Johnnie, what did they shoot you for?" the deceased replied, "very little cause, mother; but Pete Smith has promised me this for a long time." To another remark by the mother, "Johnnie, how early they went down to shoot you," he replied, "That was their best chance, mother, because the carts never come in with their first loads before seven or half-past seven in the evening; Smith and Sweeney knew the time the loads came in just as well as I did; they thought they would catch me alone." The mother asked, "How came Tracy to be with you, Johnnic?" He answered, "Because I asked him to remain with me all night; I was afraid; I asked Tracy to stay with me; he said he would stay; I asked William Curry to remain with me the night before; he also did stay; mother, I think I would get shot Tuesday morning only for having William Curry with me." The mother asked, "Johnnie, why do you think that?" He replied, "Because Sweeney and another man came down in the morning, between five and six, I think it was." The particulars of the interview between Sweeney and deceased on Tuesday morning, as related by the latter, were then called out by specific questions by the district attorney. It appeared from his statement to his mother that Sweeney called the deceased out of the shanty, and Sweeney said, "What talk have you had about what you can do to me and Smith?" The deceased replied, "I have no talk about what I can do to you." Sweeney then called him a liar, and on the deceased saying, "If you want any more satisfaction, I am man enough for you if I only get fair play." Sweeney said, "We will not mind it now; we will have another time to fix this." Further declarations of the deceased were proved to the effect that Sweeney and Smith had relatives in the police force, who would be able to prevent the mother "getting any satisfaction for her son."

I am of opinion that the court committed a legal error, under the circumstances, in permitting proof of declarations of the deceased in respect to facts not coming within the class of facts which may be proved by dying declarations, and that the error was not cured by striking these declarations from the record and directing the jury to disregard them. There is no doubt of the proposition stated by the counsel for the people that the question whether circumstances exist which make declarations admissible as dying declarations, is a preliminary fact to be determined by the court, and that it cannot be left to the jury to say whether the deceased thought he was dying or not, for that must be decided by the judge, before he permits the declarations to be given in evidence. This was decided at a conference of all the judges of England in 1790, and has been generally accepted as the rule in this country. (3 Russ. on Cr. [4th Eng. ed.], 266, and cases cited; Donnelly v. TheState, 2 Dutch. [N.J.], 463; 1 Whart. § 681.) It is a necessary result of this doctrine, that the court must in the first instance hear the evidence bearing upon the condition of the declarant and his sense of impending death. If on this inquiry the court determines that the circumstances justify the introduction of dying declarations, then on their being offered the question whether they relate to facts which may be proved by dying declarations, arises and is to be determined by the court in the ordinary way. It it also well settled that dying declarations relating to transactions prior to the homicide, and not a part of the res gestaelig, are not admissible. The rule is stated by ABBOTT, Ch. J., in Rex v Mead (2 Barn. Ad., 605), in language often quoted with approval, "that evidence of this description is only admissible where the death of the deceased is the subject of the charge and the circumstances of the death the subject of the dying declaration." (1 Greenl. Ev. § 156; People v. Davis, 56 N.Y. 95; Ins. Co. v. Mosely, 8 Wall. 397.) The declarations of Hannon to which we have referred, which were stricken out by the court, were clearly inadmissible under the rule, and were calculated seriously to prejudice the defendant. They supplemented with great force the evidence tending to show concert, deliberation and premeditation. We think it was the duty of the court to have confined the preliminary examination to the facts relating to the declarant's condition of mind and body at the time. The whole examination was taken before the jury in the ordinary manner of taking testimony on the trial of an issue. It was, we think, the duty of the court, in fairness to the prisoner, and that a discreet administration of the criminal law required the court, to have called the attention of the witness on the preliminary inquiry, to the particular point to which the inquiry was directed, and not to have permitted her to testify to declarations not only irrelevant to the preliminary fact, but inadmissible on the main issue. The court not only omitted to call the attention of the witness to the point, but refused to permit the defendant's counsel to examine her on the preliminary question until after the examination of the district attorney, covering the whole interview, had been concluded. The testimony stricken out was received after all the testimony admitted bearing upon the preliminary inquiry had been elicited. The part stricken out was evidence received subsequent to the evidence retained. A witness called to testify to dying declarations may, on the preliminary examination, through ignorance or want of discrimination, intermingle declarations of the deceased as to her apprehension of death, with declarations relating to the crime. Such prejudice as the defendant might suffer in such a case he would have to bear as an unavoidable incident of the trial. But that is not this case.

We think the judge erred, and that according to the suggestion of the court, made to counsel on the trial, an exception must be deemed to have been taken to the objectionable evidence, and we think it quite clear that the error was not cured by striking it from the record and instructing the jury to disregard it. (Erben v. Lorillard, 19 N.Y. 299; Linsday v. People, 63 id. 143, 154, ALLEN, J.; Furst v. Second Ave. R.R. Co., 72 id. 542.)

The judgment and conviction should, therefore, be reversed and a new trial granted.

All concur with FINCH, J., except ANDREWS and PECKHAM, JJ., dissenting.

Judgment affirmed.