People v. Chase

VAN BRUNT, P. J.

We entirely agree with the rule laid down by Mr. Justice PARKER in his opinion governing the admission of dying declarations; but we do not think he gives sufficient force to the testimony showing the condition of mind of the deceased at the time of making the declaration which is the subject of the exception which is considered fatal to the conviction in the case at bar. We think that, had death followed quickly after, the making of the declaration in question, no doubt could possibly have arisen but that the witness showed that condition of mind in the deceased which justified the court in admitting as evidence a dying declaration; but the fact that the deceased lived nearly three days after making the declaration naturally raises ¿ doubt which otherwise would not have existed. Under such circumstances, it does not seem so certain that the declaration was made under the shadow of impending dissolution as where death follows speedily thereafter. This, however, should have but little effect in determining the question as to the admissibility of the declaration. It is the condition of mind of the declarant which determines that question. If it appears that the declarant is conscious of impending death, and without expectation or hope of recovery, even if the final event is postponed longer than had been anticipated, such postponement in no manner affects the condition of mind of the declarant at the time of the making of the declaration; nor is the situation of the declarant less solemn and awful, nor is every motive to falsity less completely silent. We think, therefore, upon a consideration of the testimony in questian, that, at the time the declarant made the declaration which is the subject of criticism upon this appeal, it appeared conclusively that she believed her situation hopeless; that she believed that death was at hand; and that she was without expectation or-hope of recovery.

It is not necessary that any specific words or phrases shall be used by the declarant to exhibit the condition of mind requisite-to make a dying declaration admissible; but the question to be determined is, was the court justified in believing from the nature of the evidence that her condition of mind was such as the rule which we have approved requires? Therefore, in different cases, there are variations in the situation and changes of expression^ and hence no fixed or absolute standard or formula can be established; but the question of the condition of mind must be determined by the facts and circumstances which surround each individual case. In the case at bar the evidence upon which the dying declaration was admitted was the testimony of-the mother of the deceased, who naturally was agitated, because of the impending death of her child; and it is not strange that she was not able to be absolutely certain in regard to the phraseology which was used by her daughter in connection with the dying declaration indicating her state? of mind. But the fact that she was not certain of the precise language, that was used does not,, in our judgment, detract from the value of her testimony, but rather impresses us with the idea that the witness was not willing to make her statement any more exact than that which her-absolute recollection required. But, although she may not have been certain of the precise words which were used by her daughter, it is evident that she honestly gives the substance of that which the daughter said, and that that substance indicated that the daughter knew that she had to die, and that there was no hope of her recovery. This being the deduction which, in our opinion, may not only properly, but must inevitably, be drawn from an examination of this witness’ testimony, we think the dying declaration was admissible. We feel all the force of the argument that death did not follow speedily after the making of this declaration; but it appears from the evidence in the case that both the mother- and the daughter did not know but what the next minute death would occur. It seems to us, therefore, that the declaration was made under the circumstances which the law requires in order that it should be admitted in evidence against a defendant charged with; crime. The judgment should be affirmed.

FOLLETT, J., concurs.