Opinion
No. 29661.
November 12, 1931.
1. HOMICIDE.
To make deceased's declaration admissible as dying declaration, state has burden of showing beyond reasonable doubt that deceased believed in his immediate and impending dissolution when he made declaration.
2. HOMICIDE. Deceased's declaration that he believed he was fatally shot held inadmissible as dying declaration.
Facts were that deceased lived about seventy-two hours after being shot, and was taken to hospital a few minutes after he was shot, and a few minutes after he arrived at hospital stated to doctor who examined him that he was glad to see him and that he thought he was fatally shot and would tell doctor how it happened.
3. CRIMINAL LAW. Instruction respecting presumption of innocence and burden of proof, though embodying correct legal principles, held misleading and confusing.
Instruction, among other things, stated that presumption of innocence which law throws around defendant as shield is not intended to shield from punishment any one who is in fact guilty, but is simply a humane provision of the law to guard against conviction of innocent persons, and that, if jury believe from evidence beyond reasonable doubt that defendant is guilty, it is jury's sworn duty to find him guilty, regardless of presumption of innocence and burden of proof on state.
4. CRIMINAL LAW.
Instruction not supported by any evidence was improperly given on behalf of state.
5. HOMICIDE.
Where all facts of homicide were in evidence, presumption of malice arising from use of deadly weapon disappeared, and instruction relating to such presumption was improperly given.
APPEAL from circuit court of Jones county; HON.W.J. PACK, Judge.
B.F. Carter, of Laurel, for appellant.
A dying declaration is unsworn, hearsay testimony. Being without the sanctity of the usual oath, the law requires that the declarant must believe that the finger of death is upon him; that there is no hope for recovery, however small, and this must be proven to the trial court, to a moral certainty, and beyond every reasonable doubt, before the alleged dying declaration is admissible before the jury.
McNeal v. State, 115 Miss. 678, 76 So. 625.
There must be an undoubted belief existing in the mind of the declarant, at the time of the alleged dying declaration, that death is impending; that there is no hope whatsoever of recovery. If it appears, in any manner, that there was hope of recovery, however, faint it may have been still lingering in the mind of the declarant, then the sanctity is gone, and the declaration is not admissible.
Bell v. State, 72 Miss. 507, 17 So. Rep. 232; Sparks v. State, 113 Miss. 226, 74 So. Rep. 132; McNeal v. State, 115 Miss. 678, 76 So. Rep. 25; Haney v. State, 129 Miss. 486, 92 So. Rep. 627; Lea v. State, 138 Miss. 761, 103 So. 368; Fannie v. State, 101 Miss. 378, 58 So. 2.
The mere fact that the declarant said he would die does not necessarily show that he is without hope, or that he expects a speedy dissolution and such statements maybe overcome by the surrounding circumstances.
30 C.J., sec. 504, pp. 255, 256.
The main ground for admitting dying declarations being that the danger of immediate death and the belief of the declarant that he is in extremis are regarded as equivalent to an oath, it follows that every dying declaration will be presumed, until the contrary appears, to be made under a solemn and religious sense of responsibility to a deity who will punish perjury. But accused may show on cross-examination that deceased, in making the statements was in a reckless, irreverent state of mind, and entertained feelings of malice and hostility toward the accused.
Underhill's Criminal Evidence (3 Ed.), p. 229, sec. 170.
To admit a dying declaration in evidence it must be shown to the court that the decedent was possessed with a consciousness of impending death. The burden is on the one offering a dying declaration in evidence to show that such declarations was made under a sense of death.
Underhill's Criminal Evidence (3 Ed.), sec. 171; Hathorn v. State, 138 Miss. 11, 102 So. 771; Wilkerson v. State, 143 Miss. 324, 108 So. 711; Magee v. State, 145 Miss. 227, 110 So. Rep. 500.
The giving of the instruction for the state virtually saying to the jury that ordinarily a defendant is presumed to be innocent, but that "Yet the court now says to you," that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment anyone who is in fact guilty is erroneous.
Suttle v. State, 88 Miss. 177, 40 So. 552; Cunningham v. State, 87 Miss. 417, 39 So. 531; Stringer v. State, 38 So. 97.
An instruction to the jury while correct as an abstract principle of law, is erroneous, when not based on the testimony.
Wilkerson v. State, 143 Miss. 324, 108 So. 711; Cooper v. State, 80 Miss. 175, 31 So. 579; Canterbury v. State, 90 Miss. 579, 43 So. 678; Williams v. State, 90 Miss. 319, 43 So. 467; Prince v. State, 93 Miss. 263, 46 So. 537; Johnson v. State, 124 Miss. 429, 86 So. 863. Collins Collins, of Laurel, for appellant.
The instruction given the State on the burden of proof and presumption of innocence was erroneous because of the use of the word "now" and the conclusion of the instruction.
The instruction emphasizes the fact that while the presumption of innocence and burden of proof is the law generally, the court now has a different case, because the defendant in this case is in fact "guilty" and because the law only applies to an "innocent person."
The last clause tells the jury that they can disregard the presumption of innocence and the fact that the burden is upon the state in this case and this is emphasized by the word "now." The instruction by inference means that the court could not have said this until it had come to the conclusion that the defendant is guilty by the testimony. The court indicates that it could not have said this at the beginning of this trial but since it has heard the testimony it says now that there is a different rule.
An instruction charging the jury that if the defendant voluntarily and intentionally entered into a combat, difficulty quarrel or altercation with the deceased armed with a pistol with the intention to use said pistol and shoot and kill the deceased therewith that the defendant is guilty and the jury should convict him, is erroneous. There is no testimony in the record upon which to base this instruction.
Lee v. State, 103 So. 233; Patterson v. State, 23 So. 647; Thomas v. State, 61 Miss. 60; Williamson v. State, 76 So. 637.
This instruction does not negative the self-defense theory.
Herring v. State, 40 So. 230; Jones v. State, 36 So. 243; Pulpus v. State, 34 So. 2; Lopton v. State, 31 So. 720; Cooper v. State, 31 So. 579.
The court erred in giving the following instruction:
"The court instructs the jury for the state that malice is implied by law from the nature and character of the weapon used and that the use of the deadly weapon in a difficulty and not necessarily in self-defense, is in law evidence of malice."
All the evidence as to the details of the killing were in evidence, and this abstract proposition is improper and erroneous. This presumption yields to the testimony and the jury must determine malice from the evidence.
The only justification for the admission of dying declarations is the presumption that the near "approach of death produces the state of mind in which the utterances of the dying person are to be taken as free from all ordinary motives to misstate."
Reeves v. State, 64 So. 836.
The sincere and settled belief of impending dissolution, the absence of all hope, however slight, can alone give the declaration that sanction which is attributed to the testimony of the living by the solemn oath, judiciously administered.
Shell v. State, 69 So. 593; Bell v. State, 17 So. 232; Sparks v. State, 74 So. 123; Wilkinson v. State, 108 So. 711; Lea v. State, 103 So. 368; Hathorn v. State, 102 So. 771.
W.A. Scott, Jr., Assistant Attorney-General, for the state.
Under all of the facts and circumstances as testified to by the doctor the only implication to be drawn from Strickland's statements is that he knew he would die soon and was, therefore, anxious to inform the doctor as to the particulars surrounding the difficulty.
The question of deceased's realization of the impendency of death is to be determined by a consideration of all the facts and circumstances surrounding the uttering of the declaration and not alone by the strict interpretation of words used.
Bell v. State, 72 Miss. 507, 17 So. 232.
It was not error to give to the state the instruction on the presumption of innocence and burden of proof for the instruction is simply an admonition by the court that the legal presumption of innocence and the rule placing the burden of proof on the state should not outweigh the competent evidence if that evidence satisfies the jury beyond a reasonable doubt that the defendant is guilty of the crime of which he is charged.
The giving of the instruction as to the defendant arming himself with a pistol for the purpose of using it to shoot the deceased was not erroneous. It merely tells the jury that if they believe from the evidence beyond a reasonable doubt that defendant voluntarily and intentionally entered into a combat, and that the defendant entered into same armed with a pistol with the intention to use said pistol and shoot and kill deceased, and that the defendant in such combat did wilfully, feloniously and with malice aforethought shoot and kill the deceased with the gun, then the defendant is guilty of murder, and it is the sworn duty of the jury to convict him.
Argued orally by B.F. Carter, Jr., for appellant and by W.A. Scott, Jr., Assistant Attorney-General, for the state.
The appellant was indicted in the circuit court of Jones county for the murder of C.M. Strickland, was convicted of manslaughter, and sentenced to the penitentiary for a term of ten years. From that judgment he prosecutes this appeal.
On the trial Strickland's alleged dying declaration was admitted over appellant's objection. The alleged dying declaration was damaging evidence against appellant. That action of the court is assigned and argued as error.
The deceased was shot by appellant, and lived about seventy-two hours. He was in Dr. Cranford's hospital a few minutes after he was shot, and a few minutes after his arrival there Dr. Cranford came and examined him. At that time the deceased made the alleged dying declaration, in regard to which Dr. Cranford testified as follows:
"Q. Doctor, when you first got there did Mr. Strickland make any statement to you? A. Yes sir. . . .
"Q. Doctor, what was his physical condition at the time you first got there? A. Very seriously shot.
"Q. What did he say if anything in reference to whether he was going to live or whether he was going to die? A. He said, `Doctor, I am mighty glad to see you, I think I am fatally shot, and there will be a hundred damned lies told about this thing and I want to tell you how it happened.'
"Q. That was his statement to you? A. Yes. . . .
"Q. Did he use the language `he was going to die?' A. I am not positive about that — he says, `Doctor, I am fatally shot and there will be a hundred damned lies told about it and I want to tell you how it happened.'
"Q. I ask you if he said `I am fatally shot and I believe I am going to die?' A. No, he said `I am fatally shot' or `I believe I am fatally shot.'
The burden is on the state to show beyond a reasonable doubt that the deceased believed in his immediate and impending dissolution, in order to make his declaration admissible. McNeal v. State, 115 Miss. 678, 76 So. 625.
In laying down the governing principles in the present case, we do not think we could do better than to repeat the language used by the court in Lea v. State, 138 Miss. 761, 103 So. 368, 370: "A dying declaration is made without the sanctity of an oath and without an opportunity to cross-examine the declarant. To take the place of that sanctity and that right there must be an undoubting belief in the mind of the declarant, at the time the declaration is made, that death is upon him. If it shall appear in any manner that there was hope of recovery, however faint it may have been, still lingering in his breast, the required sanctity is not afforded, and the statement cannot be received. The belief by the declarant that he may ultimately die as a result of his injury is not sufficient to authorize the admission of his statement as a dying declaration. The predicate must exclude all hope of life. It must reach the point of absolute certainty in the mind of the declarant. He must feel sure that the finger of death is upon him" — citing Wilkerson v. State, 134 Miss. 854, 98 So. 770; Haney v. State, 129 Miss. 486, 92 So. 627; McNeal v. State, 115 Miss. 678, 76 So. 625; 1 R.C.L. 539, sec. 82. See, further, Reeves v. State, 106 Miss. 885, 64 So. 836, Ann. Cas. 1917A, 1245; Sparks v. State, 113 Miss. 266, 74 So. 123; Hathorn v. State, 138 Miss. 11, 102 So. 771.
We are of opinion that the alleged dying declaration of Strickland failed to meet the requirements of the law, and was therefore improperly admitted, and that this action of the court alone is sufficient to reverse the judgment.
The action of the court in giving the following instruction is assigned and argued as error: "The court instructs the jury that while it is true in this case, as in all criminal cases, the defendant is presumed to be innocent until he is proven guilty and that this presumption of innocence goes with the defendant throughout the entire trial and until overcome by competent testimony, and that while it is further true that the burden of proof in this case, as in all criminal cases, is upon the state to satisfy the minds of the jury of the guilt of the defendant from the evidence, beyond a reasonable doubt, yet the court now says to you that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment anyone who is in fact guilty, but is simply a humane provision of the law to guard against a conviction of an innocent person, and the court further says to you that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, then it is your sworn duty to say guilty by your verdict, regardless of the presumption of innocence, and the further fact that the burden of proof is upon the State."
A careful analysis of this instruction, we think, shows that it embodies correct legal principles. Nevertheless, it is so adroitly drawn as to go very near the border line. The lay mind, in reading it, might get the idea that the jury, in making up their verdict, were not to take into consideration the burden of proof and the presumption of innocence. At first glance, the instruction is calculated to convey that impression. We cannot say it was error for the court to give this instruction, but we think that on another trial it should be left out of the case. The instruction is too illusive for the ordinary juror to get hold of and understand its meaning; it is too smart.
The action of the court in giving the following instruction is assigned and argued as error: "The court instructs the jury for the state, that, if you believe from the evidence in the case, beyond a reasonable doubt, that the defendant voluntarily and intentionally entered into a combat, difficulty, quarrel, or altercation with the deceased at or near the school house in the City of Laurel, and that the defendant entered into the same, if any, armed with a pistol and that the said pistol, if any, was a deadly weapon, with the intention to use said pistol and shoot and kill the deceased therewith, and that the defendant in such combat, difficulty, quarrel, or altercation, if any, did wilfully, feloniously, and with malice aforethought, if any, shoot and kill the deceased with said gun then under the law, the defendant is guilty of murder and it is the sworn duty of the jury to convict him."
The fault in this instruction is that there was no evidence in the case tending to show that appellant armed himself with a pistol with intent to shoot and kill the deceased. The instruction embodies a correct principle of law, but the trouble with it is that it has no application to the facts of this case.
The court gave the following instruction for the state, which action of the court appellant assigns and argues as error: "The court instructs the jury for the state that malice is implied by law from the nature and character of the weapon used and that the use of the deadly weapon in a difficulty and not necessarily in self-defense, is in law evidence of malice."
This instruction embodies a correct principle of law, but is not applicable to this case, for the reason that all the facts and circumstances of the homicide were in evidence. In such a case the presumption of malice, arising from the use of a deadly weapon, disappears. Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673.
Reversed and remanded.
I concur in the reversal of this case and upon all the grounds set forth in the majority opinion. I think that the instruction on the presumption of innocence is erroneous as well as confusing. The part of the instruction which tells the jury that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment any one who is in fact guilty, but is simply a humane provision of law to guard against a conviction of innocent persons, is an erroneous announcement. The presumption of innocence applies to all persons, whether guilty or innocent, until the proof shows guilt beyond a reasonable doubt. The presumption is intended to require the state to prove its case and to prove it beyond a reasonable doubt regardless of whether the defendant is guilty in fact or not. The jury might believe the defendant guilty in fact, but might not be satisfied of that conclusion beyond a reasonable doubt; yet the instruction would make the jury believe that, when they reached the conclusion that the defendant was guilty in fact, although that conclusion was only reached by a preponderance of the evidence or upon insufficient evidence, they would disregard the presumption of innocence as having no application to the defendant whom they believed to be guilty in fact.
It is not permissible for the prosecuting attorneys, with the sanction of the court, to thus fritter away the substantial rights of the defendant. If the state wants to procure an instruction of this kind or to announce this principle sought to be announced in the instruction it should have merely added that, when the evidence overcomes the presumption beyond a reasonable doubt, the jury should return a verdict of guilty, notwithstanding the presumption of innocence. I do not think, therefore, that the instruction announces correct legal principles, but do agree that it is misleading and calculated to confuse the jury and ought not to have been given.