October 9, 1950.
1. Criminal procedure — homicide — evidence — dying declaration — circumstantial evidence.
The sense of impending death which a dying person must have in order to render a dying declaration made by him admissible in evidence may be inferred from the circumstances, although nothing was said respecting death; and the inference may be drawn from the nature of the wound and the state of illness therefrom, provided the nature of the wound or illness is such as should affect the knowledge and control the opinion of the dying person himself as to the danger to which he stood exposed.
2. Criminal procedure — homicide — evidence — dying declaration — physician's opinion.
Evidence of a physician's opinion as to a declarant's condition at the time of making declaration is admissible not only to show the latter's state of mind, where such opinion was communicated to him, but also to show that the declarant was actually in a condition from the very nature of which he would have a sense of impending death.
3. Criminal procedure — homicide — evidence — dying declaration favorable to defense.
When the entire testimony, taken together with all the attendant circumstances, shows that the deceased was under a sense of immediate and impending death at the time of his declaration by which he stated that he was shot by another than the defendant, it was error to exclude the dying declaration offered as such by the defendant.
Headnotes as approved by McGehee, C.J.
APPEAL from circuit court of Yazoo County; LOUIS J. WISE, Special Judge.
John S. Holmes, for appellant.
The law in Mississippi governing the admission of dying declarations, especially when said declarations are offered on behalf of the State, is well established in Mississippi. It might prove profitable, however, for the Court to glance briefly over the following quotations which are taken from several well recognized authorities and from a Mississippi case.
Guest v. State, 96 Miss. 871, "The rules governing the admission in evidence of a dying declaration have been announced by this Court time and again, and especially are they thoroughly discussed in the case of Lipscomb v. State, 75 Miss. 559, 23 So. 230. The recognized rules are: `They must have been made under the realization and solemn sense of impending death. They must have been the utterances of a sane mind. They must be restricted to the homicide, and the circumstances immediately attending it, and forming a part of the res gestae. A declaration, or a part of it, is not admissible, unless it would be competent and relevant if it were the testimony of a living witness; and great caution should be observed in the admission of dying declarations, and the rules which restrict their admission should be carefully guarded.' This court has held, further, `that as a preliminary question the admissibility of a dying declaration is determined by the court, and the degree of proof required to establish that the declarant realized he was in extremis, is such as to exclude all reasonable doubt.'"
Wharton's Criminal Evidence, Vol. 1, Sec. 553. "Dying declarations are admissible in behalf of and in favor of, as well as against, the accused, but they must be made under a sense of impending dissolution, and be relevant to the immediate fact of the killing. It is said in an English case that a declaration in favor of the accused must ever be taken as more likely to be true, as it is not probable that one would make a statement favorable to the person who has inflicted a mortal injury upon him, but rather the contrary. The general rule that dying declarations speak only to the facts, and not to matters of opinion, has been relaxed where the opinion expressed by the deceased was favorable to the accused, in explanation of the conduct of the deceased, and hence the declaration that the accused would not have struck the deceased if the latter had not provoked him is competent, as also the direct declaration by the deceased showing that the killing was done by another person."
Wharton's Criminal Evidence, Vol. 1, Sec. 563. In the absence of a statement in words by the declarant himself, it will be sufficient if the surrounding facts indicated that he was conscious of the certainty of his death. In aid of this, the court may take into consideration the bodily condition of the declarant, his wounds, his conduct, his language, and his statements, and all facts from which a conclusion may be deduced of his consciousness of approaching dissolution at the time."
Wigmore on Evidence, Vol. 3, p. 172 "In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances.
"It has been contended that only the statements of the declarant himself could be considered for this purpose; or, less broadly, that the nature of the injury alone could not be sufficient, i.e., in effect, that the declarant must have shown in some way by conduct or language that he knew he was going to die. This, however, is without good reason. We may avail ourselves of any means of inferring the existence of such knowledge; and, if in a given case the nature of the wound is such that the declarant must have realized his situation, our object is sufficiently attained. Such is the settled judicial attitude.
"It must be said, however, that in ascertaining generally the existence of a knowledge of approaching death, courts are now and then found making rulings at which common sense revolts. Moved either by a disinclination to allow the slightest flexibility of rule on applying principles to circumstances or by a general repugnance to exceptions to the Hearsay rule, they have recorded decisions which can only be derided by laymen and repudiated by the profession. It is the narrow and over-cautious spirit of such decisions which tends to stunt the free development and application of living principles, to hamper the administration of justice, and to undermine public confidence in legal procedure; and no opportunity ought to be omitted of protesting against the manifestations of this spirit." And on p. 187: "Owing to the present peculiar limitation of this evidence to public prosecutions for homicide, and the tenor of the declarations usually made by the dying person, it has sometimes been argued that the declaration cannot be used by the accused. But the argument has no foundation whatever, and has been generally repudiated.
"However, under the baleful operation of the Opinion rule (ante, Sec. 1447) the accused often loses the benefit of an exonerating declaration."
American Jurisprudence, Vol. 26, Sec. 420, p. 447. "It is not essential to the admissibility of a statement as a dying declaration that it be accompanied by words indicating clearly the speaker's belief in impending death. The surrounding circumstances may, and frequently do, speak as loudly as the oral word. It is enough if, from all circumstances, it satisfactorily appears that such was the condition of the declarant's belief in imminent death may be inferred from the nature of his condition, his evident danger, the character of his injury." And on page 447, Sec. 421. "It is well settled that the sense of impending death which a dying person must have had in order to render a dying declaration made by him admissible in evidence may be inferred from the nature of the wound or the state of his illness, without any express declaration to show that he was sensible of impending death. It is clear, however, that this rule does not mean that the inference may be drawn from the mere fact that the wound, in the opinion of the man of science, was in point of fact mortal, but means that the nature of the wound or the illness should have been such as to affect the knowledge and control the opinion of the dying person himself, as to the danger to which he stood exposed. Evidence of a physician's opinion as to a declarant's condition at the time of making declarations is admissible not only to show the latter's state of mind, where such opinion was communicated to him, but also to show that the declarant was actually in a condition from the very nature of which he would have had a sense of impending death."
The dying declaration of the deceased in the instant case was ruled out because it was thought by the trial judge that the requirement of a showing with regard to the realization by the deceased of his impending death had not been met. There was no suggestion that the qualification of the dying declaration fell short in any other particular. Now it is apparent from the above authorities that the burden is on the party offering the declaration to show a sense of impending dissolution, but it is also clear that it does not necessarily have to be done by showing express statements of the deceased. Logic alone would tell us that if the fact is proved, the nature of the proof is unimportant. In the instant case, five disinterested witnesses were offered to prove the dying declaration, and the physician was offered to show the physical condition of the deceased. It was shown by the physician that the deceased had received a mortal wound from which no earthly power could save him; that from the nature of the wound, which passed through the lungs and chest of the deceased, that he could hardly have failed to realize that death was certain. It was shown that he first talked to one of the nurses by the name of Irene Oliver, and that he told her who shot him; that he then talked to Melvina Greer and told her who had shot him; that he also gave the name and address of his mother from which information his mother was actually located. All of the witnesses who were present testified that the deceased made the request that he be turned over, and Melvina Greer testified that after she informed him that he could not be turned for fear of starting internal bleeding again, that he stated "He just couldn't make it." It was obvious from this statement, and was so interpreted by Melvina Greer who heard it, that he meant he could not live. After he had talked to Melvina Greer in this way, the ambulance driver came into the room, all of the witnesses having testified that the ambulance driver was not present when Melvina questioned the deceased. The ambulance driver asked the deceased who had shot him, and the deceased stated that Eugene Thurmond had shot him and gave further evidence of his rational state of mind by also stating that he had been shot because of "money". By the time the doctor reached the operating room, the deceased had lapsed into the coma from which he never recovered, and he died within a few hours. It will be seen that all of the statements made by the deceased were made by him within the space of a half hour or so when he recovered consciousness after being brought to the operating room. It will be further seen that he gave rational answers to every question asked him. The body of the evidence in this case shows that the deceased, Jim Pearce, knew Eugene Thurmond and the defendant, Willie Fulton, well. There was no reason for him to be mistaken as to the identity of the person shooting him. He had no conceivable reason for concealing the truth. The witnesses who testified as to what the deceased said did not know any of the parties involved prior to the shooting. The defendant had no attorney employed prior to the trial, and the aforesaid witnesses were found by the attorneys appointed by the court when making a routine investigation of the case. If ever a showing of an impending sense of dissolution can be made out without express statements to that effect by the deceased, it would seem that this is a case for the inference to be drawn.
George H. Ethridge, Assistant Attorney General, for appellee.
In Wilkerson v. State, 134 Miss. 853, 98 So. 770, it was held that when dying declarations are offered in evidence the trial judge, before admitting them, should determine their admissibility in the absence of the jury. That he should hear all the testimony bearing on the admissibility and if the evidence does not show them to be admissible beyond a reasonable doubt, he should exclude them. On appeal the Court will look to the whole record and if the declarations were admitted and are competent the Court will not reverse because the judge did not hear the evidence in the absence of the jury. If a dying declaration is partially admissible but certain statements are not, then objection should be specific and not general. It thus appears from this case and many others upon the subject that if the dying declarations do not conform to the requirements of law beyond a reasonable doubt, they should be rejected as was done in this case but in this case there was nothing which would convince the reasoning mind beyond a reasonable doubt that the requirements of the law had been met. Many cases lay down the rule that dying declarations should be cautiously considered before being admitted and they give the trial judge power to reject the admissions where they do not conform to the requirements of the law beyond a reasonable doubt. In Lipscomb v. State, 75 Miss. 559, 23 So. 230, the following rules were announced by the Court governing the admission of evidence of dying declarations: (A) They should have been made under the realization and solemn sense of impending death. (B) They must have been the utterance of a sane mind. (C) They must be restricted to the homicide and the circumstances immediately attending it and forming part of the res gestae. (D) A declaration or part of it is not admissible unless it would be competent and relevant if it were the testimony of a living witness. (E) Great caution should be observed in the admission of dying declarations and the rules which restrict their admission should be carefully guarded.
Many other cases could be cited and some of them are cited in the appellant's brief. See cases collected in Mississippi Digest "Homicide", Key No. 218, and also Gurley v. State, 101 Miss. 190, 57 So. 565. It will clearly appear from the record and these cases that the trial judge correctly excluded the alleged statements offered to constitute a dying declaration. Furthermore, the appellant and his friend who was indicted at the same term of court, Eugene Thurmond, each admitted shooting the deceased twice when they were arrested by the officer and the testimony fully shows that these confessions were admissible and their statements constituted proof of one of the most heinous of murders.
Appellant was convicted of the murder of James Pearce, and sentenced to the penitentiary for life. He appealed to this Court, where he assigns only one error, i.e., "the action of the trial court in refusing to admit the testimony of Melvina Greer, Irene Oliver, Callie Luster, Beatrice Smith and Alva James Peyton as to the statements made by deceased on his death bed to the effect that Eugene Thurmond had shot him."
Eugene Thurmond was also indicted, separately, for the murder of James Pearce, but was permitted to plead guilty of manslaughter, receiving a sentence of three years in the penitentiary.
There is a confession, in the record, allegedly made by appellant in which he admitted that he killed the deceased, without which there was probably no sufficient proof of his guilt. On the witness stand he repudiated the confession, claiming that Eugene Thurmond was the slayer, and that he was forced to make the alleged confession by Thurmond, who threatened to kill him, if he refused to acknowledge his having shot Pearce. See Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A., N.S., 1183; Whip v. State, 143 Miss. 757, 109 So. 697; Draughn v. State, 76 Miss. 574, 25 So. 153. This testimony was not contradicted, and it may be said to appear that appellant was laboring under the duress of this fear, when he made his statement later to the owner of The Grille and to the officers, who, themselves, were not guilty of any force, threats, or promises to induce it. Moreover, the effect of the original threat of Thurmond was not shown to have been removed at the time. Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402.
Thurmond was a psychopathic, paranoid type with homicidal tendencies, which is uncontradicted in the record. Thurmond himself told several people after his arrest that he shot Pearce, although seeking also to implicate the appellant. The purported confession of the latter followed the communication to him, by the officers, of Thurmond's charges against him.
Objection was made to the admission of the confession, but it was overruled. Its admission is not assigned as error here. However, if the alleged dying declaration of the deceased had been admitted, as will later be discussed, appellant's repudiation of the confession would have been corroborated, as well as his claim that it was made under duress.
The three men, Thurmond, the appellant, and the deceased, after a night of revelry and drinking, repaired to the bedroom of deceased, back of his employer's place of business. The deceased proposed that he would rob the cash register, and divide the proceeds. After some colloquy, in which appellant claims to have opposed it, the deceased did perpetrate the robbery. In a sudden affray, the result of a quarrel over the division of the loot, Pearce was shot and killed. It is evident that it was unpremeditated, and the result of sudden anger. Appellant requested a charge to the jury limiting the verdict to conviction of no higher crime than manslaughter, which was refused. This refusal is not assigned as error here, so we pretermit further discussion of it. With this background, we deem it necessary to deal hereinafter only with the statements of Thurmond, the testimony of the doctor, the proffered evidence of the five persons as to the dying declaration, and the dying declaration itself.
When the doctor reached the scene of the shooting, he found Pearce in a speechless condition, with a wound in the lung near his heart. He was then unconscious. Furthermore, some of the big blood vessels were cut, severed by the pistol bullet. Four hours later Pearce died at the hospital. Nevertheless, before death he regained consciousness. The doctor said that upon regaining consciousness Pearce could know he was dying, from his condition and the nature of his wounds.
The events at the hospital, pertinent to the issue raised by the assignment of errors, all occurred within approximately thirty minutes.
But, before entering there, it is interesting to consider what Eugene Thurmond, who did not testify at the trial of this case, had to say as to who shot Pearce, the deceased. When the owner of The Grille, the scene of the shooting, was handed the pistol by Thurmond, he stated "I shot James." Later, it is true he declared, "We shot James." Furthermore, after the shooting, Thurmond did most of the talking to the officers investigating the case, the appellant saying nothing until handcuffed, and then "just followed along with" Thurmond's story. On the stand, appellant denied that he did the shooting, charging it to Thurmond, who used a pistol belonging to the owner of The Grille. He also corroborated the latter's statement that Thurmond handed back to him his gun, stating, "I shot James Pearce."
A deputy sheriff testified that Pearce was in a dying condition, when he was sent to the hospital. The doctor also testified to the same effect, declaring that Pearce himself could know it, if he regained consciousness, so that he was actually on his deathbed, when the events, excluded by the court, occurred at the hospital, in a period of thirty minutes before deceased lapsed into a coma. Pearce requested the nurse to turn him over, and she refused to do so before the doctor came for fear of accelerating his bleeding. Pearce is not shown to have attempted to turn himself over. On what was his deathbed, he exclaimed, "I just can't make it," which were his last words. The court asked the witness, an attache of the hospital, "Did you ever hear this man say anything about dying?" To which she replied: "No more than saying he couldn't make it." All of this was in the absence of the jury.
In this situation, and the facts thereof are concurred in by all of the five witnesses named in the assignment of error, he was asked by each of them, including the ambulance driver who brought him to the hospital, "Who shot you?" He invariably replied that it was Eugene Thurmond. He said it was over money. And it was over money. He was clearly rational during his thirty minutes of consciousness. He gave his mother's and his own name and address correctly. None of these witnesses, offered by the appellant, knew him, and they were strangers to him, without interest in the case. On objection by the State, the court excluded this testimony from the jury, and thereby committed, we think, reversible error. His reason manifestly was that Pearce did not expressly declare he was dying, in so many words.
If the deceased had tried to turn himself over, either before or after he requested the nurse to do so, there would be reasonable plausibility to an argument that his statement meant only that he could not turn himself over. But he made no such effort, and it was not until he was refused and told to wait until the doctor came, that he said: "I can't make it." He was dying then, and according to the doctor, capable of knowing such to be the fact, and we are of the opinion that the evidence is sufficient to prove it, and that he meant he was dying. (Hn 1) There is ample authority that such consciousness on the part of a dying man may be inferred from the circumstances, although nothing was said respecting death, as set forth in such cases as Morrow v. State, 168 Ga. 575, 148 S.E. 500, which we cite as to that point only. See also McNair v. State, infra.
The rule is laid down as: "It is well settled that the sense of impending death which a dying person must have had in order to render a dying declaration made by him admissible in evidence may be inferred from the nature of the wound or the state of his illness, without any express declaration to show that he was sensible of impending death. It is clear, however, that this rule does not mean that the inference may be drawn from the mere fact that the wound, in the opinion of the man of science, was in point of fact mortal, but means that the nature of the wound or the illness should have been such as to affect the knowledge and control the opinion of the dying person himself, as to the danger to which he stood exposed. (Hn 2) Evidence of a physician's opinion as to a declarant's condition at the time of making declarations is admissible not only to show the latter's state of mind, where such opinion was communicated to him, but also to show that the declarant was actually in a condition from the very nature of which he would have had a sense of impending death." 26 Am. Jur., Homicide, Sec. 421. (Hn 3) In a case where the dying declaration was offered by the State, and not the defendant as in the case at bar, this Court has said: "The State's main reliance for conviction were Culpepper's dying declarations. He lived only a few hours after he was shot. Several witnesses testified that Culpepper made statements in their presence which, if true, showed he had been murdered by appellant. These statements were sufficiently qualified to justify their admission. The evidence showed, or tended to show, that when they were made Culpepper was mortally wounded and realized it, and, further, that death was then upon him — that he was in extremis." Conway v. State, 177 Miss. 461, 171 So. 16, 17. The Court reversed the case, but not because of the admission of the dying declarations.
The rules governing the admission of dying declarations are thoroughly discussed in Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230, and need not be repeated here. In the case at bar this challenged and rejected evidence was offered by the defendant, as stated.
There are several Mississippi cases dealing specifically with dying declarations of the injured party, exculpating the defendant, and being offered in evidence by the defendant. A dying declaration was excluded because the evidence about it was conflicting, and the court believed the evidence against it. We said in discussing the declarations: "The deceased, a few days before her death, made certain declarations which while not entirely specific and were vague in a certain degree, yet were sufficient, if otherwise competent, for submission to the jury as tending to exculpate [the defendant] of blame, and as corroborating his testimony and that of the other witness introduced in his behalf." Scott v. State, 166 Miss. 6, 148 So. 239, 240. In the case at bar, there was no contradiction of the evidence as to the dying declaration offered by the appellant, and that condition in the Scott case is not before us here.
However, we cite, as interesting, that Wharton's Criminal Evidence, Vol. 1, Sec. 553, contains this statement: "It is said in an English case that a declaration in favor of the accused must ever be taken as more likely to be true, as it is not probable that one would make a statement favorable to the person who has inflicted a mortal injury upon him, but rather the contrary. The general rule that dying declarations speak only to the facts, and not to matters of opinion, has been relaxed where the opinion expressed by the deceased was favorable to the accused, in explanation of the conduct of the deceased, and hence the declaration that the accused would not have struck the deceased if the latter had not provoked him is competent, as also the direct declaration by the deceased showing that the killing was done by another person." We think the part of the foregoing quotation announcing the general rule is applicable to the instant case.
Furthermore, in commenting on a dying declaration, offered on behalf of the defendant, we have said: "If Dr. Cranford's statement that the deceased was conscious of the fact that he was dying be treated as a mere expression of opinion by the witness, still we think it is manifest from the declarations of the deceased, and all attendant circumstances, that he was then under a sense of immediate and impending death, and that this dying declarations should have been admitted in evidence. These declarations of the deceased were material and very favorable to appellant's defense, and we think the exclusion thereof constituted reversible error. Green v. State, 89 Miss. 331, 42 So. 797." McNair v. State, 171 Miss. 358, 157 So. 908, 909.
In the case at bar, in view of what we have said, we think the exclusion of the testimony of the five witnesses, named in the assignment of error, requires the reversal and remand of the case for a new trial.
Reversed and remanded.