Brown v. State

Smith, C. J.:

The plaintiff in error was tried upon an indictment for murder, in the circuit court of Tippah county, and convicted of manslaughter in the second degree. Several errors are assigned as causes of reversal. They respect the admission in evidence of the dying declarations of the deceased; the charges granted at the instance of the district attorney, and certain instructions, which were requested by the prisoner, and refused by the court; the general charge delivered, of his own motion, by the judge, and the judgment overruling the motion for a new trial.

"We shall notice, first, the alleged error in the admission of the dying declarations of the deceased.

Declarations of this character are a species of hearsay evidence ; and are admitted under an exception to the general rule which rejects all evidence of that nature. They are permitted, only, in cases of homicide; and from considerations of necessity. The general principle on which this species of evidence is received is, that they are declarations made when the party is at the point of death, having given up all hope of surviving. A sense of impending death is presumed to silence every motive to falsehood ; and to induce the mind, by the most powerful considerations, to speak the truth. The obligation thus created is regarded by the law as equal to that imposed by a positive oath *982 in a court of justice. 1 Bex v. Woodcock, 2 Leach Cr. Cases, 567. That such declarations were made mtder a sense of impending death, is essential to their admissibility, and that they were so made is a preliminary fact to be proved by the party offering them. 1 Greenl. Ev., § 158.

The accuracy of the memory and the coolness of the judgment of a person in extremis, are, in general, to some extent impaired by his wounds or the disease under which he labors. And although by his situation he is placed under a strong obligation to speak the truth, and freed from every motive to falsehood, it is impossible, generally, that he should be as well qualified to make a full, clear, and accurate statement of the facts of the transaction, to which he speaks, as he would be if his body and mind were both in an undisturbed and healthful condition. A person in that situation is liable to be impressed and easily influenced by the feelings and suggestions of those around him. Consequently, he is the more apt to confound the impressions thus created in his mind, and inferences drawn from the circumstances of the transaction, with the facts themselves. And, it is to be considered that the acts of violence, to which the deceased may have spoken, were in general likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately remembered, and leading to the omission of facts important to the truth and completeness of the narrative. Moreover, the party to be injuriously affected by such declarations is deprived of the privilege of cross-examination. It is, therefore, the dictate of reason and common sense, that declarations of this character in all cases and under any circumstances, should be admitted with caution, and weighed by the jury with the greatest deliberation. 1 Greenl. Ev., § 162.

According to some of the decided cases, it is sufficient if the substance of the declarations be proved, and consequently that it is not essential to the admission of such evidence that the precise words of the deceased should be proved. 11 Ohio R., 424. But for very obvious reasons, declarations in articulo mortis, which are partial, and incompleto statements of the facts of the *983 transaction should not be allowed to go to tbe jury. Am. Cr. Law, 249. For similar and additional reasons, dying declarations, however formally drawn up, and complete upon tbe face of them, sbould.be rejected, if, from tbe preliminary examinations, it satisfactorily appeared that they were made under tbe suggestion of improper influences; or, through tbe agency of others, are so drawn up as to present a partial, incomplete or false statement of tbe facts of tbe transaction.

We shall not pause to inquire whether the deceased, at the time the paper purporting to be his dying declarations was read, subscribed and sworn to, acted under a sense of impending death, but will proceed directly to the objection mainly relied on; which is, that the declarations were not written under the immediate dictation of the declarant nor in his presence, and that important and material facts connected with the alleged homicide were intentionally omitted by the parties who drew them up.

Dr. J. W. Carter and H. B. Bobinson were the agents in this transaction, and were examined as witnesses for the prosecution. We shall extract such portions of their testimony, as have immediate reference to the question before us.

Dr. J. W. Carter testified that he was a practicing physician, and was called in to see the deceased on the evening of the 11th of May, 1854, and “found deceased wounded with shot, which seemed to pass from the left side to the opposite side, cutting the skin of the throat over the windpipe, and lodging in the right shoulder.” The deceased died from the'effects of the wounds, on the 23rd of May, 1854. On Sunday night, (the 22d of May) witness conversed with the deceased about his prospects of recovery. Witness told him that his family desired “ to knowhow he felt on the subject of death, and about his businessde-ceased replied, that “ there were some matters of business which he had thought he would have arranged before that time, but that he disliked to disturb his family.” Witness then thought deceased’s case a very doubtful one ; but deceased then expressed no opinion as to whether he would live or not. Witness did not remember whether this conversation was before or after deceased had the spasm on Sunday night (22d), but it is certain that it was on that night; deceased said nothing to witness on Sunday *984 night after he had the spasm as to whether he thought he would die or not. “ That, when the dying declarations were read over to him and signed, he (deceased) was weak and feeble, and spoke only in a whisper, his throat being much disordered.”

On cross-examination, this witness further testified that the evening after deceased was shot, he stated to witness that he was in the woods hunting oxen ; that he had with him a rifle gun ; that he saw defendant passing by him in the woods, and that ho called to defendant to stop; “ that deceased went up to where defendant was“ that in the course of conversation deceased told defendant he had stolen a gun, or had as -well have stolen a gun “ that defendant gave deceased the d—d liethat when witness went to the house of the deceased on the morning the dying declarations were taken, H. B. Eobinson was there. “ Eobinson was going forward to take the declarations in the presence of, and in the room where deceased was lying witness objected to this, and “ directed Eobinson to go into another house near by to take the dying declarations.” Eob-inson did so. “ Deceased made no. statement to Eobinson in witness’ presence about the facts of the case, of the meeting of the deceased and defendant in the woods, nor of how the shooting occurred.” Deceased made no statement in the presence of witness to Eobinson “ as to whether deceased thought he -would live or not.” Witness and Eobinson “ consulted as to' whether they should ask deceased whether he did or did not snap or present his gun at defendant, for the purpose of putting his reply in the dying declarations; that on witness’ suggestion they concluded it was not necessary, because it was matter for the defendant himself to establish.” Witness had heard the deceased tell over the circumstances of his and defendant meeting in the woods, “from time to time after he was wounded,” and told Eobinson to write the declarations down, as witness recited them to him. “Witness then went two or three times to deceased to ask him questions as to any matters that witness had any doubt about; in this way the declarations were taken.” Witness “ would repeat from memory what deceased had told him from time to time, soon after he was wounded, up to Saturday before he died, and then Eobinson wrote.the statements *985 down as witness recited them to Mm.” Witness went two or three times to deceased to ask him questions about the facts, and to bring back the answers of the deceased, “ but did not know and could not state what facts he inquired about on these occasions.” Witness could not state “ what facts are written down in the declarations” from what deceased told him before he was convinced he would die, nor could he “ tell ” what facts are stated in the declarations from what deceased said after he thought he would die; but that the larger part of the facts embraced in the dying declarations were communicated to witness before deceased “ thought he would die.” Witness “ gave in or repeated the declarations of deceased just as deceased had repeatedly told them to witness,” and “ that Robinson wrote them down just as witness recited the same to him.” That witness and Robinson “left out and omitted some things” which deceased said, “ that they thought were unnecessary, about the way they (deceased and defendant) met in the woods and the quarrel between them.” To the question whether witness “ told Robinson while he was writing down the delarations, that deceased told him that he (deceased) called to defendant as he wras passing him in the woods, and went up to him,” he answered “that he did so repeat it to Robinson.” And upon being further asked “ whether it was so written down in the dying declarations,” replied “ that he could not state from memory what was in the declarations, and that they would speak for themselves.”

Robinson testified that he was sent for by deceased to take his “ depositions” the night before they were taken, but did not go until the next morning. Upon inquiring for what purpose he had been sent for, deceased replied, to take his depositions. “ That deceased told him, in part, what occurred between deceased and defendant when they met in the woods, and when the shooting occurred.” That before the declarations were reduced to writing, deceased said to witness “ he was very low; ” “ that the doctors had got seared and had given him out; and that he was going to die.” The paper purporting to be the dying declarations of the deceased lay there. Dr. Carter would bring to him the facts as stated by deceased, and witness would write *986 them down. After finishing the writing, they took it to deceased and called his attention to it, and read it over to him; deceased was entirely himself, and said it was right; that it was correct as he could state it under oath. The deceased was sworn to the, statement, and his mark, at his request, was affixed to it.

On cross-examination, witness being asked, “if the deceased told him any of the facts connected with deceased and defendant’s meeting in the woods, and of the facts that occurred at the time of the shooting,” answered, “ that deceased did; that deceased told him what was written in the dying declarations, as far as that he, deceased, had not put a cap on the tube.”

Mrs. Adams, a witness for the prosecution, testified that she heard the deceased tell Bobinson that he was going to die, and ■wanted him to take his dying declarations; that they were read to the deceased; “ that Dr. J. W. Carter came into the room and told deceased to arouse up and collect his senses, and that the doctor slapped deceased about a little, to awake him.”

The paper, identified by Bobinson as the dying declarations of the deceased, was read in the following -words, to wit: “ Personally appeared, John Tatum, before me, Harris B. Bobinson, etc., and, having made oath in due form of law, deposeth and saith, that on the 11th day of May, in the year 1854, on his own land, a short distance from his own dwelling, he did then and there fall in company with one Bird B. Brown ; the said Tatum having just discharged his rifle-gun at a squirrel, and had loaded his gun, but had not put the cap on the tube; he, the said Tatum, resting the butt of his gun on a log ; whilst in this position, there was a dispute arose between them, standing face to face, some eight or nine feet apart; after some conversation, Brown gave to Tatum the damned lie repeatedly; the said Brown then said, he intended shooting of him ; after pausing a half minute or more, he accordingly did shoot—discharged one barrel of his shot-gun—and the said Tatum received some several shot in his neck and shoulder. Question asked by Bobin-son: Tell me what position you were in when you were' shot ? Answer : We were face to face, until I discovered him, the said Brown, in the act of shooting; I then rather shrunk back, turn *987 ing myself to the right, when I received the shot. Question: What did Brown then do % Answer: He went off immediately up the hill, calling back unto a negro boy, who had been in company with him, to come on, for he had killed the damned old rascal, leaving me ; so I saw him no more.” %

The evidence showed, that feelings of animosity existed between these parties, and that mutual threats were made. That the threats made by the accused were communicated to the deceased prior to the rencontre in the woods; and that the negro boy was the sole witness of the transaction. This latter fact was well known to Dr. Carter, whose report, made from memory, of deceased’s declarations, was reduced to writing by Robinson. These persons must have known, that if the wounded man died, his declarations which they drew up, would determine the fate of the accused. The deceased’s dying declarations, in the absence of any contradictory evidence, would establish conclusively the commission of the homicide by the defendant; and these parties well knew that, if, in fact, any circumstance of justification, excuse, or palliation existed in connection with the meeting in the woods, there was no means by which they could be proved, except by these very declarations. Under these circumstances, the safety of the accused required it; and humanity and justice demanded, that they should contain a fair, full, and complete account of the facts and circumstances of the transaction.

When we compare the declarations composed, and prepared upon consultation, for the deceased, with the circumstances of the meeting in the woods, as detailed by the declarant himself to Carter, it is impossible not to perceive that the statements contained in the paper read to the jury, are partial, incomplete, and flagrantly unjust to the accused.

It was in proof that the accused and the deceased were unfriendly towards each other; they had quarreled, and mutual threats had been made. The deceased had said that he would take the life of the accused, unless the accused retracted an insult which he had given to him. Under these circumstances, it was of vital importance to the accused, and essential to truth and the justice of the case, that it should be shown, if such *988 were indeed the fact, that the interview in the woods was not sought by him ; that he did not begin the colloquy, and was not the first to use abusive, degrading and insulting language. On the contrary, the dying declarations, drawn up. in the manner stated in the testimony, showed that the meeting took place on the land of the deceased and near his dwelling; and that the accused, without the slightest provocation, first outraged the deceased by gross insults, and then deliberately discharged the contents of his gun into his body.

The declarations were not dictated by the deceased, nor reduced to writing in his presence. They were drawn up from Carter’s recollection of the statements made to him, at different times, by the deceased. And when we turn to Carter’s testimony, it is manifest that they were not the same account or history of the transaction which was given to him by the deceased, and repeated on several occasions. For according to the testimony of this witness, the deceased stated to him that the accused was passing by in the woods, and, perhaps, unconscious of the presence of any one, when deceased called to him to stop—went up to him—commenced the quarrel—and charged the defendant with the commission of a larceny. Further, that witness and Nob in son omitted and left out of the written statement, some things about the way the parties met in the woods, and the quarrel that ensued, which had been communicated to Carter by the deceased. This seems to have been done designedly, and under the impression that any facts connected with the interview, which would excuse or palliate the homicide, were matters of defense, which it devolved upon the accused to establish.

It seems clear, therefore, that the statement read to the jury, as the dying declarations of the deceased, ought not to be regarded as such, and should have been excluded, unless they were made so by the subsequent act of the deceased in swearing to and subscribing them.

By swearing to the declarations which were drawn up and read to the deceased, he adopted them as his own. And no sufficient reason can be urged, why such an act of recognition and adoption should not render declarations of this character •admissible as evidence, where the declarant acted under a sense *989 of impending death, and was in a condition fully to understand the contents of a document thus prepared ; and did, in fact, fully comprehend the statements contained in it.

But in this case there are strong reasons for believing that the deceased did not fully understand the declarations as read to him, or that his faculties were so much impaired by the wounds under which he suffered, that ho was incapable of remembering with distinctness or stating with accuracy the facts and circumstances of the rencontre which resulted in his death. It is true that Robinson testified that he was entirely himself when the declarations were read. But Mrs. Adams states, that when Dr. Carter came into the room, he told the deceased “ to arouse himself and collect his senses,” and “ slapping him about a little, to wake him.” And when we consider that the statement, sworn to by him as his dying declarations, was materially different from the account he gave of the affair to Carter, the conclusion is not to be resisted that he either did not understand what was read to him, or did not remember what had transpired at the meeting between himself and the accused in the woods.

In addition, there are circumstances even calculated to excite suspicions as to the propriety of the motives under which Carter and Robinson acted ; and to authorize the presumption that an improper influence was exercised over the deceased, whose mind and memory, it is reasonable to suppose, were clouded or impaired by the mortal wounds under which he was laboring. These persons acted upon consultation ; and for reasons, which it is difficult to reconcile with their innocency, excluded from the statement, which they drew up, every circumstance connected with the meeting in the woods, which was at all exculpatory of the accused. They must have known that such facts did exist, and that unless they were brought to light through the dying declarations of the deceased, there was no possible way of proving them on the trial of the accused.

We think, therefore, that under all the circumstances disclosed, the court erred in admitting this evidence.

• The charges granted at the instance of the prosecuting attorney and the prisoner are very numerous. Some of the instructions given in behalf of the prosecution are relied upon as a *990 ground of reversal. The refusal of the court to give certain charges in behalf of the accused is also assigned for error.

We have no hesitation in saying that the 14th instruction, granted in behalf of the prosecution, was erroneous. That instruction is in the following words: “ Confessions made by a person charged with an offense, when made voluntarily, and not obtained by force, fraud or threats, are regarded by the law as the highest and most satisfactory character of proof. If, therefore, the jury believe from the confessions of defendant, as given in evidence, that the defendant shot Tatum, the deceased, at a time when he knew that Tatum had no power to do him any injury, then such shooting was unlawful, and defendant is guilty of either murder or manslaughter, according to his intention at the time of shooting.”

The confessions of prisoners are- received in evidence upon the presumption that a person will not make a false statement which will militate against himself. And while the elementary writers, and the courts, have not entirely agreed upon the weight to be given to this species of evidence, it is admitted by all that it should be received with great caution. “ For,” says Blackstone, who maintained that confessions in cases of felony were the weakest and most suspicious of all testimony, “ they are very liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately or reported with precision, and incapable in their nature of being disproved by other negative evidence.” 4 Com., 357. Subject, however, to the proper caution in receiving and weighing them, “it is generally agreed that deliberate confessions of guilt are amongst the most effectual proofs in the law.” 1 Green. Ev., § 215. But that they are to be “ regarded as the highest and most satisfactory character of proof” has never been the doctrine of this court. And it was held in Stringfellow’s case, that, without proof, aliunde, of the corpus delicti, the extrajudicial confessions of the prisoner were not sufficient to warrant his conviction. 26 Miss. Rep., 137 .

The charge, therefore, gave too great weight to this species .of evidence. It is objectionable also, because it does not draw any distinction between confessions deliberately made, whether judicial or otherwise, and statements or confessions made in *991 casual conversations. It was further objectionable for the reason that it referred directly to the evidence of a particular witness, who testified to a statement made by a prisoner in a conversation with himself, and who admitted that he might be mistaken as to the precise words of the accused; giving to an admission the import of which was not remembered with absolute certainty, all the weight which is due to confessions formally and deliberately made by a party charged with a crime. It wears very much the appearance and was calculated to have the effect of a charge against the prisoner on the weight of evidence.

But for this eiTor, or any other which may have occurred in the instructions to the jury, we would not be authorized to reverse the judgment, as no special exceptions were taken in the court below in conformity with the directions of the statute of the 11th of March, 1856, Session Acts, 86.

Bor the first error noticed, we reverse the judgment, remand the cause, and award a venire de novo.

Dting Declarations.—The general principle on -which this species of evidence is admitted is, that they are declarations made in extremity.