61 Fla. 19 | Fla. | 1911
On writ of error it is contended that the judgment of conviction of murder in the second degree should be reversed because the court ruled that evidence of a dying declaration was not admissible on behalf of the accused, and because the court excluded evidence of a dying declaration made on one day upon a predicate laid as to a dying declaration made on the previous day.
In a prosecution for homicide evidence of declarations made by the deceased before his death as to facts that actually caused his subsequent death or as to circumstances that actually resulted in his subsequent death, is admissible either for or against the deceased, upon proper predicate being laid, where such declarations were made at a time when the deceased was m extremis and really believed he could not recover, and where the deceased would have been competent to testify as to such facts or circumstances had he lived. The declaration of the deceased need not have been- made in the presence of the accused, and the making of it under circumstances stated may be testified to by any competent witness, such evidence being-admissible on the ground of necessity, and the sense of
While the exclusion of evidence of the dying declaration on the ground that it was not admissible in favor of the accused was erroneous, the court subsequently admitted the evidence and this rendered the first ruling harmless to the accused, and the judgment will not be reversed therefor.
The court excluded evidence of a declaration made by the deceased on Sunday before he died, no predicate being-laid therefor except the predicate laid for evidence of a declaration made the day before that had been admitted. It was not clearly shown that the deceased was sensible of his impending death and had no hope of recovery all the
The judgment is affirmed.