109 So. 334 | Fla. | 1926
Lead Opinion
The plaintiff in error, who will hereinafter be called the defendant, was convicted in the Circuit Court of Lafayette County upon a charge of manslaughter. Two assignments of error are presented: First, the denial of defendant's motion for a new trial, and, second, the admission in evidence of the dying declaration of the deceased.
The logical order of consideration of the assignments is to first determine whether or not the dying declaration was admissible in evidence. While numerous objections may be made to the admission of dying declaration, according to the circumstances of each case, in the trial of the case now under consideration but one objection was made to the admission of such evidence, namely, that the proper predicate or foundation had not been laid for such admission. This being the only question raised it is not necessary to consider any other phase of the law on this subject. So far as applicable to this case the law may be briefly stated in these words:
To render dying declarations admissible in evidence it must first be shown that such declaration was made at a time when the declarant had abandoned all hope of living and was in fear of dying, that is, under the sense of impending death. It should also be shown that the declarant was sufficiently rational at the time of making the statement to understand the import of his words. What constitutes the necessary evidence to meet the required predicate for admission of dying declarations is a mixed question *243
of law and fact to be determined by the trial judge, his judgment being subject to review by the appellate court. But in view of the fact that the trial judge saw and heard the witnesses his judgment is entitled to great weight, every presumption being in favor of its correctness. In considering whether or not the declarant was in such mental state at the time of making the declaration as to entitle it to be admitted in evidence, resort may be had to all the circumstances of the case, and expressed utterances are not necessary. This is the law as announced by this court in the case of Richardson v. State,
Applying the law as stated to the evidence. It appears that the physician who examined the body of the deceased testified that there were two mortal wounds on the body which would have caused the death of any man. The wife of deceased testified that he said "Darling, I am dying." The witness Carmichael testified that he heard the deceased say to his father: "Papa, I am dying, will you raise my baby?" The father testified that when he suggested to the deceased that they send for a physician he, the wounded man, said: "It would be no use, he would be dead before the doctor could get there." All three of these witnesses, and still another, testified that the deceased was "in his right mind." There is not the slightest evidence that the deceased entertained any hope of living, but on the contrary everything indicated that he had abandoned hope of recovery. The requirements for the foundation or predicate have been fully met.
The other question, presented by the first assignment of error, is the denial of the defendant's motion for new trial, by which motion the verdict of the jury was attacked as being against the weight of the evidence. This motion admits *244 of the discussion of the claim of self defense made by the defendant, as well as the weight of the evidence.
In Wilson v. State,
The judgment of the Circuit Court is affirmed.
Addendum
The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the Court that the judgment of the Circuit Court in this cause should be and the same is hereby affirmed.
BROWN, C. J., AND WHITFIELD, TERRELL AND STRUM, J. J., concur.
ELLIS, J., dissents.
*246BUFORD, J., disqualified.