79 Miss. 575 | Miss. | 1901
delivered tbe opinion of tbe court.
We are compelled to differ in opinion from tbe learned circuit judge as to tbe admissibility of tbe alleged dying declarations hi tbis ease. As long as Mr. Bichardson could articulate be expressed his belief that be would recover. Tbis continued for several days (six or seven) after be received tbe wound which ultimately caused bis death. It continued up to tbe time be became speechless from paralysis, after which be lived speechless, and for only three or four days. Before this stroke of paralysis be always said be would recover. But before tbe stroke, an attorney, fearing that a fatal result might ensue, prepared a declaration to be signed by tbe patient whenever be came to think be would die. Tbis was written on white paper, and it is not the paper submitted to tbe jury, the one submitted being written on yellow paper. It is not shown satisfactorily that tbe inscription on tbe yellow paper was an exact copy of that written on tbe white.- But we will suppose that it was, and still we find no sufficient evidence by tbe acts of Mr. Bichardson that be signed under tbe solemn sense of impending dissolution after bis paralysis, or of any words or acts before indicating such sense. With all tbis in view, together with tbe man’s condition when be did sign, we are unwilling to adjudge tbis document a valid dying declaration. Moreover, we think a declaration prepared by a person in full possession of bis mental faculties, and in confident hope of recovery, to be signed in tbe possible event of a subsequent conviction of a fatal termination, is too much tainted to be admissible in evidence. Such a paper at tbe time of its preparation goes for nothing, of course; and, when tbe time comes for execution of it, tbe tendency of human nature in extremis to be consistent and follow a formula, without effort, vitiates it. Such an instrument cannot be said to be the free and voluntary act of tbe person, originated and executed under a solemn sense of impending death.
Reversed and remanded.
