1 Morr. St. Cas. 532 | Miss. | 1872
The plaintiff in error was found guilty in the Yazoo circuit court of the murder of John Tate. He seeks to set aside that verdict, and reverse the judgment upon several different grounds. In stating the result to which our minds have come, it will not be necessary to notice all the evidence in the cause or all the
During the progress of the trial, John Simms was introduced as a witness by the state, and proved that on the 3d of April, 1850, the day on which Tate died, witness was with him; that Tate was then in full possession of his mental faculties, and while in that condition, and when satisfied that he was about to die, he made a declaration in regard to his murder, which was
The court refused to give the 5th and 6th instructions asked for by the defendant’s counsel, but gave others in lieu of them, and this is likewise alleged to have been erroneous.
During the argument of this case, the objection to Gillespie’s testimony was earnestly pressed upon the court. We confess we cannot view this point in the same light with the prisoner’s counsel. In the first place, we may remark that the guilt or innocence of the accused is in no degree dependent upon the question of his or Tate’s title to the land or fence in dispute between them. Had Lambeth attempted to remove the fence, the law would not have excused his homicide by Tate in preventing the removal, although the fence were the rightful property of Tate; of course the converse of this proposition is equally true. If either killed the other with a deadly weapon, in order to prevent a trespass in the removal of the fence, such homicide would be murder, in the absence of proof that would tend to rebut the presumption of malice arising from the weapon used; and in the absence of such proof, the kind of weapon used determines the intent, and fixes the degree of guilt.
But Gillespie was not introduced to prove Tate’s title to the land in controversy, or the correctness of the survey made by him. On the cross-examination of Hollins by the defendant, he stated, that Tate had said the dividing line between Lambeth and himself had been run by Holliday, by which survey the fence in dispute was on Lambeth’s land; but that he did not believe that survey was correct, inasmuch as Gillespie had previously surveyed it, and by his survey it was on Tate’s land. It was competent, after this testimony was given on cross-examination, to introduce Gillespie as a witness, to prove the fact, that he had made the previous survey, as stated by Tate. And in this point of view, we think the evidence was admissible, whether the survey was correctly made or not.
Secondly. Did the court err in giving the 11th instruction asked by the state. It is in these words, “ The presumption of law is, that the declarations of Tate, made when he believed he was about to die, and shortly before his death, were made under a ‘ solemn and religious sense’ of approaching dissolution, and the jury must consider said declarations as made under such sense, unless the contrary ⅛ proved.” By our law, the dying declarations of a party are only admissible on a trial for homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. A preliminary fact, essential to be proved before their admission is, that they were made under a sense of impending dissolution.
The awful situation of the party making the declarations and his belief in his immediate and impending dissolution, are considered by our law as equivalent to the sanction of an oath.
We have just attempted to show, that where the court has ad-1 mitted the “ dying declarations,” as competent evidence for consideration of the jury, the law raises a presumption, that they were made by the party in a state of mind indicated by this instruction ; unless the court was satisfied that they were made so, it would have been his duty to have excluded them from the jury, and not permitted them to have any weight in the formation of the verdict. The competency of this kind of testimony we have before seen, was exclusively for the consideration of the court. Having once decided that it was competent that the-party was in the frame of mind required by the law, to authorize the admission of his dying declarations, the power of the court over that question was determined. It then became the province of the jury to decide upon its credibility, who were at liberty, in doing so, to take into consideration all the circumstances under which the declarations were made, including those already proved to the court, and to give to the evidence only such credit or force as, upon the whole, they might think it deserved.
Again, will this court reverse the judgment because the circuit court refused to give the defendant’s 6th instruction ? That instruction was in the following words: “ If from all the evidence the jury entertain any reasonable doubts of the guilt of Lambeth, they cannot find him guilty, but must acquit him.” As a legal proposition, this instruction was certainly correct, and we are at a loss to ascertain an adequate reason inducing the judge to refuse it. On its refusal, the jury were instructed in lieu of it, that “ To warrant the jury in-finding the defendant guilty, there should be evidence before them sutficient to satisfy their minds beyond a reasonable doubt. That which amounts to mere possibility, or conjecture, or supposition, is not what is meant by a reasonable doubt. The doubt which should properly induce a jury to withhold a verdict of guilty, should
This brings to the consideration of the last proposition which we deem it necessary to notice in this opinion. Did the circuit court err in giving the 9th instruction asked for by the state ? We think it did. That instruction was as follows: “ That the dying declarations of Tate, written by the witness Simms and offered in evidence, are entitled to the same credit and force before the jury as if the statements had been regularly sworn to in court before the jury.” In connection with this point the counsel for the prisoner elaborately argued that the dying declarations of the deceased ought not to have been admitted, because the admission violated the 10th article of the bill of rights, which declares that in all criminal prosecutions “ the accused shall be confronted by the witnesses against himand we have been earnestly invoked to review the former opinions of this court on this question. It would probably be sufficient to state in reply that these declarations were admitted without objection, and, therefore, it is too late to make it in this court for the first time. If, however, the objection had been made in the court below, it would in our opinion have been wholly untenable. This view of the law has been so often held by the courts of other states, having clauses in their constitutions similar to that in our bill of rights, and this court has decided so re
But in our opinion the 9th instruction was erroneous because the language was calculated to mislead the jury in respect to Tate’s declarations, which, under any circumstances, are at least but hearsay testimony, and subject to the objections which apply to that kind of evidence; nothing but an imperative sense of public necessity ever justified their admission. Hence the courts constantly declare that they should be received with great caution. It is true, some authorities lay down the rule, that “A sense of impending death is equivalent to the sanction of an oath; and that the persons whose statements are thus admitted, are considered as standing in the same situation as if they were sworn.”
In thus laying down the rule, nothing further was intended by the writers than to assert the ordinary principle of the law on this subject, to wit: thafcfor the purpose of admitting these statements to the consideration of a jury, the law substitutes the situation of the party making them in lieu of the oath which is usually required, and so renders the evidence competent. But the degree or weight to be given to such statements is left for the consideration of the jury, and depends upon a variety of circumstances which may tend to increase or diminish them. Among these circumstances are the mental and physical condition of the deceased when the declarations were made; his memory, the extent to which disease may have impaired his recollection, and the accuracy with which the witness who testifies to the declarations, repeats the language used by the deceased. When statements are regularly sworn to in court before 'a jury, there are methods by which the jury can test the truth or falsehood of the statements, which cannot be applied by them to testimony given in any other way. Hence, the provisions before referred to in the bill of rights, that the accused shall be con
If, then, the court, by the 9th instruction, intended to charge the jury, that the same weight and force was to be given to Tate’s statements as if Tate himself had been a witness in the court, it was certainly erroneous; and whether such was the meaning of the court or not, the language used would bear such a construction, and. the jury may have so considered it, inasmuch as Tate could not have regularly sworn in court before them in regard to these statements, except as a witness. But the instruction, in our opinion, is objectionable jn another point of view. The jury is directed to give to the statement of Tate, written by Simms, the same degree of weight and force as if it had been made directly by Tate in their presence ; thus giving to secondary evidence the same weight which is due to direct testimony. Although the witness Simms intended to communicate accurately the statements made to him by Tate, and the circumstances under which they were made, it is impossible for. him to communicate the tone and manner of Tate in making
Wharton on Homicide, 233; 1 Hale, 473, 486; 1 East P. C., ch. 5, § 58, p. 289; Archbold Cr. Pr. & Pl., 846, notes ; ib., 805; Foster, 291.
1 Archbold Cr. Pr. & Pl., 449; 1 East P. C., 354, 358; Rex v. Woodcock, 1 Leach, 652; Rex v. Wilborn, 1 East P. C., 358; Rex v. Van Butchell, 3 C. & P., 629; Com. v. Williams, 2 Ashmead, 69; 1 Greenl. Ev., 158; 2 Russ. on Crimes, 752; Hill’s case, 2 Grat., 594; Nilson v. State, 7 Humph., 542; Moore v. State, 12 Ala., 764; Brakefleld v. State, 1 Sneed, 215; Starkie v. People, 17 Ills., 17; Robbins v. State, 8
See cases cited in note * supra.
Archbold Cr. Pr. & Pl., 449; 1 East P. C., 354; 2 Russ. on Crimes, 752; Wharton Am. Cr. Law., 669; 1 Greenl. Ev., 158.
Vide cases cited supra.
See also Phil. & Ames on Evidence, 305, 306; 2 Johns., 35, 36; Rex v. Ashton, 2 Lewin Cr. Cases, 147, per Alderson, B.