82 S.E. 621 | S.C. | 1914
August 8, 1914. The opinion of the Court was delivered by The defendant is a young negro woman. She was convicted of manslaughter. The deceased was her husband. There was no eyewitness to the transaction. The act was done in their own house, in the night, with a pistol. *390
There are nine exceptions, altogether too many for so short a case.
There must be a new trial, for the second and third exceptions are well taken.
Considered inversely, the dying declaration was not competent; it did not sufficiently appear that death was imminent and that the declarant had abandoned all hope of recovery.
Mr. McDowell, who took the declaration, is a lawyer and magistrate; he warned the declarant "he must be certain he was going to die." The answer was, "Yes, I am going to die; I may get up for a few days, but this wound will kill me." At another time the witnesses testified that the declarant said: "Yes, I may get up for a few days, but this shot will eventually kill me." The witness further testified "he didn't say that he would die from his wound any time soon, nor did he state any time at which he believed he would die from it."
The rule is stated in the State v. Quick, 49 S.C.L. (15 Rich.) 349: "It must appear satisfactorily that death was imminent at the time, and that the declarant was so fully aware of this as to be without any hope of life."
The dying declaration being in, the Court instructed the jury that "the law presumed a party who has given up all hope of life will tell the truth."
There is no presumption that any witness will tell the truth. State v. Mitchell,
The declaration is only competent because he who makes it is then surrounded with the solemnities of an oath; the situation is like unto swearing a witness. It ought to be a solemn thing to uplift the hand and swear by Almighty God; it is a solemn thing to declare in the sight of certain death; a witness who thus declares has in legal contemplation been sworn and no more. "This condition of the person is considered as constituting as strong a guarantee *391 for the truth of the declaration as an oath is of ordinary testimony." State v. Quick, 49 S.C.L. (15 Rich.) 349.
The first exception cannot be sustained. Ordinarily, it would not be permissible to instruct a jury that the testimony had a drift; but in this instance the drift indicated was away from guilt.
The other exceptions are without merit; let them all be reported.
The verdict is set aside and a new trial is ordered.
