State v. Newhouse

The opinion of the court was delivered by Poché, J. The complaint of the defendant, who has been convicted of manslaughter under a charge of murder, is that the trial judge erroneously admitted in evidence a statement of the deceased as his dying declaration. His contention is that the evidence introduced by the State as the test of the character of the declaration, was not sufficient to prove that the deceased was under the consciousness of an approaching death when he made it. The record shows that the statement was made under the following circumstances: The deceased was in the Charity Hospital in New Orleans, under treatment for the wounds from which he subsequently died, when, at his request, a magistrate took down in writing the statement in question as his dying declaration, so designated by himself. Before making his declaration, the deceased said in connection therewith that “his time was very short,” and at the conclusion thereof [864] he made the statement that lie felt lie was going to die, and he died but a few honrs later. The mere recital of the foregoing facts and incidents is sufficient to bring the case within the scope of the familiar rule of law which regulates the admission of that kind of evidence, and to fully justify the ruling of the District Judge in the premises. No authority'can be successfully invoked to support the contention of counsel for the defendant that the only test of the admissibility of such declarations is evidence that the party making the same had stated in terms that he felt an immediately impending dissolution, or other impressions to that effect. The true test is evidence showing to the satisfaction of the legal mind that the party making the declaration believed at the time that he was soon to die. The existence of such a consciousness in the mind of the declarant may be shown as effectively by his acts and the circumstances which surround him as by expressions or impressions which he may utter. The rule has been variously formulated, but its uniformity is clearly traced in a strong array of concurrent j udicial authorities. In the case of Morlisse, 36 Ann. 921, this court said: “ The test of the admissibility of a dying declaration is in the belief of the deceased that death is fast approaching (State vs. Trivas, 32 Ann. 1088), and that his mind and his heart are under the influence of that belief at the time that he makes the declaration.” In State vs. Keenan, 38 Ann. 662, this Court held “ Dying declarations are those made under a consciousness of impending death, which, however, the declarant need not express in direct terms. His bodily condition and appearance, his conduct and language, as well as statements made to him by his attendants, may be considered and his con sciousness therein irferred.” A similar rule has been culled by Wharton from numerous adjudications of English and American courts; he says : “But it is not necessary to prove expressions implying apprehensions of immediate danger, if it be clear that the party does not expect to survive the injury, which may be collected from the general circumstances of his condition, as when the party was a member of the Roman Catholic Church, and had confessed, been absolved, and received extreme unction before making the declaration.” Wharton’s Criminal Evidence, sec. 282. A construction of the rule which would tend to require as a test of the admissibility of a dying declaration that it should have been made while the party was in the very agony of death would effectively [865] defeat the very object of the law in sanctioning the introduction of that kind of evidence. The circumstances exhibited by the record of this case show to our satisfaction that when the deceased made his declaration he believed that he would soon die and never recover from the injury which he had received in the conflict which he therein depicted, and hence we conclude that his statement was in truth and in fact a dying declaration, legally admissible in evidence as such, and that therefore the trial judge committed no error in the premises. Judgment affirmed.