The plaintiff in error was indicted, tried, and convicted of
murder by shooting. Among the evidence for the prosecution,
admitted under objections and excepted to, were: (1) A declaration
in writing by the murdered person, made after the shooting, and, as
claimed, under a sense of in pending death. This was offered in
chief. (2) The statement of a witness, offered in rebuttal, that,
on a later day and before her death, the murdered person said that
her former statement was true.
Held:
That it was satisfactorily established that the written
statement of the victim was made under the impression of almost
immediate dissolution, and that it was therefore properly
admitted.
That as it did not appear whether at the time when the later
statement was made she spoke under the admonition of her
approaching end, or anticipated recovery, it was improperly
admitted.
That the evidence so offered in rebuttal was not legitimate
rebutting testimony.
Frank Carver was convicted of the murder of Anna Maledon in the
Circuit Court of the United States for the Western
Page 160 U. S. 554
District of Arkansas, and sentenced to be hanged, whereupon he
sued out this writ of error.
The fatal wound was inflicted by the discharge of a pistol on
the night of March 25, 1895 at Muscogee, Creek Nation, in the
Indian country, but the death occurred at Fort Smith, Arkansas, May
19, 1895.
In addition to other evidence, there was testimony tending to
show that Carver and the deceased were attached to each other; that
he was very drunk on the night of the homicide, and that he was in
the habit of carrying a pistol, which he was flourishing at that
time. A declaration in writing in respect of the circumstances
attendant upon the commission of the act, made by the deceased
March 27, 1895, was admitted in evidence against objection as made
under a sense of impending death.
The testimony of the clerk of the court, Wheeler, to the effect
that the deceased, after she was brought to Fort Smith, which was
April 14, 1895, said that her former statement was true, was
admitted subject to an exception because no proper foundation was
laid for its admission.
Exceptions were also taken to certain parts of the charge.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
While in the admission of the declarations of the victim as to
the facts of a homicide the utmost caution must be exercised to the
end that it be satisfactorily established that they were made under
the impression of almost immediate dissolution, we think that the
evidence of the state of mind of Anna Maledon in that particular,
when the declaration of March 27, 1895, was made, and which we need
not recapitulate, was sufficient to justify the circuit court in
admitting
Page 160 U. S. 555
it.
Mattox v. United States, 146 U.
S. 140,
146 U. S. 151.
But the testimony of Wheeler stands on different ground, and we are
of opinion should not have been admitted.
In answer to leading questions, the witness said that he saw
Anna Maledon after she was brought to Fort Smith; that he asked her
whether the declaration of March 27, 1895, was true, and that she
replied "it was, in every particular."
The deceased received the fatal wound March 25th, and her
statement of March 27, 1895, was admitted as a dying declaration.
The interview with Wheeler was on or after April 14, 1895, and
whether she then spoke under the admonition of her approaching end
or anticipated recovery does not appear.
It has been held that a declaration is admissible if made while
hope lingers, if it is afterwards ratified when hope is gone,
Reg. v. Steele, 12 Cox C.C. 168, or if made when the
person is without hope, though afterwards he regains confidence,
State v. Tilghman, 11 Ired.Law 513;
Swisher v.
Commonwealth, 26 Grattan 963; 1 Greenl.Ev. (15th ed.) ยง 158,
note
a. But the repetition of a dying declaration cannot
not itself be admitted as a reiteration of the alleged facts if
made when hope has been regained. Nor can we perceive that this is
otherwise because the record states that Wheeler was sworn "in
rebuttal." Rebutting evidence is evidence in denial of some
affirmative case or fact which defendant has attempted to prove.
Our attention has been called to no attempt on behalf of defendant
below to prove that Anna Maledon made on her deathbed, after her
declaration of March 27th, any retraction thereof, or any statement
inconsistent with it, if evidence to that effect would have
justified the introduction of this testimony as tending to rebut
it.
It is true that counsel for plaintiff in error rested their
objection on the ground that no foundation for the admission of the
testimony was laid. But while the omission to challenge the
evidence as not properly in rebuttal may have waived the mere order
of proof, this did not concede that the want of foundation could be
excused for any reason. The contention was that the foundation must
be laid, and that covered sufficiently
Page 160 U. S. 556
every suggestion that the evidence was admissible without it.
And as this was not legitimate rebutting testimony, it could not be
admitted without the proper foundation, although the order of proof
was waived.
As we understand the record, a sharp controversy was raised over
what deceased had said at the time of the homicide, and the
evidence of Wheeler may have had so important a bearing that its
admission must be regarded as prejudicial error.
Whether the homicide was committed under such circumstances as
to reduce the grade of the crime from murder to manslaughter or as
to permit an acquittal on the ground of misadventure were questions
raised in the case on behalf of plaintiff in error, and it is urged
that the exception should be sustained to the statement in the
charge that
"if a man does not exercise the highest possible care that he
can exercise under the circumstances when handling firearms, his
act passes out of that classification known as an accident."
But we do not feel called upon to consider this question, or any
of the other errors assigned, as they may not arise on a new trial
in the form in which they are now presented.
Judgment reversed and cause remanded, with a direction to
set aside the verdict and grant a new trial.
