STEPHENSON v. STATE:
Discussion of Madge's Dying Declaration
Supreme Court of Indiana
179 N.E. 633,
205 Ind. 141 (1932)
PER
CURIAM.
[Trial and Alleged Errors]
Appellant
objected to certain testimony
of Dr. John K. Kingsbury. After stating his name, residence, age, etc.,
he
stated that he was called by telephone about 11:30 a. m., March 17, and
went
immediately to the Oberholtzer home, and there found Madge Oberholtzer
lying on
a bed in a state of shock, pale, body cold, rapid pulse, that her
clothing was
disheveled, her dress open in front exposing bruises on her chest; that
he made
a superficial examination through her clothing to determine possible
broken
bones (having been informed that she had been in an automobile
accident). He
was then asked if, in the course of his examination, she said anything
in
reference to whether or not she expected to die, and what it was. He
answered
(over the objections of appellant) that "She said that she didn't
expect
to get well; didn't want to get well; that she wanted to die." He was
then
asked, "Now doctor, just detail any conversation which you may have had
with her concerning her condition?" He then again related his
superficial
examination, and pressed her for an answer as to how it happened. At
this
point, appellant interposed an objection on the ground that it had not
been
shown that the deceased was in extremis, or that she thought that she
was going
to die soon, which objection was overruled. The doctor then proceeded
to relate
in answer to the question a narration, as told to him by Miss
Oberholtzer, of
all the events occurring from the time she left home until she
returned. This
narration was in substance the same as the written declaration of Miss
Madge
Oberholtzer, which will in substance hereinafter be set out. Mrs.
Eunice
Shultz, who was a roomer at the Oberholtzer home, had previously
testified that
the man who brought Madge home told her that "She was hurt in an
automobile accident, *** he did not think any bones were broken." That
she
saw the bruises on various parts of Madge's body, which she described.
That
"her clothing was mussed up and she was very dirty ***, that she looked
very white around the mouth and groaned" and that Madge said to her,
"Oh, Mrs. Shultz, I am dying." The rule of law governing the
admission in evidence of unsworn statements as dying declarations is
very
clearly and definitely settled in Indiana, and appellant has set it out
very
fully and concisely in his brief. See McKee v. State (1926) 198 Ind.
590, 154
N. E. 372; 21 Cyc. 976, 977; Watson v. State (1878) 63 Ind. 548; Morgan
v.
State (1869) 31 Ind. 193; Jones v. State (1880) 71 Ind. 66.
The
trial court had not only the statements of Miss Oberholtzer that she
was dying,
and that she could not get well, but the conduct, manner, symptoms, and
condition of Miss Oberholtzer, at the time she made the statements,
were
detailed to the court. It was said in the case of Williams v. State,
196 Ind.
84, 147 N. E. 153, 154, that, "The competency of this evidence [meaning
dying declaration] was a question for the trial court to be determined
by the
proof relative to the declarant's
state of mind at the time he made the declarations. The proof preceding
the
admission of such declarations must convince the trial judge that they
were
uttered under a sense of impending death without hope of recovery, or
that the
declarant fully believed that death was so near that all motives to
falsehood
were superseded by the strongest motives to strict veracity. *** Proof
of the
fact thus to be settled by the judge is not limited to the declarant's
statements alone, 'but it may be inferred from the general statements,
conduct,
manner, symptoms and condition of the declarant, which flow as the
reasonable
and natural results from the extent and character of his wound, or the
state of
his illness."' In the case of Hill v. State (1923) 194 Ind. 688, 141 N.
E.
639, 641, the court said: "The admissibility of these statements was
first
for the trial court to determine, and that decision will not be
disturbed
unless it is manifest that the facts did not warrant such ruling." Gipe
v.
State (1905) 165 Ind. 433, 75 N. E. 881; 1 L. R. A. (N. S.) 419, 112
Am. St.
Rep. 238. We cannot say that the admission of Dr. Kingsbury's testimony
was
manifestly erroneous.
.... Dr.
Kingsbury did not have any further conversation with [Madge] concerning
any
other
matter than her progress or the type of medication, except on March
28th in the
early evening, when he advised her of her condition and outlook and,
when no one
else was present, he told her that she had no chance of recovery and no
chance
to get well, and that she was going to die, and told her why, which was
the
result of the things that had happened to her, the shock, the loss of
food,
loss of rest, and the action of the poison on her system and her lack
of early
treatment, and that the blood test, made that afternoon or the day
before, was
very much worse; and that her progress was unfavorable and that he was
thus
forced to inform her that she had no chance of recovery. She replied,
"That is all right doctor, I am ready to die. I understand you doctor.
I
believe you and I am ready to die."
....An
attorney, a friend of the Oberholtzer family, visited at the
Oberholtzer home
frequently from March 17th, the time of Miss Oberholtzer's return from
Hammond,
to April 14, 1925, the day on which she died. Miss Oberholtzer told the
attorney the story of the incidents related, and informed him that she
knew she
had no chance for recovery and was ready to die. From the statements so
made by
her to him, he prepared and had transcribed by typewriter a dying
statement,
which was read to her and in which she made corrections, and which was
afterwards again prepared and read to her and approved, and she signed
the
statement, saying therein that she had no hope of recovery; and that
she
believed and knew that she was about to die and that she took an oath
before a
notary public of the truth of the statements made in the dying
declaration....
Judgment affirmed.
MARTIN, J.
(dissenting in part, concurring in
part, dissenting in the conclusion).
Admissibility of
dying declarations. The principal questions in this case upon
the
admissibility
of evidence arose upon the admission of the written dying declaration
of
deceased, and the testimony of a doctor to whom deceased made oral
statements
to the same effect as those contained in the written dying declaration.
The law
concerning the admission in evidence of dying declarations has been
discussed
in this appeal as exhaustively perhaps as in any case that has ever
been before
it. I therefore deem it important to state somewhat more fully than has
been
done in the per curiam opinion the questions involved and the law
relating
thereto. I concur in the decision reached by the court as to the
admissibility
of the written dying declaration, but believe that the testimony of the
doctor
was admitted without the necessary foundation being laid therefor.
Deceased's written
dying declaration. The written dying declaration of the deceased
consisted of
more than three thousand words. It was signed by her on March 28, ten
days
after her trip to Hammond and seventeen days before her death. It
appears from
the evidence that just before it was read to and signed by her, her
physician
for the first time advised her that she was going to die. He told her
that she
had no chance for recovery; that she was going to die, and told her
why; that
the blood test that afternoon showed a worse condition and that her
condition
was unfavorable, and that he wanted her to understand it. He gave as
reasons to
her that she could not recover that her kidneys were broken down and
destroyed
from the poison, and that poison had made such a spread in her system
that she
could not recover. She said, "Doctor *** I understand you, I believe
you
and I am ready to die." This, together with other evidence which is in
the
record of her statements, and of her physical condition as a result of
the
poison, meets the two essential requirements for an admissible dying
declaration hereinbefore stated, viz., that the declarant shall be in
extremis
and shall have abandoned hope of recovery and be under a firm
conviction that
death is inevitable and near at hand.
The
dying
declaration was prepared for the deceased's signature by Mr. Asa J.
Smith, an
attorney and friend of the Oberholtzer family, and others who were
assisting
him. Mr. Smith went to the Oberholtzer home and saw deceased on the
afternoon
of the day she returned home. At the request of deceased's mother he
had helped
to search for her on the previous night, March 16 (after her departure
from
home on the night of March 15 and the receipt by her mother of a
telegram from
her dated at Hammond), and had gone with the mother to appellant's home
during
the search. He was employed by the deceased's father to bring a civil
suit
against appellant, or "do whatever was necessary in the matter." Mr.
Smith visited deceased practically every day from March 17, to March
28. Three
or four days before March 28 he began the preparation of the dying
declaration.
He made notes from memory of what deceased at different times had told
him of
the events which occurred on her trip to Hammond and reduced the same
to
writing in his law office. Miss Ermina Moore, an intimate friend of
deceased,
on March 26 took to Mr. Smith's office notes which she had made, and
they also
were incorporated by him into the written statement. He selected the
words and
built up the phrases to make what he thought was the substance of what
deceased
had told him. This he read over and corrected, and then in the presence
of Miss
Moore and Mr. Griffith D. Dean, his law office associate, he dictated
to a
stenographer, from what he had written, the entire statement. Two days
later
(March 28) Mr. Smith and Miss Moore went through this draft of the
statement
and again corrected it. Then Mr. Smith again rewrote a part of it in
longhand,
then redictated to the stenographer the entire statement, except the
pages he
had rewritten. About 6 p. m. the same day at deceased's bedside, with
Mr. Dean,
Miss Moore, and Dr. Kingsbury also present, Mr. Smith read the
statement to
deceased very slowly and distinctly. He stopped in the course of the
reading
after each sentence for her affirmance or denial, and made some
corrections
which she desired. As he proceeded with his reading, he asked deceased
if she
understood it and if it was correct, and she said "I do understand it
***
it is correct," except at certain times she said things were not
correct
and Mr. Smith made, in ink, the changes she desired. He showed her the
place to
sign and told her if it was true she could sign it and she said, "I
will
sign it," and did so.
The
exception to the
rule against hearsay evidence which permits the introduction and
consideration
in felonious homicide cases of dying declarations was introduced into
the law
less than two hundred years ago as matter of the fullest necessity or
public
policy to detect and punish those guilty of crime, since by their
crime,
usually committed in secret, offenders may still the tongues of the
only
persons in the world who could affirm their guilt. The reasons against
admitting such evidence (that they do not [usually] bear the sanction
of an
oath, are not subject to the test of cross‑examination, eliminate the
right of
the accused to confront the witness, are subject to misconstruction by
auditors
or amanuensis who are ignorant, inattentive, or criminally motivated,
that they
may permit a conviction on the statement of one whose body
is weakened and whose mind may be disordered by the
panic of momentary death, and who may harbor malice and vindictiveness)
were
only put aside on the theory that the immediate approach of death,
under the
sanction of a moral sense of certain and just retribution, silences
every
motive to falsehood, and by the most powerful considerations induces
the mind
to speak the truth, creates a situation so solemn and awful as to
exclude the
supposition that the party making them could have been influenced by
malice,
revenge, or any conceivable motive to misrepresent, and amounts to an
obligation equal to that imposed by a solemn oath in a court of
justice. See
cases collected in Note, 56 L. R. A. 353.
It was
not shown,
nor was it necessary to show, that deceased was under a firm conviction
of
impending death at the time she held the conversations with the
attorney from
which he constructed the statement, for it does appear that at the time
she
adopted and signed the statement as her dying declaration she had
abandoned
hope of recovery and had a firm conviction of impending death. 30 C. J.
257.
The fact that the declaration was prepared by a lawyer who was
interested in a
civil action against appellant should render such a declaration subject
to the
closest scrutiny; but we cannot say that the declaration was rendered
inadmissible by the fact that he prepared it. In the absence of any
evidence of
improper conduct on the part of the attorney such objection to the
dying
declaration would not go to its admissibility, but to its weight, which
is
solely a question for the jury. 1 R. C. L. 547. In Harper v. State
(1902) 79
Miss. 575, 31 So. 195, 56 L. R. A. 372, a dying declaration was held to
have
been erroneously admitted; the court (after doubting the authenticity
of the
declaration) holding that there was not sufficient evidence of a solemn
sense
of impending dissolution when the deceased signed the statement. The
statement had
been prepared by deceased's attorney, who feared a fatal result might
ensue, to
be signed by the patient whenever he came to think he would die. The
court
said: "Moreover, we think a declaration prepared by a person in full
possession of his mental faculties, and in confident hope of recovery,
to be
signed in the possible event of subsequent conviction of a fatal
termination,
is too much tainted to be admissible in evidence." This dicta is not
applicable to the facts here, nor do we approve it unqualifiedly as a
correct
statement of law.
Appellant's
objection to the admission of State's Exhibit No. 1 (the dying
declaration) was
addressed "separately and severally as to each word, phrase, sentence,
paragraph, part, conclusion and opinion" and stated at length his
objection to the declaration as a whole (that the corpus delicti had
not been
established independently of the declaration, that the declaration is
one of
suicide, that it shows that death was not the proximate result of
defendant's
acts, that it was made nineteen days before death and when deceased was
not in
extremis and when she had not abandoned hope and was not under a sense
of
impending dissolution, that no causal connection was shown between the
defendant's act and her death, that it is a recital of past events and
the
conclusions and opinions of the declarant and is not limited to
declarations to
identify defendant with the circumstances producing and attending
death). The
objection was sufficient to raise the general questions concerning the
declaration as a whole which we have already discussed, but it was not
sufficient as an objection to specific parts of the declaration. An
objection
generally to "every word, phrase, sentence," etc., does not point out
to the court with sufficient certainty the part or parts of the
statement which
the party deems objectionable.
The
court properly
struck out of the statement sentences telling of deceased being
"impressed
with Stephenson's power and influence"; of her being "attracted by
his apparent influence and power with the state officials and his
general
political influence"; of what he said to her at dances, and what he
said
when he drove her to her home "while the legislature was in session";
because it is not permissible to show by a dying declaration matters
occurring
anterior to, and not immediately connected with, the homicide, nor to
show the
conduct of the parties at another time nor to show the opinions and
mental
conclusions of the deceased. Montgomery v. State (1881) 80 Ind. 338, 41
Am. Rep.
815; Binns v. State (1874) 46 Ind. 311; Jones v. State (1880) 71 Ind.
66. For
the same reason the court, if proper objections had been made, should
have
struck out of the statement those sentences stating that deceased
"first
met David C. Stephenson at the banquet given for the Governor at the
Athletic
Club early in January 1925," telling of her various dinner engagements
with appellant at a hotel, and of a party at his home "with several
prominent people."
Appellant points out specifically in his brief
numerous
statements in the dying declaration which he says are merely
"conclusions,
opinions and recitals of mental operations of deceased." A mere
conclusion
or expression of opinion or belief by a dying person is not admissible
as a
dying declaration, Boyle v. State (1886) 105 Ind. 469, 5 N. E. 203, 55
Am. Rep.
218; Montgomery v. State, supra; Binns v. State, supra, but where a
dying
declaration contains unimportant expressions of opinion or conclusions
such as
a number of those statements here objected to are, and which taken in
connection with the entire declaration are not prejudicial, their
admission is
not error. Cleveland v. Com. (1907) 101 S. W. 931, 31 Ky. Law Rep. 115.
Dying declarations are limited to a recital of
facts connected with the
res
gestae of the alleged crime. Under the several counts of the indictment
under
which appellant was tried, the alleged criminal act was murder in the
perpetration of, or attempt to perpetrate, a rape, in the administering
of
poison, and by restraining and preventing medical assistance and
services;
hence the rather wide scope of the dying declaration here was not
improper.
TREANOR, J.
(dissenting in part, concurring in part, dissenting from the
conclusion).
Admissibility of Dying
Declarations.
As
respects the
admissibility of the two dying declarations, one written and the other
oral, I
think both the per curiam opinion and the opinion of MARTIN, J.,
conclusively
show that the written declaration was properly admitted. There is some
room for
doubt about the admissibility of the oral declaration, the content of
which was
testified to by Dr. Kingsbury. At the time the statements which
constitute this
declaration were made to Dr. Kingsbury, the deceased also made some
remarks
which indicated she was not anticipating immediate death; and death did
not
ensue for some time after the declaration was made. But inasmuch as the
evidence
shows that poison had been taken by the declarant for the purpose of
causing
her death, and since various remarks by her indicated that she firmly
believed
that she would eventually die as a result of her condition, and since
she did
in fact die as a result of such condition, I think that the requirement
that
such declarations be made with a definite and firm conviction of
impending
death was satisfied. It is true that at the time the declaration was
offered in
evidence the proper foundation had not been laid for its introduction;
but
since all the proof necessary for such foundation was later offered and
admitted, I feel that the technical error in admitting the dying
declaration
without this proof first having been offered was harmless, and
especially so,
in view of the fact that the substance of the oral declaration was
included in
the written declaration which was admitted after the proper foundation
had been
laid....
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