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.


[Facts of the Case]

.... 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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