Commonwealth v. Casey

We appreciate the importance of the question offered for our decision. Where a person has been injured in such a way that his testimony cannot be had in the customary way, the usual and ordinary rules of evidence must from the necessity of the case be departed from. The point first to be established is, that the person whose dying declarations are sought to be admitted, was conscious that he was near his end at the time of making them; for this is supposed to create a solemnity equivalent to an oath. If this fact be satisfactorily established, and if the declarations are made treely and voluntarily, and without coercion, they may be admitted as competent evidence to go to the jury. But, after they are admitted, the facts of the declarations and their credibility are still for the judgment of the jury.

In regard to the matter before the court, and the admissibility of the signs by Mrs. Taylor, in reply to the questions *422put to her, it is to be observed that all words are signs; some are made by the mouth and others by the hands. There was a civil case tried in Berkshire county, where a suit was brought against a railroad company, and the question was, whether a female who was ran over survived the accident for any length of time. She was unable to speak, but was asked if she had consciousness to press their hands, and the testimony was admitted. If the injured party had but the action of a single finger, and with that finger pointed to the words yes and no, in answer to questions, in such a manner as to reader it probable that she understood, and was at the same time conscious that she could not recover, then it is admissible evidence. It is, therefore, the opinion of the court, that the circumstances under which the responses were given by Mrs. Taylor to the questions which were put her, warrant that the evidence shall be admitted, but it is for the jury to judge of its credibility and of the effect which shall be given to it.