Merrill v. State
Merrill v. State
Opinion of the Court
delivered the opinion of the court.
The plaintiff in error was indicted for the murder of Claiborne Peterson, and convicted and sentenced to imprisonment in the penitentiary for life. On the trial the dying declarations of the deceased were introduced in evidence against the prisoner. These declarations were reduced to writing, and sworn to by the deceased. The paper offered in evidence was not the original, but was proven to be a true copy. The copy was made under the belief that the original was of no value because written with a pencil. After the copy was made, the original was not taken care of and was lost. Under the circumstances, there was no legal objection to the copy as a substitute for the original. But there was error iu admitting the whole of the writing. That part which stated that about two weeks before the killing the prisoner threatened the deceased was incompetent.
Dying declarations are intrinsically weak, being the statement of a party who is unsworn and not subject to cross-examination. They are admitted on the ground of “an overruling public necessity for preserving the lives of the community by bringing man-slayers to justice.” Lambeth’s (Jase, 1 Cushm. 357. They are only admitted “in trials for homicide where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations.” Lambeth’s (Jase, 1 Cushm. 354. That they should be confined to the res gesta of the killing seems to be well settled, not only by the above quotations, but by decisions of other courts. See The State v. Shelton, 2 Jones L. 363; Ben v. The State, 37 Ala. 103.
For the error in admitting the whole of the dying declaration, the judgment is reversed and a venire de novo awarded.
Reference
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- Jack Merrill v. State
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- 1. Evidence. Homicide. Copy of writing containing dying declarations. It is not error, in the trial of a charge of homicide, to admit in evidence a true copy of a writing containing the'dying declarations of the victim, if the original be admissible, where such copy was made under the belief that the original, having been written with a pencil, was of no value, and the latter has been lost. 2. Same. Homicide. Hying declarations, when admissible. It is error to admit as evidence, in a trial for homicide, the dying declarations of the victim to the effect that two weeks before the perpetration of the deed the defendant had made threats against his life; because such threats constitute no part of the res gestee, and the admission of the dying declarations should be restricted thereto. 3. Same. Murder. Practice. Leading question. M. being on trial for the murder of P., S., a witness for the State, testified that P., in articulo mortis, told him “that M. had shot him, and that he would not get over it.” The district attorney then asked the witness, “Did P. tell you who shot him, after he told you he would not get over it?” The defendant objected to the question as leading, but the objection -was overruled, and the witness answered, “He did.” Held, that the objection was properly overruled.