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Dying Dec

This document summarizes the legal requirements and limitations for admitting dying declarations as evidence in criminal trials. It discusses a recent Oregon Supreme Court case regarding the admission of a dying victim's statements. The key requirements are that the declaration must be made by the victim of the crime being prosecuted, it must pertain to the circumstances of the victim's death, and it must be made under the belief that death was imminent in order to be considered trustworthy. The document also notes that dying declarations are only admissible in homicide trials due to the necessity of having evidence in such cases where the victim cannot testify.

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51 views3 pages

Dying Dec

This document summarizes the legal requirements and limitations for admitting dying declarations as evidence in criminal trials. It discusses a recent Oregon Supreme Court case regarding the admission of a dying victim's statements. The key requirements are that the declaration must be made by the victim of the crime being prosecuted, it must pertain to the circumstances of the victim's death, and it must be made under the belief that death was imminent in order to be considered trustworthy. The document also notes that dying declarations are only admissible in homicide trials due to the necessity of having evidence in such cases where the victim cannot testify.

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adityatnnls
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© © All Rights Reserved
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Yale Law Journal Company, Inc.

Dying Declarations
Source: The Yale Law Journal, Vol. 16, No. 6 (Apr., 1907), pp. 432-433
Published by: Yale Law Journal Company, Inc.
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432

YALE LAW JOURNAL


DYING

DECLARATIONS.

The limitations on the admissibility of dying declarations are


shown in the case of State v. Thompson, decided by the Supreme
Court of Oregon and reported 88 Pac. 583. The accused was
convicted of murder in the second degree and appealed from an
alleged erroneous ruling of the court in admitting the dying declaration of his victim. The decedent was told by his physician
that he had only a few moments to live. Preparatory to making
the statements introduced in evidence, the decedent was asked
what expectation of recovery he had, and he replied that he
didn't know. The court held these statements were admissible
as dying declarations.
The admissibility of dying declarations has been long recognized, but the law regarding them has not always been the
same. Some of the very earliest cases show that such evidence
might be admitted in civil suits, as when in an action on a deed,
the dying declaration of a witness to its execution was admitted.
Wright v. Litlet, 3 Burr. 1255. But in an action of ejectment
reported in 17 St. Tr. I6, (1743) a distinction between the admissibility of such evidence in criminal and civil actions was
pointed out and the necessity for admitting dying declarations
in the latter was shown not to exist.
The modern doctrine regarding the admission of dying declarations insists upon the presence of well-defined circumstances
at the time of the making of the declarations.
They are only
admissible in trials for homicide, State v. Barker, 28, Oh. St.
583; the death for which the accused is on trial must be that of
the declarant.
Railing v. Comr., iio Pa. 103; the subject of the
declarations must be the circumstances connected with the death
for which the prosecution was instituted. People v.. Wong Chuey,
117 Cal 624. It is only where these facts exist that statements
of a dying declarant are admissible, and further, there must appear, preliminary to entertaining this evidence the fact that the
declarant was in fear of impending death. Mattax v. U. S., I46
U. S.; 140, Whether or not all these conditions are present
must be decided by the court and then the evidence must be admitted or excluded accordingly.
That such declarations are only admissible in prosecutions
This exception to the hearsay
for homicide is now well settled.
rule was originally made on the ground of necessity and it is
only in criminal cases similar to the above that such necessity is
now conceded to exist. It was said by Judge Ogden in Donnelly
v.State, 26 N, J. L.; 6I7; "Such declarations are received as evidence from necessity, for furnishing the testimony which in certain cases is essential to prevent the manslayer from escaping
punishment."
Another limitation recognized by the present doctrine is that
the prosecution in which such evidence is to be admitted must
have been instituted for the death of the person making the
Such dying declarations being admitted because of
statements.
necessity in the case of secret murders, it is plain that the above

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COMMENT

433

rule results naturally. State v. Bohan, x5 Kan. 418. Again the


declaration sought to be introduced must concern the facts leading
up to or causing or attending the injurious act in question. This
rule excludes any narration that the declarant may attempt to
state as to previous relations with the accused. His declarations
are only admissible in so far as they explain the occurrence or fix
the liability on some person. In People v. Smith, 172 N. Y., 242,
the court in discussing the dying declarations introduced in that
case, speaks of such declarations as admissible as part of the
res gestae. It does not seem essential to the dying declarations
now under discussion that they should be part of the res gestae.
Statements of this nature to be admissible should undoubtedly
explain the nature of the assault, but that they should accompany the act so closely as to be part of it would not seem to be
an essential characteristic of this kind of evidence. Words which
accompany and explain an act are admissible where the principal fact is admissible and no limitations are placed on them as is
done in the case of dying declarations.
Another very important qualification to be noticed in this
connection is that the declarant must have made the statements
sought to be introduced with a realization and belief that death
was inevitable.
This qualification must be present, but it is not
necessary that the person should really die soon after the making
of the statements.
Corn. v. Cooper, 5 Allen 495. A declarant
under these circumstances is as likely to tell the truth as if he
In fact, the fear of death
were under the sanction of an oath.
supplies the office of the oath. Tracy v. People, 97 Ill. io6. The
declarant must believe that dissolution will soon result, in order
that full faith should be given his words. State v. Welsor, II 7
Mo. 570. The trial court determines whether or not such fear
exists in the mind of the declarant from all the circumstances of
the case. State v Cronin, 64 Conn. 293.
A few courts manifest a tendency to apply these rules very
narrowly. Especially in determining whether or not the declarant
fear a speedy dissolution, have they been very particular and
fine distinctions drawn which do not meet the approval of many
of the students of evidence.
Undoubtedly in many jurisdictions, the fact that the declarant, as in the principal case, said
that he didn't know what his chances for recovery were, would
be enough to exclude the evidence as not being made in fear
of impending death, and it would seem that a strict application
of these rules was wise, as the accused if deprived of many well
recognized privileges by the admission of these statements
under any conditions.
FEDERAL PRACTICE-WAIVER OF JURISDICTION-RECOUPMENT.

The United States Supreme Court, in the recent decision in Merchant's Heat & Light Company v. J. B. Clow & Sons, 204 U. S. 286,
adds an important contribution to the law of pleading and practice
in the Federal Courts.
The suit was brought in the United States Circuit Court for the
Northern District of Illinois and was based on a breach of contract

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