Journal of Criminal Law and Criminology

Volume 39 | Issue 5 Article 7

1949

Some Factors Affecting the Admissibility of Dying

Declarations
Robert H. Klugman

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Recommended Citation
Robert H. Klugman, Some Factors Affecting the Admissibility of Dying Declarations, 39 J. Crim. L. & Criminology 646 (1948-1949)

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. 46 CRIMINAL LAW COMMENTS [Vol. 39

mate objection can be taken to a measure which only places Cook County
on a parity with other counties having one eight-hundredth its popula-
tion. 89
Conclusion
This brief summary of the proposed statutes should indicate that all
are necessary in order to improve the administration of criminal justice
in Illinois. Indeed, they are but a step toward the complete revision or
recodification of the criminal laws of Illinois, a desirable but presently
impractical goal. As has been noted above, all of these bills, in somewhat
different form, were introduced in the 1947 session of the legislature, but
none reached a final vote in both houses. It is to be hoped that the legis-
lature will give more serious attention to these bills when they are intro-
duced in the 1949 session. The changes which have been made in the bills
since their original form in 1947 are mostly for the better, -and should
improve their chances for approval.
WARREN P. HILL
DANIEL WALKER

Some Factors Affecting the Admissibility of Dying Declarations

Dying declarations have long been recognized as an exception to the
hearsay rule. There are two chief reasons for allowing this exception:
first, it is the only evidence available from the deceased, who is often
the best and sometimes the only eye witness to the occurrence; secondly,
it is thought that one who believes himself about to die has lost all
motive for falsehood and will tell the truth "lest he be punished in the
Hereafter."' The effect of the final words of the deceased as to his
assailant is so persuasive to the ordinary juror that courts have adopted
numerous safeguards and rigid rules of admissibility for the dying
declaration. Unfortunately these rules have had the effect of excluding
many trustworthy declarations from the jury. It is very important
therefore that certain safeguards be taken when receiving a dying
declaration.
The first and most stringent requirement of the courts when deciding
the admissibility of dying declarations is a showing that the declarant
believed himself beyond recovery and that death was inevitable. The
strictness of this rule was illustrated in People v. Maria.2 A statement
in that case was dictated by police officers and signed by the declarant.
Although it recited that the declarant believed he was about to die and
that he had no hope of recovery, there was no evidence that a physician
told him so. He asked for a physician prior to the statement but did
not request a priest until about an hour after the statement was made.
The Illinois Supreme Court held that the dying declaration should not
have been admitted, since there was not an adequate showing that the
vened simultaneously only in a district which has a city or borough of at least
300,000 inhabitants, and three grand juries only in the Southern District of New
York). This provision was superseded by the Federal Rules of Criminal Procedure.
89 Cook, population 4,063,342; Putnam (whose grand jury has a permissible life of
six months), population 5,289. Figures from 16th census of United States (1940).

1 People v. Borella, 312 Ill. 34, 143 N.E. 471 (1924); State v. Debnam, 222 N.C.
266, 22 S.E. (2d) 562 (1942); State v. Jordan, 216 N.C. 356, 5 S.E. (2d) 156
(1940).
2 359 Ill. 231, 194 N.E. 510 (1935).
1949] CRIMINAL LAW COMMENTS

declarant had lost hope of recovery. The fact that others around the
wounded man did not believe he could survive was irrelevant.
In contrast to this situation, if the declarant has given up all hope
of recovery, the fact that he actually does live for considerable time
after the statement is made will not invalidate an otherwise admissible
statement, 3 although the length of time between the statement and death
is often used as further evidence of the declarant's expectation of death.4
In a prosecution for murder by abortion in People v. Kreutzer5 the
declaration was admitted where the decedent stated that it was "what
may be my last declaration in life" and witnesses testified to her fixed
conviction that death was inevitable, even though she did not believe
death was immediate and where she in fact lived some time thereafter.
The rule that the declarant must believe that death is impending or
that he cannot recover is the one requisite almost universally accepted
by courts and text-book writers. 6 There is, however, some divergence
of opinion as to what proof of this belief is necessary. 7 An oral declara-
tion to the effect that all hope of recovery is gone will usually suffice.8
A doctor's statement to the declarant that he will die is strong evi-
dence. A decedent's request for the last rites of his church is also a
strong indication not only that he expects to die but also that he is in a
solemn religious state of mind. The nature of the injury itself is
important if the declarant knows of it and its usual effect. It is prob-
able that some courts stress too strongly the significance of requesting
a physician, for often a dying man may ask for a doctor without neces-
sarily changing his belief that death is imminent.
The rule which probably causes the greatest amount of confusion in
determining the admissibility of dying declarations is the one exclud-
ing opinion evidence. According to this rule the statement of the
declarant is treated like the testimony of a witness on the stand in
determining admissibility. If an inference can be drawn from the facts
stated, the jury can just as well draw this inference, and the conclu-
sion of the declarant is superfluous and inadmissible. If a conclusion
is stated which is not inferrable from the facts or the facts on which
it is presumably based are not stated, then it is incompetent. Thus
under a strict interpretation of this rule, no conclusion or opinion is
admissible.
Professor Wigmore advocates abolishing this opinion rule restric-
tion altogether. 9 Since the declarant is dead, no further facts can be
obtained from him, and his testimony is not superfluous but indispen-
sable. Most courts do apply the opinion rule to dying declarations, but
their degree of application differs widely.10
3 People v. Denton, 312 Mich. 32, 19 N.W. (2d) 476 (1945) (11 days); People v.
Kreutzer, 354 Ill. 430, 188 N.E. 422 (1933) (9 days) ; People v. Corder, 306 fli. 264,
137 N.E. 845 (1922) (4 days).
4 Cotney v. State, 32 Ala. App. 46, 26 So. (2d) 598 (1945) aff'd 248 Ala. 1, 26
So. (2d) 603 (1945).
5 354 Ill. 430, 188 N.E. 422 (1933).
6 5 Wigmore, Evidence (3d ed. 1940) §1438.
7 State v. Brown, 209 Minn. 478, 296 N.W. 582 (1941). For collected cases, see
5 Wigmore, Evidence (3d ed. 1940) §1442 note 3.
8 State v. Brown, 209 Minn. 478, 296 N.W. 582 (1941). See Arseneau v. State,
(Tex. Civ. App. 1943) 171 S.W. (2d) 132; 'but see People v. Holmes, 369 fI1. 624, 17
N.E. 2d 562 (1938).
9 5 Wigmore, Evidence (3d ed. 1940) §1447.
10 For collected cases, see 5 Wigmore, Evidence (3d ed. 1940) §1447 note 1.
 CRIMINAL LAW COMMENTS [Vol. 39

Many courts have limited the applicability of the opinion rule in

cases concerning dying declarations to exclude only statements of con-
clusion or opinion of which the declarant cannot know and does not
state the facts upon which the conclusion or opinion is based. An exam-
ple of this would be the following statement in State v. Wilks:"l "You
go away from me; Virgil (the defendant) killed me; you and he made
it up this afternoon to kill me tonight." At the time of the shooting
the deceased was in a lighted room, and the shot was fired from the
darkness outside through a wire screen, a glass window, and a lace
curtain. The deceased could not have seen his assailant, and no facts
are stated showing why the defendant was picked as the murderer.
The whole statement was held inadmissible. Another example where
the exclusion of a statement might be justified on the grounds that it
was an opinion only is a case where the deceased tells which of dif-
ferent 2
drinks poisoned him and does not tell on what basis his decision
lies.'
Following this same line of reasoning, if what is really meant to be a
statement of fact is stated in the form of an opinion, it should not be
excluded. In Owens v. State'3 the deceased said a named person
"assassinated" him. The court, in admitting the statement, said that
although in a legal sense the word "assassinate" might in some cases
be a conclusion, in the light of circumstances surrounding this case it
was clear that the decedent merely was stating the fact that the defend-
ant shot him without apparent cause. Similarly the statements that
the defendant "was trying to get out his gun" and "was reaching in
his pocket1
for his revolver" have been held statements of fact and not
opinion. 4
In contrast to these cases are many in which courts make fine dis-
tinctions between fact and opinion in a field where such distinctions
serve no useful purpose. In cases only three years apart the Alabama
Appellate Court admitted a statement by the deceased that the de-
fendant "killed" him but excluded one that the defendant "mur-
dered" him. 15 The word "murder" was said to be a conclusion
whereas "kill" was a statement of fact. Technically this is correct, but
it has little relevancy as regards the admissibility of a dying declara-
tion.
The opinion rule has also led many courts to exclude otherwise
admissible statements where the deceased indicated a motive or an
absence of motive. Certain courts have time and again excluded the
statement that the defendant "shot me for nothing" although they
would have admitted the statement if the words "for nothing" had
not been added. 16 Fortunately most courts now either allow such a
12 278 Mo. 481, 213 S.W. 118 (1919).
12 People v. Raber, 223 N.Y.S. 133 (1927). For a collection of cases in which
the admissibility of dying declarations of one poisoned is discussed, see 25 ALE
1370, 1391 (1923).
13 11 Ga. App. 419, 75 S.E. 519 (1912).
14 Gaines v. State, (Tex. Crim. Rep. 1910) 127 S.W. 181; State v. Brown, 188 Mo.
451, 87 S.W. 519 (1905). See also State v. Strawther, 342 Mo. 618, 116 S.W. (2d)
133 (1938).
15 Pilcher v. State, 16 Ala. App. 237, 77 So. 75 (1917) ("murdered"); Parker v.
State, 10 Ala. App. 53, 65 So. 90 (1914) ("killed").
16 Nolan v. Coin., 261 Ky. 384. 87 S.W. (2d) 946 (1935) ; Reno v. Com., 258 Ky.
166, 79 S.W. (2d) 692 (1935); Philpot v. Com., 205 Ky. 636, 266 S.W. 348 (1924);
Gardner v. State, 55 Fla. 25, 45 So. 1028 (1908).
1949] 9CIMINAL LAW COMMENTS

statement or merely exclude the words "for nothing." Yet such

statements as17 "he shot me in cold blood" are still excluded in some
jurisdictions.
Closely akin to this rule is the requirement that only facts leading
up to or causing the fatal injury are admissible. A full narration of
the occurrence causing death is usually allowed, however. In the prose-
cution of a defendant for manslaughter where death was caused by an
illegal abortion, the Illinois Supreme Court held a written 'dying
declaration admissible which contained the decedent's version of occur-
rences commencing with her first visit to the defendant's office and
terminating with a description of her physical condition after the
criminal act.' 8 All of this was held a material and competent part of
the proof of matters connected with the alleged abortion and death.
Even the deceased's conclusions regarding her operation did not ren-
der the dying declaration inadmissible, since they were based on ante-
cedent facts stated in the declaration. 19
Where the decedent tells of past acts which would serve as the
motive or show bad feelings between defendant and deceased, these are
excluded. 20 If the deceased did not know as a fact who killed him, then,
since his conclusion as to his assailant would be excluded, there might
be justification for also excluding statements of past acts, since a court
will not predicate a present assault on the fact of prior assaults; but
when the deceased positively identifies the accused as his assailant, the
jury should be given the benefit of any declaration of prior acts to
show motive or bad feeling. In such a case the accused is not identified
as the assailant because of his past acts, and thus the most valid objec-
tion to the admissibility of such statements is not present. Narrations
of occurrences not connected with the fatal act are excluded by most
courts, however.
Occasions have arisen where the declarant has died before he could
complete his dying statement. Some courts have excluded the portions
of the statements made on the ground that the declarant, had he been 21
able to complete the statement, might have qualified what he said.
It is immaterial in such a case how much of the affair is told as long
as the declarant told all he intended.2 2 Mlany courts severely
23
limit this
rule by applying it only to matters of substance, however.
The question of what form is preferable often arises in respect to
dying declarations. The fact that a declaration is written or sworn
to neither adds to nor detracts from its admissibility. Where there is a
written d&claration, it will not preclude testimony of additional oral

17 Skeggs v. State, 24 Ala. App. 307, 135 So. 431 (1931) cert. denied 223 Ala.
221, 135 So. 433 (1931) ; White v. State, 24 Ala. App. 442, 136 So. 420 (1931).
18 People v. Kreutzer. 354 Ill. 430. 188 N.E. 422 (1933).
19 Accord: Com. v. Smith, 213 Mass. 563, 100 N.E. 1010 (1913). For a resum6
of cases discussing the opinion rule in regard to declarations concerning abortions,
see 25 ALR 1370, 1380 (1923).
20 Webb v. State, (Tex. Crim. Rep. 1937) 106 S.W. (2d) 683; State v. Shelton, 116
W. Va. 75, 178 S.E. 633 (1935); Freihage v. United States (C.C.A. Alaska, 1932) 56
F. (2d) 127; Wolfe v. State, 200 Ind. 557. 159 N.E. 545 (1928).
21 Daughters v. Com., 255 Ky. 172, 73 S.W. (2d) 10. 94 ALR 673 (1934).
22 State v. Tubbs, 101 Vt. 5, 139 Atl. 769 (1928) ; Kalb v. State, 195 Ga. 544, 25
S.E. (2d) 24 (1943).
23 Ward v. State. 3 Blackford (Indiana) 101 (1846); of. Kalb v. State, 195 Ga.
544, 25 S.E. (2d) 24 (1943). But of. State v. Brinkdey, 183 N. C. 720, 110 S.E. 783
(1922).
 CR1MINAL L.11W COMMENTS[. V'ol. 39

declarations. The fact that the declaration, if written, is not in the

declarant's words or is not written by him will not render it inadmis-
sible. 2 4 Nor will the fact that leading questions are asked him invali-
date the declaration. Even though the victim can answer only yes or
no to questions, such is admissible to the jury for their consideration
if other qualifications for admission are met.2 5 Should it appear that
the statement was really not that of the accused, however, or that he
was led to assent to the opinion of another, the court may reject the
statement.2 6 If an oral statement is copied down, such copy has no
greater validity than the account of anyone who witnessed the declara-
tion, but the witness who copied the declaration should be allowed to
use it to refresh his recollection. If the written account is signed, how-
ever, most courts apply the parol evidence rule to preclude 2oral7
testi-
mony. Others admit both the written and the oral testimony.
The admissibility of dying declarations is severely restricted by many
rules, some of which are purely arbitrary and some of which are based
on reason but which have been carried past the point of value. The 28
legislatures of some states have set about to abolish these restrictions.
Progressive courts in other states have themselves done much to alle-
viate the situation. But until these effects have materially multiplied,
it is of the utmost importance that those who receive dying declara-
tions guide the efforts of the declarant to cover those questions requi-
site to admitting the declaration and to avoid the pitfalls of opinions
and conclusions.
ROBERT H. KiUGMAN
24 Piercy v. State, 138 Neb. 301, 293 N.W. 99 (1940).
25 People v. Madas, 201 N.Y. 349, 94 N.E. 857 (1911) ; Simpkins v. Com., 229 Ky.
348, 17 S.W. (2d) 245 (1929); State v. Tubbs, 101 Vt. 5, 139 Atl. 76. (1928).
26 For collected cases, see 5 Wigmore, Evidence (3d ed. 1940) §1445 note 7.
27 Compare State v. Elias, 205 Minn. 156, 285 N.W. 475 (1939) with Huff v.
Com., 270 Ky. 36, 108 S.W. (2d) 1044 (1937). See Gray v. State, 181 Md. 439, 30
A. (2d) 744 (1943).
28 Colo. Stat. Anno. (1935) Cur. Supp. (1947) tit. 3, ch. 63, §21; North Carolina
Gen. Stat. (1943) ch. 28, art. 19, §28-173; Arkansas Statutes, Acts 1935, p. 90
(followed in Missouri Pacific R. Co. v. Hampton, 195 Ark. 335, 112 S.W. (2d) 428
(1938). For collected cases based on state statutes, see 5 Wigmore, Evidence (3d ed.
1940) §1432 notes 4, 5, 6, and 7.