People v. Profumo

RICHARDS, J.

This is an appeal from a judgment of conviction of the defendant of murder of the second degree and from an order denying his motion for a new trial.

The first point urged by the appellant is that the court erred in giving to the jury the following instruction upon the subject of dying declarations: “Whether the declaration was in fact made under a sense of impending death is a question of fact which most materially affects the question of its credibility,

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and the determination of the court thereon is not conclusive upon the jury. They have the right, in considering whether they shall accept the declaration as a correct statement, to determine for themselves whether the declarant was

in ex-tremis,

and fully convinced of that fact when making the declaration, and are

at liberty

to disregard it if not satisfied that it was made under a sense of impending death.” The vice which the appellant points out as existing in this instruction is that, while it correctly commits to the jury the final determination as to whether the alleged dying declaration was made while the declarant was

in extremis,

and was conscious of the fact of his condition, it leaves the jury “at liberty” to regard or disregard the declaration although it has not been proven to their satisfaction that it was made under a sense of impending death.

There would seem to be little doubt as to the correctness of this contention. A dying declaration is only admissible in evidence when, in the first instance, the court is reasonably satisfied by evidence

aliunde

that it was made under a sense of impending death; and, having been so admitted by the court, is only competent evidence to be considered by the jury when they shall also have first satisfied themselves beyond a reasonable doubt that it was made by the declarant as a dying person and under a sense of impending death. The rule on this subject is clearly set forth by Mr. Justice Angellotti in the case of