People v. Bemmerly

Sharpstein, J. Upon the trial of the , defendant, upon an information in which he was charged with [118]murder, a document purporting to be the dying declaration of the deceased was offered in evidence by the prosecution. The defendant objected to its introduction. The objection was overruled, and defendant excepted. The grounds of objection appear to be: 1. The declaration does not show that it was made under a sense of impending death. It commences as follows: “I, Mat Faigle, aged forty-three, and a native of Germany, believing my life to be in great danger, being shot in the left side, above the heart, by a ball from the pistol in the hands of one John Wahlfrom, do now, before my God and the undersigned witnesses, make the following true statement, believing it to be my last.”

Whether the statement, alone, would be sufficient to satisfy the rule that the declaration must be made under a sense of impending death need not be decided in this case, as there was other evidence that it was so made. Professor Greenleaf says: “ It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of medical or other attendants, stated to him, or from his conduct, or other circumstances of the ease, all of which are resorted to in order to ascertain the state of the declarant's mind.” (1 Greenl. Ev., sec. 158.) Aliunde the written declaration, there is sufficient evidence that it was made under a sense of impending death. Three or four hours after declarant had received the fatal wound, he was told by his attending physician that he was going to die. And on one occasion decedent told those w'ho were present at his bedside that he knew that he would die, and he [119]wanted to talk privately with his cousin, who was also present. There is much more evidence of similar import.

Another ground of objection is, that the declaration introduced in evidence is not the one made by the dying man. The manner of taking the declaration, as detailed by Dr. Dillon, by whom it was taken, is as follows: He sat on the side of declarant’s bed, and took notes of what declarant said. After taking said notes, witness withdrew to an adjoining room, and from such notes wrote out the statement introduced as a dying declaration. After that was prepared, he returned to the bedside of declarant, and read him each sentence as he went along, and asked him if that was just what he meant, and he said “Yes”; and in that way the whole paper was read to declarant before he signed it. All this occurred in the presence of eight persons, who signed the declaration as witnesses. That this document was not literally copied from the notes taken by Dr. Dillon, he admits. Nor is the language precisely that employed by the declarant in his oral statement to Dr. Dillon. But the doctor testified that he endeavored to give the substance of the statement made to him by the declarant, and he thinks he succeeded, although the written declaration contains some words that were not used by the declarant in his oral statement. However that may be, the declaration introduced in evidence is nevertheless the dying declaration of the declarant. It was read to him, sentence by sentence, and the-accuracy of each sentence was assented to by him; and after hearing it all read in that manner, ho signed it in the presence of witnesses. It then became his dying declaration. If he made another declaration inconsistent with or contradictory of this, it did not render this inadmissible, but might be urged to the jury as affecting his credibility. Upon the facts disclosed by the record, we think the document which purported to be the dying declaration of Mat Faigle was properly admitted in evidence,