Berry v. State

Supreme Court of Arkansas

Berry v. State

38 S.W. 1038, 63 Ark. 382, 1897 Ark. LEXIS 115

CourtSupreme Court of Arkansas

DecidedJanuary 27, 1897

StatusPublished

Cited by6 cases

This text of 38 S.W. 1038 (Berry v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berry v. State, 38 S.W. 1038, 63 Ark. 382, 1897 Ark. LEXIS 115 (Ark. 1897).

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Opinion

Hughes, J.

(after stating the facts.) It appears from the declaration of the deceased, while in extremis, that the defendant had poisoned him, that it was made not from a knowledge of the fact which he had, or could have had, and that it was an expression of his opinion merely, based on the facts that the whisky which had been given him by the defendant tasted “nasty,” and made him sick. This evidence was incompetent, and was calculated to prejudice the defendant. “A mere expression of opinion by a dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself or from other undisputed evidence, showing that it was impossible for the declarant to have known the fact stated.” Jones v. State, 52 Ark. 347.

The declarations of the deceased are admissible only as “to those things to which he would have been competent to testify, if sworn in the cause. They must, therefore, in general speak to facts only, and not to mere matters of opinion.” 1 Greenleaf, Ev. sec. 159; State v. Williams, 67 N. C. 12; Whitley v. State, 38 Ga. 70.

Por the error in admitting the statement that deceased made — as part of his dying declaration — that defendant poisoned him, the judgment is reversed, and the cause is remanded for a new trial.

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Hughes, J.

(after stating the facts.) It appears from the declaration of the deceased, while in extremis, that the defendant had poisoned him, that it was made not from a knowledge of the fact which he had, or could have had, and that it was an expression of his opinion merely, based on the facts that the whisky which had been given him by the defendant tasted “nasty,” and made him sick. This evidence was incompetent, and was calculated to prejudice the defendant. “A mere expression of opinion by a dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself or from other undisputed evidence, showing that it was impossible for the declarant to have known the fact stated.” Jones v. State, 52 Ark. 347.

The declarations of the deceased are admissible only as “to those things to which he would have been competent to testify, if sworn in the cause. They must, therefore, in general speak to facts only, and not to mere matters of opinion.” 1 Greenleaf, Ev. sec. 159; State v. Williams, 67 N. C. 12; Whitley v. State, 38 Ga. 70.

Por the error in admitting the statement that deceased made — as part of his dying declaration — that defendant poisoned him, the judgment is reversed, and the cause is remanded for a new trial.

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Bluebook (online)

38 S.W. 1038, 63 Ark. 382, 1897 Ark. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-ark-1897.

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