Commonwealth v. Brown

131 A.2d 367, 388 Pa. 613, 1957 Pa. LEXIS 479

Opinions

Opinion by

Mr. Justice Bell,

A narrow but very important question is raised in this case: Was it reversible error to charge the jury that a dying declaration in a homicide case has the same effect as if it were made under oath?

Mary E. Brown was indicted for murder but was convicted of voluntary manslaughter. Defendant and Vivian Gay, apparently in a fit of jealously, attacked Dorothy Francis, the decedent, on the street. Dorothy Francis was killed by a knife wound in the breast. Who stabbed her was the crucial factual question, Vivian Gay blaming Mary Brown and Mary Brown blaming Vivian Gay. Two eyewitnesses testified that defendant, Mary Brown, attacked Dorothy Francis with a knife, while Vivian Gay beat her with a golf club.

Footnotes

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* Defendant denied that she had a knife or that she stabbed Dorothy Francis, and testified that Vivian Gay was the one who had the knife and inflicted the mortal wound. Vivian Gay testified that she saw Mary Brown, the defendant, stab Dorothy Francis, and that while they were both in jail, defendant admitted to her that she had stabbed Dorothy Francis. Moreover, Dorothy Francis, just before her death and at a time when she knew she was about to die, made an alleged dying declaration that Mary Brown, the defendant, stabbed her.

The Judge’s charge to the jury was lengthy and very able with the one possible exception which is here alleged for error, namely, that if the jury were satisfied beyond a reasonable doubt that Dorothy Francis believed she was about to die and had no hope of recovery when she stated that Mary Brown stabbed her “you can give that statement the same effect as though it were made under oath”. Because of the conflict of evidence, the Court’s charge on this point was important.

The subject of dying declarations and the restrictions and limitations on their admissibility were analyzed and reviewed by this Court in Commonwealth v. Knable, 369 Pa. 171, 175-176, 85 A. 2d 114. In that case the Court pertinently said:

“Dying declarations of the deceased concerning the circumstances of his injuries are admissible in the trial of a person accused of killing him. To validate a dying declaration it is not necessary that the wounded man expressly say that he knows that he is dying; it suffices, if at the time the declaration is made, the declarant believed he was in fact dying and that death was imminent, and death did actually ensue. ... In passing upon the admissibility of an alleged dying declaration all the attendant circumstances should be considered, including the weapon which wounded him, the nature and extent of his injuries, his physical condition, his conduct, and what was said to and by him: Commonwealth v. Lockett, 291 Pa. 319, 139 A. 836; Commonwealth v. Puntario, 271 Pa. 501, 115 A. 831; Commonwealth v. Peyton, 360 Pa. 441, 62 A. 2d 37; Commonwealth v. Plubell, 367 Pa. 452, 80 A. 2d 825; Wigmore on Evidence, Third Edition, Vol. 5, Sec. 1442. Whether the attendant facts and circumstances of the case warrant the admission of a statement as a dying declaration is in the first instance for the court, but, when admitted, the declarant’s state of mind and the eredibility, interpretation and weight to be given his statement are for the jury* under proper instructions: [citing cases].”

However, that case did not answer the exact question here involved, and there are relatively few cases and text authorities directly on the point.

Dying declarations in homicide cases have from ancient times been admitted in evidence either (1) because of solemnity** — the solemnity of the occasion and the fear of punishment in the hereafter if one tells a lie just before death, or (2) because of necessity*— since the victim of the homicide cannot testify its admission is necessary to protect the public against homicidal criminals and prevent a miscarriage of justice. However, a number of authorities point out that while it is a substitute for an oath and its credibility and weight is for the jury, it is merely hearsay and is not the equivalent of nor does it have the same value or weight as the testimony of a witness given under oath in open Court which, of course, is subject to cross-examination. In our judgment, both grounds justify the admissibility of dying declarations; the value and weight of such declarations (if the trial Court admits them), all authorities agree, are for the jury.**

If a dying declaration is not the equivalent of sworn testimony under oath, what weight is the jury to give it if they believe it, and how can a trial Judge express to them the difference in value and weight of dying declarations as contrasted with sworn testimony? Would not any such attempt merely serve to confuse the jury?

Some authorities which limit the value and weight to be given to dying declarations, point out that the declarant may be influenced by hatred or revenge or similar unworthy motives,*** but this is equally appli cable to any despicable character who takes the witness stand. “ ‘When every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating the most impressive of sanctions.’ 1 Wharton’s Criminal Law, §669; 3 Russell by Greaves 250; 1 Greenleaf, §§156, 162, 316; 1 Taylor on Evidence 616.”: Brown v. Commonwealth, 73 Pa. 321, page 327.

Expressed in other words, when a person is faced with death which he knows is impending and he is about to see his Maker face to face, is he not more likely to tell the truth than is a witness in Court who knows that if he lies he will have a locus penitentiae, an opportunity to repent, confess and be absolved of his sin? For all these reasons, we believe, weighing all the pros and cons, that it is in the best interests of the public that a dying declaration should be considered as the equivalent of testimony given under oath in open Court. However, from a realistic point of view, it would seem advisable for a trial Judge to omit, in his charge to the jury, any comparison and merely say that the question whether the declarant believed he was dying at the time he made the declaration, and the credibility, interpretation and weight to be given his statement under the attendant facts and circumstances of the case, are for the jury.

Appellant relies upon Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87, and Commonwealth v. Lockett, 291 Pa. 319, 139 A. 838. In Commonwealth v. Gardner, 282 Pa., supra, the declarant, during the period when she was dying, made several conflicting statements and consequently her credibility was considerably shaken. Perhaps for this reason, the Court said: “Dying declarations are admissible under certain cir cumstances, but if they are admissible they are not to be considered as given under the sanctity of an oath.” In Commonwealth v. Lockett, 291 Pa., supra, a dying declaration which was made in the form of an affidavit was admitted in evidence. Nevertheless, the Court said (pages 322-323) : “. . . This grave situation supplies the place of an oath taken in open Court, although the statement so given is not considered the equivalent of sworn testimony, as the declarant is not brought face to face with the accused and the opportunity to cross-examine is lacking . . .”.

A dying declaration should in our judgment be given the same value and weight as sworn testimony, and any statement to the contrary in prior cases will not be followed by us.

Judgment affirmed.

Vivian Gay was convicted of aggravated assault and battery.

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Italics throughout, ours.

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Brown v. Commonwealth, 73 Pa. 321; Rudisill v. Cordes, 333 Pa. 544, 5 A. 2d 217; Wright v. Commonwealth, 109 Va. 847, 65 ; O’Boyle v. Commonwealth, 100 Va. 785, 40 S.E. 121; Josey v. State, 137 Ga. 769, 74 S.E. 282.

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Railing v. Commonwealth, 110 Pa. 100; People v. Falletto, 202 N.Y. 494, 96 N.E. 355.

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Commonwealth v. Delfino, 259 Pa. 272, 102 A. 949; Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87; Commonwealth v. Jones, 341 Pa. 541, 19 A. 2d 389; Commonwealth v. Knable, 369 Pa. 171, 85 A. 2d 114; State v. Valencia, 19 N.M. 113, 140 P. 1119.

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Railing v. Commonwealth, 110 Pa. 100; Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87; People v. Falletto, 202 N.Y. 494, 96 N.E. 355.