Commonwealth v. Haney

127 Mass. 455, 1879 Mass. LEXIS 112

• Court: Massachusetts Supreme Judicial Court
• Decided: October 27, 1879
• Status: Published

Opinion

Ames, J.

The rule as to the admissibility of dying declara tians does not require that they should have been made while the sufferer is literally breathing his last. It is enough that they were made when he understands that his injuries are fatal, and believes his death to be near at hand. If he believed himlelf to be in a dying state, it is immaterial that he lived four days after making the declaration. In Commonwealth v. Cooper, 5 Allen, 495, and in Commonwealth v. Roberts, 108 Mass. 296, the death did not occur till about seventeen days after. It is true that, if he had any expectation or hope of recovery, however slight, the declarations are inadmissible. But we find nothing in the bill of exceptions that indicates that he had any such expectation or hope. On the contrary, his language, at the time his declaration was reduced to writing, imports that he doubted whether he should live long enough to make his narration at all. It is not necessary that the written statement should show upon its face that it was made under the apprehension of impending death. That is a fact dehors the writing, and may be proved by paroi testimony. Regina v. Hunt, 2 Cox C. C. 239. It was sufficiently proved at the trial.

We find nothing objectionable in the manner in which it was obtained. The fact that his declaration was reduced to writing in his presence, and subscribed and sworn to by him, cannot have any effect to impair the credit of what he said. The written paper was undoubtedly inadmissible as a deposition, but the words used by the deceased were none the less primary evidence for having been taken down by a bystander in writing. 3 Russ, on Crimes, (4th ed.) 269. They may be testified to by any witness who heard and remembers them. The written statement was a contemporary memorandum of what was said, and the witness had a right to refer to it for the purpose of refreshing his memory. It was not necessary that the examination of the deceased should be conducted in the manner of a formal examination of a witness at the trial. The omission of the interrogatories (if any were put) was immaterial, and we see no ground for supposing that we have not his words exactly as they were uttered. Exceptions overruled.