Merrill v. State

58 Miss. 65

• Court: Mississippi Supreme Court
• Decided: October 15, 1880
• Status: Published

Opinion

George, J.,

delivered the opinion of the court.

The plaintiff in error was indicted for the murder of Claiborne Peterson, and convicted and sentenced to imprisonment in the penitentiary for life. On the trial the dying declarations of the deceased were introduced in evidence against the prisoner. These declarations were reduced to writing, and sworn to by the deceased. The paper offered in evidence was not the original, but was proven to be a true copy. The copy was made under the belief that the original was of no value because written with a pencil. After the copy was made, the original was not taken care of and was lost. Under the circumstances, there was no legal objection to the copy as a substitute for the original. But there was error iu admitting the whole of the writing. That part which stated that about two weeks before the killing the prisoner threatened the deceased was incompetent.

Dying declarations are intrinsically weak, being the statement of a party who is unsworn and not subject to cross-examination. They are admitted on the ground of “an overruling public necessity for preserving the lives of the community by bringing man-slayers to justice.” Lambeth’s (Jase, 1 Cushm. 357. They are only admitted “in trials for homicide where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations.” Lambeth’s (Jase, 1 Cushm. 354. That they should be confined to the res gesta of the killing seems to be well settled, not only by the above quotations, but by decisions of other courts. See The State v. Shelton, 2 Jones L. 363; Ben v. The State, 37 Ala. 103.

The objection that a certain question propounded to the witness Shields was leading is without force.

For the error in admitting the whole of the dying declaration, the judgment is reversed and a venire de novo awarded.