Whittle, J.,
after making the foregoing statement, delivered the opinion of the court.
As remarked in the statement of facts, there are but two assignments of error' and they will be considered in the order of their statement.
I. Were the dying.declarations of the deceased admissible evidence?
The doctrine of the admissibility of dying declarations as evidence is confined to cases of homicide, where the death of the declarant is the subject of inquiry. It constitutes an exception to the general rule which excludes the [925]*925admission of hearsay evidence, and is justified on grounds of public necessity. Such declarations were admissible at common law.
In 1 East’s Pleas of the Crown, p. 153, it is said: “Evidence of this sort is admissible on the fullest necessity; for it happens that there is no third person to be an eyewitness of the fact, and the usual witness in occasions of other felonies, namely, the party injured himself, is gotten rid of.”
In a note to 1 Greenleaf on Evidence (14 ed.) sec. 156, it is stated that Rex v. Reason, 1 Strange 499 (14 How. St. Tr. 1), decided in 1722, is .the earliest reported English case on the subject. As is now well known, the doctrine is engrafted on the jurisprudence of the United States and of all the States of the Union.
In Bull’s Case, 14 Gratt. (55 Va.), 620, it is said: “To render dying declarations admissible evidence,. they must be shown to have been made when the declarant is under a sense of impending death, and without any hope or expectation of recovery. Whether so made or not is a preliminary question to be determined by the court in all the circumstances of the case.” Pass’ Case, 3 Leigh (30 Va.), 786, 24 Am. Dec. 695; Hill’s Case, 2 Gratt. (43 Va.) 595. But when admitted the weight or credit to which such declarations are entitled is a question for the jury.
The testimony of Salyer and Vermillion plainly brings the declarations of the decedent within the influence of the prescribed rule. Indeed, the fact is not questioned but that Dorton was fully conscious of his condition, that death was impending and that he had no hope of recovery. Hall’s Case, 89 Va. 177, 15 S. E. 517; O’Boyle’s Case, 100 Va. 785, 40 S. E. 121, Bowles’ Case, 103 Va. 816, 48 S. E. 527; Patterson’s Case, 114 Va. 807, 75 S. E. 737. But the specific objections to the admission of the declarations are: First, that response of the deceased to the inquiry whether the [926]*926shooting was accidental or done purposely, “Done it a-purpose,” was purely an opinion, and not a statement of any fact or circumstance of the occurrence. And, secondly, that the expressions of animosity indulged in by the deceased toward the accused, at the time of making the dying declarations, manifested such a frame of mind on his part as to render the declarations inadmissible. The plaintiff in error relies on Patterson’s Case, supra, as authority for the first proposition.
That case unquestionably correctly sets forth the general rule that dying declarations are only admissible as evidence in respect to the circumstances of the transaction itself which results in the death of the declarant. Consequently it was held, that declarations of the deceased as to his attitude toward the accused and his daughters prior to the date of the homicide, constituted no part of the circumstances of the transaction and were self-serving declarations and on those grounds were inadmissible. The particular question here, however, involves the admissibility of the statement of the declarant that the shooting was not accidental but intentional, a statement which, if admissible, has vital bearing upon the transaction which is the subject of inquiry.
Professor Wigmore, in his work on Evidence, maintains with convincing ability the proposition,, that the rule with respect to opinion evidence has no application to- dying declarations. In that connection he says: “The opinion rule has no application to dying declarations. The theory of that rule is that whenever the witness can state specifically the detailed facts observed by him, the inference to be drawn from them can equally well be drawn by the jury so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him, by questions, any more detailed data than his statement may contain, and hence his inferences [927]*927are not in this instance superfluous, but are indispensable ...” 2 Wigmore on Evidence, sec. 1447.
The author, with some asperity, criticises the courts for applying the opinion 'rule to dying declarations. Certain it is, there is much contrariety of opinion on the subject. Nevertheless, as we know of no controlling precedent by this court on the precise point, we feel at liberty, in the interest of human life and the due administration of justice, to adopt and apply the rule enunciated by Mr. Wig-more and the line of authorities cited by him in support of it as founded on the better reason.
In the following cases dying declarations were held admissible: Sullivan v. State, 102 Ala. 135, 142, 15 South. 264, 48 Am. St. Rep. 22, “He cut me for nothing;” Gerald v. State, 128 Ala. 6, 29 South. 614, “He killed me for nothing;” White v. State, 100 Ga. 659, 28 S. E. 423. “He shot me down like a dog;” Boyle v. State, 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218, “There was no cause for the killing;” Lane v. State, 151 Ind. 511, 51 N. E. 1056, “That the deceased made no attempt to injure the defendant; Shenkenberger v. State, 154 Ind. 630, 57 N. E. 519, That she was “poisoned by my mother-in-law;” State v. Ashworth, 50 La. Ann. 94, 23 South. 270, “That he was to .blame with his own death,” offered by accused; Powers v. State, 74 Miss. 777, 21 South. 657, “You have killed me without cause;” Lipscomb v. State, 75 Miss. 569, 23 South. 210, 230. “ (1) lam going to die; I have been dead; the good Lord has sent me back to tell you that (2) Dr. L. has killed me, has poisoned me with a capsule he gave tonight, (3) that C. J. had insured his life, and had hired Dr. L. to kill him;” these words were uttered between convulsions; held, by a majority of the court, that (1) and (3) could be separated, and that (2) was admissible; State v. Saunders, 14 Ore. 305, 12 Pac. 441, “He shot me down like a dog;” State v. Lee, 58 S. C. 335, 36 S. E. 706, “He shot me for nothing;” State v. Kessler, 15 Utah 142, 49 Pac. 293, 62 Am. St. Rep. [928]*928911, “He shot me down like a rabbit;” State v. Gile, 8 Wash. 12, 35 Pac. 417, He was “butchered by the doctors.”
The foregoing are some of the cases relied on to sustain the text. So in Wright’s Case, 109 Va. 847, 65 S. E. 19, the statement that declarant knew of no motive on the part of the accused for shooting him, except that he was angry because the deceased had refused to rent him a certain piece of land, was held admissible.as a dying declaration.
In the instant case, the declarant was dying from shock and hemorrhage and his physical condition was such that he could not give a detailed narrative of the constituent circumstances surrounding the shooting.
Free access — add to your briefcase to read the full text and ask questions with AI
Whittle, J.,
after making the foregoing statement, delivered the opinion of the court.
As remarked in the statement of facts, there are but two assignments of error' and they will be considered in the order of their statement.
I. Were the dying.declarations of the deceased admissible evidence?
The doctrine of the admissibility of dying declarations as evidence is confined to cases of homicide, where the death of the declarant is the subject of inquiry. It constitutes an exception to the general rule which excludes the [925]*925admission of hearsay evidence, and is justified on grounds of public necessity. Such declarations were admissible at common law.
In 1 East’s Pleas of the Crown, p. 153, it is said: “Evidence of this sort is admissible on the fullest necessity; for it happens that there is no third person to be an eyewitness of the fact, and the usual witness in occasions of other felonies, namely, the party injured himself, is gotten rid of.”
In a note to 1 Greenleaf on Evidence (14 ed.) sec. 156, it is stated that Rex v. Reason, 1 Strange 499 (14 How. St. Tr. 1), decided in 1722, is .the earliest reported English case on the subject. As is now well known, the doctrine is engrafted on the jurisprudence of the United States and of all the States of the Union.
In Bull’s Case, 14 Gratt. (55 Va.), 620, it is said: “To render dying declarations admissible evidence,. they must be shown to have been made when the declarant is under a sense of impending death, and without any hope or expectation of recovery. Whether so made or not is a preliminary question to be determined by the court in all the circumstances of the case.” Pass’ Case, 3 Leigh (30 Va.), 786, 24 Am. Dec. 695; Hill’s Case, 2 Gratt. (43 Va.) 595. But when admitted the weight or credit to which such declarations are entitled is a question for the jury.
The testimony of Salyer and Vermillion plainly brings the declarations of the decedent within the influence of the prescribed rule. Indeed, the fact is not questioned but that Dorton was fully conscious of his condition, that death was impending and that he had no hope of recovery. Hall’s Case, 89 Va. 177, 15 S. E. 517; O’Boyle’s Case, 100 Va. 785, 40 S. E. 121, Bowles’ Case, 103 Va. 816, 48 S. E. 527; Patterson’s Case, 114 Va. 807, 75 S. E. 737. But the specific objections to the admission of the declarations are: First, that response of the deceased to the inquiry whether the [926]*926shooting was accidental or done purposely, “Done it a-purpose,” was purely an opinion, and not a statement of any fact or circumstance of the occurrence. And, secondly, that the expressions of animosity indulged in by the deceased toward the accused, at the time of making the dying declarations, manifested such a frame of mind on his part as to render the declarations inadmissible. The plaintiff in error relies on Patterson’s Case, supra, as authority for the first proposition.
That case unquestionably correctly sets forth the general rule that dying declarations are only admissible as evidence in respect to the circumstances of the transaction itself which results in the death of the declarant. Consequently it was held, that declarations of the deceased as to his attitude toward the accused and his daughters prior to the date of the homicide, constituted no part of the circumstances of the transaction and were self-serving declarations and on those grounds were inadmissible. The particular question here, however, involves the admissibility of the statement of the declarant that the shooting was not accidental but intentional, a statement which, if admissible, has vital bearing upon the transaction which is the subject of inquiry.
Professor Wigmore, in his work on Evidence, maintains with convincing ability the proposition,, that the rule with respect to opinion evidence has no application to- dying declarations. In that connection he says: “The opinion rule has no application to dying declarations. The theory of that rule is that whenever the witness can state specifically the detailed facts observed by him, the inference to be drawn from them can equally well be drawn by the jury so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him, by questions, any more detailed data than his statement may contain, and hence his inferences [927]*927are not in this instance superfluous, but are indispensable ...” 2 Wigmore on Evidence, sec. 1447.
The author, with some asperity, criticises the courts for applying the opinion 'rule to dying declarations. Certain it is, there is much contrariety of opinion on the subject. Nevertheless, as we know of no controlling precedent by this court on the precise point, we feel at liberty, in the interest of human life and the due administration of justice, to adopt and apply the rule enunciated by Mr. Wig-more and the line of authorities cited by him in support of it as founded on the better reason.
In the following cases dying declarations were held admissible: Sullivan v. State, 102 Ala. 135, 142, 15 South. 264, 48 Am. St. Rep. 22, “He cut me for nothing;” Gerald v. State, 128 Ala. 6, 29 South. 614, “He killed me for nothing;” White v. State, 100 Ga. 659, 28 S. E. 423. “He shot me down like a dog;” Boyle v. State, 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218, “There was no cause for the killing;” Lane v. State, 151 Ind. 511, 51 N. E. 1056, “That the deceased made no attempt to injure the defendant; Shenkenberger v. State, 154 Ind. 630, 57 N. E. 519, That she was “poisoned by my mother-in-law;” State v. Ashworth, 50 La. Ann. 94, 23 South. 270, “That he was to .blame with his own death,” offered by accused; Powers v. State, 74 Miss. 777, 21 South. 657, “You have killed me without cause;” Lipscomb v. State, 75 Miss. 569, 23 South. 210, 230. “ (1) lam going to die; I have been dead; the good Lord has sent me back to tell you that (2) Dr. L. has killed me, has poisoned me with a capsule he gave tonight, (3) that C. J. had insured his life, and had hired Dr. L. to kill him;” these words were uttered between convulsions; held, by a majority of the court, that (1) and (3) could be separated, and that (2) was admissible; State v. Saunders, 14 Ore. 305, 12 Pac. 441, “He shot me down like a dog;” State v. Lee, 58 S. C. 335, 36 S. E. 706, “He shot me for nothing;” State v. Kessler, 15 Utah 142, 49 Pac. 293, 62 Am. St. Rep. [928]*928911, “He shot me down like a rabbit;” State v. Gile, 8 Wash. 12, 35 Pac. 417, He was “butchered by the doctors.”
The foregoing are some of the cases relied on to sustain the text. So in Wright’s Case, 109 Va. 847, 65 S. E. 19, the statement that declarant knew of no motive on the part of the accused for shooting him, except that he was angry because the deceased had refused to rent him a certain piece of land, was held admissible.as a dying declaration.
In the instant case, the declarant was dying from shock and hemorrhage and his physical condition was such that he could not give a detailed narrative of the constituent circumstances surrounding the shooting. Still the conclusion of fact drawn, perchance, from inexplicable phenomena, the expression on the countenance of the accused, the glance of his eye, or the motion of his hand, silent witnesses to an undeclared purpose, left the indelible impression on the mind of the dying man that the shooting was intentional and not accidental.
We are of opinion that the doctrine of reason and also the decisions of the best considered cases is that the statement of the declarant that the shooting was intentional was admissible evidence.
2. The remaining objection to the admission of the dying declarations is that the expressions of animosity by the deceased toward the accused after the shooting manifested such a frame of mind on his part that the trial court ought to have excluded them.
We are further of opinion that the circumstances upon which this objection is predicated affect the trustworthiness of the declarations rather than their admissibility.
In an exhaustive note on the subject of dying declarations to Worthington v. State (92 Md. 222, 48 Atl. 355, 84 Am. St. Rep. 506), in 56 L. R. A. 353, at p. 421, it is said: “From all that can be gathered from the decisions and dieta of judges upon the subject, it may be said that ex[929]*929hibition of resentment toward the accused on the part of the declarant will not of itself render the declaration of the latter inadmissible, but will go to the weight and value of the same as evidence.” Citing Baker v. Com. 20 Ky. L. R. 1779, 50 S. W. 54; State v. Pearce, 56 Minn. 256, 57 N. W. 652; Polk v. State, 35 Tex. Crim. Rep. 495, 34 S. W. 633.
So, in Hill’s Case, 2 Gratt. (43 Va.) 595, it was said: “It is to be remarked that during the whole time from the infliction of the wound until his death, he never expressed the opinion or belief that he would survive. It is true that he manifested during the night at intervals something like feelings of revenge towards the prisoner. But are such feelings inconsistent with the knowledge of the approach of death? Men of different temperaments are differently affected on such occasions.”
II. This brings us to the last assignment of error, namely, that the verdict of the jury is contrary to the law and-the evidence.
The dying declarations of the deceased, W. R. Dorton, which we have held to be admissible, answer that assignment. They are in direct conflict with the testimony of the accused upon the crucial issue in the case: “Was the shooting intentional or accidental?” The jury by their verdict have resolved that issue in the Commonwealth’s favor, their finding has been approved by the trial court, and upon familiar principles it cannot now be disturbed by this court. Va. Code, 1904, sec. 3484.
Upon these considerations we are of opinion that the judgment of the circuit court should be affirmed.
Affirmed.