State v. Lodge

33 A. 312, 14 Del. 542, 9 Houston 542, 1892 Del. LEXIS 7

• Court: Delaware Court of Oyer and Terminer
• Decided: January 29, 1892
• Status: Published

Opinions

Cullen, J.:

Suppose a witness is called to the stand here and "swears to a certain state of facts; could you contradict that witness by proving that that witness had made declarations to the contrary, unless the attention of the witness were called to it ?

Robinson, for the defendant: Very clearly not.

I call your attention to this because this is a. very important matter. In this case the dying declarations under the law are presumed to be under the sanctity of an oath—it is equivalent to that. If you can admit statements prior to those without an opportunity of the party’s attention being called to them,, it seems to me that it makes a direct innovation of our practice.

Grubb, J.:

I want to get the exact bearings of the question —I am not expressing an opinion.

Dying declarations are admitted in homicide cases, because the-parties are apprehensive of impending death, and there is the prospect of almost immediate dissolution, on the ground that as they are about to enter the presence of their Maker, it is supposed that they will not dare to deceive any more than when they invoke the-attention of their Creator to the oath when made, so that the fact of their coming dissolution is considered to be quite as binding as the taking of an oath in its obligation upon them. The objection made always is that the accused is deprived of the opportunity of calling the attention ot the person who supposed himself to be about to die to certain facts, which, if brought to his attention, he might modify his statement or make none at all; that there is no opportunity to test his judgment, the strength of his recollection or his bias.

But the law says that it insures justice in the greater number of cases and that it is necessary to let it in, although it does deprive-the defendant of testing the memory of the witness and his truthfulness by cross-examination. Then it is as though it says, “ Very well, if you are deprived of that opportunity of ascertaining if that witness was wrong and of bringing any witness to contradict him, when we let in the dying declarations, without an oath,—you ought-to have the right to put in testimony of previous declarations, without laying the ground.” In other words, the party on one hand - says, “ If you let in the dying declarations, I ought to have the-right to contradict them (aside from the rule that I am bound to-lay the ground for a contradiction) by proof of a previous conversation. And so the two, according to Judge Field and these other authorities, seem to balance each other; and where there.isa balance the law leans in favor of human life or personal liberty. That is just the situation.

Now the question is, where there is a loss of cross-examination on the side of the defence and also by the State, in that you have not laid the ground, whether the favor of the law should not be on the side of liberty and life, and should let in the previous statements that are contradictory of the statements made by the person who supposed she was dying. Therefore, as dying declarations are admitted on the ground of necessity, ought not proof of contradictory or inconsistent statements by the deceased to be also admitted on the same ground ?

Houston, J.:

In order to get on with the trial of this case, let us dispose of the question now before us. Although it is fair to say (that counsel and the jury may know) that the Court have some doubt on this question, yet the inclination of the mind of the majority of the Court is that the testimony may be contradicted in the mode proposed, and that therefore the question is admissible.

Thereupon the testimony offered was admitted in evidence.