This case comes on for further consideration after rehearing granted pursuant to opinion filed herein July 22, 1936.
The questions which we review require a determination of what may be admitted in evidence as an accusatory statement in the presence of the accused and what may be admitted in evidence as a dying declaration.
It appears to be well settled that "in order that silence may be received as admission it must be shown either that accused did in fact hear what was said, or that he was in a position to hear. Whether in any case accused heard the charge is a question of fact, unless it is shown positively that he was within hearing distance and there is no evidence that his hearing was impaired." 16 C.J. 632.
Of course, this rule may be considerably modified by the further requirement that the statement must have been made in a tone loud enough to have been heard by the accused and in the language understood by the accused and while the accused was in the possession of his faculties, that is, was not asleep or unconscious. And, in any event, it *Page 646 must be shown that the statement was not denied by the accused.
In Roberts v. State, 94 Fla. 149, 113 So. 726, Mr. Chief Justice Ellis, speaking for the Court, quoted a charge complained of as follows:
"Where someone in the presence of the accused makes a declaration involving or implying his guilt, and there is opportunity for a reply and the surroundings and persons are such as render a denial or explanation ordinarily expedient and proper, yet he remains silent, such conduct and silence may be considered as an admission on his part, so
"`If you find from the evidence that the defendant was charged with shooting William A. Stone and made no denial of such charge then under the law an admission on part of the accused may be implied by you gentlemen of the jury from the fact of acquiescence of the defendant in such incriminating charge or statement, but in order for such silence or acquiescence on part of defendant to be an admission of the truth of such charge made against him you must believe from the evidence that the truth or falsity of the charge made was in the knowledge of the defendant, and that such charge was made in his hearing, and in a language which he would understand, and tended to implicate him directly or indirectly; you must also find that the defendant could have, if he so desired, denied such charge with propriety at the time and occasion when made; and if you do so find from the evidence in the case at bar and that the defendant was charged with shooting William A. Stone in the presence and hearing of the defendant and did not deny said charge under the facts and in the circumstances as stated in this instruction, you are at liberty to consider the charge or statement made as having been at the time and place when uttered adopted by the defendant, and may *Page 647 be considered as competent evidence against him as an indication of guilt.'"
Referring to this charge in the opinion it is said: "The circumstances under which the identification was made rendered it admissible to be given such weight as the jury may have under proper charges by the court considered it entitled to as an indication of the defendant's guilt. See 2 Wharton's Criminal Evidence (10 Ed.), Section 680; 1 Ency. of Evidence, p. 367."
In Autrey v. State, 94 Fla. 229, 114 So. 244, Mr. Justice Strum stated the rule to be:
"Where, on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or to deny is relevant as tending to show his guilt; and the accusatory or incriminating statement is admissible, not as evidence of the truth of the fact stated, but to show accused's admission by silence. Silence alone, however, raises no legal presumption of guilt. Its effect is for the jury, and from it, in connection with other facts and circumstances, they may infer that accused is guilty. The probative force of this kind of evidence is not great, and it is to be received with caution. * * * For the silence of accused to be competent evidence against him, or at least to be entitled to weight, as an admission of the truthfulness of the statements of others made to him or in his presence, the circumstances and statement must have been such as naturally and reasonably to call for a reply by him; and it also must appear affirmatively that he had an opportunity or right under the circumstances of the case to deny the truthfulness of the charges made against him."
And said:
"The rule just stated, and its exceptions, have been approved in effect by this court. See Mumford v. State, *Page 648 70 Fla. 424, 70 South. Rep. 399; Salon v. State, 70 Fla. 622,70 South. Rep. 603, Sumpter v. State, 45 Fla. 106,33 South. Rep. 981. See also Vaughn v. State (Ala.) 30 South. Rep. 669; Jackson v. State (Ala.), 52 South Rep. 835; People v. Amaya, 66 Pac. Rep. 794; State v. Lovell, 138 South. W. Rep. 523; 16 C.J. 631 (1256), and cases cited. Of course, the prompt denial by the accused of such accusatory statement destroys entirely the ground for admitting it. See Mumford v. State, supra. Likewise when the accused is restrained from making a denial by fear or other sufficient cause, or refrains upon advice of counsel no inference or assent can be drawn from such a silence, and the testimony thereof is admissible."
So, we hold that the rule as above stated in 16 C.J. has been uniformly applied in this jurisdiction.
Statements of the deceased made after receiving a mortal wound may be admitted in evidence as dying declarations. The admissibility of such statements as evidence of this character does not depend upon the length or interval of time between the declaration and the death, but the state of the declarant's mind and his belief that he is in a dying condition. It is not enough that the statement be made when the declarant is in extremis. It is also essential that it be made when he has abandoned all hope of recovery from the injury inflicted by accused and is under the firm conviction that his death is inevitable and near at hand. See 30 C.J. 254, et seq. A dying declaration made under such circumstances as to be admitted in evidence will not be rendered incompetent by subsequent temporary revival of the mortally wounded person.
Where several declarations are made at different times each of which would be admissible as a dying declaration, *Page 649 either one, or all, may be admitted. See 30 C.J. 258; Morrison v. State, 42 Fla. 149, 28 So. 97.
The admissibility of an accusatory statement made in the presence of the defendant is a primary question of law to be determined by the Court, as is also the question of the admissibility of evidence offered as a dying declaration, and in either case it is the duty of the court to judicially determine the admissibility of the evidence before it is submitted to the jury. See Roten, et al., v. State, 31 Fla. 514, 12 So. 910.
In the case of Johnson v. State, 113 Fla. 461, 152 So. 176, Mr. Chief Justice Davis, speaking for the Court, said:
"Whether a sufficient and proper predicate has been laid for the admission in evidence of a dying declaration, is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of the trial court thereon is entitled to great weight, every presumption being in favor of its correctness. Such ruling is subject to appellate review, but it will not be disturbed unless it clearly appears to be erroneous. That declarant at the time of his dying declaration, entertained no hope of recovery, and that he knew and appreciated his condition as being that of an approach to certain and imminent death may be gathered from proof of the surrounding circumstances, as well as from all the circumstances of the case. It is not indispensable that deceased declaretotidem verbis that he entertains no hope whatever of recovery, and realizes that death is imminent and unavoidable, where the understood nature of his injury is such as to establish beyond all reasonable doubt that declarant must have known and believed he was talking as a man on the threshold of mortal dissolution. Sealy v. State, 89 Fla. 439, 105 Sou. Rep. 137; Richardson v. State, 80 Fla. 634, 86 Sou. Rep. 619; Gardner *Page 650 v. State, 55 Fla. 25, 45 Sou. Rep. 1028; Bennett v. State,66 Fla. 369, 63 Sou. Rep. 842; Folks v. State, 85 Fla. 238,95 Sou. Rep. 619; Copeland v. State, 58 Fla. 26, 50 Sou. Rep. 621; Malone v. State, 72 Fla. 28, 72 Sou. Rep. 415."
See also the following cases:
"Folks v. State, 85 Fla. 238, 95 So. 619; Gardner v. State,55 Fla. 25, 45 So. 1028; Kirkland v. State, 93 Fla. 172,111 So. 351; Morris v. State, 100 Fla. 850, 130 So. 582; 584; Lester v. State, 37 Fla. 382, 20 So. 232; Lowman v. State, 80 Fla. 18,85 So. 166; Seely v. State, 89 Fla. 439, 105 So. 137; Frier v. State, 92 Fla. 241, 109 So. 334; Malone v. State, 72 Fla. 28,72 So. 415; Richardson v. State, 80 Fla. 634, 86 So. 619; Copeland v. State, 58 Fla. 26, 50 So. 621."
In Coatney v. State, 61 Fla. 19, 55 So. 285, it was held:
"Predicate laid for the introduction of evidence of a dying declaration made on one day cannot be used as a basis for the admission of evidence of another dying declaration made the next day."
Measured by the rules above stated, it appears that the testimony given by G.L. Morrow, Sheriff of Madison County, was properly admitted either as a statement made in the presence of the accused or as a dying declaration.
It is contended by counsel for plaintiff in error that because the plaintiff in error had said to the sheriff just before the deceased made the statement complained of to the sheriff, but not in the presence of the deceased, that deceased attempted to shoot the defendant but he, the defendant, beat him (Sledge, deceased) to it. This involves the first question discussed in the original opinion. We do not think that this meets the rule. It is not sufficient to exclude an accusatory statement made in the presence of the defendant that he should have previously made a statement *Page 651 contradictory to the accusatory statement, but to make the accusatory statement inadmissible when made in the presence of, in the hearing of and in a manner to be understood by the accused, that the accused should then and there exercise his right in the presence of his accuser to deny the accusation or contradict the statement made which implicates him as one guilty of a crime.
The same condition, however, is not found with reference to the statements made by Mrs. Sledge and Mrs. Arndt and which were admitted in evidence over the objection of the defendant. These statements are discussed in the original opinion.
The record does not show a sufficient preliminary examination and adjudication by the Court as to the admissibility of either the statement of Mrs. Sledge or of Mrs. Arndt as a dying declaration of the deceased. Therefore, neither statement was properly admitted in evidence.
The accused was charged in the indictment upon which he was tried with the offense of murder in the first degree. He was convicted of manslaughter. The verdict when considered in the light of the record shows upon its face that it was a compromise verdict. The State contended that the accused was guilty of murder in the first degree and that the record was sufficient to sustain such verdict. The defendant contended that he acted in lawful self defense and that he was entitled to an acquittal on that ground.
In the original opinion we held that the admission of the testimony given by Mrs. Sledge was error but, with our conception of the record at that time, we held that it was harmless error. We recede from that position because we are not able to say that the jury was not influenced to some extent to bring in a verdict of unlawful homicide by reason of the evidence given at the trial by Mrs. Sledge. *Page 652
Perhaps a proper predicate could have been laid for the introduction of the statement of Mrs. Arndt and for the statement of Mrs. Sledge as admissible dying declarations of the deceased; but, they were admitted at this trial without the formality of a proper predicate being laid and without an adjudication of the trial court of their admissibility as dying declarations in conformity with the law in this regard.
It follows that the judgment should be reversed and the cause remanded for a new trial.
So ordered.
TERRELL, J., concurs.
BROWN and DAVIS, J.J., concur specially.
WHITFIELD, C.J., and ELLIS, P.J., dissent.