* Headnotes 1. Homicide, 30 C.J., Section 498; On admissibility in evidence of dying declarations made under sense of impending death, see note in 56 L.R.A. 382, 1 R.C.L., pp. 538, 539; 1 R.C.L. Supp., p. 190; 4 R.C.L. Supp., 40; 2. Homicide, 30 C.J., Section 504. Appellant, Charlie Lea, was indicted in the circuit court of Lincoln county, on a charge of the murder of Hadden Smith, was tried and convicted of manslaughter, and sentenced to the penitentiary for ten years, from which judgment he prosecutes this appeal.
Appellant and deceased were brothers-in-law. The homicide took place in the barn of appellant's father. Appellant's wife, his father and mother, and other witnesses were present. There was ill feeling between appellant and the deceased. The evidence for the state tended to show that appellant was the aggressor in the difficulty and was guilty of murder. The evidence for the defense tended to show that the deceased was the aggressor, and that appellant cut and killed the deceased in self-defense. Several assignments of error are argued on behalf of appellant.
The court admitted over appellant's objection an alleged dying declaration made by the deceased on the day of his death, which took place in the Charity Hospital at Jackson. This dying declaration was made in the presence of two nurses in the hospital, Miss Beasley and Miss Vaughan, and was taken down in writing by the latter, and by her verified and read to the jury on the trial. The deceased was in the hospital about thirty days before his death. He was attended by three nurses, the two referred to and Miss Berry. The dying declaration admitted by the trial court over appellant's objection, is in this language:
"Mr. Smith said: He says he cut me on account of some damn lies I had told. Don't know what they were. He wouldn't tell me who I told them to. I was in his daddy's barn. Went there to see his daddy. He just jumped on me and started cutting me; didn't say a word. Gladys Lea and Mrs. Lea were there. Mr. Lea was there. Mr. Lea didn't say anything out of the way to me. Gladys and Mrs. Lea tried to get me to go back *Page 769 home. No one was in it or had anything to do with it except Charlie. He told John Rutland to tell me to come over there; said he wanted to make friends. I reckon he had accused me of so much, he thought he ought to make friends again. When I got there he was inside the dairy barn. I was just outside. He came out; didn't say a word; grabbed me and started cutting. I got hold of him and stopped the cutting as soon as I could. He didn't cut me after I got ahold of him."
Miss Berry testified that, from the time deceased entered the hospital until his death, he had no hope of recovery. She based this statement on the fact that he said to her as many as a half dozen different times that he had no hope of recovery. However, she testified to no statement of this character made by the deceased on the day of his death. The dying declaration admitted by the trial court was made on the day of his death.
Miss Beasley testified that on the morning of the day of his death she talked to him about his condition. The deceased knew Miss Beasley and knew her mother. He was anxious to see her mother, who was expected to visit the hospital. Miss Beasley testified that on that morning Miss Vaughan stated to her in the presence of deceased that the latter was going to die, or was dying; that he did die that afternoon; that after hearing Miss Vaughan's statement that he could not recover the deceased expressed the fear that he would die before being able to see Miss Beasley's mother. She testified further that he had no hope of recovery, judging from his statements.
Miss Vaughan testified that, about half past six o'clock on the morning of the day of the death of the deceased, she asked him how he felt, to which he replied, "Very well." Then she said to him, "You are a very sick man, and it is probable you will not live through the day. Do you realize this?" He said, "Yes; I reckon so." Miss Vaughan testified, further, that she asked the deceased to tell her how the homicide happened, the facts in reference to it, and stated in that connection that such a statement from him would probably "help your loved *Page 770 ones after you are gone;" that he closed his eyes and said he would tell her later. Miss Vaughan then left the room. Later she was informed that the deceased had begun to make a statement of the facts and circumstances of the homicide. She testified that she hurriedly returned to his room, and standing with a pencil and tablet where he could not see her, took down the statement above. She admitted that the deceased did not know she was in the room at the time, and there was nothing to show that he knew his statement was being taken down.
It will be observed from the testimony of these three nurses, that although the deceased expressed no hope of recovery at any time, nevertheless, just a little while before making the dying declaration, he stated that he felt very well, and when Miss Vaughan urged him to make a statement of the facts of the homicide he said he would do so later, and when she informed him that he could not recover and would probably die before night he said, "Yes; I reckon so."
A dying declaration is made without the sanctity of an oath and without an opportunity to cross-examine the declarant. To take the place of that sanctity and that right there must be an undoubting belief in the mind of the declarant, at the time the declaration is made, that death is upon him. If it shall appear in any manner that there was hope of recovery, however faint it may have been, still lingering in his breast, the required sancitity is not afforded, and the statement cannot be received. The belief by the declarant that he may ultimately die as a result of his injury is not sufficient to authorize the admission of his statement as a dying declaration. The predicate must exclude all hope of life. It must reach the point of absolute certainty in the mind of the declarant. All hope must be gone. He must feel sure that the finger of death is upon him. Wilkerson v. State, 134 Miss. 854, 98 So. 770; Haney v. State,129 Miss. 486, 92 So. 627; McNeal v. State, 115 Miss. 678, 76 So. 625; 1 R.C.L. 539, section 82. *Page 771
We are of the opinion that the dying declaration in this case does not meet the requirements of the law. The testimony of the three nurses that the deceased had no hope of recovery was based, as shown by their testimony, more on their opinion as to his state of mind than on what he said. But the state of mind of the deceased at the very time of making the dying declaration is of controlling consideration, regardless of what his state of mind had been before. Just before and at the very time of making the alleged dying declaration deceased did not express absolute conviction that death was impending. When told that it was, he said, "I reckon so," and shortly before that he said he felt very well, and when urged to make a statement as to how the homicide took place he said he would do so later. This condition of mind did not show that all hope was shut out; that there was no hope, however faint. On the contrary, as we view the evidence, when the alleged dying declaration was made, the deceased had hope of recovery, notwithstanding Miss Vaughan was telling him there was no hope. Instead of agreeing with her outright he said, "I reckon so." We think this evidence should not have been admitted. It was calculated to have a potent influence on the jury, and doubtless did. We think the action of the court was reversible error.
Other assignments of error are argued on behalf of appellant. It may be that some of them are well founded. They were not harmful to appellant, however, and will probably not occur again on another trial of this cause.
Reversed and remanded. *Page 772