My study of this record leaves me in disagreement with the decision about to be made. Without repeating evidence, which has been fairly outlined by Judge DESMOND, I agree that, in the circumstances surrounding the accusatory statements made by the decedent to the witnesses Florence Callon and police sergeant Gigliotti, the admission of those statements in evidence constituted reversible error. (People v. Koerner, 154 N.Y. 355,374; People v. Conrow, 200 N.Y. 356, 367; People v.Kennedy, 164 N.Y. 449, 456-457.)
I do not agree that the Trial Judge erred when — with instructions which I regard as appropriate — he submitted to the jury a dying declaration, made by the decedent twelve hours before her death. The record is in sharp contrast to that of the ordinary homicide where the victim's dying declaration is prompted by stereotyped questions carefully designed to acquaint the declarant with the imminence of death and to qualify the declaration within controlling rules of evidence. Here it is theunprompted character of decedent's statements *Page 229 which reinforces credence in them. There is undisputed evidence that, without being interrogated, she repeatedly stated in simple words that she was "going to die". Those voluntary statements were not mere "suspicion or conjecture" that death was imminent (People v. Bartelini, 285 N.Y. 433, 440); nor do they record any doubt whatever that she sensed impending death and was without hope of recovery. The record proof of those statements thus served later to qualify her dying declaration for admission in evidence. (People v. Falletto, 202 N.Y. 494, 500; People v. Ludkowitz, 266 N.Y. 233, 238-243; People v. Sarzano,212 N.Y. 231, 234-235; People v. Del Vermo, 192 N.Y. 470,487-488; People v. Kraft, 148 N.Y. 631, 633-636; People v.Smith, 104 N.Y. 491, 493-495.)
At least, in my opinion, it cannot be said as a matter of law that the Trial Judge erred when he submitted the decedent's dying declaration to the jury with the following instructions:
"You will recall that during the course of the trial evidence was given by several witnesses as to the physical condition of Anna Allen, the deceased, while she was in the hospital, the prosecution being desirous of introducing into evidence a statement by the deceased which is known as a `dying declaration.'
"A `dying declaration' is a statement of material facts concerning the cause or circumstances of a homicide or killing, made by the victim under solemn conviction of impending death.
"You will recall the testimony of Anna Allen's mother, who told you what Anna Allen said were the circumstances of her injury. I hardly need point out to you that this is hearsay evidence, the mother coming into Court here and being sworn on the witness stand and telling you what her daughter told her at the hospital. The Court felt under all of the circumstances that that statement of Anna Allen, the deceased, made in the hospital, if you find that she made such a statement, should be submitted to you, and its weight and credibility is for your consideration.
"There is a caution that goes with this for while dying declarations, when admitted in evidence, are entitled to be considered as having the weight of an oath, they are not of the same value and weight as direct evidence of the witness, subject to cross examination, and whose demeanor when on the stand is open to your observation. *Page 230
"If you believe that Anna Allen made the statement concerning how she received her injury as testified to by her mother, you will bear in mind that such evidence is a mere statement of what was said by Anna Allen while she was not under oath, made while she was lying on her hospital bed, and made while her body was no doubt in pain, her mind agitated and perhaps her memory shaken by the thought of impending death. Clearly, Anna Allen, the subject of this homicide, could not come here to testify because she is dead. So her unsworn statement of what happened to her is considered as the best evidence obtainable and is admitted for your consideration.
"But again I say to you that such evidence when admitted is, under the law, not of the same value and weight as the testimony of a witness given in open Court under the sanction of an oath, but you may consider such evidence. That is, what her mother said Anna Allen said while she was in the hospital."
It must be conceded that the instructions to the jury quoted above were an accurate statement of rulings by this court found in the decisions cited (supra) where the admissibility of dying declarations was considered. If in this case the admissibility of decedent's dying declaration were the only problem presented I would vote to affirm the judgment of conviction. In view, however, of the erroneous receipt in evidence of accusatory statements by the decedent, I dissent from the view of a majority of the court that the indictment should be dismissed, and I vote for reversal and a new trial.
LOUGHRAN, Ch. J., DYE and FULD, JJ., concur with DESMOND, J.; LEWIS, J., concurs for reversal but votes to order a new trial in an opinion in which CONWAY and BROMLEY, JJ., concur.
Judgments reversed, etc. *Page 231