McHugh v. State

BICE, C. J.

— In considering the various modes by which the credit of a witness may be assailed, courts must observe the distinction between an attack upon his general credit, and an attack upon his credit in the particular case. Particular facts cannot be given in evidence to impeach his general credit only, but may be to affect his particular credit — that is, his credit in the particular cause. Thus, the general credit of a witness for the prosecution may be unassailable; he may be hostile to the prisoner, and, on cross examination, may deny that he is so; in such case, who can doubt the right of the prisoner to prove the hostility ? Its existence is a fact which cannot be proved by general reputation. When the witness denies it, it is in its very nature incapable of being proved otherwise than by his previous acts and declarations. It ought to be made known to the jury, because they are to weigh the testimony, and to determine the credif ¿o^whféh each witness is entitled; and b^o&usg asvfiflPbelief will not be readily yielded tQ a'*witness who entertains hostility to the party against whom he is introduced, as to one who entertains n'o such hostility. — 1 Greenl. on Ev. § 450; 1 Starkie on Ev. (edition of 1826,) 135; 4 Phil, on Ev. (edition of 1850, by Van Cott,) 750-752; Yewin’s case, 2 Camp. 638; Rixey v. Baise, 4 Leigh, 330; Atwood v. Welton, 7 Conn. R. 66; Daggett v. Tallman, 8 ib. 168; Somes v. Skinner, 16 Mass. R. 348; Tucker v. Welsh, 17 ib. 160; Melhuish v. Collier, 15 Ad. & Ellis, N. S. 878. Entertaining these views, we hold, that the court below erred in excluding the evidence of the witnesses Maury and Anderson, as offered by the prisoner.

2. We are also of opinion, that the court below erred in admitting the statement marked No. 1, as the dying declarations of the deceased. That statement was taken down by an attorney-at-law, who states the reason why he took it down, the time when, and the way in which he took it, the attending circumstances, and the physical and mental condition of the deceased at the time. It was taken down after 11 o’clock at night, and the deceased died next morning. The mortal wound had been given some two weeks previously. At the time the attorney went to take the statement, the deceased was dying. He was unable to answer the questions put to him by the attorney, although he tried to answer them. His attending friends took upon themselves to “ explain the questions and make the answers.” The only assent he gave to the answers thus made by his friends, to the questions as explained by themselves, was “by nodding his head.” The statement consists of the answers thus made by the friends of the deceased, and thus assented to by him. After the statement was thus written out, the attorney read it over slowly and distinctly to the deceased. The only assent given to it by the deceased was “ by nodding his head.” “ The deceased spoke but a few words after-wards, and had frequently to be aroused, and seemed, while it was being read over to him, to be in a stupor.”

It is clear that the language of the statement is not the language of the deceased; and that the declarations contained in it are not his declarations, unless made so by his mere “nodding his head.” " If there was anything to convince us that he perfectly understood the language employed in the statement, or that he was at the time able to have detected any erroneous inference as to his real meaning, which his friends might have expressed in the answers given by them and embodied in the statement,— we should regard the assent given by nodding his head as sufficient. But we see nothing which satisfies us that he either perfectly understood the language, or was able to have detected the erroneous inference as to his meaning, which his friends may have honestly drawn in making the answers set forth in the statement. He was just in that condition, in which for the sake of peace, orto be rid of the importunity or annoyance of those around him, the probability is, he would assent to, or seem to say, whatever they might choose to suggest. Such an assent, obtained under such, circumstances, by the friends on -whom he relied, — not merely to a translation of language he himself had uttered to express his meaning, but to their inferences as to his meaning, couched in their own language, or in the language of the attorney who took down the statement, — cannot safely or legally be held sufficient to give to the statement thus assented to the force and effect of dying declarations, in a cause involving the life or liberty of a human being. — 1 Greenl. on Ev. §§ 156, et seq.; see, also, authorities cited for the prisoner.

3. It seems to us that the evidence is not as full as it might be, in relation to the hope of recovery or despair of life on the part of the deceased, at the time he made the declaration embodied in the statement written out by coroner Buford, and marked No. 2. Bor that reason, and the additional one that the judgment must be reversed for the errors already pointed out, we decline now to decide whether or not there was error in admitting those declarations. But we deem it proper to remark, that they are not admissible, unless the State first proves to the court the existence of that despair of life on the part of the deceased, at the time he made them, which the law deems equivalent to a sworn obligation; that despair which is naturally produced by an impression of almost immediate dissolution, a dissolution so near as to cause all motives to falsehood to be superseded by the strongest inducements to strict veracity. — 3 Phil. on Ev. (edition of 1850, by Van Cott,) 251-255.

4. It is not essential to the admissibility of those declarations, that Philips, who signed his name as a witness to said statement No. 2, should be produced, or his absence accounted for.

Eor the errors above pointed out, the judgment of the court below is reversed, and the cause remanded; the prisoner must remain in custody until discharged by due course of law.