People v. Brecht

The defendant was indicted and convicted of the crime of manslaughter in the first degree, in having caused the death of one Pauline Schaefer through performing a criminal operation upon her. There is no direct evidence that the defendant performed or aided in the criminal operation. For that fact the people were com

The appellant insists that the facts proven were insufficient to permit the declarations of the deceased to be introduced in evidence as dying declarations to show defendant’s participation in the criminal abortion. We think such contention correct, and that the declarations were improperly admitted. The statements of the deceased concerning her belief as to her immediate death and abandonment of hope of recovering were elicited by the coroner by categorical questions put to her. The questions and answers are as follows:

” “Q. Do you now believe that you are about to die? A. Yes. Q. Have you any hope of recovery from the effect of the injury which you have received? A. I hope God will let me recover.”

These answers to these questions, with the accompanying declaration that the defendant had assisted in performing the criminal operation upon the decedent, were obtained from the decedent at about 10 a. m. on May 14th, and the operation at the hospital performed in the hope of saving her life took place about 3 o’clock p. m. of that day, and she died about three hours thereafter. Soon after her removal to the hospital on the evening before, the coroner had endeavored to obtain the declarations, but found her in too weak physical condition. He testifies that when he took her statement he believed her to be in a dying condition, but did not tell her so; nor is there any proof that any physician or other person apprised her of the dangerous condition she was in and the likelihood of her soon dying. Before she was removed to the hospital, and while the doctors were examining her at the defendant’s home, she walked with support from the bed to a table for better examination, and rode in a carriage to the hospital, with whom does not appear. The case is barren of any facts tending to show that the deceased knew she was dangerously ill, except from the fact that she was bleeding from her genital organs, and that physicians were called, and she was hurried, to a hospital. Even the fact that she knew an operation was to be performed upon her in the afternoon does not

There is no dispute between counsel as to the rule respecting the admission of dying declarations, and both concede that, in order to make them competent as evidence, it must appear that the person making them does so under a belief of impending death, and when entertaining no hope of recovery, and such is the law. People v. Smith, 104 N. Y. 491 , 10 N. E. 873 , 58 Am. Rep. 537 . Before such declarations can be admitted in evidence, both conditions of mind must be established. Belief in impending death alone is insufficient. Abandonment of hope of recovery must also be shown. People v. Chase, 79 Hun, 296 , 29 N. Y. Supp. 376 , affirmed 143 N. Y. 669 , 39 N. E. 21 . Assuming the decedent’s answer to the first question shows, notwithstanding her lack of information as to her precarious condition, that she believed she was about to die, her answer to the second question comes far short of showing that she was without hope of recovery. Taken literally, it shows that she did entertain a hope of recovery. If she had been informed by some physician in whom she believed that she must die, and that her condition was hopeless, probably her answer might be taken in the nature of a prayer to be spared from what she knew and believed to be inevitable. In the light of the facts appearing, however, we,do not think such an interpretation is permissible. -Dying declara- , tions are admitted from necessity, for lack of better proof. Their reception as evidence is an exception to the general rule, and the facts showing their competency should not be ambiguous or uncertain. People v. Kraft, 148 N. Y. 631 , 43 N. E. 80 .

. In the cases of Brotherton v. People, 75 N. Y. 139 , and of People v. Conklin, 175 N. Y. 333 , 67 N. E. 624 , and of People v. Chase, supra, and of People v. Burt, 51 App. Div. 106 , 64 N. Y. Supp. 417 , affirmed 170 N. Y. 560 , 62 N. E. 1099 , upon which respondent relies, there were elements lacking in the present case, which showed that the decedents had been told they must die, and so believed and had abandoned hope of recovery, or made use of such involuntary expressions as showed their belief in both. In the Brotherton Case, the decedent repeatedly stated that he would not recover, and his physician had told him he must die. The decedent in the Conklin Case was practically, dying when the declarations were made, and the fact that she so stated, and asked that a priest be sent for to administer the last rites to her, in view of her religious belief, was deemed sufficient to show belief of impending death and abandonment of hope, and could not well be interpreted otherwise. In the Chase Case, the statement was; “I believe I am going to die. I would like to live to show you what a good girl I could be, but I won’t have the chance”—or “know I can’t live.” And in the Burt Case, the decedent was informed he must die of his wounds, and declared he. knew it to be so.

The defendant also urges that it was error to permit Dr. Roth to testify to what he learned as to the physical condition and ailment of the decedent on his examination of her when he .ordered her removal to the hospital, because it was a disclosure by him of what he learned while attending a patient in his professional capacity. It is generally understood by the courts that the prohibition of section 834 of the Code of Civil Procedure does not apply to a criminal prosecution for causing the death of the patient, and such is the purport of the decisions in Pierson v. People, 79 N. Y. 424 , 35 Am. Rep. 524 , and People v. Harris, 136 N. Y. 423 , 448, 33 N. E. 65 . The only doubt that such is the law is raised by the fact that the Legislature, by chapter 331, p. 606, of the Laws of 1905, amended that section by providing that it should not apply where the patient was a child under the age of 16 years, and the information acquired by the physician indicated that such patient had been the victim of a crime. It is argued that the enactment of this exception indicates that the Legislature understood that in all other cases no disclosure was permissible. In People v. Murphy, 101 N. Y. 126 , 4 N. E. 326 , 54 Am. Rep. 661 , it was held that the prohibition of the section did apply to a criminal prosecution for producing an abortion where the patient was living. All of the above decisions respecting the application of the section had been made when the Legislature enacted the amendment of 1905, and it can be given full force by interpreting it to apply to a living patient under 16 years of age upon whom a crime had been committed. Under the decisions of the court, the Section did not apply to a dead patient, whose death was the subject of a criminal prosecution; but it did apply to any living patient upon whom a crime was charged to have been committed. By the amendment, it does not apply to a patient under 16 years of age upon whom a crime is committed, whether dead or alive. Our conclusion is that the prohibition of the section does not apply to a criminal prosecution for the death of the patient, and that it was proper to permit the physician to testify to the facts which he learned on his examination of the decedent.

The judgment of conviction must be reversed, and a new trial granted. All concur.