People v. Kraft

The indictment charges that the defendant on January 14,1893, by the use of an instrument called a “catheter,” attempted to procure the miscarriage of Bertha Kern, who was then pregnant, and that by means thereof she died. The evidence upon which the defendant was convicted Consisted of the dying declaration of Bertha Kern, which was made January 28, 1893, to Michael J. B. Messemer, a coroner, and was reduced to writing, and signed by the decedent. Hearsay evidence is a statement made by a person not called as a witness,"which is received in •evidence on the trial, to which class dying declarations belong. Declarations made in apprehension of death, by a sick or wounded person, in respect to the cause of his condition, are admissible in trials for murder and manslaughter when the cause of the declarant’s death is a fact in issue. It i¿ unnecessary to state the reasons for this rule which has so long prevailed. Its history is given by Mr. Justice Stephen, at page 446, in the first volume of his History of the Criminal Law of England. Whether the declarations were made in apprehension of death, and after the declarant had lost all hope of recovery, is to be determined by judge; and the learned recorder rightly determined this question, and properly received the declaration in evidence. In instructing the jury as to the . weight which should be given to it, he said:

“ So that I charge you, gentlemen, that this testimony which has been introduced relative to the dying declaration of this girl is competent testimony, and proper for you to consider; and it is your duty to take it into consideration, -because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence.”

The highest species of testimony is that given by an intelligent and wholly disinterested witness, who observed under favorable circumstances the facts testified to. The recorder, by his instruction, declared that a dying declaration is given all the sanction or weight which the law can give to evidence. This was more than saying to the jury that the declaration was entitled to the same weight as if the same facts had been testified to by the declarant under an examination and cross-examination before the jury. One of the principal means of testing the credibility of testimony is the right to cross-examine a witness, and develop every fact legitimately bearing upon the statement. When a dying declaration is read in evidence, there is no-opportunity to cross examine the declarant, and no opportunity for the jury to see the witness, and determine in respect to his intelligence and fairness. So far as we know, the question as to the weight to be given to such evidence has been considered in but one reported case in this state. In People v. Knapp, 1 Edm. Sel. Cas. 177 , Mr. Justice Edmonds instructed the jury as follows :

“And though that statement [the dying declaration] had been made with all the solemnity of a consciousness of approaching deatli, and therefore entitled to the same weight as her testimony would have been if given personally before them, yet it was not entitled to any more, and was to be weighed and tested, as to its credibility, by all the other circumstances of the cáse."

In that case the defendant was acquitted, and the instruction was not reviewed.

The question as to the weight of such declarations has been discussed by many text writers, and all agree that it is not entitled to the same weight as though the declarant had stated the same facts on the trial, and an opportunity given to cross-examine, and observe the demeanor of, the witness. 3 Russ. Crimes (5th Ed.) 361, 362 ; 1 Tayl. Ev. (6th Ed.) p. 646, § 652 ; Rose. Cr. Ev. [9th. Ed.) 37; Field Ev. (4th Ed.) 157 et seq.; Best, Ev. (5th Ed.) 637; Whaat. Hom. (2d Ed.) § 472; Whart. Cr. Ev. (8th Ed.) § 276; 1 Greenl. Ev. [13th Ed.) § 162; 1 Phil. Ev. (Edward’s Ed.) 298; 2 Poth. Obl. (3d Am. Ed.) 250. The dangers of implicity relying on dying declarations are clearly pointed out by Mr. Justice Appleton, in his learned work on Evidence, at page 202 et seq. But we are not left wholly to the authority of text writers. The question has been considered in three of the states of this Union, where it was held that the same weight should not be given to a dying declaration-as would be given to the same statements testified to in the presence of the jury. State v. Green, 13 Mo. 382 ; State v. McCannon, 51 id. 160; State v. Vansant, 80 id. 67; State v. Mathes, 90 id. 571; Lambeth v. State, 23 Miss. 358 ; Walker v. State, 37 Tex. 366 . Upon principle, such declarations are not entitled to as much weight as should be given to the highest species of testimony, nor to as great weight as should.be given to the

VAN BRUNT, P. J., and PARKER, J.—We concur in f-e opinion of Mr. Justice FOLLBiTT, except in so far as it holds that the dying declaration was admissible under the proofs in this case. We think it was not.