DEATH BED OR DYING DECLARATIONS
(bouvier) | DEATH BED OR DYING DECLARATIONS. In cases of homicide, those which are made
in extremis, when the person making them is conscious of his danger and has
given up all hopes of recovery, charging some other person or persons with
the murder. See 1 Phil. Ev. 200; Stark. Ev. part 4, p 458; 15 Johns. R. 288;
1 Hawk's R. 442; 2 Hawk's R. 31; McNally's Ev. 174; Swift's Ev. 124.
2. These declarations, contrary to the general rule that, hearsay is
not evidence, are constantly received. The principle of this exception is
founded partly on the situation of the dying person, which is considered to
be as powerful over his conscience as the obligation of an oath, and partly
on the supposed absence of interest on the verge of the next world, which
dispenses with a necessity of a cross-examination. But before such
declarations can be admitted in evidence against a prisoner, it must be
satisfactorily proved, that the deceased at the time of making them was
conscious of his danger and had given up all hopes of recovery. 1 Phil. Ev.
215, 216; Stark. Ev. part 4, p. 460.
3. They are admissible, as such, only in cases of homicide, where the
death of the deceased is the subject of the charge, and the circumstances of
the death are the subject of the dying declarations. 2 B. & C. 605; 15 John.
286: 4 C. & P. 233.Vide. 2 M. & Rob. 53.
4. The declarant must not have been incapable of a religious sense of
accountability to his Maker; for, if it appears that such religious sense
was wanting, whether it arose from infidelity, imbecility or tender age, the
declarations are alike inadmissible. 1 Greenl. Ev. Sec. 157; 1 Phil. Ev.
289; Phil. & Ani. Ev. 296; 2 Russ. on Cr. 688. See, in general, Bac. Abr.
Evidence, K; Addis. R. 832 East's P. C. 354, 356; 1 Stark. C. 522 2 Hayw. R.
31; 1 Hawk's R. 442; Swift's Ev. 124; Pothier, by Evans, vol. 2, p. 293;
Anth. N. P. 176, and note a; Str. 500.
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