State v. Augustus

¶1On the Merits.

¶2[2] Defendant, indicted for murder, is appellant from a verdict of guilty of manslaughter and from a sentence of 10 years imprisonment at hard labor. He bases his appeal for reversal on two bills of exception.

¶3Bill of exception No. 1 alleges lack of foundation for the admission of a dying declaration.

¶4A dying declaration is one made under the sense of impending death. The test of the admissibility of a statement offered in evidence as a dying declaration is: Did the deceased, at the time of making the statement, believe in the reality of his impending death? Such belief being a mere mental operation, its existence can be evidenced only by outward expression and surrounding circumstances. The declaration of the deceased that he was going to die, uncorroborated by the circumstances of the case, has rarely been held, of itself, a sufficient foundation for the admission of his statements as dying declarations; and, while no absolute rule can be laid down by which to decide with certainty whether the declarant, at the time of making his statement, really expected to die, yet when the wound is from its nature mortal, and when, as a matter of fact, the deceased shortly after making his- statement died, the courts have uniformly held that the declarant really believed that death was impending, and his statement has been admitted as a dying declaration. In this case it appears from the bill of exception that, in laying the foundation for the introduction of the dying declaration, the state proved that the deceased was disemboweled by a gunshot wound at close range; that the wound was mortal; that deceased died a few hours after receiving the wound, and before medical aid could be summoned; that when the declaration was made deceased was lying down, with all of his entrails hanging outside of his body; that deceased said to Charles Augustus, “I have been shot to death by Isidore fot nothing.” This discloses a proper foundation for the admission of the statement as a dying declaration.

¶5[3] Besides the fact that the statement offered as a dying declaration was admissible as such, defendant is without cause of complaint, since, as the bill of exception shows, at a later stage of the trial other witnesses testified, without objection, to a dying declaration which did not differ in any respect from the declaration made to Charles Augustus. When testimony has been admitted without objection, defendant is without interest to complain that the same testimony was admitted, over his objection, at a previous state of the trial. The ruling in State v. Smith, 115 La. 801, 40 South. 171, is applicable here. In that case it was held that:

"Assuming that a statement, made by the party killed to a witness, was not res gestae; and should not have been permitted to go to the jury, the accused party suffered no injury, if the same statement went to the jury, without objection, as a dying declaration made by the deceased.”

¶6[4] The second bill of exception is based upon the fact that the district attorney in his closing argument read to the jury a written statement, the contents of which had gone to the jury, and which had been read to the jury by a witness for defendant, and the verity of its contents testified to by that witness and by other witnesses; the objection being that the document had not been formally offered in evidence. We see no error in the overruling by the district judge of this bill; the contents of the document had gone to the jury without objection, and surely it can hardly be seriously urged that, whereas it would have been perfectly legitimate for the district attorney to have repeated from memory in argument the contents of the document, it was illegal to read the document itself.

¶7The judgment and sentence appealed from are, in view of these considerations, affirmed.