Lester v. State

Citations

• 37 Fla. 382

Syllabus

<p>CRIMINAL LAW—DYING DECLARATIONS—IMPEACHMENT OP—ADMISSIBILITY OP THREATS—PREJUDICIAL REMARKS BY JUDGE—CHAPTER 4400 LAWS IS CONSTITUTIONAL—EXCEPTING TO REFUSALS TO GIVE REQUESTED INSTRUCTIONS.</p> <p>1. Dying declarations in cases of homicide form an exception to the rule against the admissibility of heresay evidence. To render such declarations admissible the judge must be fully satisfied that the deceased declarent, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarent of his.speedy and inevitable death is a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law-and fact for the judge to decide, before permitting the introduction of the declaration itself. The judge hears all pertinent evidence that exhibits the state of mind of the deceased at the time of making the declaration, settles any conflicts in such testimony and, if fully satisfied that it was made under such circumstances as render it legally admissible, it should be ad- ■ mitted. It is not necessary that such preliminary test should consist of express utterances, but it may be gathered from any circumstance or from all the circumstances of the case.</p> <p>2. While the dying declarations of the deceased are admissible in evidence in homicide cases, when shown to have been made under proper circumstances, and, when admitted, are entitled to their appropriate weight as evidence, yet they are open to observation and impeachment in any of the modes by which the evidence of the deceased could have been impeached had he been alive and testifying under oath. It may be impeached by showing that the general reputation of the deceased for truth and veracity in the community in which he lived was bad, and that he could not be believed under oath.</p> <p>3. Great care should always be observed by the t