Malone v. State

Citations

• 72 Fla. 28
• 72 So. 415

Syllabus

<p>1. Under an indictment for homicide, where the State seeks to introduce a dying declaration of the deceased in evidence, it should be first shown to the satisfaction of the court that at the time the declarations were made the deceased not only considered himself in imminent danger of death, but that he evidently was without hope of recovery. The circumstances under which the statements were made must be shown, in order that the court may determine whether the statements are admissible as dying declarations.</p> <p>2. The utmost care and caution should be exercised by the court in the admission of dying declarations, since such declarations are necessarily a species of hearsay evidence and their admission in evidence is an exception to the general rule of evidence which requires that the witness shall be sworn and the defendant given privilege of cross-examination.</p> <p>3. Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon is entitled to great weight, every presumption being in favor of its correctness, but such ruling'is subject to review by an appellate court, though it will not be disturbed, unless it clearly appear to be erroneous. If the appellate court is clearly convinced that the trial court committed error in admitting such dying declarations, it is its duty to pass upon such ruling, when the same is properly assigned as error, and to reverse the judgment if necessary for the furtherance of justice.</p> <p>4. In proving dying declarations only such statements should be received as evidence as relate to what actually transpired, who were the actors, the position of persons, what was said by the parties, what were the instruments used, who used them and how, and like matters, excluding, if possible, everything except what relates to the res gestae.</p> <p>5. It ma