State v. Van Winkle

Citations

• 27 Del. 132
• 4 Boyce 132
• 86 A. 310
• 1913 Del. LEXIS 25

Syllabus

<p>1. Criminal Law—Homicide Cases—Confinement of Jury.</p> <p>There being no statute requiring the confinement of a jury during a trial, the custom to do so will not be followed in homicide cases, where the charge is not for a capital crime.</p> <p>2. Homicide—Evidence—Dying Declarations—Oath.</p> <p>Though an oath attached to an alleged dying declaration could not be considered as a part thereof, the declaration, if otherwise admissible, would not be excluded because it was sworn to.</p> <p>3. Homicide—Dying Declarations—Preliminary Proof.</p> <p>Where the state’s preliminary proof has satisfied the judge that deceased was in contemplation or apprehension of impending death when he made an alleged dying declaration, no controverting testimony on the part of the defendant would be heard before the statement was admitted; but such controverting testimony would thereafter be received and submitted to the jury, as bearing on the weight to be given to the declaration.</p> <p>4. Homicide—Evidence—Dying Declarations—Foundation—Fear of Death.</p> <p>A witness, who talked with deceased half or three-quarters of an hour before an alleged dying declaration was made, testified that deceased said he was “done for”, was “going to die”, and could “not recover”; but the only evidence indicating deceased’s mind as to his condition at the time the statement was made was that of the magistrate, who testified that deceased asked the surgeon if he thought he would recover or get better, and that the surgeon “sidestepped the question”. Held, that the proof that deceased made the declaration in the apprehension of impending death was insufficient to justify ■ its admission.</p>