CHARLESTON.

#### State *v.*William Dotson.

Submitted April 29, 1924.

Decided June 6, 1924.

1. *Homicide*— Dying *Declaration Signed, Toy Marie Inadmissible WAthont Proof That Declarant Had Knowledge of and Approved Contents.*

A -dying -declaration -in ¡the form of a written statement purporting ¡to (be signed- *by*mark should not he admitted in evidence without ¡proof that the declarant had knowledge of and approved its contents, (p. 598).

*5972. *Same*— Admission *of Dying Declaration Without Proof That Declarant in Articulo Mortis and Conscious of Impending Death Improper.*

It is improper to admit a dying declaration in evidence -without proof before the jury that, the declarant at the time of making the statement "was *in articulo mortis*and conscious of impending death, (p. 598).

Appeal from Circuit Court, Brooke County.

William Dotson was convicted of murder in the first degree, and he appeals.

*Reversed and remanded.*

*W. M. Werkman*and *Erskine, Palmer & Curl,*for plaintiff in error.

*E. T. England,*Attorney General, and *R. A. Blessing,*Assistant Attorney General, for the State.

Litz, Judge:

The defendant, William Dotson, was convicted in the circuit court of Brooke County of murder in the first degree upon an indictment charging him with the murder of one, John Jones. The case comes here on writ of error to the judgment of the trial court imposing the death penalty.

William Dotson, defendant, and John Jones, deceased, lived in adjoining houses at Collier in said county, where they had been working in coal mines for four years. They were intimate friends and had worked on the same coal cutting machine for about a year before the homicide. Sometime after dark on the evening of Saturday, April 28th, 1923, Jones started into Dotson’s house. Dotson smelled whisky as Jones passed him in the doorway, and asked Jones what he had been drinking, remarking that he would “like to have some of it”, whereupon Jones offered to get some whiskey, Dotson agreeing to pay for his share. Jones immediately went off and returned in about twenty-five minutes with a pint of “moonshine” liquor which he and Dotson drank. Jones then left and in a few minutes returned with another pint, most of which they proceeded to drink. The two consumed about two pints of moonshine in little more than a half hour. Another man named Harris, and his wife, *598bad been in tbe house, but Harris partook of only a small quantity of tbe liquor. Harris left about tbe time that bis wife and Dotson’s wjfe went to a mail bos. On tbe return of Dotson’s wife; after an absence of about balf an bour, sbe and Dotson got into an argument over-some.mail wbicb sbe bad just gotten, about wbicb be enquired. A tussle ensued over a revolver, containing three loads, wbicb Dotson bad been looking at before be started drinking. He says be does not remember bow be happened to have tbe gun out, but it was sticking in his belt when bis wife returned. During tbe scuffle with bis wife one load was discharged. At this juncture Jones entered tbe scrimmage with tbe result that tbe two remaining loads were discharged, striking Jones, who was shortly taken to a hospital in Steubenville, Ohio, where be died several days later. Dotson would excuse bis act on tbe ground that be was drunk and bad no intention of firing tbe shots, but his memory appears definite as to numerous details of tbe struggle. He also denies making statements, testified to by several witnesses, on various occasions shortly after tbe shooting to tbe effect that be was glad be bad shot Jones because Jones bad been too familiar with bis wife. Evidence was introduced tending to show the previous good character of accused.

The trial court admitted in evidence over defendant’s objection tbe purported dying declaration of tbe deceased in the form of a written statement, to tbe effect that be and defendant bad always been friends and that at tbe time of tbe tragedy after ■ drinking some moonshine liquor with defendant, the latter engaged in a quarrel with bis wife, seizing and threatening to kill her; and that when be attempted to interfere'and prevent him from shooting bis wife, Dotson turned tbe pistol be bad drawn from bis belt and discharged at her, on deceased and fired twice. Tbe defendant assigns error in tbe admission of this statement. Tbe court took evidence in tbe absence of tbe jury tending to show that tbe deceased at or near tbe time of making the purported statement was in articulo mortis and conscious of impending death, none of wbicb evidence was offered 'to tbe jury. Defendant contends that although the court must determine t*599admissibility of such declaration, and may hear evidence thereon in the absence of the jury, nevertheless after the preliminary investigation, if it is decided that such declaration is admissible, the evidence upon which its admissibility is .determined must go to the jury, it being the province of the jury to decide whether or not the statement was made *in extremist*and without-hope of recovery, and to give it the weight to w,hich in their opinion it is entitled. The statement was introduced before the jury with the bare answer of a witness that, “This is a statement made by John Jones on the .30th day of April, 1923, in the hospital at Steuben-ville ’

The same facts which were considered by the court in passing upon the admissibilty of the declaration must of necessity be considered by the jury in deciding upon its credibility. Hence when the court, having examined the question in the absence of the jury, decides in favor of the admissibility of the declaration, the preliminary proof should then be submitted to the jury to enable them advisedly, and from all the lights which the facts and circumstances afford, to determine upon the credibility, weight, and force of the evidence. Am. & Eng. Enc. of Law, Vol. 10, 2d Ed., p. 387; 30 C. J., p. 268, sec. 507; 3 Wigmore on Evidence, 2d Ed., sec. 1451; *Martin*v. *State,*9 Ohio Cir. Dec., p. 621; *State*v. *Long,*88 W. Va. 669, 689; *State*v. *Clark.*64 W. Va. 625, 630.

Furthermore the statement purports to have been signed by mark in the presence of Helen Y. Kemp, (the witness introducing it), and another, not a witness at the trial, from which it is apparent that Jones was unable to write at that time. The statement, as appears from the- language used, is not in the words of the declarant. Declarations not the language of the deceased must be' read and assented to by him. Michie on Homicide, p. 1065; *State*v. *Elliott,*45 Iowa, 486. There is no evidence showing that Jones read the statement, or knew and approved its contents. In the absence of such facts the statement would not be admissible. “A written declaration may be received in evidence where it was approved by the declarant after reading it or hearing it read by another and is shown by a competent witness who was *600present at the time to be the identical statement so made and approved.” 30 C. J., p. 259, sec. 501; *State*v. *Clark, supra;*Wigmore on Evidence, Vol. 3, 2d. Ed., sec. 1450.

An alleged prior statement of defendant was admitted for the purpose of contradicting his testimony. It is charged that the law partner of the prosecuting attorney took this statement by having the defendant brought out of jail into the sheriff’s office, sworn and compelled to make answer; and for that reason the use of the statement was improper under Section 20, Chapter 152, Code, providing that in a criminal prosecution other than for perjury evidence shall not be given against the accused of any statement made by him as a witness upon a *legal examination.*But such interview of the defendant, being without authorized form of law, was in no sense a legal examination in contemplation of the statute. *State ex rel Lively*v. *Strother, Judge,*89 W. Va., 352. The statement is inadmissible, if at all, on the ground that it constitutes a confession and was introduced without laying the proper foundation. It is not offered in full, nor is there evidence showing that the attorney who secured it bore any special relation to the prosecuting attorney, or to any other officer.

The defendant also complains of the trial court’s action in overruling his motion to quash the indictment on the ground that it shows Beatrice D'otson, the wife of the accused, as one of the two witnesses appearing before the grand jury upon whose testimony it was found. Assuming that the testimony of the wife given before the grand jury was illegal, this would not be sufficient reason for quashing the indictment. It is generally conceded that the mere fact that some illegal or improper evidence has been received before the grand jury or that certain witnesses examined were disqualified to testify, will not invalidate an indictment where other legal evidence was received in its support. *State*v. *Clark,*64 W. Va. 625, 63 S. E. 402; 22 Cyc. 206; *State*v. *Woodrow,*58 W. Va. 532. We might suggest, however, in this connection that the indictment disclosing the name of the wife as one of the witnesses upon whose testimony it was returned should not be given to the trial jury.

*601We find no error upon the other questions presented and, of course, cannot consider any which might have been raised by objections to the State’s instructions or otherwise.

The judgment of the circuit court is reversed, verdict set aside, and a new trial awarded the defendant.

*Reversed and remanded.*