CHARLESTON.

#### State *v.*Geeen V. Meek

(No. 6325)

Submitted April 30, 1929.

Decided May 7, 1929.

*325*John S. Marcum, A. A. Lilly, John Ferry*and *John H. Meek,*for plaintiff in error.

*Howard B. Lee,*Attorney General, and *W. Elliott Nefflen,*Assistant Attorney General, for the 'State.

HatoheR, Judge:

The defendant was tried in the common pleas court of Cabell county upon the charge of murdering Thomas Stafford. He was found guilty of murder in the first degree, with a recommendation of punishment in the penitentiary. He was sentenced to life-time imprisonment by the trial court. The circuit court of Cabell county found no error in the judgment and the defendant obtained a writ of error here.

The defendant and the deceased were on bad terms. They owned contiguous properties, and the deceased had claimed that it was difficult to keep his property rented because of bees and dogs kept by the defendant. At one time the defendant had paid the deceased $25.00 as damages for loss of tenants. The killing seemingly grew out of the demand of *326tbe deceased for additional damages. Tbe evidence discloses threats by each against tbe life of tbe other. Tbe defendant claims that tbe deceased bad shot at him prior to tbe day of tbe homicide, and on tbe morning of that day attempted to enforce bis demand for additional damages with a pistol. Tbe tragedy occurred on a street in Huntington. There were no eye witnesses. Tbe defendant testifies that be was walking along tbe sidewalk and was overtaken by tbe deceased in an automobile. Tbe defendant’s description of tbe affair is as follows: “His car was about tbe length of tbe hood in front of me. He stopped with tbe door of bis car right opposite me * * * within about a foot of tbe curb, tbe wheels of tbe car, and says ‘Stop there Meek.’ * * * I wheeled around facing him ** * **and be says ‘You going to give me any of that money *V*He said ‘I will kill you, God damn you,’ threw bis band back this way, and I shot him twice just as quick as I could do it.”

A dying declaration of tbe deceased was admitted in evidence, which is as follows: “Questions by Dr. Kappes; and Jas. N. Quinlan, Atty. Q. Now, Tom, tell us all about bow you got shot, where it happened and everything you know about it. Where were you when tbe shooting occurred? A. 17th St. and 11th Ave. (Pause) Q. Go on, tell us all about it? A. The time tbe trouble started, was about tbe 11th of June. Had been having trouble for sometime about bees and bee hives on adjoining lot. Had about three, four or five hives and stands. -Along in tbe spring, I wanted this man Meeks to give me some, be said be would but be didn’t. I was over there and tbe hives were empty. I went down and put up Five ($5.00) Dollars, and I went over and said to this man Green V. Meeks, I said it was all ready. When I went over I was talking to Mr. Meeks, and be put bis band on tbe door, and I bad asked tbe Mayor and be said for Meeks to move them, and I was talking about that, and wanted to know what could be done. Tbe Mayor wanted me to set tbe damages to tbe property and be said to see if we could get matter adjusted without a law suit. I went on home. Q. Did you have a gun with you? A. I didn’t have a gun with me. Tbe only gun I have was at home in tbe pillow. I met Mr. *327Meeks on, tbe street and we commenced to talking about tbe trouble and be began to get.mad, and be said be would pay part, lor me not to cry, and be told me x x I didn’t bit bim and I didn’t have a gun. He said I was stingy, and I said, ‘No, Mr. Meek x x I said I am not afraid of no man, I told bim to get along, only thing I said x x (pause) I am so tired, so tired, I can’t talk. Q. Go on and tell ns bow Meek happened to shoot you. A. He said I was stingy, and I said I would tell bim bow to get some money and I said x x I said I was not stingy, and I gave bim (Meek) a dollar, and I said, ‘I will give a Hundred Dollars to tbe Church (Holiness) Mr. Meek, if you will, ’ and be turned and went in tbe bouse and I came on borne and went up stairs and got my bat. Q. Go on and tell us what happened after that. A. I was sitting in tbe ear and Meeks came along and met me on 17th St. and x x he began to swear and reached in and got bis gun, and I did not bave a gun and it was at tbe bouse under pillow. He just shot me. I was on tbe south side of tbe avenue east of 17th St. A lot of women and children there. Q. Did you make any attempt to strike this man? A. No offense at all. Never tried to bit bim at all. He shot two times, and I asked, ‘For God sake Mr. Meek, don’t shoot me.’ Shot me two times, once in tbe band and then in tbe right side, you can see. They drove up to tbe hospital with me and I said to get Dr. Vest. Q. What made him draw tbe gun ? A. I just said I would give a hundred dollars and that was what made bim mad. Meek’s bees were on my property and I asked bim if be, was going to move them. Tbe tenants moved because tbe bees bad been after tbe people. We bad a law suit and Jno. Perry was my lawyer, and they could not move them on account of tbe danger, and I told them that was satisfactory, so when tbe Mayor gave tbe order x x. Q. What time in tbe morning did you get shot?A. Eleven o’clock.”

This declaration was written from notes of Mrs. Ann Rady, a stenographer. She testified that she was at tbe bedside of tbe deceased about 4:35 P. M., of tbe day be was shot; that Quinlan asked the deceased “if be realized that bis hope of living was but a few hours longer”; that tbe deceased replied, *328“Yes, I know that I do not have long”; that sbe then, took down in shorthand all the questions asked and the answers of the deceased and that the double *x*appearing at several places in the declaration indicates incomplete sentences. Quinlan does not mention in his testimony that he interrogated the deceased as to his condition, but states his recollection to be that Dr. Kappes said in effect to the deceased that he didn’t have long to live. Dr. Kapp.es’ testimony on this point is: “I said, ‘Mr. Stafford, you are going to die.’ And he merely said, ‘Oh, I don’t know,’ as though he didn’t believe anything I said at all. ’ ’(

Error is charged to the admission of this declaration. Much eloquent ink spreads the altruistic theory that a sense of immi-nént death has a beneficent effect upon the veracity of the declarant. See *Hill*v. *State,*41 Ga. 484. An equal or greater amount perhaps has flowed in opposition to that theory. *Railing*v. *Com.,*110 Pa. St. 100. In practice, such declarations have been found to furnish an “unreliable and unsatisfactory character of proof”, and juries are accustomed to attach to them “undue importance.” *Mitchell*v. *State,*71 Ga. 128. “Dying declarations have every element of dramatic evidence”, says Wharton, and as such “they possess an impressiveness out of all proportion to their evidentiary value.” Wharton’s Crim. Ev. (10th Ed.), p. 529. They have been termed “a dangerous innovation” upon the rules of evidence. *Marshall*v. *C. & G. R. R. Co.,*48 Ill. 475, 95 Am. Dec. 561, 563. But they are tolerated upon the grounds of necessity and public policy. 1 R. C. L., p. 529, sec. 70; 30 C. J., p. 252, sec. 495. Consequently, courts are admonished that the facts upon which their admissibility depends should be closely scrutinized, and the rules environing their admission should be stringently applied. 4 Ency. Ev. 945-6. In *Lipscomb*v. *State,*75 Miss. 559, a leading case, those rules are summarized as follow’s: “(a) They must have been made under the realization and solemn sense of impending death; (b) They must have been the utterances of a sane mind; (c) They must be restricted to the homicide and the circumstances immediately attending it, and forming a part of the *res gestae;*(d) A declaration, or part of it, is not *329admissible unless it would be competent and relevant if it were the testimony of a living witness; and (e) Great caution should be observed in the admission of dying declarations, and the rules which restrict their admission should be carefully guarded.”

Some courts have at times apparently lost sight of the distinction between the admissibility of evidence and its weight and credibility after admission. Consequently, there are some decisions, which, in effect, permit the jury to pass on the admissibility of dying declarations. 1 E. C. L., p. 536, sec. 79. We are of opinion, however, that both wisdom and the weight of authority support the view that what constitutes a dying declaration is a question of law to be passed on exclusively by the court. It is the general rule that courts should determine all questions relating to the admission of evidence. Greenleaf on Evidence (16th Ed.), p. 162-3; Wig-more on Evidence, .(2nd Ed.), sec. 2550. We see no sound reason for excepting the admission of dying declarations from the general rule. “The relevancy and admissibility of dying declarations are questions solely for the court.” Wharton’s Crim. Ev., *supra,*see. 275-6; Bishop’s New Crim. Pro. (2nd Ed.), sec. 1212; 4 Ency. Ev. 948-9; 10 A. & E. Ency. Law 384;; Elliott on Ev., sec. 355; Wigmore, *supra,*sec. 1451; Thompson on Trials (2nd Ed.),- sec. 327; Vass v. *Com.,*3 Leigh 786, 794; *State*v. *Cain,*20 W. Va. 679, 684. “The question being one of law, it is a proper subject for review on appeal or upon writ of error.’-’ Wharton, *supra,*sec. 296a; *Donnelly*v. *State,*26 N. J. L. (2 Dutcher) 463, 498; *State*v. *Zorn,*202 Mo. 12, 36.

It is contended by counsel for the defendant that the evidence of Dr. Kappes shows clearly that the statements of the deceased were not made under the realization of impending death and for that reason a sufficient predicate was not established for their admission as a dying declaration. See 30 C. J., 263; 1 R. C. L., p. 537, see. 80. It is not of controlling importance that we as a Court might have come to a different conclusion as to this fact. The ruling of the trial court on such a question will not be disturbed on review where there is legal evidence to support it unless it is clearly erroneous. *3304 Ency. Ev. 979; *McBee*v. *Deusenberry,*99 W. Va. 176. While the evidence of Er. Nappes furnishes ground for debate as to whether deceased realized his condition, the evidence of Mrs. Bady that deceased said he did, is sufficient legally to justify the ruling. Therefore we cannot say that the trial court was clearly wrong upon this point.

Dr. Walter E. Vest, a physician who saw the deceased immediately before the statement was taken, states that in his opinion the mind of the deceased was clear at that time. Counsel contend that despite the opinion of the physician, the statement itself shows that the deceased was not in control of his mental faculties. The statement charges that the trouble began about the bees, but within a few lines says the hives were empty. There is no connection between the statement that the declarant put up $5.00 and the other details narrated. There is apparent confusion between the conversation alleged to have been had with the defendant and one with the mayor. At one place the declarant says that following his offer to give a hundred dollars to the church the defendant turned and went in the house and “I came on home”, etc.; at another, that the offer made the defendant mad, caused him to draw his gun and (by inference) immediately preceded the shooting. Which, if either, is correct? The declarant says there were women and children at the place where he was shot. That statement-is not correct. There is no coherence in the unfinished statement-commencing “We had a law suit.” Other incoherencies could be pointed out. It appears from the evidence that it had been necessary to give the deceased a large quantity of morphine to allay his suffering prior to the time his statement was taken. Mrs. Bady estimated that the declarant consumed thirty to thirty-five minutes in making it. The effect of shock and of the drug pervades this entire statement.' Such a declaration is not rendered inadmissible from the fact that declarant was under the influence of opiates, where his statement is connected and rational. *Taylor*v. *State,*38 Tex. Or. 552; *Com.*v. *Straesser,*153 Pa. 451. But this declaration fails as to these requirements. It is not connected and is frequently irrational. It demonstrates conclusively that the mental bai-*331anee of tbe declarant was dethroned, and accordingly should have been excluded. 4 Ency. Ev. 933; 30 C. J., p. 278, sec. 518; 1 R. C. L., p. 532, sec. 74; *Jolley*v. *State,*130 Tenn. 286; annotation commencing' p. 404, 56 L. R. A.

The admission of the declaration was manifest error and causes a reversal of the case. A discussion of the other allegations of error is therefore unnecessary except to say that we find no error in the instructions given and refused.

*Reversed; new trial awarded.*