US SUPREME COURT DECISIONS

The plaintiff in error was indicted, tried, and convicted of murder by shooting. Among the evidence for the prosecution, admitted under objections and excepted to, were: (1) A declaration in writing by the murdered person, made after the shooting, and, as claimed, under a sense of in pending death. This was offered in chief. (2) The statement of a witness, offered in rebuttal, that, on a later day and before her death, the murdered person said that her former statement was true. Held:

That it was satisfactorily established that the written statement of the victim was made under the impression of almost immediate dissolution, and that it was therefore properly admitted.

That as it did not appear whether at the time when the later statement was made she spoke under the admonition of her approaching end, or anticipated recovery, it was improperly admitted.

That the evidence so offered in rebuttal was not legitimate rebutting testimony.

Frank Carver was convicted of the murder of Anna Maledon in the Circuit Court of the United States for the Western chanrobles.com-red

Page 160 U. S. 554

District of Arkansas, and sentenced to be hanged, whereupon he sued out this writ of error.

The fatal wound was inflicted by the discharge of a pistol on the night of March 25, 1895 at Muscogee, Creek Nation, in the Indian country, but the death occurred at Fort Smith, Arkansas, May 19, 1895.

In addition to other evidence, there was testimony tending to show that Carver and the deceased were attached to each other; that he was very drunk on the night of the homicide, and that he was in the habit of carrying a pistol, which he was flourishing at that time. A declaration in writing in respect of the circumstances attendant upon the commission of the act, made by the deceased March 27, 1895, was admitted in evidence against objection as made under a sense of impending death.

The testimony of the clerk of the court, Wheeler, to the effect that the deceased, after she was brought to Fort Smith, which was April 14, 1895, said that her former statement was true, was admitted subject to an exception because no proper foundation was laid for its admission.

Exceptions were also taken to certain parts of the charge.