Appeal, No. 229, Jan. T., 1957, from judgment of Court of Oyer and Terminer and General Jail Delivery of Chester County, Sept. T., 1954, No. 266, in case of Commonwealth of Pennsylvania v. Mary E. Brown. Judgment affirmed.
Harold K. Wood, with him Reilly & Wood, for appellant.
Samuel J. Halpren, Assistant District Attorney, with him John E. Stively, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
A narrow but very important question is raised in this case: Was it reversible error to charge the jury that a dying declaration in a homicide case has the same effect as if it were made under oath?
Mary E. Brown was indicted for murder but was convicted of voluntary manslaughter. Defendant and Vivian Gay, apparently in a fit of jealously, attacked Dorothy Francis, the decedent, on the street. Dorothy Francis was killed by a knife wound in the breast. Who stabbed her was the crucial factual question, Vivian Gay blaming Mary Brown and Mary Brown blaming Vivian Gay. Two eyewitnesses testified that defendant, Mary Brown, attacked Dorothy Francis with a knife, while Vivian Gay beat her with a golf club.*fn1 Defendant denied that she had a knife or that she stabbed Dorothy Francis, and testified that Vivian Gay was the one who had the knife and inflicted the mortal wound. Vivian Gay testified that she saw Mary Brown, the defendant, stab Dorothy Francis, and that while they were both in jail, defendant admitted to her that she had stabbed Dorothy Francis. Moreover, Dorothy Francis, just before her death and at a time when she knew she was about to die, made an alleged dying declaration that Mary Brown, the defendant, stabbed her.
The Judge's charge to the jury was lengthy and very able with the one possible exception which is here alleged for error, namely, that if the jury were satisfied beyond a reasonable doubt that Dorothy Francis believed she was about to die and had no hope of recovery when she stated that Mary Brown stabbed her "you can give that statement the same effect as though it were made under oath". Because of the conflict of evidence, the Court's charge on this point was important.
The subject of dying declarations and the restrictions and limitations on their admissibility were analyzed and reviewed by this Court in Commonwealth v.
and the fear of punishment in the hereafter if one tells a lie just before death, or (2) because of necessity*fn4 - since the victim of the homicide cannot testify its admission is necessary to protect the public against homicidal criminals and prevent a miscarriage of justice. However, a number of authorities point out that while it is a substitute for an oath and its credibility and weight is for the jury, it is merely hearsay and is not the equivalent of nor does it have the same value or weight as the testimony of a witness given under oath in open Court which, of course, is subject to cross-examination. In our judgment, both grounds justify the admissibility of dying declarations; the value and weight of such declarations (if the trial Court admits them), all authorities agree, are for the jury.*fn5
If a dying declaration is not the equivalent of sworn testimony under oath, what weight is the jury to give it if they believe it, and how can a trial Judge express to them the difference in value and weight of dying declarations as contrasted with sworn testimony? Would not any such attempt merely serve to confuse the jury?
Some authorities which limit the value and weight to be given to dying declarations, point out that the declarant may be influenced by hatred or revenge or similar unworthy motives,*fn6 but this is equally applicable
to any despicable character who takes the witness stand. "'When every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating the most impressive of sanctions.' 1 Wharton's Criminal Law, § 669; 3 Russell by Greaves 250; 1 Greenleaf, §§ 156, 162, 346; 1 Taylor on Evidence 616.": Brown v. Commonwealth, 73 Pa. 321, page 327.
Expressed in other words, when a person is faced with death which he knows is impending and he is about to see his Maker face to face, is he not more likely to tell the truth than is a witness in Court who knows that if he lies he will have a locus penitentiae, an opportunity to repent, confess and be absolved of his sin? For all these reasons, we believe, weighing all the pros and cons, that it is in the best interests of the public that a dying declaration should be considered as the equivalent of testimony given under oath in open Court. However, from a realistic point of view, it would seem advisable for a trial Judge to omit, in his charge to the jury, any comparison and merely say that the question whether the declarant believed he was ...