Friday, September 20, 2013


In order to spare anyone embarrassment, I will not identify the parties involved in the story I am about to tell. I was not involved in the case, but I did hear the story from one of the principal participants. It seems that many years ago in a small North Florida county, a man received a fatal gunshot wound in a bar fight. Officers responded to the scene, took the shooter into custody, and took full statements from the witnesses. They took especial care in their investigation because they had received word from the local hospital that the victim would not survive the night. At the conclusion of the investigation, they learned that the victim was conscious and still clinging to life.

The chief investigating officer, my informant, decided that although he had a good case against the defendant, it would be even better if he had evidence of a dying declaration from the victim. He asked the sheriff to accompany him to the hospital to take a statement from the victim. He reasoned that if sheriff were the one who testified to the dying declaration in court, it could enhance his standing in the eyes of the electorate and stand him in good stead in the upcoming elections.

Upon arriving at the hospital, my informant and the sheriff rehearsed the requisites of a dying declaration: (1) The victim must be aware he is about to die. (2) He must have no hope of recovery. (3) The statement must concern the circumstances of his killing. (4) He must subsequently die. When they went into the victim’s room, the sheriff identified himself and gave the reason for his visit. The questioning went something like this:

Q: You understand that you have been fatally wounded?

A: Yes, sir.

Q: You understand that you are going to die?

A: Yes, sir.

Q: You understand that you have no hope of recovery?

A: Yes, sir.

Q: Can you tell us who shot you?

A: Yes, sir.

Q: Who shot you?

[Victim lifts himself up on his elbows].

A: You did!

[Victim collapses back to his bed and dies].

After a moment of silence, the sheriff said “I think I’m going to forget that we had this conversation.”

We had a dying declaration in another case that I worked on as a young assistant public defender. It was a bar fight much like the one in the previous case, but the deceased never made it to the hospital. When shot, he ran out of the bar and disappeared. One of the officers who arrived on the scene went looking for him and found him lying on the doorstep of a house down the street from the bar. The officer testified that, as he leaned over the deceased to try to render aid, the deceased told him “It’s getting dark! I’m dying! [Dirk Dastardly] shot me!” My colleague and I thought that testimony just a little too convenient, but the lady who lived in the house testified that she also heard the statement. Our client got sentenced to life imprisonment.

What does all this have to do with Abraham Lincoln? He actually won a case once by using a dying declaration. A young man named Peachy Harrison got into a fight with another young man, and the fight culminated in Harrison plunging a knife into his victim. The victim did not immediately die. As he languished on his deathbed, Harrison’s grandfather came to visit him. We met Harrison’s grandfather in a previous post—Peter Cartwright, the backwoods preacher, a political enemy of Abraham Lincoln.

Cartwright may not have liked Lincoln’s politics, but he did like Lincoln’s skill as a lawyer. Lincoln was retained to defend Peachy. At the trial, Lincoln called Cartwright to the stand and asked Cartwright what the deceased had said when Cartwright visited him on his deathbed. The prosecution vehemently objected. Lincoln vehemently argued for the admission of the statement. At that time there was only one case in all of Illinois law dealing with the issue of dying declarations. That case was Starkey v. People, 17 Ill. 17 (1855), which recognized the admissibility of dying declarations. Lincoln was able to persuade the judge to allow Cartwright to testify about what the victim told him.

According to Cartwright, the victim had repented of his sins and wanted to enter heaven without feeling guilt for Peachy’s misfortunes. He said the fight was all his fault, and that he completely forgave Peachy for inflicting the fatal injury. The jury acquitted. A full account of the case just might have the makings of another book.

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