
    The State vs. John C. Terrell.
    
      Medical Witnesses — Dying Declarations — Hearsay.
    Medical witnesses, in giving their opinions as experts, are not confined to opinions derived from their own observation and experience, but may give opinions based upon information derived from books.
    Upon the trial of an indictment for the murder of A. by poison, which was taken at the same time by B. and 0., both of whom, as well as A., died from its effects, the dying declarations of B. are admissible against the prisoner, although the general rule seems to be that dying declarations are admissible only when the indictment is for the murder of the party making the declarations.
    Dying declarations not confined to the fact of the death and its immediate circumstances, but extending‘to the previous conduct of the prisoner : held, admissible.
    The declaration of a third person, who had as strong motives as the prisoner to commit the murder, against whom there were strong circumstances of suspicion, and who had left the State, that the prisoner was not the right man : held to be the mere declaration of a third person, and inadmissible as evidence for the prisoner.
    BEFORE WHÍTNER, J., AT MARLBOROUGH, FALL TERM, 1859.
    Tbe report of Ms Honor, the presiding Judge, is as follows:
    “ The defendant was convicted, at the present Term of the Circuit Court, of the murder of Ananias Graham, and gives notice that he will move the Court of Appeals for a new trial.
    “ The grounds suggest error in the presiding Judge, as well in the admission, as the rejection, of certain evidence. A minute report of the whole case is not called for, and will not, therefore, be furnished; and yet a brief outline will render more intelligible the portions of the case to be reviewed'.
    
      “ The allegation on the part of the State was, that death had been caused by strychnia, administered by the defendant in whiskey prepared for the purpose. Three deaths had occurred, as was alleged, from the same cause, and administered at the same time, to wit, the grandfather of the prisoner, Ananias Graham, the uncle, John W. Graham, and another person, John'JB. McCollum, who was frequently about the . store, and had occaisonally officiated. These three persons had drank from the same bottle, in the back room of prisoner’s store, in the forenoon of the 24th February last, and were each very soon violently attacked.
    “Physicians were called in, and medical attention bestowed, until death ensued : the Grahams died within one hour, and McCollum in eleven or twelve hours. The symptoms preceding the deaths, the conduct of the prisoner, and surrounding circumstances, were fully inquired into, and certain declarations of the last survivor, McCollum, made shortly preceding his death, were received in evidence, after a careful preliminary inquiry, overruling the objection of counsel.
    “ A small portion of whiskey was found in a bottle, understood to be the same of which the deceased persons had drank, and to this liquid certain tests were applied, in Charleston, in the, presence of professional gentlemen, examined as witnesses.
    “ Five practising physicians'had seen the patients, three of whom were more particularly charged with their treatment.
    “ These were all confessedly men of character, as well as of experience- and reputation in their profession.1 Their knowledge of the effects produced by strychnia, was principally derived from approved authors, confirmed by the received opinions of the medical profession. Only two of these witnesses had any experience of its effects, and this was of limited extent. One of them had administered in sufficient quantity to destroy life in animals, and had himself taken in minute portions, until its effects were manifest, and each had administered in like manner to patients.
    “ The symptoms which preceded the several deaths in question, were testified to with great minuteness, intelligence and circumspection.
    
      “ Erom the concurrent testimony adduced, these symptoms were peculiar and marked in their characteristics, as well as distinguishable, in many respects, from those forms of tetanus which result from wounds or external injury, or from disease considered constitutional.
    “ The physicians concurred in the opinion, that each of the persons died of tetanus produced by strychnia — that the symptoms discovered and described were consistent with this form, and were not consistent with the other forms of that disease. Objections were interposed by counsel, such as are indicated in the grounds of appeal, and were overruled.
    
      “ Before reporting' the testimony to which the second and third grounds of appeal refer, it may be proper to premise that, conversation with the prisoner had been detailed by several witnesses, in which, amongst other things, he had said that he too had drank of the same bottle at the same time.
    “ No living witness was present at the time, and though I had never known the dying declarations of one to be received in testimony when the death of another was the immediate subject of inquiry, yet, connected as these deaths were, manifestly from the same cause, I could see no satisfactory reason for a distinction, under such circumstances. In overruling the general objection, the testimony was intended to be restricted, and so announced, not only to such declarations as were made by the deceased when in extremis, and himself conscious of the near approach of death, but also to such as referred expressly to the fact of the death and immediate circumstances. In this there was great embarrassment, as the declarations were made at various intervals during the afternoon and night, and there being a point of time, very shortly preceding the death, fixed on, the witnesses were carefully restricted therein. In reference to the other term; the facts were announced before the subject-matter was made known, and being heard by the jury, if I had entertained a stronger doubt than I did of their competency, they would not have been withdrawn then, as they were not from the jury. The declarations made-by the deceased McCollum to one, were — 1 Has Terrell been taken f He ought to be taken. It was the stuff we drank.’’ To another witness, he said he was 1 poisoned for the first time in his life;’ and also said, ‘ there was something strange about the way John Terrell had acted’ Said 1 he (Terrell) had never left him in the store before, and told him to invite persons in to drink liquor.’
    
    
      “ In reference to the fourth ground of appeal, it is proper also to premise, that such testimony was adduced as to many of the transactions of the defendant, in which it was very clearly shown he had used for his benefit letters of credit and promissory notes for the payment of money, with written guaranty, purporting to be in the name of Ananias Graham and John W. Graham, though the signatures were proved to be forged.
    “ In the defence, testimony was admitted of other forgeries to other papers, principally, I think, promissory notes, of each of these names, and used by one T. G., against whom presentments had been made by the Grand Jury, and upon the promulgation of which he had immediately left the country, and had not since returned. The heartless and strange conduct of the same person (a son) on the day of these deaths, and many conversations he had had with several persons anterior, as to his strong opposition to the father’s marriage, then anticipated, and mysterious inquiries as to the mode of administering strychnia, &c., were all admitted on the part of the defence, thus suggesting another who at least had like motives, perhaps stronger, for compassing the death of old Mr. Graham.
    
      
      “ This it was proposed to follow up by testimony tbat this man bad, on one occasion, said that the defendant was not tbe right man, wbicb testimony was not beard, though counsel was told tbat tbe witness might proceed, if tbe party admitted tbat be was himself the right man."
    
    Tbe defendant appealed, and now moved tbis Court for a new trial, on tbe grounds:
    1. Tbat medical witnesses, who admitted tbat they bad not themselves seen tbe human system under tbe known operation of strychnia, were permitted to testify from information confessedly derived from their books, what effects were produced by it on tbe system, and consequently, what were tbe symptoms of poisoning by strychnia.
    2. That upon tbe trial of an indictment charging the murder of Ananias Graham alone, tbe dying declarations of another person, John B. McCollum, were admitted in evidence.
    3. Tbat these dying declarations were not restricted to tbe fact of the death and its immediate circumstances, but were extended to the previous conduct of the prisoner, in tbe management of bis store, and of tbe declarant’s connection therewith.
    4. That after circumstances had been proved sufficient to direct strong suspicion to another person, as tbe murderer, tbe declarations of such other person, after tbe arrest of tbe prisoner, to tbe effect tbat tbe prisoner ought not to be in confinement for tbe murder, for be was not tbe guilty party, were excluded, to wbicb declaration, tbe witness, Thomas C. Strother, was called to testify.
    
      
      Inglis, for appellant.
    1. It is not denied that medical witnesses may, in testifying, properly express their opinions as to the effects which will result from causes proven to have been in operation or as to the causes which produced effects proven to have been in existence, whether such proof is furnished by their own knowledge, or by other witnesses examined in the cause, provided such opinion is the result of their own observation and experience, as to the connection of the causes and effects of which they speak. But, it is submitted, they cannot state as a fact that which they know only from the information of others, whether such information has been communicated to them by means of books, or in conversation, lectures, or otherwise; as, for example, the effect which strychnia, administered to a human being, produces on the system. 1 Greenl. Ev. Sec. 440, and notes 1, 2 and 3, on page 555, and note 1, on page 556 ; 1 Starkie Evid. Part 1, sec. L. (50) page 74 ; Boscoe’s Crim. Evid. 179 ; 5 Carr. & Payne, 73; 24 Eng. Com. Law B. 219 ; Collier vs. Simpson, 17 Wendell’s R. 136; Norman vs. Wells, — see particularly at page 162.
    2. That dying declarations are admissible only in cases of homicide, on the trial of a charge for the murder of the declarant, where the death of the deceased is the subject-matter of the charge, and the circumstances of the death are the subject of the dying declarations. 1 Greenl. Ev., Sec. 156; 3 Ibid., sec. 236; Broom’s Com. 1000, and note k; State vs. Nelson, 7 Humph. 542 ; State vs. McClean, 16 Ala. 672; State vs. Lambert, 23 Miss. 323; 1 Phil. Ev. 287; 4th Am. Edit. Roscoe’s Crim. Ev. 28 ; The King vs. Mead, 2 B. & C. 605 ; 9 Eng. C. L. 196; 1 Stark. Ev. 101, see 74; lb. • 95; 2 Stark. 458; Woodcock's case, Leach O. C. 439 ; Wilson vs. Bos* rem, 15 Johns. R. 290 ; Jackson vs. Kniffen, 2 Johns. R. 35; 1 East P. C. 353, § 124; State vs. Shelton, N. 0. Reps., *2, Jones’ L. 360; Barfield vs. Bute. N. 0. Reps., 2 Jones’ L. 42; People vs. Knickerbocker, 1 Park. Cr. R. 302, particularly 306-7; Eoscoe’s Crim. Evid. 29, 30, et seq.; The State vs. Johnson, 17 Ala. 618 ; U. S. Dig. for 1853, p. 299 ; 1 Jones, 336; 2 Ohio, 422; 26 Ala. 605; 2 Jones, 70; 12 Yin. Ab. 118; 2 Haw. P. C. 590; Whart. Cr. L. 308; Buss, on Cr. 749; 2 M. & E. 53.
    3. That after proof made of facts, constituting just ground, for a belief that a third party had caused the death, which was the subject of the charge, the declarations of. such party, evincing a consciousness of guilt, and implying self-condemnation, were admissible in evidence.
    
      Mclver, solicitor, contra,
    cited Eosc. Cr. Ev. 204; 17 Ala. 587.
   The opinion of the Court was delivered by

O’Neall, J.

In this case the grounds of appeal will be noticed in the order of the points made.

1st. That medical witnesses may properly express their opinions as to the effect of causes proved : or as to the causes of effects also proved, is not denied : but it is contended, that such opinions- must be the results of their own observation and experience.

This qualification of the rule conceded, was most ingeniously argued. But after a careful consideration of the argument, I think no such qualification can be admitted.

. The rule as stated by Greenleaf in his first volume § 440, is that,if on questions of science, skill or trade, or( others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. Thus the opinions of medical men are constantly admitted as to the cause of disease; or of death, or the consequence of wounds, and as to the sane or insane state of a person’s mind, as collected from a number of circumstances, and as to -other subjects of professional skill.”

I agree fully to what is well said by Mr. Smith in his leading cases, Yol. I., 286, that whenever by a course of previous habit or study a knowledge is obtained,” of the subject of inquiry which inexperienced persons would not be likely to obtain, then that a witness may be examined as to his opinion, and his accuracy may be tested by a cross-examination as to his sources of knowledge both from experience and books; and his credit will be at last for the jury.

The character and effects of strychnia were properly inquired into from the physicians. It is but recently known as a poison, and the most experienced physicians have had little opportunity of judging of its effects on the human system from cases within their practice. Five medical men were examined, only two had had the opportunity of testing its effects. But they all concurred in pronouncing that the cases under their treatment and observation, at this time, were affected by strychnia. Their judgments were formed from their previous course of habit and study. It is true, that I agree with C. J. Tindall in Collier vs. Simpson, 24 Eng. Com. Law Rep. 219, that medical books cannot be introduced in evidence. For the best of all reasons that a Court and jury are ignorant of the matters of which they treat, and cannot of course decide on their title to credit. But a medical man having acquired his knowledge from books, lectures and oral instruction, is prepared to decide upon the character of the poison and its effects, and his title to credit both scientifically and otherwise can be-judged of from his examination,, by the jury.

So, too, it seems to me that Cowen, J., in Norman vs. Wells, 17 Wend., at page 162, put his finger on the very matter now before us, when speaking of the qualification of scientific men to give their opinions, he said, “ It must in its very nature be confined to scientific men, extensive and trained observers, deriving skill from professional experience or something in the nature of it.” What is this something in the nature of it? Must it not be education in the particular before the Court which enables one by previous training to speak as accurately of the matter as observation would do.

I think the witnesses were properly permitted to give their opinions as to the cases, the subjects of inquiry before the Court.

2d. The 2d and 3d grounds of appeal are arranged under this head and will be considered together, 1st. Were the dying declarations of a third person, who had been poisoned at the same time with deceased, competent ? 2d. If so, then were they admissible as to the circumstances connected with the homicide ?

That both questions must be answered unfavorably to the prisoner is, I think, true. Generally speaking, dying declarations are confined to those of the person whose death is the subject of examination on the trial./ But that this case is an exception is, I think, true. / If- the prisoner had been indicted in one indictment as he might have been, for the three murders, there is no doubt that the dying declarations of McCollum would have been evidence against the prisoner as to his own death, and that of the others who were in the same circumstances with himself. That separate indictments have been preferred cannot have the effect to exclude the dying declarations. Eor it is one affair ; all have fallen by the same misfortune.

Dying declarations from a very early day in the administration of justice have been admitted from the two-fold considerations of necessity, and that the condition of1 the party making them was equivalent to an oath insuring their accuracy. In the King vs. Baker, 2 Mood. & Rob. 53; see note 2 to 1 Greenleaf, § 156, it was held, that upon an indictment for the murder of A. by poison, which was also taken by B., who died in consequence, the dying declarations of B. were admissible. This parallel case with that' before us, completely meets my approbation, and sustains tbe ruling below.

Tbe next inquiry is whether the circumstances stated by McCollum are properly in evidence. They are the circumstances which point out the prisoner, as the party who prepared the poison, and who made the party declaring the instrument of poisoning the two Grahams and himself. The testimony falls within the rule “ when the death of the deceased is the subject of the charges and the circumstances of the death are the subject of the dying declarations,” 1 Greenleaf on Ev., § 156. The declaration of McCollum to one, were Has Terrell been taken ? He ought to be taken. It was the stuff' we drank.” To another he said, he was poisoned for the first time in his life;” “ there was something strange about the way Mr. Terrell had acted“ he Terrell had never left him in the store before and told him to invite persons in to drink liquor;” These declarations connected with the other proof that the Grahams had been invited into the prisoner’s store to drink liquor; and that they, in common with McCollum, there drank the fatal liquid, is certainly proof how the deceased came to his death, and of the circumstances how it was brought about. The case of the State vs. Shelton, 2 Jones Law No. Ca. Rep. 360, is an authority very strongly in favor of the ruling below.

3d. The next inquiry is whether the declaration of one, who had as strong motives as the prisoner to commit the deed, that the prisoner was not the right man, was admissible. There certainly are strong reasons to suspect that T. G. the person alluded to, and whose declaration was offered in evidence, is in some way connected with this horrible tragedy; yet it does not therefrom follow that his declarations are admissible. Eor he is competent to prove, if he can, who is the right man. If his declaration had gone on Terrell is not the right man, for I did the deed,” then as the judge below proposed to allow it, the evidence might have been received, But as it stands, it is the naked declaration of a third person, which is clearly incompetent as hearsay.

The motion is dismissed.

Withers, Whitner, G-loyer, and Munro, JJ., concurred.

Motion dismissed.  