Shepard v. United States, 290 U.S. 96 (1933)

Shepard v. United States

No. 50

Argued October 9, 10, 1933
Decided November 6, 1933
290 U.S. 96

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

1. To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death, and this state of mind must be exhibited in the evidence, and not left to conjecture. P. 99.

2. On a trial for murder by poison, where the defense was suicide, a statement that deceased had made, accusing the defendant of having poisoned her, and which was offered and erroneously let in as a dying declaration so that it must have been considered by the jury as testimony to the act of poisoning, cannot be treated on appeal as properly in the case because, as evidence of the declarant’s state of mind, it tended to rebut defensive evidence of suicidal intention. P. 102.

3. A trial may become unfair if testimony offered and erroneously accepted for one purpose is used in an appellate court as though admitted for a different purpose, unavowed and unsuspected. P. 103.

4. Evidence having a dual tendency, inadmissible and gravely prejudicial for one purpose but not objectionable for another if separately considered, should be excluded from the jury where the feat of ignoring it in the one aspect while considering it in the other is too subtle for the ordinary mind and the risk of confusion is so great as to upset the balance of practical advantage. P. 103.

5. The declarations of deceased persons (short of dying declarations) which may be used to show their intentions for the future must be sharply distinguished from declarations of memory merely, and from those that recite the past conduct of other persons. P. 106.

62 F.2d 683; 64 id. 641, reversed.

Certiorari, 289 U.S. 721, to review the affirmance of a sentence on conviction of murder.