{
  "id": 8723243,
  "name": "Berry v. State",
  "name_abbreviation": "Berry v. State",
  "decision_date": "1897-01-27",
  "docket_number": "",
  "first_page": "382",
  "last_page": "384",
  "citations": [
    {
      "type": "official",
      "cite": "63 Ark. 382"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "id": 34,
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    "name": "Ark."
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      "reporter": "A.",
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      "category": "reporters:state_regional",
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      "cite": "15 So. Rep. 264",
      "category": "reporters:state_regional",
      "reporter": "So.",
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      "cite": "35 Pac. Rep. 417",
      "category": "reporters:state_regional",
      "reporter": "P.",
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      "cite": "7 N. Y. 159",
      "category": "reporters:state",
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      "cite": "5 Tex. App. 141",
      "category": "reporters:state",
      "reporter": "White & W.",
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    {
      "cite": "61 Miss. 161",
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        1796569
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        "/miss/61/0161-01"
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    {
      "cite": "50 Am. Dec. 727",
      "category": "reporters:federal",
      "reporter": "Am. Dec.",
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    {
      "cite": "38 Ga. 70",
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      "reporter": "Ga.",
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    {
      "cite": "67 N. C. 12",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "52 Ark. 347",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T19:38:35.777574+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Berry v. State."
    ],
    "opinions": [
      {
        "text": "Hughes, J.\n(after stating the facts.) It appears from the declaration of the deceased, while in extremis, that the defendant had poisoned him, that it was made not from a knowledge of the fact which he had, or could have had, and that it was an expression of his opinion merely, based on the facts that the whisky which had been given him by the defendant tasted \u201cnasty,\u201d and made him sick. This evidence was incompetent, and was calculated to prejudice the defendant. \u201cA mere expression of opinion by a dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself or from other undisputed evidence, showing that it was impossible for the declarant to have known the fact stated.\u201d Jones v. State, 52 Ark. 347.\nThe declarations of the deceased are admissible only as \u201cto those things to which he would have been competent to testify, if sworn in the cause. They must, therefore, in general speak to facts only, and not to mere matters of opinion.\u201d 1 Greenleaf, Ev. sec. 159; State v. Williams, 67 N. C. 12; Whitley v. State, 38 Ga. 70.\nPor the error in admitting the statement that deceased made \u2014 as part of his dying declaration \u2014 that defendant poisoned him, the judgment is reversed, and the cause is remanded for a new trial.",
        "type": "majority",
        "author": "Hughes, J."
      }
    ],
    "attorneys": [
      "Jas. P. Brown for appellant.",
      "E. B. Kinsworihy, Attorney General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Berry v. State.\nOpinion delivered January 27, 1897.\nEvidence \u2014 Dying DECLARATION. \u2014 A statement by a dying- person that he was poisoned, by defendant, which he knew because defendant gave him a drink of whisky that tasted nasty, and because he shortly afterwards got sick, is the expression of an opinion, and inadmissible as a dying declaration.\nAppeal, from Lee Circuit Court.\nH. N. Hutton, Judge.\nSTATEMENT BY THE COURT.\nThe appellant, Lee Berry, was convicted of murder in the first degree, committed by poisoning; and appealed to this court.\nOn the trial of the cause, Dr. E}. V. Chandler, a witness for the state, testified : \u201cOn the night of the 26th of last October I was called, in my professional capacity, between 8 and 9 o\u2019clock, to visit Bd. Marsh\u201d [the person alleged to have been poisoned]. \u201cI reached his bedside about 9 o\u2019clock, * * * * a\u00fc\u00bf foun\u00bf him lying- partly on the bed and partly on the floor. * * * When I g\"ot to him, his mind was perfectly clear, and I asked him what was the matter. He replied that he knew he was going to die, and that Lee Berry, the defendant, had given him a drink of whisky, about an hour before, which tasted \u2018nasty\u2019 and that he knew it contained poison because it tasted nasty, and because he got sick shortly afterwards, and that Lee Berry \u2018had given him his dose\u2019 in that drink of whisky.\u201d Here counsel objected to that part of the witness\u2019 testimony, as a part of the deceased\u2019s dying declaration, wherein he stated that the deceased said that defendant had given him his dose in that drink of whisky, and that he knew it contained poison. In each statement of the witness of the dying declaration of the deceased, he would include the same statement that deceased said that the defendant had poisoned him.\nThe court asked the witness, before passing upon the objection, if that statement of the deceased \u2014 that he was poisoned by the defendant \u2014 was before or after the statement of the deceased that he knew that he was going to die. The witness answered that it was after such statement. The court then overruled the objection, and the defendant excepted.\nThe same statement of the dying declaration of the deceased was repeated in the testimony of other witnesses, and objected to by defendant, as above set out, and, the objections being by the court overruled, the defendant each time excepted.\nJas. P. Brown for appellant.\nNo dying declarations are admissible, except in regard to such matters as the deceased could legitimately have testified about if he bad got well, instead of having died. 1 Greenl. Ev. sec. 159, and note a. Opinions or beliefs are not admissible as dying declarations. Ib.\nE. B. Kinsworihy, Attorney General, for appellee.\nMore latitude is given to the admissibility of dying declarations than to the evidence of a witness in testifying. 1 Greenl. Ev. sec. 161a. Its admissibility must be confided very much to the discretion of the court. 50 Am. Dec. 727. The statement that the whisky contained poison was not an inference or opinion, but a statement of a fact. 61 Miss. 161; 5 Tex. App. 141; 7 N. Y. 159; 35 Pac. Rep. 417; 15 So. Rep. 264; 36 S. W. Rep. 256; 29 At. Rep. 536."
  },
  "file_name": "0382-01",
  "first_page_order": 400,
  "last_page_order": 402
}