Indiana Supreme Court
Montgomery v. State
November 15, 188180 Ind. 338
Summary
The court held that dying declarations were admissible in a prosecution under the abortion statute because the woman's death was an essential element of the offense and gave it the substance of felonious homicide. It nevertheless held that portions of the declaration were inadmissible because they stated an inference rather than facts and included matters occurring outside the res gestae of the fatal act. The judgment was reversed because those inadmissible statements had been received in evidence.
Holding
- Admissibility of dying declarations in a statutory abortion-death prosecution. Dying declarations are admissible where death results from the unlawful attempt to produce an abortion and the statute makes that death an essential element of the offense. The statutory label and milder punishment do not prevent the offense from having the character of felonious homicide for purposes of the evidentiary rule.
- Statements expressing an inference about the purpose of the operation. The statement that the operation was performed for the purpose of producing an abortion was inadmissible because it expressed an inference or conclusion rather than facts.
- Temporal and subject-matter limits on dying declarations. Dying declarations are limited to facts concerning the fatal act and its circumstances as part of the same transaction. They may not prove events occurring before or after the act, the declarant's condition days later, or facts unrelated to the act itself.
Docket No. 10,037