People v. Bradfield , 300 Mich. 303 ( 1942 )

It is settled law in this State that dying declarations must be such narrative statements of fact as a witness, if living, might properly give on the stand. People v. Olmstead, 30 Mich. 431. See, also, Montgomery v. State, 80 Ind. 338 (41 Am. Rep. 815), and 1 Wharton's Criminal Evidence (11th Ed.), § 535.

The charge against defendant, briefly stated, was that by a criminal operation upon Mary Irene Hunt, a pregnant woman, defendant caused her death. This involved considerations of fact and law.

The statement by declarant that "she had had a criminal operation" performed by Dr. Bradfield was inadmissible under elementary rules of evidence. Had the statement not denominated the operation "criminal," it might be held but a statement of fact, but characterizing it "criminal" rendered it inadmissible, for that was the ultimate issue before the jury, involved law as well as facts, and was inadmissible from the lips of any witness. When the declarant termed the operation "criminal" she classed it as such in her opinion and this was inadmissible for, whether criminal or not, it depended upon the facts and applicable law. The attention of the trial court was sufficiently called to this point.

For this error the conviction should be reversed and a new trial granted.

CHANDLER, C.J., concurred with WIEST, J.