Until My Dying Day: Were There Any Abortion Cases With True Dying Declarations Admitted?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

A couple of days ago, I noted that the Advisory Committee indicated that some courts applied the common law analogue to this modern "dying declaration" exception in abortion cases. After some research, however, I haven't found any such cases. Let's take a look at the opinion of the Supreme Court of Pennsylvania in Railing v. Commonwealth, 1 A. 314 (Pa. 1885).

In Railing, Charles A. Railing was charged with administering to Annie Faust a drug with intent to procure a miscarriage, and it was also charged that her death resulted as a consequence. It was "unquestioned that there [wa]s no grade of homicide involved in th[e] case; the offense charged being the one commonly known as abortion."

Now, apparently Faust made some statements that qualified as dying declarations although the court unfortunately does not relay their substance. What the court does note, however, is that most courts have found dying declarations inadmissible in abortion cases:

In Reg. v. Hind, 8 Cox, Crim. Cas. 300, the defendant was indicted for using instruments upon a woman with intent to produce an abortion, in consequence of which she died. It was held that her dying declarations in relation to the offense were inadmissible. The same course was followed in the state of New York in the case of People v. Davis, 56 N. Y. 95, where the statute is quite similar to our own; the penalty being increased when the woman dies in consequence of the unlawful acts. It was held that the dying declarations of the woman were incompetent on the general ground that the death was not the subject of the charge. In the case of State v. Harper, 35 Ohio St. 78, the same doctrine was held under a statute almost identical with ours. The chief justice said: 'This was an indictment for unlawfully using an instrument with the intent of producing an abortion, and not an indictment for homicide. State v. Barker, 28 Ohio St. 583; People v. Davis, 56 N. Y. 96. The death was not the subject of the charge, and was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation. Did the court err in rejecting the dying declaration in proof of the charge? We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Rex v. Mead, 2 Barn. & C. 605; 1 Greenl. Ev. 156; Rex v. Lloyd, 4 Car. & P. 233.'

The court then noted, however, that

On the other hand, the supreme court of Indiana has held that such declarations were admissible in an indictment under a similar statute. Montgomery v. State, reported in 3 Crim. Law Mag. 523. In State v. Dickinson, 41 Wis. 299, the declarations were admitted, but by the statute of that state the offense is expressly made manslaughter where the woman dies, and the case was therefore one of homicide and within the rule. The case in Indiana appears to be the only one in a court of last resort in which the declarations have been held admissible.

I wasn't able to locate the Montgomery case, but the Dickinson case clearly did not involve a dying declaration. In Dickinson, the victim told someone "that she was in a family way" and going to see the defendant-doctor to receive an abortion. This would be a statement falling under the state of mind exception, not the dying declaration exception. So, are there any cases in which an actual dying declaration was admitted at an abortion trial? I don't know.

-CM