Could the dying declaration of a 10-Year-old girl be admitted as evidence in a trial for murder? Yes, held the Louisiana Supreme Court, affirming the Jefferson Parish Second Judicial District Court in Carrollton.
In the afternoon of July 25, 1865, 10-year-old Lena Zoelly, daughter of Mrs. Werner, was struck, causing “terrible wounds [to be] inflicted upon her head.” Lena died two days later on the morning of July 27, 1865. A doctor dressed her head wounds after which Lena did not speak for several hours. That night, Lena “appeared somewhat quiet,” requested some water, and first declared: "Ross struck me upon the head with a hatchet." The following morning Lena repeated her statement before she was taken to the hospital. Lena also cried: “Oh Lord, O Lord.”
On November 8, 1865, the Jefferson Parish Grand Jury indicted William Ross, George Rogers, and John Harrison for Lena’s murder. Trial was held on November 29, 1865. At trial, the District Attorney dismissed John Harrison, there being no evidence against him. After evidence was heard, Judge A. Cazabat admitted Lena’s dying declarations, on the ground that Lena made the statements under a sense of impending death. The judge found:
"The declarant, Lena, if living, would have been competent to testify, because, from the evidence, it is shown that she was about nine or ten years of age, of good size, a very sensible, smart, intelligent girl (to use the very expressions of witness, who knew her well) she had been to school, and church several times, and was by her age, training and bright mind, sufficiently able to understand the character and obligation of an oath.
"Besides, it was proved that when she spoke and made her dying declarations, verbally, she was quiet, perfectly composed, in her right mind, and appeared to know well what she said."
After overruling defendants’ objections, Judge Cazabat instructed the jury and allowed them to consider Lena’s dying declarations. The jury deliberated for thirty minutes before rendering a verdict of “Guilty” of murder as to both Ross and Rogers.
On December 11, 1865, Judge Cazabat sentenced Ross and Rogers to death by hanging in the yard behind the Carrollton Courthouse:
"I sentence you to be taken from hence to the jail of the Parish of Jefferson, from whence you came, and within the yard of said Jail or Court House, according to law on such day, as will be fixed by the Governor of the State of Louisiana, that you Wm. Ross and Geo. Rogers be then and there hanged by the neck until you are dead, and 'May God have mercy upon your souls.'"
Defendants appealed their convictions, arguing that Judge Cazabat erred in allowing the jury to consider Lena’s dying declarations. In May 1866, the Louisiana Supreme Court held that Lena’s mental and physical condition, at the time she made the dying declarations, was a question of fact over which it had no jurisdiction. These matters were within the discretion of the trial judge and jury. The highest court dismissed the appeal.