79 Ala. 5 | Ala. | 1885
We think it clear that the predicate
There can be little or-no doubt of the fact, that the deceased, at the time of making these declarations, believed that he was at the point of death — that the surrounding circumstances, in other words, impressed him with a sense of almost immediate dissolution. The declarations were, therefore, admissible, and it was immaterial that one of these statements w7as elicited by an inquiry propounded to the declarant.—1 Greenl. Ev. §§ 156-158; Reynolds v. State, 68 Ala. 502; West v. State, 76 Ala. 98; Kilgore v. State, 74 Ala. 1.
The fact that a written memorandum was made of such dying declarations, did not preclude the right to prove them by oral evidence. It is not shown that this statement was read over to the deceased, or signed by him. It was a mere memorandum of what was said, not in itself original evidence, but competent only to be referred to by the witness who made it, for the purpose of refreshing his memory.—1 Greenl. Ev. (14th Ed.) § 161; Com. v. Haney, 127 Mass. 455.
The threat shown to have been made by the defendant on the day before the killing, as testified to by the witness Hickman, was properly allowed to go to the jury, although it was of a general character, and menaced no person definitely designated. It may have had reference to the deceased, and this was a question to be determined by the jury, in connection with the other facts in evidence.—Jones v. State, 76 Ala. 8; Ford v. State, 71 Ala. 286; Harrison v. State, 78 Ala. 5.
We see no error in admitting the testimony of the witness Barnett, as to the conduct of the defendant, a few hours before the deceased was killed, in taking his brother aside, and talking to him privately, when they met at McHugh’s. The evidence showed that the brother owned a gun, the kind of deadly weapon with which the homicide in question was perpetrated, and that defendant was' seen coming from the direction of his brother’s house, the evening before the killing, carrying a gun. This evidence was admissible, as was said in
We discover no error in the record, and the judgment is affirmed.