Clark v. State, 105 Ala. 91

Clark v. State

105 Ala. 91 | Ala. | 1894

HARALSON, J.

1. The evidence tends to show that the deceased came to his death by being struck in the stomach with an axe by defendant; and there was evidence also tending to show, that defendant did not strike deceased in the stomach but on the arm with the axe, and that he died from other causes. It was material, therefore, for the prosecution to show, that the blow inflicted by defendant on deceased was in his stomach, and that it caused his death. For these purposes the statements of the deceased, offered as dying declarations, were relevant, and the evidence shows that they were properly admitted, as made under a sense of impending death.—Justice v. The State, 99 Ala. 181; Blackburn v. The State, 98 Ala. 65.

2. It is said in the transcript, that the defendant objected, separately, to the questions to the witness by whom these declarations were proved, and to her answers, but what these questions were, we are not in*95formed, and are without the means of passing on them. The bill of exceptions states, that the witness “did not say whether the questions and the answers elicited by them, objected to above, were asked and answered before or after these declarations.” What is meant by this statement is not clear. But whatever it may mean, we are definitely informed that the declarations of deceased, offered as evidence, were made repeatedly, before the doctor came to see him, and after he departed, and that deceased died about an hour afterwards.

8. Charge No. 1 has been several times held by this court to be a proper one.—Watkins v. The State, 98 Ala. 577; Hammil v. The State, 90 Ala. 577; Lang v. The State, 84 Ala. 1. It asserts a correct legal proposition, and states facts on which guilt depends, hypothesized as absolutely true, and beyond all reasonable doubt. The defendant objected to it, on the ground, among others, that it did not contain the instruction, that the jury must believe the facts hypothesized beyond reasonable doubt. But there was no necessity for instructing the jury that they must believe these facts beyond reasonable doubt, for the charge had already hypothesized them as absolute verities. This charge is distinguishable from the one in Pierson’s Case (99 Ala. 148), and other like charges, where we held, that when the court charges, “if the jv/ry believe from the evidence,” certain facts hypothetically stated, omitting the expression, “beyond reasonable doubt,” or other equivalent words, it is reversible error. In the latter class of charges on the sufficiency of the evidence, the trial courts giving them failed to caution the juries, after telling them if they believed certain facts, that they must believe them beyond reasonable doubt, whereas, in the charge we now review, the court predicted guilt — as we have before stated— upon the absolute truth of the hypothesized facts in the charge. As stated therein, they must have been true and believed ,to be true beyond all cavil.or doubt, reasonable or otherwise, before defehdant c'ould- have-been found guilty. The charge was not, therefore, amenable to the objection interposed to it — that it ignored the question of reasonable doubt.

4. Charge No. 2 is admitted to assert a correct principle of law, but is objected to as applicable to this case. We fail to see wherein it is not applicable. The proof *96tends to show a homicide, and that it was caused by the use of a deadly weapon in the hands of defendant, and the evidence which tended to show the killing does not show that it was perpetrated without malice. If the defendant had desired an explanatory charge, he might have asked it.

Affirmed.