Gambrell v. State

46 So. 138 | Miss. | 1908

Mates, J.,

delivered the opinion of the court,

Among the many assignments of error made in this case we deem it necessary to notice only the one discussed in the opinion. The evidence upon which appellant was convicted was mainly circumstantial. The only positive proof as to who did the killing is shown by the dying declaration of deceased. Under these circumstances, and by way of impeachment of this dying declaration, which is the most damaging and conclusive testimony, as to who did the killing, the defense offered a witness to show that the ■deceased was an infidel, and offered to prove that the deceased boasted of the fact that he did not believe in God, the devil, or .anything of a like nature; that deceased was an irreligious man, .■and had contempt for the church, etc. The witness by whom this was sought to be proved had employed deceased, but he had quit working for him about a year before he was killed, and from that time witness had no acquaintance with him. The testimony was objected to by the-state, and the objection was sustained; the court assigning as a reason for excluding this testimony that in its judgment it thought such testimony ought to be confined to the time the supposed dying declaration was made. In the case of Hill v. State, 64 Miss., 432, 1 South., 494, it is held that testimony of this character was admissible for whatever it was worth as a detraction from the weight and value of the dying declaration. Such proof is not admissible for the purpose of rendering incompetent the dying declaration; but, when the dying declaration has been admitted, such proof is admissible as affecting the value of the dying declaration, and it is proper to .go to the jury for whatever it is worth. Code 1906, § 1919. The dying declaration of a party is simply a part of the evidence. It is not regarded in law as more sacred than the testimony of a witness, to say the least of it. It is subject to discredit and impeachment by any competent testimony which impairs its value.

Under our law it is a prerequisite of the right to testify that the witness shall be sworn or affirmed to speak the truth. The object of the oath or affirmation which the law requires of a witness before he may testify is to obtain a hold on his conscience by thus reminding him that there is a superhuman power to whom he will be retributively accountable for any false statements. The oath or affirmation presupposes a belief by the party making it in that superior power which is clung to by all Christian people. As affecting the credit of any witness’ testimony it may be shown that the party introduced has no sense ■of the binding force of his oath or affirmation, because he does not believe in a supreme being. For the same reason such testimony is admissible as affecting the credit to be given by the jury to a dying declaration. It is true that, in order to render admissible a dying declaration, it need not have the sanction of an oath. Because the dying declaration is made under a sense of impending dissolution, the law considers this as imposing upon the conscience of the declarant as great an inducement to speak the truth as could be imposed by any form adopted by the law. Wigmore on Evidence, § 1443; 21 Cye., 992. The dying declaration may be discredited by any testimony which would be permissible to discredit the testimony of the declarant, were he in court testifying. This being the case, the dying declaration may be discredited by showing that the declarant was a nonbeliever in God; and such testimony is for the jury to pass on, and to say to what extent it shall be allowed to affect the value of the dying declaration as evidence. It can make no difference when this state of mind existed, in so far as it affects the admissibility of such evidence. It was not necessary, in order to render this testimony admissible, that it should show that the deceased was a nonbeliever at or near the time he made the dying declaration. It was admissible on the part of the defense to show that such a state of mind existed at any time during the life of deceased, and it was for the jury to say, under the facts, whether or not deceased had reformed or been converted to faith in God, and what influence it should have. It can in no way affect the right to introduce the testimony by showing that this frame of mind existed a long time prior to the date the dying declaration was made. The time when this condition of mind is shown to have existed is a matter of argument, to be made to the jury, as showing or not showing that it -existed at the time the dying declaration was made, and hence pertain to .the weight of the evidence; or it was open to the state to rebut this proof of nonbelief by other proof that the condition of the mind •si the deceased had changed.

But all these matters were for the jury on the proof made, and could not affect the admissibility of the testimony. Wherever there is any serious doubt in the law as to whether or not certain proof is or is not permissible, a safe rule to pursue is to solve the doubt in favor of the accused and permit the testimony to go to the jury. What is here said in reference to admitting testimony in cases of serious legal doubt equally applies to the granting of instructions in favor of accused. If this policy was pursued by the trial court, it would save many reversals. 'On the facts in this case,- we are not prepared to say, with this proof in, that the jury would have returned the same verdict; and because of this 'it is compulsory on us to reverse the. case. The testimony offered was in impeachment of the most material evidence in this case showing the guilt .of the appellant. It was admissible, and it is not for us to say what weight would have been given to it by the jury. They had a right to hear this testimony, and to pass on it, and to give it such weight as in their judgment they deemed proper.

Reversed and remanded.