Haney v. State

92 So. 627 | Miss. | 1922

Sykes, J.,

delivered the opinion of the court.

Houston Haney was convicted of murder and sentenced to life imprisonment in the penitentiary, from which judgment this appeal is prosecuted.

There are several assignments of error presented in this case.

There was no special venire, and in impaneling the jury it became necessary for the sheriff to summon other jurors, whereupon the court instructed him as follows:

"Mr. Sheriff’, don’t impose on our farmer friends here, but go down in town and get business men to fill the panel. Get them out of the stores and banks and make them come up here and serve on this jury.”

A special bill of exceptions was taken to this action on the part of the court. From the record, however, we infer that the defendant had a fair and impartial trial by a jury composed of twelve fair and impartial men, and, in the language of the opinion of the court, in Ferguson v. State, 107 Miss. 559, 65 So. 584:

‘ [Since there is no evidence that appellant was not tried by a fair and impartial jury, error cannot be predicated of an irregularity in the drawing or impaneling thereof, since the statutes on the subject are declared, by section 2718, Code of 3906, to be directory merely” — citing authorities.

The testimony in [he case shows that the appellant shot the deceased with a shotgun, inflicting, a wound from which the deceased died in about an hour. There were no eyewitnesses to the shooting. Some negroes who lived about forty-five yards from the place of the shooting testified to hearing a part of a conversation between the two men just before the gun fired. One or more of them heard the deceased say, “All right, Houston,all right,” and immediately thereafter the gun fired. Shortly after the firing of the gun several witnesses testified to hearing the deceased make a statement to the effect that Houston shot him, and shot him for nothing. All of this testimony of the several witnesses was objected to by the defendant on the ground that it was neither a dying declaration not was it a part of the res gestae. This objection was overruled, and the testimony admitted.

Dan Evans testified that he was in his house about forty-five yards away; that after the gunshot he jumped out of bed and started to the scene of the killing; that when he reached there the deceased stated to him: “I am shot. Houston shot me for nothing. Pray for me.”

The testimony all shows that the appellant had left the scene of the shooting when this statement was made. After hearing the shot the witness had to get out of bed, put on his trousers, and travel forty-five yards to the place of the shooting before the statement was made. This statement was not a dying declaration. The deceased asked the witness to pray for him, which, if it indicates anything, would rather indicate the hope of recovery, and that he wished the witness to pray for his recovery.

The law is well settled in this state that before a declaration of this character is admissible the declarant must have a sincere and settled belief of his impending dissolution, and have last all hope of recovery, however slight. And, in order to make a declaration of this character admissible, the burden of proof is upon the state to show these facts. McNeal v. State, 115 Miss. 678, 76 So. 625; Bell v. State, 72 Miss. -, 47 So. 232.

Neither was this statement admissible as a part of the res gestae. It was in no sense a part of the shooting, or of the difficulty between the two men. Though made a short while after the shooting, yet the shooting was over, the tragedy was completed, when the statement was made. This statement was in no sense a verbal act explaining any part of the difficulty, and thereby constituting a part of it, but was merely the rehearsal or history of the shooting, which was at that time a past transaction. This rule is aptly stated in the case of Mayes v. State, 64 Miss. 333, 1 So. 735, 60 Am. Rep. 58. It is there said that:

“It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude the presumption that it has- been fabricated, nor that it was made under such circumstances as to compel the conviction of its truth; the true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not.”

See, also, Lewis v. State, 109 Miss. 586, 68 So. 785.

Several other witnesses testified that after they heard the gun shoot they heard the deceased say that Houston shot him, and shot him for nothing. One of these witnesses estimates that this' was about one or two minutes after the shooting. Another states that she had walked from her room to her gate when she heard this statement. The record, however, shows that there was an appreciable length of time between the shooting of the gun and the making of the statement. The statement purports tó be a recital of the facts about the shooting, or the recital of a past transaction. This testimony was all incompetent, and should have been excluded.

The defense was that the deceased at jhe time of the shooting had just thrown a brick at the appellant, and was advancing upon him with a wooden picket. The testimony shows that the deceased was a much larger and more powerful man than the defendant; that he had repeatedly threatened, to kill him, the last threat having been made the morning of the shooting. In view of this testimony, we think that for the admission of these statements the canse should be reversed and remanded for a new trial.

There are other assignments of error in the record which have had our consideration, hut which are not well taken.

Reversed and remanded.