Jones v. State

116 So. 90 | Miss. | 1928

^* Corpus Juris-Cyc. References: Homicide, 30CJ, p. 257, n. 35. As to admissibility of dying declarations made under sense of impending death, see annotation in 56 L.R.A. 393; 1 R.C.L. 539; 1 R.C.L. Supp. 190; 6 R.C.L. Supp. 24. Ben Jones, appellant, was indicted on a charge of murder, tried at the August, 1927, term of the court, convicted of manslaughter, and sentenced by the court to serve a term of ten years in the state penitentiary.

The facts in this case were at issue between the state and the defendant, and the testimony for the state, if believed, warranted the jury in convicting the defendant of murder.

The main objection urged by the appellant for a reversal of this case is that the court erred in admitting the dying declaration of the deceased, because the statement was not made under a sense of impending death. The court heard the testimony of the dying declaration, on preliminary examination, and held that the declaration was made under a sense of immediate and impending death.

The shooting occurred on Sunday, and the deceased died on Tuesday, in a hospital at Laurel, where he had been carried immediately after he was shot by the defendant. He died eighteen or twenty hours after making the declaration. The state of his mind is reflected in the statement made by him that he was "going to die;" that he would "not live to get out of the hospital." The statement was damaging to the defendant, making a case of murder. When the witness testifying to the declaration entered the room, he asked the deceased how he felt, and he answered that he felt pretty well. Afterwards, the statement as to his impending dissolution, quoted above, was made, and then followed the declaration. We do not think there is any reason to believe that the deceased had any hope of getting well.

The proof showed that the defendant fired upon the deceased with a .38-caliber Smith Wesson pistol, striking him in the muscle of the forearm, and that the bullet ranged into the body, straight under the arm into the chest. The dying declaration was competent as having been made under the sense of impending death.Bell v. State, 72 Miss. 507, 17 So. 232; Ealy v. State,128 Miss. 715, 91 So. 417; McLeod v. State, 130 Miss. 83, 92 So. 828; Jones v. State, 130 Miss. 703, 94 So. 851; Woulard v. State, 137 Miss. 808, 102 So. 781; Crawford v. State,144 Miss. 793, 110 So. 517; Magee v. State, 145 Miss. 227,110 So. 500.

There is no merit in any of the other objections urged.

Affirmed.