62 So. 961 | Ala. Ct. App. | 1913
— One of the propositions most earnestly insisted upon by the appellant relates to the admission of dying declarations of the deceased, made at different times to the witnesses deposing to them between the time deceased received the fatal wound on the night of Saturday, October 25, 1911, and the hour of his death on the following Monday morning. The contention is
The bill of exceptions contains the statement that it sets out all of the evidence in the case; but it is self-contradictory on its face in this respect, for it does not even purport to set out the substance of the testimony of a number of the witnesses, but contains a loóse summary of the tendencies of the evidence of many of the witnesses in such a form as to conclusively show that there was considerable evidence before the court below that is not pretended to be set out in substance for our consideration here. From what does appear, it is shown that the deceased was killed in a rencounter with the defendant and his father at night in the fairgrounds at S'amson, Ala., by being stabbed or cut by one or the other of the Maloys — father and son. The fatal difficulty occurred about 9 o’clock Saturday night within the radius of the light from the swinging gaslights used for lighting the fair grounds, and in the presence of many witnesses, who differed widely in their versions of the affair; but it seems to be practically without contradiction that the elder Maloy (Vince L.) who was jointly indicted with the defendant, but separately tried, and whose case is not before us on this appeal, and the deceased were first engaged in the difficulty, when the defendant took a part in it. There.was more than one knife wound inflicted upon the body of deceased, and
Tbe fact that tbe father of tbe declarant bad made contradictory statements on some prior occasion or former trial with reference to what tbe declarant said, or did not say, we do not think was sufficient to authorize tbe trial court to exclude tbe dying declaration testified to by him. Tbe declarations were nevertheless admissible, if tbe proper predicate bad been shown on this trial — and tbe credibility of tbe evidence on preliminary proof was a matter for tbe trial court. We can arrive at no other conclusion from tbe evidence before us bearing on this subject, under tbe well-known and often declared principles, than that tbe trial court properly admitted the dying declarations testified to by tbe witnesses, as set out in tbe bill of exceptions. — Hussey v. State, 87 Ala. 121, 6 South. 420; Ex Parte Key, 5 Ala. App. 274, 59 South. 331; and authorities cited in these two cases.
Tbe tendencies of tbe evidence, as we read tbe recitals of tbe bill of exceptions, clearly leave tbe question for tbe determination of tbe jury as to who Avas at fault in bringing on tbe difficulty as between tbe first combatants (i. e., Yince L. Maloy and.tbe deceased). Even though it be conceded, as contended by appellant, that no inference can be dra.Avn from tbe evidence authorizing tbe conclusion that there existed any prearrangement, or conspiracy between tbe Maloys to slay tbe deceased,, or do any other unlaAvful act Avhich resulted in bis death,, and that tbe rencounter Avas an occurrence taking place under tbe exigencies of tbe moment, yet it is Avithout conflict in tbe evidence that tbe defendant Avas present and participating. It was certainly open for tbe jury to infer from tbe tendencies of tbe evidence in this case-
The record contains no error that would justify a reversal.
Affirmed.