*1
case at bar whether or defend- not intentionally
ant that re- fired the shot we of wife.
sulted in the As death record, it,
see construe way every allow endeavored in present permit the defendant to every fact tend- of and circumstance We
ing his contention. to substantiate ruling of the trial
have discovered no which could be construed should or To abridging right the accused.
as of contrary, of arewe rulings trial court he al- than he was a much latitude wider
lowed to, think would dif-
entitled every fairer trial conceive
ficult to
way, was accorded the defendant than case. points a number other upon in the excellent
decision appellant’s behalf. can
brief filed discussing all of these no
see opin- propositions being of the
numerous nothing what ion it would add has been however, will, state we have
said. We
very carefully attentively considered presented every by ap- insistence
each and
pellant upon appeal and have discov- rulings error com-
ered no
plained injurious- which evep tended
ly substantial affect foregoing in-
fendant.
corporated purpose, for the if review
sought, otherwise, certiorari or deprived
pellant right will not be every
incorporating each and insistence discussing,
which we refrained from necessary.
From what has been said we hold there
was no error the action the court
overruling denying defendant’s
for a new trial.
Affirmed. *3 Decatur, Lynne, appellant.
S. A. McQueen, Atty. Gen., Wm. N. and John Harris, Atty. Gen., O. Asst. State. CARR, Judge. ,the
Appellant was tried in
circuit court
charging
upon an indictment
murder in degree.
convicted
second
of man-
degree
slaughter
punish-
first
his
imprisonment
peniten-
ment fixed
years.
tiary for a term of five
the defendant killed
de
Admittedly
shooting
pistol.
him with
ceased
evidence,
motion,
dispute
quote
the ac
her entire
and we
Without
gave
at the
examination:
she
it on direct
cused
home
difficulty.
left the in
fatal
registered
Dodson,
you are
Miss
house
rifle
hand
side of
and with
nurse?
sir.
outside;
near the
in or
walked
"Q. A
General
Decatur
nurse
appel
dwelling,
yard surrounding
time,
Hospital ?
A. Part
yes
home,
lant,
standing in a
to his
door
when this
you a nurse there
Were
claimed
shot
The defendant
the deceased.
died,
Mr.
shot and
Fowler who was
self:defense.
*4
Yes,
you
A.
part
the
nurse
time?
compre-
judge
trial
The
in
able
sir.
ap-
charge
jury the
gave
the
hensible
“Q.
was out
time he
During the
plicable law in the case.
any-
hospital
him say
in
the
hear
-
ap
interposed by the
didn’t
Objections A.
I
thing
Mr. Maxwell?
about
name,
pellant to
declarations of
no,
the
sir.
hear him call his
estab
deceased. This evidence
say? A.
“Q.
him
What did
hear
to two
and related
lished
two witnesses
made was that
only
The
he ever
statement
of the declarant.
different statements
anything
with Mr.
done
he didn’t want
days
first,
appears,
made1about two
Maxwell.
day before death.
one
second about
Yes,
“Q.
said?
sir.
Is that all he
oc-
proof
on
The State
that
each
part
anything
say
Did
he was
deceased said that
casion the
fault,
at fault?
altogether
or he wasn’t
to die.
anything
want
done
concluding
And he didn’t
difficulty in
find no
predicate
to him? A.
sir.”
proper
based for
that
The rule was
declarations.
said
recross-examination the witness
On
496,
State, Ala.App.
24
v.
observed. Russell
remember when the
that she could not
460;
State,
584,
Ala.
196
v.
137
Martin
So.
point
in
be-
statement was made
491
pro
holding
place
propriety
same
1 states
Charge numbered
Au
charge
ground.
as to refusal
law,
instructions
position
but omits
thorities,
However,
supra.
it appears
application to the issues
how it has
State,
Supreme
our
Mutual
Pacific
Court
Robinson v.
bar.
v.
case at
Fleetwood
684,
243
Co.,
Ala.
11
settled
21
So.2d
has
So.2d
Life Ins.
apparent confusion,
holding that
therein
in applica- insistences able brief on by the There question evidence. rehearing, orig- tion for we will extend our is faulty 8 for this fore, charge numbered opinion. inal State, 156 reason. Ludlow v. so evident was to us that a So. 321. predicate was sufficient based for the in- alleged dying troduction of the declarations 13 and Written instructions it that we not deem necessary to set out fairly covered substantially each thereto. the evidence relative judge. Title by the original opinion Code As indicated 7, Sec. evidence related to two predicate different approved Bufford Charge 17 was of the declarant. statements 521, In Ala.App. State, Ala.App. 423, 18 So.2d first claimed declaration Proof was Shikles deceased, because was an uncle of justified refusal was its days fixed about two an instruction on rea- before time nothing more than doubt, court had covered The uncle that the testified death. sonable charge. prior In the several his oral him on occasions that he told principle case, going make the die. In authorized to reference (deceased) arewe conjecture, of surmise ter question as a to the time but fixed and fact. pertinent part inevitable is: also be satisfied the declarant had any- “Q. going to die said he was comprehend mental sufficient capacity how? of his nature statements.” “Q. Well, going he he told quotation, Counsel failed in his Yes, sir. die? A. just above, sentence; complete “Q. you in that Didn’t tell conver- he part very pertinent omitted we consider he he think didn’t sation at applicable strikingly the facts me well? A. He told get “ * * * case bar. It is: but day he didn’t several times before that point, appears, by way nothing either get well. think he ever would circumstance, sug direct evidence or told he was And time he gest capacity, doubt of his mental sir.” going to die? general presumption which obtains in favor given suffice, pre second statement Proof of the will it will be sanity a brother-in-law possessed he intelli sumed sufficient night fixed was the gent correctly deceased. The time consciousness to remember day. in- accurately On this death the next before narrate the facts.” the record shows: quiry The record instant case discloses died, night just stage progress before that at the reckon, died, I was the day alleged dying before declarations were *6 conversation a night before—did have admitted in evidence the court below did shooting occurred ? about how not testimony him before it the with the physician hospital or the evidence the chart to which reference is made above. It not State what he did tell about appear was made to at the time of not the get going to well. knowing he was during introduction of the statements die and knew was to He said he he the illness of the deceased he was times at happened.” wanted to tell how it rational and at other times irrational. not shown is is it point sug- was no evidence at to declarant, time it is claimed that the at the gest a capacity doubt of mental the declarations, mentally was the contrary, declarant. On the declara- the signifi- capable purport and knowing the tions, witnesses, appear the as related urgency This cance of his utterances. to in rational form and there is no in- testimony primarily on the the based dication of incoherence of mental or lack physician the attending evidence alertness. hospital charts. It is here disclosed that We hold that for at the patient was rational and was at times the judge to determine whether or not the that “his irrational and mental other times mentality deceased had sufficient at go.” fact the would come and This condition admitting He time. was error in the not to seriousness was attributable weight high statements. The and credit to be times would which at cause injury given jury was for to evidence con fever. sider. Carmichael v. 197 Ala. rehearing, supple- application for On 405; Shell brief, quotes cites counsel mental 40; Sims v. Jollay length from the v. State Ann.St.Rep. 17. quoted, 62. As 130Tenn. S.W. Jollay did not overlook rule said in case: “The bur- State, supra, to party offering announced in Shell declara- den is subject proper predicate dying effect a declaration establish a for its tion to must, impeachment. In our view pre- a condition of the nurse’s He as introduction. original which is set out jury, admission to the its show cedent to alleged opinion, the de affirmatively that the declarant was in ar- indefinite, fully mortis, ceased narrated is so un and that con- her ticulo death, impending certain, and unrelated it cannot be ac- as mat- his not scious of charges also impeachment given Several of the cepted in evidence as Even Un principle claimed declarations. relate to of la\v. the same is left doubt. time of the assertion appellant denied questionably, fully right have the instructed jury dispute It is without fairly on the rule stated in the damaging the defendant’s cows charge. crops the occasion of of the deceased. difficulty, fatal latter drove the Distinguished elo- urges with field, up to the animals out of his corn quent plea lower that we should hold the worked at pellant’s barn. The defendant in error for the denial of the night in his bedroom undressed says part: a new “The trial. see him. The deceased went rights of American citizens have reached sharp relating is in conflict low, new to an- if defendant not entitled We still en- what occurred in the room. conviction, permitted other trial. His the view that tertain stand, sweeps prized away the ancient and happened and from determine what rights of not re- in his home. If man adjudge who these circumstances versed, longer a man’s then is the home no difficulty. bringing the fatal fault castle, adornment, it becomes a mere reason, charge numbered For this refused mausoleum.” given. 8 was not due to be man’s home is castle charge Reporter out refused will set may it ever be. Around fireside with his its that this It is insisted numbered family, always may he to dwell permitted by the court’s covered substantially is not peace, happiness, and secur contentment charge, original opin- we held in the ity, protection right but his to this judge said his oral ion. In instruction “ be commensurate with of others. * * * part: the first pertinent law prescribes limitations of his im- things is there must be an privileges. protective the life an- take pending *7 prevent party, to defendant’s own other accepted, If is State’s taken, prevent griev- being or from life ac- deceased entered home A bodily harm done to his life. being ous in a peaceful cused manner to another without merely cannot shoot man grave matter concern to property pos- necessity present. that is having man. the dead In his under certain circumstances that a sible declaration, the deceased declared that that neces- man have belief honest that he into house the invita- went exists, if have that sity does honest stated, tion of As the defendant. we have necessary is to kill another that it belief what occurred in the house is in irrecon- being taken, life or prevent his own conflict, but found cilable evi- himself, bodily being done to harm grievous dispute that dence without deceased had family, and members that or the house and was left inside out thing which is is based on a honest belief steps away mortally some reasonably apparent rea- to an ordinarily wounded. sufficient, man, then whether that is sonable actually not. necessity existed or or not call to mind the re here often actually exist be—unless it does But it must peated assertion verdict that “the aof character be of —it such a that it judgment trial court are appeared reasonably ato reasonable man they things; solemn should not be exist, did the de- good, legal unless a overturned reason act, honestly fendant the time he shown therefor.” for him. it was necessary believed study instant record are occasion, In the and on that take the evident cau- impressed care and with man, prevent his own the other life of the case was tried. We taken, with which some tion or the mem- being life of life should disturb convinced that we family, prevent grievous or to ber of his prius court in his the nisi view judgment of bodily harm done.” new trial should for a the motion denied. rehearing over- application
ruled.
Opinion extended.
Application overruled. Bessemer, Sullinger,
H. H. pellant. So.2d Police,
ALEXANDER, v. POSEY. Chief
Court of
Aug. 1, 1946.