May v. State

| Ala. | Dec 15, 1876

MANNING, J. —

The declarations of a person dying from wounds, concerning the person who inflicted them — made, not under oath, or generally in the presence of the person inculpated by them — when allowed to be proved as evidence against him, are admitted as such without compliance with the general rules established for eliciting truth by other testimony. These “dying declarations” have, therefore, received much consideration from courts, and writers on the law of evidence; and the first requirement respecting them is, that they shall not be admitted, “ unless it appear to the* court that they were made under a sense of impending dissolution, and a consciousness of the awful occasion; though the principle is not affected by' the fact that death did not ensue until a considerable time after the declarations were made.” 1 Whart. Am. Cr. Law, §§ 669-671, and cases there cited; Walker v. State, 52 Ala. 192" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/walker-v-state-6508979?utm_source=webapp" opinion_id="6508979">52 Ala. 192. We therefore held in the last cited case, because it did not sufliciently appear what was the dying man’s opinion of his own condition, when he made the declarations offered in evidence, that they were improperly allowed to go to the jury; and in this case, as in that, it seems to us it was within the power of the State to make the evidence clearer and more definite on this point.

It was proved by the physician who visited Mr. Akard, that he was mortally wounded in the abdomen, of which wound he died some thirty odd hours after it was inflicted. But the physician does not say that he told the wounded man, or that he was then himself convinced, that he must soon die. Mr. Akard’s declaration to liis wife, when he asked her to help him home, “Phil May has killed me,” made immediately after receiving tbe wound, perhaps sufficiently implies that be then thought he could not recover; though such expressions are very apt to be used by any one soon after receiving a severe wound, whether it be mortal or not. But there is no evidence at all, that Mr. Akard believed that he was mortally wounded and must soon die, in the afternoon of the day on which he was shot and next day, when he “ several times ” used the other expressions allowed to be proved, — " Phil May shot me, and it was all a plot; tell Mr. Moore not to let him get away.” And in the absence of proof that such was his opinion at those times, the declarations then made ought not to have been received in evidence. The circuit judge properly instructed the jury, on a subsequent day, that they must not regard as evidence, or allow any weight to, so much of these utterances, as charged that there was a plot; “but as to the remainder of said supposed dying declarations, the court retained its former opinion, and permitted the same to remain with the jury, against the said Phil May, and against him only.” But, for the reason above mentioned, all of that declaration ought to have been excluded.

We direct attention to another matter, which we think must be a clerical error, though objected to here as error of the court. The indictment, according to the transcript filed here, is unmistakably for the murder of James Akard. The person killed, whose dying declarations were received in evidence, as clearly shown by the bill of exceptions, was Jonas Akard. And, of course, his dying declarations, that Phil May killed him, are not admissible for the conviction of Phil May, of having killed James Akard also.

Let the judgment of the Circuit Court be reversed, and the cause be remanded. Defendants must remain in custody, until discharged by due course of law.