8 Div. 798. | Ala. Ct. App. | Jun 30, 1921
There are a large number of objections and exceptions, appearing in the record, to rulings of the trial court on the evidence. In this comparatively short bill of exceptions there are 17 exceptions to such rulings. Many of these exceptions are entirely without merit, and in the others the sustaining of the state's objections were not followed up by a statement of defendant's counsel as to what he expected to prove, so as to inform the court of its relevancy. This practice entails large and unnecessary labor on appellate courts, and may at times cause an oversight of the real questions of merit, which at all times require the careful consideration of the court.
As a predicate for the dying declaration of deceased, the witness Whitsett said:
"He (deceased) said, 'Doctor, am I cut bad?' and the doctor said, 'Pretty serious', and he said, 'Doctor, I will never get well,' and the doctor said, 'Oh, yes, Buster, you will get well,' "
He never said death was impending; he just said he would never get well. Unsworn statements can be admitted in evidence as dying declarations only when the person making them is in the full belief that he is about to die. 8 Mitchie's Dig. p. 303, § 182. The declarations of deceased, admitted as dying declarations, as testified to by the witness Whitsett, are sufficiently shown to have been made under a sense of impending death. 8 Mitchie's Digest, p. 304, § 182.
The court in its oral charge in defining murder in the second degree said:
"Murder in the second degree is defined by the law to be every homicide perpetrated with malice aforethought, but it may not be perpetrated with deliberation and premeditation."
This may have been an inadvertence as the law is that the killing must also be unlawful, and any charge omitting that ingredient is erroneous. McQueen's Case,
The definition of what it takes to constitute a dangerous man was correctly stated by the court.
The exception to that part of the oral charge of the court relating to venue, and to which exception was reserved, might have some merit in it, but for the fact there is embraced in the excerpt parts of the charge which state correct propositions. In taking exception to parts of the oral charge of the court, appellant must confine his exception to the part of the charge which is error; otherwise it would place appellate courts in the position of "picking out" expressions of the court not really excepted to.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.