Moore v. State

| Ark. | Jul 10, 1916

Kirby, J.

(after stating the facts). 1. It is con-contended that the court erred in admitting the dying declaration or that part of it stating what had occurred prior to the shooting and in the refusal to give certain ■ instructions. It is sufficiently shown that the statement made by the deceased was made under a sense of impending death and admissible as a dying declaration. Rhea v. State, 104 Ark. 176; Newberry v. State, 68 Ark. 359.

It is contended, however, that the statement relating to matters antecedent or prior to the transaction which caused the death of the decedent was not competent.

“Dying declarations,” as said in Rhea v. State, supra, “are admissible only in cases of homicide while the death of the person killed is the subject of the charge and the circumstances of the death are the subject of such declarations.”

In Newberry v. State, 68 Ark. 359, the court said-: “Such declarations can be admitted only to prove the circumstances attending or leading up to the homicide.”

It is true the statement relative to watching the appellant and others skin the beef before he started to take it to town in the wagon was of matters antecedent to the shooting which followed upon the attempt of the deceased to ascertain what was contained in the wagon, but it was a part of the occurrence which caused the deceased to follow and overtake the appellant and attempt to discover what the wagon contained, and it would have been difficult to give an account of the occurrence of the homicide without stating said facts. The court properly limited their consideration of it by instructing the jury that “if they believed from, the evidence that defendant had been guilty of grand larcency, it would not deprive him of the right to defend himself against an unwarranted assault,” and- no error was committed in the introduction of said dying declaration.

2. The complaint of the court’s refusal to give the instructions requested upon reasonable doubt, is not well founded. The instructions given by the court fully declared the law upon that point and it is not error for the trial court to refuse to give a requested instruction as to reasonable doubt, where the instructions given properly declare the law on that subject. Morris v. State, 103 Ark. 353; Johnston v. Fuqua, 105 Ark. 358" date_filed="1912-11-25" court="Ark." case_name="Johnston v. Fuqua">105 Ark. 358.

We find no prejudicial error in the record and the judgment is affirmed.