60 So. 458 | Ala. Ct. App. | 1912
A proper predicate was shown for the admission of the dying declaration testified to by the witness J. P. Ellidge. The witness testified that the declarant, while confined to his bed with a serious knife wound inflicted in the abdomen, from the effects of which he died in about six weeks, told him that he was “going to die,” that he “never expected to get well,” and wanted to make the statement before he died. This Avas sufficient to shoAV that the declarant Avas impressed with the belief that death Avas impending, and that he cotild not possibly recover, and constituted sufficient proof to -comply Avith the rule as to a proper predicate to make the dying declaration admissible. The statement made by declarant, “I am going to die,” distinguishes this case from Titus’ Case, 117 Ala. 16, 23 South. 77, cited by appellant. — McEwen v. State, 152 Ala. 38, 42, 44 South. 619. See, also, Johnson v. State, 169 Ala. 10, 53 South. 769; Heninburg v. State, 151 Ala. 26, 43 South. 959; Brown v. State, 150 Ala. 25, 43 South. 194; Greg
Charge A differs from the charges of a similar character passed on in the cases of Hammond v. State, 147 Ala. 79, 41 South. 761, Jackson v. State, 5 Ala. App. 306, 57 South. 594, and Burkett v. State, 154 Ala. 19, 45 South. 682, in that the charges in those cases are limited to- any state’s witness who had, through an exhibition of prejudice, bias, or anger, satisfied the jury that he had not testified truly and was not worthy of belief. Charge A has a sweeping reference to, and is predicated upon, all of the state’s witnesses, and the court cannot be put in error for refusing this charge, unless all of the state’s witnesses in their testimony evidenced some show of prejudice or anger against the defendant. It cannot be said that this is true, for there is no indication or intimation to be gathered from the evidence of some of the state’s witnesses that they exhibited any prejudice, anger, or ill will against the defendant. No contention was made on the trial to that effect with respect to all of the state’s witnesses, and no attempt to show it as to all of them. The charge, viewed in the light of the evidence, had-a tendency to raise a question as to some of the state’s witnesses that was not involved or at issue on the trial, and as applied to these witnesses the charge was not based on the evidence and was abstract. The trial court should not be put in error for refusing a charge raising a question or matters not at issue on the trial, or that is abstract. — Washington v. State, 155 Ala. 2, 46 South. 778; Pate v. State, 150 Ala. 10, 43 South. 343; Montgomery v. State, 160 Ala. 7, 49 South. 902. It was held in Wright’s Case, 156 Ala. 109, 47 South. 201, that this
Counsel for appellant discuss and insist on only those propositions we have considered. An examination of the record does not show reversible error, and the case will be affirmed
Affirmed.