Parker v. State
165 Ala. 1
Ala.
1909
Check Treatment

Lead Opinion

SIMPSON, J.

— There was no error in overruling the motion to quash the venire. Section 7265 of the Criminal Code of 1907 provides that, when the day set for the *8trial is a day of a subsequent week of the term, the special jurors so drawn, together with the jurors dratvn for such subsequent week, shall constitute such venire.

The record shows that G. C. Ahhatt tvas drawn as one of the jurors for the week set for the trial, and the order for serving the venire was made by the court in accordance with the statute; and the list of jurors served on the defendant, as set out in the bill of exceptions, also shows the same name. The fact that G. G. Abbott was really summoned, and that no such person as G. C. Ahhatt was found, does not affect the validity of the venire, as the original list certified to by the jury commissioners shows that the name draAvn is the same as that in the list served.

The widow of the deceased testified that at about 1 or 5 o’clock in the evening, before her husband died in the morning (after he had been shot four times, one bullet going through his lung, as testified by the physician), he said two or three times that he could not live. This was while Mr. Metz was there. Said Metz testified that he called that evening to see deceased, and Avitnessed the statement made by the deceased, and that before the statement was made the deceased “said he suffered very much and could not live.” The statement was taken down in writing and witnessed. It commences Avith these words.: “I am suffering considerably, and and getting worse all the time. This Avound in my lung Avill kill me. I fell very Aveak now, and it is a right smart effort for me to talk.”

Dying declarations are admitted upon the theory that the consciousness of approaching death dispels from the mind all motive for making a false statement, in view of the fact that the party recognizes the fact that he shall soon appear in the presence of his Maker. The circumstances of each case must be considered — the con*9dition of the person, as well as what he says in regard t.o approaching dissolution. Prof. Wigmore, after discussing the matter at some length, says: “No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.” — 2 Wigmore on Ev. p. 1809, § 1442. According to our later decisions, as well as on the general principles laid down, we hold that the dying statement was properly admitted. — Gregory v. State, 140 Ala. 16, 20, 21, 37 South. 259; Gibson v. State, 126 Ala. 59, 61, 62, 28 South. 673; McQueen v. State, 103 Ala. 12, 16, 15 South. 824. In the case of Titus v. State, 117 Ala. 16, 23 South. 77, the statements excluded were mere exclamations, and did not show a deliberate sense of impending dissolution, nor an intention to make the statements as evidence, as did the subsequent statements of the same party, which were reduced to writing and properly admitted. To the same effect is the Case of Justice, 99 Ala. 180, 13 South. 658. See, also, Jordan v. State, 81 Ala. 20, 1 South. 577; s. c., 82 Ala. 1, 2 South. 460; Ward v. State, 78 Ala. 441; Pulliam v. State, 88 Ala. 1, 6 South. 839; McQueen v. State, 94 Ala. 50, 10 South. 433.

The objection to the question to Mrs. Jennie Woods, “Which was in the better position to see the difficulty, you or Mr. Jimmie Woods?” was properly sustained, as the question asked for the mere opinion of the witness, and not for facts.

There was no error in sustaining the objection to the question to the defendant, “What sort of a Avarrant Avas yonr brother coming to town after?” It was immaterial what kind of a warrant his brother was going for.

Charge 1, requested by the defendant, hypothesizes “great danger of bodily harm,” and not danger of great *10bodily harm, and was properly refused. The bodily harm of which there was great danger may have been very slight.

Charge 2, requested by the defendant, was properly refused. Said charge does not hypothesize that the “danger” was Of death or great bodily harm, nor does it hypothesize that the defendant was impressed that there was danger, etc. While it is true that this charge is a copy of charge 19 in the case of Smith v. State, 142 Ala. 14, 39 South. 329, with the word “reasonably” omitted, which was criticised in that case, yet the court, by making that criticism, did not necessarily decide that the charge was otherwise good. The court frequently points out one defect, which is sufficient, without enumerating all of the defects.

The same is true of charge B, criticised in the case of Strickland v. State, 151 Ala. 31, 44 South. 90. The charge is also bad because it instructs the jury that, if one of them has a reasonable doubt of the guilt of the defendant, “they must find the defendant not guilty,” instead of stating that they cannot find him guilty. They might make a mistrial, but could not find him not guilty, merely because one juror had a reasonable doubt. Consequently, charge 3 was properly refused.

Charge 5, requested by the defendant, was properly refused. It is argumentative, and states a false proposition of law. It is true that dying declarations are received with caution, yet the mere fact that the attorney who took down the statement is now representing the prosecution does not authorize the court to single out that fact as a mark of suspicion in charging the jury.

Charges 4, 6, 7, 8, and 9 were properly refused.

Charge 10 was a duplicate of charge 11, given at the request of the defendant, and was properly refused.

Chare 11% was properly refused. — Crawford v. State 112 Ala. 4, 26, 21 South. 214.

*11Charge 12 is a mere argument, and was properly refused.

Charge 13 is abstract and was properly refused. There was no evidence tending to show any coercion.

Charge 14 was properly refused, as it assumes the fact that the testimony of certain witnesses tended to contradict the dying declaration, in place of leaving it to the jury to determine whether said testimony had such tendency.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.



Rehearing

ON REHEARING.

SIMPSON, J.

— On reconsidering this case, tbe court concludes that charge 14,’ requested by the defendant, should have been given, on the authority of Harris v. State, 96 Ala. 24, 11 South. 255.

The rehearing is accordingly granted and the judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur.