Pulliam v. State

88 Ala. 1 | Ala. | 1889

STONE, C. J.

Dying declarations are received as evidence only in trials for homicide. They are limited in their scope to the act which causes the death, and the attendant circumstances, or res gestee. It is essential to their admissibility that, at the time when they were made, the declarant should have been in actual danger of death, that he should then have had a full apprehension of his danger, and that death has ensued. — 1 Taylor Ev. § 718. “It is the impression of impending death, and not the rapid succession of death in point of fact, which renders the testimony admissible.” — Ib.; Reynolds v. State, 68 Ala. 502; Whar. Cir. Ev. §§ 282-3-4; 3 Brick. Dig. 226, §§ 663 et seq.; Clark’s Manual, §§ 538 et seq.; Hussey v. State, 87 Ala. 121.

The record does not contain all the evidence, and fails to inform us as to 'the physical condition of the deceased at the time the declarations were made. We are not only uninformed as to the effect the wound had produced, but there is an entire absence of testimony as to the nature or extent of the wound itself, and of its particular locality. In the absence of proof to the contrary, we must presume these facts were shown to the court below, and that they were such as to show, at least, that deceased had plausible grounds for the opinion he expressed. He had been wounded, was suffering under the effects of the wound, and from those effects he subsequently died. Immediately before making the declarations which were offered in evidence, deceased said, “he would not get well, he was sure to die, and did not expect to live.” To another witness he said, “he was going to die, and did not expect to live.” The Circuit Court did not err in receiving the statements of deceased as dying declarations.

The proof of previous threats made by the accused was clearly admissible.— Walker v. State, 85 Ala. 7.

The court rightly refused to give the charges asked, even if, in a proper case, they assert correct legal principles. The record fails to show any testimony to which those charges were properly applicable; and for all we can know, they may have been refused because they were abstract. We will not consider their sufficiency. — 3 Brick. Digest, 113, §§ 106, et seq.

Affirmed.