68 Ala. 502 | Ala. | 1881
Dying declarations are admissible only in cases of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of such declarations.—1 Greenl. Ev. § 156; 2 Lead. Cr. Cases, (B. & H.) 232. In other words, they are admitted “to identify the prisoner and the deceased, to establish the circumstances of the res gestee, and to show the transactions from which the death results.”—Whart. Cr. Ev. § 278; 1 Brick. Dig. p. 511, § 891; Clark’s Cr. Dig. § 355.
When, however, they relate to former and distinct transactions, and embrace facts or circumstances not immediately illustrating or connected with the declarant’s death, they are inadmissible.—Ib. The dying declarations of a deceased person, therefore, showing the state of feeliug existing between himself and a defendant charged with his homicide, are not competent evidence for the prosecution.—Ben v. The State, 37 Ala. 103.
They must, of course, be uttered under a sense of impending dissolution, and it does not matter that death failed to ensue until a considerable time after such declarations were made.—Whart. Cr. Ev. §§ 282, 286. “It is the impression of almost immediate dissolution, and not the' rapid succession of death in point of fact, that renders the testimony admissible.”—1 Gr. Ev. § 158. If it appear from the statement of the deceased, made after he was fatally wounded, that he knew or thought that he was in extremis, this would clearly be sufficient to authorize the introduction of his declarations made at such time.—Johnson v. State, 47 Ala. 9.
And, although it is often said that such evidence is tolerated on the principle of necessity, we know of no rule which would exclude it, where there is other,- and even undisputed testimony of witnesses detailing the cause of death and the circumstances producing and attending it. A rule of this character w’ould be impracticable in its application, and antagonistic to the weighty reasons which sanction the admission of this species of evidence.—1 Greenl. Ev. § 156; Whart. Cr. Ev. § 276.
Tae dying declarations of the deceased, in this case, were clearly admissible in the light of the above principles. He knew that he was in extremis, and his utterances related to the circumstances immediately attending the killing, except the declaration that “ he had nothing against the defendant, and did not know that defendant had anything against him.” This part of the evidence should have been excluded, if properly pointed out and objected to as illegal. But the objection was to the declarations as a whole, and» a part of the
Tbe admission by tbe court of tbe cumulative testimony elicited on tbe rebutting examination of McClellan, was not sucb an error as will authorize tbe appellate court to reverse tbe j udgment in tbe cause. It is true, that, as to new matter, a party cannot ordinarily re-examine a witness in rebuttal; but, if tbe nisi prius court, in its discretion, sees fit to permit it, such ruling is not reviewable on appeal.—1 Whart. Ev. §§ 572, 574; Borland v. Mayo, 8 Ala. 104; Fant v. Cathcart, Ib. 725.
Exceptions are required to be taken during tbe progress of the trial, and before the jury leave the bar of tbe court; otherwise they come too late. A statement, therefore, in tbe bill of exceptions, that “tbe defendant excepts” to any ruling or action of tbe court, may not always be sufficient.—1 Brick. Dig. p. 246, §§ 58-61.
The judgment entry in this case is regular, reciting tbe proper organization of tbe jury, the arraignment of the prisoner, the plea of “not guilty,” and tbe other incidents of tbe trial. Tbe record is, however, contradicted by the bill of exceptions, which shows that tbe jury was selected and sworn before tbe prisoner was arraigned and pleaded to tbe indictment. If this were an error, there was no objection interposed at tbe time to tbe proceeding, in tbe form of an exception or otherwise, and hence no question is presented for the consideration of tbe appellate court.
The prisoner has nothing to complain of in tbe sentence of tbe court. The first sentence, it is true, was erroneous, by reason of a failure on the part of the presiding judge to first ask tbe prisoner if be bad anything to say why tbe sentence of tbe law should not be pronounced upon him. But this irregularity was fully cured by again calling him to the bar, and re-imposing tbe sentence in accordance with tbe requirements of law.
"We find no error in the record, and the judgment of tbe Circuit Court is hereby affirmed.
