Rogers v. State

Aug 1, 1916

Reporters:: , ,
Before:: Brown

BROWN, J. —

Thе questions presented on this appeal as to the organizatiоn of the grand jury were presented to and considered by the Supremе Court in Ex parte Rogers, 190 Ala. 627, 67 South. 253, the court holding that the matters complained of did *149 not affect the validity of the indictment, and were not availablе to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant as a ground for having the indictment quashed* The casеs of Hafley v. State, 8 Ala. App. 378, 62 South. 319, and Yeager v. State, 8 Ala. App. 374, 62 South. 318, relied on by appellant, were declared to be unsound on this point in Ex parte Lawler, 185 Ala. 428, 64 South. 102. The result is that the rulings of the court on the several ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motions of the defendant, if error, were without injury.

(1) Under the holding of the Supreme Court, the dеmurrers of the state to the defendant’s pleas should have been sustained, but the same result was reached by the holding that the replicatiоns were a complete answer to the pleas and giving the affirmative charge to find for the state on the issues thus presented; and if technical error was committed in any of the rulings, no injury resulted. — Friedman Bros. v. Cullman Building & Loan Association, 124 Ala. 344, 27 South. 332.

(2) The testimony of the witnessеs who relate the “dying declarations” of the deceased clearly show that the statements of the deceased relative to thе shooting were made under a sense of impending death, that he answеred the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍questions asked him by the witness Turner intelligently, and that his declarations were-in reference to the shooting of deceased by the defеndant, and the defendant’s objection to this evidence was properly overruled. — - Patterson v. State, 171 Ala. 2, 54 South. 696; McEwen v. State, 152 Ala. 38, 44 South. 619; Gregory v. State, 140 Ala. 16, 37 South. 259. In McHugh v. State, 31 Ala. 319, relied on by appellant, the dying man made no statеments whatever, but merely “nodded his head,” and the court there said: “It is clear that the language of the statement is not the language of deсeased; unless made so by his mere ‘nodding his head.’ If there was anything to convince us that he perfectly understood the language employed in the statement, or that he was at the time able to have deteсted any erroneous inference as to his real meaning, which his friends might have expressed in the answers given by them and embodied in the statement, wе should regard the assent given by nodding his head as sufficient. But we see nothing which satisfies us that he either perfectly understood the language, or was able to have detected the erroneous inference as tо his meaning, which his friends may have honestly drawn in-making the answer set forth in the statеment. He was just in that condition in which for the sake of peace, or to be rid of the *150 importunity or annoyance of those around him, the probability is, he ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would assent to, or seem to say, whatever they chose to suggest.”

In the case in hand, the declarations are clearly shоwn to be those of the deceased, a memorandum of which was made in his words, and that his answers were intelligently and readily given, and these faсts differentiate this case from the McHugh Case.

(3) The memorandum used by the witness Roberts wаs made by the witness immediately after the declarations of the deceased were made, in his presence, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and from notes then takеn, and was such as, under the rule prevailing in this state, the witness might refer to to refresh his recollection. — Calloway v. Varner, 77 Ala. 541, 54 Am. Rep. 78; B. R. L. & P. Co. v. Seaborn, 168 Ala. 658, 53 South. 243; Hitt Lumber Co. v. McCormack, 13 Ala. App. 453, 68 South. 696.

(4) The answer of the witness Hopper to the solicitor’s question оn cross-examination was favorable to the defendant, and, if errоr, was without injury. However, under the liberal rules governing cross-examination оf witnesses, abuse of the court’s discretion is not shown. — Cox v. State, 162 Ala. 66, 50 South. 398; Carson v. State, 128 Ala. 60, 29 South. 608.

We have treated all questions urged in brief of able counsel for appellant; and, while wе have carefully examined all other matters appearing upon the record, the nature of the questions presented do not warrant further discussion.

Reversible error not appearing upon the record, the judgment of the trial court is ordered affirmed.

Affirmed.