Shell v. State

Nov 15, 1889
Versions:88 Ala. 14
STONE, C. J.

Deceased received his death-wound December 19, 1887, and died January 7, 1888. The dying declarations of deceased were introduced in evidence against the defendant, and, as we think, the Circuit Court did not err in receiving them. If the testimony be believed, they were made under a sense of impending death. — Hussey v. State, 87 Ala. 121; 3 Brick. Dig. 226, §§ 663 et seq.

Defendant offered evidence of statements made by deceased after he had received the fatal blow, “which tended to contradict the dying declarations introduced by the State;” but stated it “was not offered” as a dying declaration. This evidence, on objection, was ruled out, and the defendant excepted.

There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatesttest of the credibility of oral testimony, cross-examination. ' Second,, The jury are without the opportunity of observing the temper and manner of the declarant. Third, Such testimony is generally given by reía-. tives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected. Fourth, All narrations of other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood, This is show11 Í& the fact, that when two or more *18witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say, that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. — 1 Greenl. Ev. §§ 156, 162; 2 Best Ev. § 505; Wood’s Prac. Ev. §§ 115, 118.

The question raised by this record has not been, heretofore, considered in this court. In Maine v. People, 16 Sup. Ct. N. Y. 113, and in Wroe v. State, 20 Ohio St. 460, it was decided that such testimony was not admissible. The ground on which the ruling was placed was, that to receive the evidence would be to allow the testimony derived from the deceased as a witness to be impeached by other variant declarations made by him, without affording him an opportunity to deny or explain what was offered to be proved as a means of contradicting him.

In the cases of People v. Lawrence, 21 Gal. 368; Battle v. State, 74 Ga. 101, and Felder v. State, 23 Tex. Ct. of App. 477; s. c., 59 Amer. Rep. 777, the ruling was to let in such testimony. The opinion in the case of Lawrence, supra, was delivered by Justice Field, now of the Supreme Court of the United States, then Chief-Justice of California. Speaking of the ruling of the trial court which had refused the evidence, he said: “It does not appear from the record on what ground the court based its ruling, and we are unable to perceive any that is at all tenable. The rule is general, that the credit of a witness may be impeached by proof that he has made statements contrary 'to what he has testified. There is, it is true, a condition to the application of the rule with reference to verbal statements; that the attention of the witness must be previously called to the particular occasion and circumstances under which the supposed contradictory statements were made, in order to give an opportunity of making any explanation of the matter which he may have. But this preliminary condition, it is clear, can not be complied with, where dying declarations are offered in evidence, except in very rare cases. Such declarations are generally made to the physician or friends of the deceased, in the absence of the party against whom they are offered, who, of *19course, lias no opportunity of cross-examination, or of directing the attention of the deceased to any alleged contradictory statements made by him. Declarations of this character are received with great caution. They are admissible on the ground of necessity; but, . . . though the condition of the person making the declarations in the last hours of life, under a sense of impending dissolution, may compensate for the want of an oath, it can never make up for the want of a cross-examination. There would be no justice, therefore, in any rule which would deprive the accused, under such circumstances, of the right to impeach the credit of the deceased, by proof of his having made contradictory statements as to the homicide and its cause.”

Mr. Wharton, Criminal Evidence, § 298, gives his sanction to this principle. Speaking of the ruling in Wroe’s Case, 20 Ohio St. 460, he says it was of doubtful propriety. So, Bishop, 1 Orim. Proc. § 1209, says such contradictory statements are admissible, citing People v. Lawrence, from which we have quoted.

In Moore v. State, 12 Ala. 764, Dargan, Justice, delivering the opinion, it was held by this court, that when dying declarations, made at different times, are in evidence before the jury, and are inconsistent with each other, it is the duty of the jury to weigh them, and to determine which, or whether either, is to be believed. The same doctrine was asserted in McPherson v. State, 9 Yerger, 279. See, also, Hurd’s Case, 25 Mich. 405; Knapp’s Case, 26 Mich. 112; Roscoe’s Cr. Ev. (31).

Surveying the whole field, we think the Circuit Court erred in refusing to admit the evidence offered.

There was an exception reserved to a charge given at the instance of the State, and to the refusal to charge as requested by defendant. Each of these charges is subject to criticism. They are unduly long, and are, therefore, to a mind untrained in legal learning, difficult of comprehension. The charge given hypothesizes what we suppose was the extremest view taken in favor of the defendant, and asserts, that even on that, hypothesis, if “the defendant could have retreated and avoided the necessity of striking the fatal blow, then he could not be acquitted on the ground of self-defense.” This charge is probably faulty, in instructing the jury, in the case supposed, that it was the defendant’s absolute duty to retreat, if he could thereby have avoided the necessity of striking the fatal blow, The parties appear to have been *20engaged in close combat, and there is not enough hypothesized to show that defendant could safely have attempted escape. He was not required to escape, or to attempt it, if the conditions were such that, by so doing, he would increase his peril, real or apparent. — Carter v. State, 82 Ala. 13.

We must not be misunderstood. There is no testimony found in the record tending to show Sargent had a weapon, or attempted to use one, unless it arise out of the fact, of which there is some testimony, that during the combat the defendant received a cut on his jaw. If Sargent was without a weapon, and was simply engaged in a fisticuff fight, that, without more, would not, in the eyes of the law, justify the defendant in taking his life. It might, in some conditions, and in the absence of formed design, reduce the homicide to manslaughter, but nothing more. Says Wharton — 1 Crim. Law, § 484 — “A mere assault, not directed at life or chastity, or other high right, can not excuse homicide. Hence, if a deadly weapon be not used by the assailant, or other circumstances do not exist to indicate a felonious attempt, for the assailant to take life is at least manslaughter.”

There is scarcely enough testimony shown to justify the giving of the charge asked by the defendant. We have shown above what is meant by the phrases “danger to life,” or “exposure to grievous bodily harm,” which will excuse the taking of life when there is no other reasonable mode of escape. We think the charge was calculated to mislead, on the inquiry of what in law constitutes grievous bodily harm, exposure to which will justify the taking of life, the other conditions being present.

What we have said will be a sufficient guide on another trial.

Reversed and remanded.