74 So. 123 | Miss. | 1916
delivered the opinion of the court.
Dan Sparks and Jess Brumley were jointly indicted in the circuit court of Tippah county for the murder of one Lon Clark in May, 1916. There was a severance granted, and Sparks, the appellant, was placed on trial and convicted of murder and sentenced to the penitentiary for his natural life.
It was the theory of the appellant below that Brumley did the killing, and he contends that there was no conspiracy to connect him with the act of Brumley; also contends that the court below erred in refusing to admit the dying declaration alleged to have been made by Clark between the time of the shooting and his death. The proof for the state tended to show that Sparks did the shooting, and we think there is ample evidence to show he was the joint actor and active participant in the shooting to make him liable as a joint actor in the killing, regardless of whether or not he fired the fatal shot. The proof of a conspiracy in such a case would not be necessary to connect him with the killing.
It appears from the evidence for the appellant that, during the shooting, the deceased cried out to Brumley not to shoot him any more as he had already killed him, or words to that effect. It was sought to prove on behalf of the defendant that subsequent to the shooting, and after this declaration, some one asked Clark who shot him, and he responded that Brumley did. While a dying declaration is admissible on behalf of the defendant as well as on behalf of the state, we think the proof in this case fails to make the alleged dying declaration competent for either party.
The rule for determining the admissibility of this class of evidence is clearly stated in Bell v. State, 72 Miss. 507, 17 So. 232; and it is incumbent on a party relying on a dy
We think there is no error in the instructions by the court or in the admission or exclusion of evidence, and the case is, accordingly, affirmed.
Affirmed.
