State v. Marshall

Jan 22, 1919

10128

Reporters:: , ,
Before:: Hydrick

The opinion of the Court was delivered by

Mr. Justice Hydrick.

On indictment for murder, appellant was convicted of manslaughter. The only assignment of error is in the admission of the alleged dying declarаtion of deceased, who was shot about’ 10 o’clock at night, аt the house of Betsy Massey. There were no eyewitnesses to thе shooting. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Appellant and deceased were outside of thе house. A number of persons in the house testified that they heard a conversation between them and two shots, both of which struck decеased; and from the effect of one of them he died, about 6 о’clock the next afternoon.

*358 Roy Taylor, a witness for the State, testified that he went to the house where deceased was shot, about 12 o’clock the same night, and carried him home, about 2J4 milеs, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in a wagon; that after he got home he made the- declarаtion in question — that appellant shot him for nothing. The foundation laid by the State was as follows:

“Q. What did he say about dying ? A. He told me it was no use to send after a doctor; he was going to die. I didn’t know who shot him, and asked him. Q. Wait a minute. How many times did he say that? Why did he say it was no use to send for а doctor ? Anybody saying anything about sending for a doctor ? A. Yes, sir. His wife told me to be quiet until the doctor came. Q. What did he say? A. He said, if he didn’t makе haste and come, it would do no good, for he was going to die. Q. That he was going to die? ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍How long did he live after that ? That was about what time of night? A. It was in the morning. It was about 5 o’clock in the morning. * * * Q. How long did he live? A. He lived until, about 6 in the afternoon. * * * Q. About 12 hours afterward ? A. Yes, sir. Q. He said it was nо use to send for a doctor? A. Yes, sir. Q. That he was going to die? A. Yes, sir. Q. Now, dо you know whether he got any hope after that of getting better? A. No, sir; he didn’t get any hope. Q. About getting better ? A. No, sir.”

Appellant contends that the declaration was inadmissible, because it did not appear that deceased had lost all hope of life. As evidеnce of that fact, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍appellant relies upon the statеment of deceased that “if he (the doctor) didn’t make haste and come, it would do no good, for he was going to die.”

We do not think thаt the only inference of which tht statement is susceptible is that the deceased thought that, if the doctor did make haste and comе, he could save his life. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍statement also warrants the inference .that deceased believed that death was imminent nd certаin, but that, if the doctor did not- get to him pretty soon, he could do no gоod, *359 in the way of relieving his pain and suffering; for, in connection with the use of the words “it would do no good,” he added, “for he was going to die.”

1, 2 While it is true that, to make a dying declaration admissible, the deceased must have lost all hope of life, it does not follow necessarily that, because he sends for a physician, or asks that one be sent for, he has any hope of life from the timely aid of a рhysician. One may be so severely wounded that he may know that deаth is imminent and certain, and yet he may want a physician to relieve his suffering. See 2 Jones Ev., section 332, and cases cited in the note.

3, 4 Thе trial Court must primarily decide whether the conditions exist under which such declarations are admissible, and its ruling will not be reversed, unless it is cleаrly made to appear that it was erroneous and prejudiсial. State v. Smalls, 87 S. C. 550, 70 S. E. 300. Appellant has failed to satisfy the Court of error in the ruling complained of.

Judgment affirmed.

Messrs. Justices Eraser and Gage concur. Mr. Chiee Justice Gary and Mr. Justice Watts did not sit.