95 Ala. 4 | Ala. | 1891
Tbe first exception relates to tbe admission of statements by tbe deceased as dying declarations. Tbe testimony tends to show that tbe attending physician was called professionally to see deceased on tbe 7th day of May, 1891, immediately after tbe fatal shot was fired. Tbe physician testifies that deceased “was suffering very much, and was then in a dying condition;” “that be died at 6 o’clock A. M. on May 9th, 1891; that it was hardly two days from tbe time be was first called; that be told deceased that be was going to die.” "With tbe exception of a description of tbe wound, and that it caused tbe death of White, tbe deceased, tbe foregoing statement contains tbe entire predicate upon which the declarations were admitted. Before declarations of deceased are entitled to be received in evidence as dying declarations, it must appear that declarant, at tbe time they were made, was impressed with tbe belief that death was impending and would certainly ensue. It is not necessary to their admissibility, in point of fact, that they be made in articulo mortis, and that dissolution resulted immediately afterwards, but declarant' must be impressed with tbe conviction that be can not possibly recover. Hammil v. The State, 90 Ala. 580; Pulliam v. State, 88 Ala. 3; Reynolds v. State, 68 Ala. 506; Wharton on Ev., §§ 282, 286; 1 Greenl., § 158. Tbe facts and circumstances testified to by tbe physician, and tbe statement made by tbe physician to deceased, were all legitimate for tbe consideration of tbe court, which must determine tbe admissibility of tbe evidence. — Faire v. State, 58 Ala. 80. We fail to discover anything in bis testimony, or elsewhere in tbe record, which indicates directly the state of mind of tbe deceased, at tbe time tbe declarations were made. After laying tbe predicate as we have stated it, tbe witness says: ‘ “I asked deceased who shot him, and deceased replied that Bob Young shot him; that be got into a quarrel, and got scared and ran; that be did not have a knife.” We can not say from tbe statement óf tbe physician here detailed, that at tbe time deceased made tbe statements testified to be bad given up all hope of recovery. It nowhere appears that deceased expressed tbe belief that be was mortally wounded, and there is nothing to show that bis confidence in tbe opinion of bis physician was of that degree that an expression' of opinion by him to tbe deceased, that be “was going to die,”
We find no error in the first charge given by the court defining murder. It is unnecessary to consider the other charges given, which undertake to define murder in the first degree. The defendant was convicted of murder in the second degree, and can not be re-tried for a higher offense than that for which he was convicted. There was no error in refusing the charges asked by the defendant. All oi them are objectionable, and, with the exception of the one numbered 7, ignore certain facts testified to by witnesses examined on the part of the State, from which, if believed, the jury might infer that the defendant was not free from fault m bringing on the difficulty. The definition given to a reasonable doubt, in charge number 7, finds no warrant in any decision of this court.
Eor the error in admitting the dying declarations, the case must be reversed and remanded.