Shikles v. State
Decision Date | 21 March 1944 |
Docket Number | 8 Div. 350. |
Parties | SHIKLES v STATE. |
Court | Alabama Court of Appeals |
Rehearing Denied May 9, 1944.
Appeal from Circuit Court, Lawrence County; Julian Harris Judge.
Certiorari denied by Supreme Court in Shikles v. State, 8 Div. 285, 18 So.2d 417.
The following charges were refused to defendant:
S. A. Lynne, of Decatur, for appellant.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
The defendant shot Council Taylor on March 12, 1942, culminating an argument over a division line between the property of defendant and Taylor's father. The two pistol bullets causing death entered the region of the spine, penetrated the body and emerged under the arm. One bullet punctured the spinal column.
About a "week or nine days" before he died on April 14, 1942, Taylor made a statement detailing his version of the affair. As predicate for the admission of this statement, the witness testified that deceased said
The contention is made that it does not appear that the statements were made under the consciousness of imminent death, and, of consequence, error prevailed in admitting them.
No hard and fast general rule can be laid down to control the admissibility of dying declarations. The circumstances of each case must be considered--the condition of the person, as well as what he says in regard to approaching dissolution. Lewis v. State, 231 Ala. 211, 164 So. 92; Parker v. State, 165 Ala. 1, 8, 51 So. 260, 262. The Parker case approvingly quotes Professor Wigmore on the subject: 2 Wigmore on Evidence, p. 1809, § 1442.
Nor is it an indispensable prerequisite to admissibility that declarant should state in haec verba that he is in extremis, that there is no hope of life, and that death is imminent, just so the judicial mind is fairly convinced by legally sufficient evidence after a careful consideration of all the circumstances that at the time such declarations were made such was the conviction of deceased. Lewis v. State, supra; Collins v. State, 27 Ala.App. 499, 176 So. 219.
All the attendant circumstances tending to show the declarant's state of mind, as his statements, nature of the wounds, his weakness, etc., may be looked to by the trial court in considering the predicate for admissibility. Ragland v. State, 238 Ala. 587, 192 So. 498. And that declarant was under a sense of impending dissolution may be inferred from his apparent condition, such as the nature of his injuries and evident danger. Wilson v. State, 28 Ala.App. 496, 188 So. 274.
Nor is admissibility controlled by the length of the interval between the declarations and death, but by the declarant's state of mind and his conviction that death is imminent. Titus v. State, 117 Ala. 16, 23 So. 77; Sowell v. State, 30 Ala. App. 18, 199 So. 900.
These principles are well known but are restated in deference to the urgent insistence of counsel that no proper predicate was laid for admitting the dying statements of deceased, and as sustaining authority for our contrary conclusion. Under our decisions, as well as on the general principles laid down, we think the trial court should be affirmed in admitting the statements. See also Ross v. State, 233 Ala. 201, 171 So. 246, where our Supreme Court ruled such evidence admissible upon the predicational statement of deceased that "I am just about gone" or "I am half dead"; and Pattillo v. State, Ala. Sup., 16 So.2d 303, where deceased stated, "Doctor, he has got me, hasn't he?"
Likewise nontenable do we regard the insistence that the statement of deceased in his dying declaration, should have been excluded as an illegal conclusion. A dying declaration by the victim of a homicide that the act was without provocation, of words of similar import, has been approved as the statement of a collective fact and not a mere conclusion. 30 C.J. p. 275, § 511. Noteworthy sustaining authorities are Sullivan v. State, 102 Ala. 135, 142, 15 So. 264, 48 Am.St.Rep. 22, where the approved statement was, "Jim Sullivan cut me--he cut me for nothing--I never did anything to him", and Clemmons v. State, 22 Ala. App. 418, 421, 116 So. 910, where the declarant said the defendant
The other insistences of error relate to the refusal of the trial court of certain special charges requested by defendant. We discuss them in the order arranged by counsel in brief and argument.
Refused charge 1 has been approved (Gilbert v. State, 20 Ala.App. 565, 104 So. 45), but it is nothing more than an instruction on reasonable doubt (Elmore v. State, 92 Ala. 51, 9 So. 600). The trial court charged at length, and correctly, upon this phase of the law, and we think, and hold, the charge was fairly and substantially covered. Under the rule now prevailing, a reversal for its refusal would be unwarranted. Code 1940, Title 7, Section 273.
Moreover, as instantly applicable, we regard the charge as misleading. It stipulates that if the jurors' minds "are left in such a state of uncertainty that you (they) cannot say beyond a reasonable doubt that defendant is guilty of the offense charged," etc. Here the "offense charged" was murder in the first...
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