Shikles v. State

• Decision Date: 21 March 1944
• Docket Number: 8 Div. 350.
• Parties: SHIKLES v STATE.
• Court: Alabama Court of Appeals

18 So.2d 412

31 Ala.App. 423

SHIKLES v STATE.

8 Div. 350.

Alabama Court of Appeals

March 21, 1944

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:

"1. I charge you that if, after looking at all the evidence in this case and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle the defendant to an acquittal and you should so find."

"8. The court charges the jury that if the defendant did not provoke the difficulty, and that he was free from fault in bringing it on, and the said Council Taylor made an overt act or attempt to use a weapon on the defendant, and he acted in so doing in such a manner as to indicate to a reasonable man that his intention was to do great bodily harm to the defendant, and there was no reasonable mode of escape or retreat without increasing his danger, and the defendant honestly believed that he was in danger of great bodily harm at the hands of said Council Taylor then the defendant was authorized to anticipate the said Council Taylor and shoot and if the jury from the evidence has a reasonable doubt on this proposition they must find the defendant not guilty."

"15. The court charges the jury that if you find from the evidence the defendant did not provoke the difficulty, and that he was free from fault in bringing it on, and the said Council Taylor made an overt act or attempt to use a weapon on the defendant, and he acted in so doing in such a manner as to indicate to a reasonable man that his intention was to do great bodily harm to the defendant and the defendant honestly believed that he was in danger of great bodily harm at the hands of said Council Taylor, then the defendant was authorized to anticipate the said Council Taylor and shoot."

"17. I charge you that if you find from the evidence that defendant was first attacked by Council Taylor in such a way that, to save his own life, or to save himself from grievous bodily harm, it was necessary for him to kill deceased, the defense of self-defense is made out; and, if there is a reasonable doubt in your minds whether this defense is made out, the defendant is entitled to the benefit of the doubt."

"21. If the defendant did not intend to kill Council Taylor then you cannot convict him of murder.

"22. The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or death, or that he did the shooting before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."

"26. I charge you gentlement of the jury, that each member of the jury must be so convinced from all the evidence beyond all reasonable doubt to the extent that each member of the jury would venture to act on the decision in matters of the highest concern to himself before you can convict the defendant of the offense charged." S. A. Lynne, of Decatur, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

SIMPSON Judge.

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 "he was going to die and he had no hope of recovery. He believed that he was about to die. *** The first thing he said was that he felt like he was going to die and he wanted to make a statement, and for me to take it down; he wanted to swear to it. Those were the words as near as I (the witness) recall them. *** He was there in bed wounded; shots in his back and appeared to be very weak and frail. Talked in a low voice, apparently a very sick man. Said he thought he was going to die and he told me that before he died he wanted to make a statement and sent for me to come to his house. *** He said he knew he was in a dying condition and he didn't feel like there was any hope for him, and he wanted to make a statement and wanted it sworn to, wanted to swear to it. *** Council Taylor on that occasion never did say he had no hope of life and that he wouldn't get well, but he did say he felt like he was going to die."

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: "No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances." 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, "Shikles shot me in the back without any cause at all. I didn't say anything or do anything to him," 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 "hit me in the head with a rock or brick without cause. I did not cause or try to cause a fight with Pat Clemmons (defendant) in any way."

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...