26 So.2d 603 (Ala. 1945), 7 Div. 829, Cotney v. State

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, Justice.
Citation26 So.2d 603,248 Ala. 1
PartiesCOTNEY v. STATE.
Date12 April 1945
Docket Number7 Div. 829.

Page 603

26 So.2d 603 (Ala. 1945)

248 Ala. 1

COTNEY

v.

STATE.

7 Div. 829.

Supreme Court of Alabama

April 12, 1945

Rehearing Granted July 26, 1945.

Further Rehearing Granted Oct. 25, 1945.

Further Rehearing Denied Dec. 6, 1945.

[248 Ala. 2]

Page 604

J. Sanford Mullins, of Alexander City, John J. Pruet, of Ashland, and Handy Ellis, of Columbiana, for petitioner.

Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., opposed.

FOSTER, Justice.

The deceased had been shot and had fallen. There is no question but that defendant did it. The question was whether it was accidental. Deceased's wife testified that the defendant started to shoot him again, and was standing over him. Deceased looked up at him and said 'don't shoot me again, Amos (that is the defendant), you have already killed me.' That was on Friday night near midnight. He died the next ensuing Wednesday. During the interval, defendant offered to prove 'that the deceased asked Dr. Cole if they put Amos Cotney in jail and he told him, he didn't know. The deceased said 'well I hope they don't, he is one of the best friends I ever had and I am sure this was an accident.'' The trial court held that it was not admissible because at the time the statement was made deceased was not impressed with a belief that death was impending, and that he entertained no hope of life. The opinion of the Court of Appeals is based on the theory that no other question was raised in the trial court as to the admissibility of the evidence, and that the court was not in error in holding that sufficient preliminary proof was not offered to permit the introduction of it as a dying declaration.

The petition for certiorari to this Court challenges that holding of the Court of Appeals as the only ground for reversing that court. In denying the writ, we thought and still think that the Court of Appeals cannot be reversed for that holding. It is an inference of fact drawn from the evidence. We will not review that finding by the Court of Appeals when such inference is a reasonable one. Rainey

Page 605

v. State, 245 Ala. 458, 17 So.2d 687(4); 7 Ala.Dig., Criminal Law, k1179.

[248 Ala. 3] We still think that the finding is reasonable, but we granted a rehearing and ordered the writ for a reason not relied on in the briefs nor mentioned in the opinion of the Court of Appeals. It is that there is a well established rule that a dying declaration may be impeached by evidence of another statement by the deceased at another time, though he was not then impressed that his death was inevitable. We set it down for argument on that question. Shell v. State, 88 Ala. 14, 7 So. 40; Gregory v. State, 140 Ala. 16, 37 So. 259; Title v. State, 188 Ala. 46, 66 So. 10, 52 L.R.A.,N.S., 910; Spicer v. State, 188 Ala. 9, 31, 65 So. 972; Carter v. State, 191 Ala. 3, 67 So. 981; Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602; Marshall v. State, 219 Ala. 83(7), 121 So. 72, 63 A.L.R. 560.

We thought there was reasonable ground to contend that the first statement of deceased referred to above, though a part of the res gestae was also itself a dying declaration. See, Marshall v. State, supra; Norris v. State, 16 Ala.App. 126, 75 So. 718, certiorari denied Ex Parte Norris, 200 Ala. 699, 76 So. 997; Moomaw v. State, 24 Ala.App. 459, 137 So. 40, certiorari denied 223 Ala. 438, 137 So. 42; Parker v. State, 10 Ala.App. 53, 65 So. 90; Parker v. State, 165 Ala. 1, 51 So. 260; 40 C.J.S., Homicide, § 305, p. 1285; 30 C.J. 280.

And upon the question of whether the second statement was a conclusion, we had in mind the principle declared in Smith v. State, 133 Ala. 73, 31 So. 942; Mealer v. State, 242 Ala 682(5), 8 So.2d 178; Shikles v. State, 31 Ala.App. 423, 18 So.2d 412(5); Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am.St.Rep. 22.

Further, we think that a witness whose testimony is received on any legal theory, whether as a dying declaration, or a part of the res gestae, is subject to impeachment by proving contradictory statements, which are not admissible for any other purpose.

The opinion of the Court of Appeals does not show that the evidence was offered for any specific purpose. If evidence is offered for a specific purpose, it is not error to exclude it if not admissible for that purpose, though it may be admissible for some other purpose. Thompson v. Drake, 32 Ala. 99; Randolph v. Sharpe, 42 Ala. 265, 272; Johnson v. Marshall, 34 Ala. 522; Collins v. Jones, 83 Ala. 365, 3 So. 591; 64 Corpus Juris 134, § 152; 16 C.J. 852, § 2153; 23 C.J.S., Criminal Law, § 1031. But if evidence is offered generally, and it is excluded, but it is admissible for a certain purpose, it was error to exclude it. Collins v. Jones, supra.

We think the evidence was admissible as impeaching a prior statement attributed to deceased, and in evidence. We think that it was error therefore to exclude it whether or not it was admissible as a dying declaration.

The judgment of the Court of Appeals is therefore reversed and the cause remanded to it.

THOMAS, LIVINGSTON, STAKELY, and SIMPSON, JJ., concur.

GARDNER, C. J., and BROWN, J., dissent.

On Rehearing.

BROWN, Justice (dissenting).

I am unable to agree with the holding of the majority that the Court of Appeals erred in sustaining the ruling of the trial court in not receiving in evidence the alleged declaration of the deceased made to Dr. Moore between twelve and one o'clock on Saturday morning at the hospital, 'That the deceased asked Dr. Cole if they put Amos Cotney in jail and he told him, he didn't know. Then deceased said, 'Well, I hope they don't, he is one of the best friends I ever had and I am sure this was an accident.''

It clearly appears that the offer of this declaration was preceded by an effort on the part of the defendant to lay a predicate that at the time said declaration was made the deceased was...

To continue reading

Request your trial
5 practice notes
  • 166 N.W.2d 860 (Iowa 1969), 53172, Lemke v. Mueller
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1969
    ...claimed on another and different ground. Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 140 A.2d 708, 710. See also Cotney v. State, 248 Ala. 1, 26 So.2d 603, 605, 607; In re Smead's Estate, 219 Cal. 572, 28 P.2d 348, 349; Hairgrove v. City of Jacksonville, 366 Ill. 163, 8 N.E.2d 187, ......
  • 105 So.2d 541 (Ala. 1958), 5 Div. 684, Garrett v. State
    • United States
    • Supreme Court of Alabama
    • August 28, 1958
    ...generally when admissible for a certain purpose only, without calling attention of the trial court to such purpose. Cotney v. State, 248 Ala. 1-4, 26 So.2d 603; Archer v. Sibley, 201 Ala. 495, 78 So. 849; Western Union Telegraph Co. v. Favish, 196 Ala. 4, 71 So. Page 547 Appellant asserts t......
  • 119 So.2d 1 (Ala. 1960), 1 Div. 721, Gulf Refining Co. v. First Nat. Bank of Mobile
    • United States
    • Supreme Court of Alabama
    • March 17, 1960
    ...ground.' See: Melvin v. State, 32 Ala.App. 10, 21 So.2d 277. Cf. Garrett v. State, 268 Ala. 299, 306, 105 So.2d 541; Cotney v. State, 248 Ala. 1, 5, 26 So.2d 603; Archer v. Sibley, 201 Ala. 495, 496, 78 So. Page 7 There is still another reason why we do not think it was reversible error to ......
  • 30 So.2d 689 (Ala. 1947), 7 Div. 889, Scott v. State
    • United States
    • Supreme Court of Alabama
    • April 17, 1947
    ...that the court, ex mero motu, should have explained its competency. Nor will he be placed in error for not so doing. Cotney v. State, 248 Ala. 1, 26 So.2d 603(6). True, the review here is under the so-called automatic appeal statute, under the Page 692 of which this court, at its discretion......
  • Request a trial to view additional results
5 cases
  • 166 N.W.2d 860 (Iowa 1969), 53172, Lemke v. Mueller
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1969
    ...claimed on another and different ground. Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 140 A.2d 708, 710. See also Cotney v. State, 248 Ala. 1, 26 So.2d 603, 605, 607; In re Smead's Estate, 219 Cal. 572, 28 P.2d 348, 349; Hairgrove v. City of Jacksonville, 366 Ill. 163, 8 N.E.2d 187, ......
  • 105 So.2d 541 (Ala. 1958), 5 Div. 684, Garrett v. State
    • United States
    • Supreme Court of Alabama
    • August 28, 1958
    ...generally when admissible for a certain purpose only, without calling attention of the trial court to such purpose. Cotney v. State, 248 Ala. 1-4, 26 So.2d 603; Archer v. Sibley, 201 Ala. 495, 78 So. 849; Western Union Telegraph Co. v. Favish, 196 Ala. 4, 71 So. Page 547 Appellant asserts t......
  • 119 So.2d 1 (Ala. 1960), 1 Div. 721, Gulf Refining Co. v. First Nat. Bank of Mobile
    • United States
    • Supreme Court of Alabama
    • March 17, 1960
    ...ground.' See: Melvin v. State, 32 Ala.App. 10, 21 So.2d 277. Cf. Garrett v. State, 268 Ala. 299, 306, 105 So.2d 541; Cotney v. State, 248 Ala. 1, 5, 26 So.2d 603; Archer v. Sibley, 201 Ala. 495, 496, 78 So. Page 7 There is still another reason why we do not think it was reversible error to ......
  • 30 So.2d 689 (Ala. 1947), 7 Div. 889, Scott v. State
    • United States
    • Supreme Court of Alabama
    • April 17, 1947
    ...that the court, ex mero motu, should have explained its competency. Nor will he be placed in error for not so doing. Cotney v. State, 248 Ala. 1, 26 So.2d 603(6). True, the review here is under the so-called automatic appeal statute, under the Page 692 of which this court, at its discretion......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT