Parker v. State

Decision Date16 April 1914
Docket Number247
Citation10 Ala.App. 53,65 So. 90
PartiesPARKER v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Pike County; H.A. Pearce, Judge.

John Parker was indicted for murder in the second degree convicted, and sentenced to the penitentiary, from which he appeals. Reversed and remanded.

A.B Foster, of Troy, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

No general rule can be laid down for the admission of dying declarations, and, as the circumstances of each case will show whether the requisite consciousness of a conviction of impending dissolution existed, it is "poor policy," says Prof. Wigmore in his treatise on Evidence (page 1809, § 1442), to disturb the ruling of the trial judge upon the meaning of these circumstances. This principle laid down by Prof. Wigmore has been recently quoted and cited with approval by our Supreme Court. Parker v. State, 165 Ala. 1. In the case presented, the attending circumstances and the condition of the declarant (confined to his bed suffering from a serious gunshot wound, from which death resulted within less than a week), taken in connection with his having said, at the time of making the statement that was admitted as a dying declaration, that he was shot "very badly, seriously," and that he had been "killed" by the person who he said had shot him shows a sufficient predicate to justify the court in admitting the dying declaration complained of as erroneously admitted. See Ex parte Key, 5 Ala.App. 274, 59 So. 331, where we have discussed this question and reviewed the authorities.

The court properly refused to allow the defendant to show by his own witness Doster on direct examination that he was not related to the parties. Relationship to the parties may be established on cross-examination of a witness for the purposes of showing bias or interest, or affecting his credibility, but no suggestion had been made that the witness was related to any of the parties; such an issue was not before the court, and there is no tenable theory upon which such evidence was admissible; and it was wholly incompetent for the defendant on the original examination of his own witness to show by him that he was not related.

The trial court was in error in its ruling in sustaining the objection of state's counsel to that part of the testimony of the defendant, when testifying as a witness in his own behalf, wherein he testified that, during the progress of the...

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11 cases
  • Stokley v. State
    • United States
    • Alabama Supreme Court
    • December 7, 1950
    ...when the opposite party has not attempted to impeach him. See O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Parker v. State, 10 Ala.App. 53, 65 So. 90; 70 C.J. 946, § As heretofore shown, defendant's evidence is to the effect that he and his cousins, Horace Stokley and Pete S......
  • Hunt v. State
    • United States
    • Alabama Supreme Court
    • May 9, 1946
    ...Reliance is had on the principle stated in the case of O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462, and Parker v. State, 10 Ala.App. 53, 65 So. 90. hold that it is not error to refuse to permit a party to show lack of interest or bias of his witness until the opposite party ......
  • Marshall v. State
    • United States
    • Alabama Supreme Court
    • March 21, 1929
    ... ... the requisite consciousness existed, and that it is a poor ... policy to disturb the ruling of the trial judge upon the ... meaning of those circumstances. Wigmore on Evidence, p. 1809, ... § 1442; Evans v. State, 209 Ala. 563, 96 So. 923; ... Parker v. State, 165 Ala. 1, 51 So. 260; Parker ... v. State, 10 Ala. App. 53, 65 So. 90; Smith v ... State, 16 Ala. App. 47, 75 So. 192 ... It will ... be noted here that the witness stated, "She has got ... me," and then told the doctor it was unnecessary to take ... him to the ... ...
  • Jones v. State
    • United States
    • Alabama Court of Appeals
    • January 18, 1944
    ...him. The following cases are cited to sustain the argument: O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Parker v. State, 10 Ala.App. 53, 65 So. 90. tenor of these holdings is that it is not error for the trial court to refuse to permit a party to show lack of bias or intere......
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