Tittle v. State

• Decision Date: 30 June 1914
• Docket Number: 731
• Citation: 66 So. 10,188 Ala. 46
• Parties: TITTLE v. STATE.
• Court: Alabama Supreme Court

66 So. 10

188 Ala. 46

TITTLE v. STATE.

No. 731

Supreme Court of Alabama

June 30, 1914

Appeal from Circuit Court, Marion County; C.P. Almon, Judge.

Frank Tittle was convicted of murder, and appeals. Reversed and remanded.

De Graffenried, J., dissenting.

E.B. &amp K.V. Fite, of Hamilton, and A.H. Carmichael, of Tuscumbia for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

SAYRE J.

Defendant was convicted of murder, and appeals.

The state offered evidence of a dying declaration made by deceased which tended to show a case of murder. Defendant testified to a case of self-defense, and adduced evidence of frequent statements by deceased previous to the fatal encounter to the effect that he had killed five men and was going to kill the sixth; such statements having been made under circumstances affording an inference that deceased on these occasions had in mind defendant as the sixth victim of his wrath. Witnesses for defendant also testified that subsequent to the dying declaration offered in evidence by the state and shortly before the death of deceased, defendant approached the bedside of the wounded man and said: "Uncle Jere, I hated to do this, but you know I had to do it. You told me you had killed five men and would kill six. Didn't you tell me that, Uncle Jere?" To which deceased replied, "Yes."

Referring to this testimony and other of similar import, the court, in its oral charge to the jury, said:

"Evidence that deceased made a different statement at the house of how the difficulty happened, if he made a different statement to what the state offered as a dying declaration, is admissible as evidence, not as a dying declaration, but for the purpose of contradicting the dying declarations offered by the state. You will take the evidence, not as to how the difficulty happened, but to contradict the evidence offered by the state as to how it happened, and consider it in connection with the evidence of the dying declarations in determining what weight you will attach to the testimony offered by the state as to how the difficulty happened."

In this statement there was error prejudicial to defendant. The statement made by deceased, or his acquiescence in the statement made by defendant, was after the dying declarations introduced by the state. Declarant was evidently in a desperate state, as he must have realized from the nature and number of his wounds and the profound prostration they had already produced. There was nothing to show that, in the interval which had elapsed since the declarations admitted at the instance of the state, he had expressed or conceived any hope of recovery or that there was in fact any chance of a favorable issue in his case. It cannot be safely said that this declaration was...