Baylis v. State

• Decision Date: 10 October 1938
• Docket Number: 33230
• Citation: 183 So. 527,182 Miss. 794
• Court: Mississippi Supreme Court
• Parties: BAYLIS v. STATE

183 So. 527

182 Miss. 794

BAYLIS v. STATE

No. 33230

Supreme Court of Mississippi

October 10, 1938

Division B

1 HOMICIDE.

In prosecution for murder, testimony of deceased's wife that, during the day and a half which elapsed between knifing and death, deceased had said several times that he was going to die or believed he was going to die, but was too sick to talk about it all the time and slept most of the time under influence of a hypodermic, held not to authorize admission of wife's testimony concerning deceased's dying declarations.

2. CRIMINAL LAW. Homicide.

In murder prosecution, defendant was entitled to a preliminary hearing in the jury's absence concerning the competency of evidence of deceased's dying declarations, and was entitled to exclusion of such evidence unless the judge was convinced of its competency beyond every reasonable doubt.

3 HOMICIDE.

Though preponderance of evidence controls in determining whether there was probable ground for a search without search warrant so as to make evidence obtained by such search admissible, competency of evidence of dying declarations must be shown beyond a reasonable doubt.

HON. J. C. SHIVERS, Judge.

APPEAL from the circuit court of Lawrence county HON. J. C. SHIVERS, Judge.

George Baylis was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

John Arrington, of Monticello, Ovie L. Berry, of Mendenhall, and Martin & Farr, of Prentiss, for appellant.

We respectfully submit that the dying declaration was improperly admitted as evidence; that it did not meet the requirements of the law in Mississippi. The whole law of dying declarations has so recently been discussed so thoroughly and so exhaustively, both in the controlling and dissenting opinions in the Dean case, 160 So. 584, that we do not think the court would desire any further research or citations. To be competent, dying declarations must have been made: (1) Under the realization and solemn sense of impending death. (2) They must have been the utterances of a sane mind. (3) They must be restricted to the homicide and the circumstances immediately attending it and forming a part of the res gestae. (4) It is not admissible unless it would be competent and relevant if it were the testimony of a living witness. (5) Great caution should be observed in the admission of dying declarations and the rules which restrict their admission should be carefully guarded.

Lipscomb v. State, 75 Miss. 559; Dean v. State, 160 So. 584.

In Bell v. State, 72 Miss. 507, 17 So. 232, the wife testified that she saw the deceased when they brought him home; that he said: "I know I will die in a very few days, for I can't live this way. Ed Bell killed me. I know it." The court ruled this was not sufficient to meet the rigid tests.

We must remember that declarations of this sort are always made known to the courts through friends or relatives of the deceased. It often happens that the exact words and the exact meanings cannot be accurately remembered or conveyed and it may be and often is, we submit, that the whole scene is colored to fit in with the requirements of the law.

People v. Falletto, 202 N.Y. 494, 96 N.E. 355.

It is not enough that the statement be made when the declarant is in extremis; it is also essential that it be made when he has abandoned all hope of recovery from the injury inflicted by the accused and is under the firm conviction that his death is inevitable and is near at hand.

30 C. J. 255, sec. 498b; McNeal v. State, 115 Miss. 678, 76 80. 625; People v. Robinson, 2 Parker, Ct. R. (N.Y.) 235; Bell v. State, 72 Miss. 514; Lea. v. State, 138 Miss. 761, 103 80. 368; Hathorn v. State, 138 Miss. 11, 102 So. 771; Smith v. State, 161 Miss. 430, 137 So. 96.

We most respectfully submit that the predicate attempted to be laid by the testimony of Lillie James did not meet the requirements to admit the statement as a dying declaration.

The court will understand that this witness, Mrs. Davis, was introduced and her testimony given to the jury without any preliminary hearing to test its admissibility, and we say the court committed reversible error there. As the court will note, there was no opportunity given the defendant to either go on the stand in person or to rebut the evidence on the dying declaration, that is on the admissibility of it.

We submit that the whole matter should have been tested on a preliminary inquiry, both the state's evidence and the defendant's and from this whole evidence, in the absence of the jury, the court should have tested it as to its competency as a dying declaration.

1 Wharton's Crim. Evidence (10 Ed.), sec. 275 (b), page 531, and footnote 8, page 532; State v. Elliott, 45 Iowa 486; Bell v. State, 72 Miss. 514.

The deceased merely stated an opinion. The declaration did not purport to give any facts connected with the cutting, but only the inference or opinion of the wounded man. This was not admissible.

Mose v. State, 35 Ala. 421; Ben v. State, 37 Ala. 103; 1 Greenleaf on Evidence, sec. 159; Roscoe's Crim. Ev., 27, 33.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

Appellant argues that the dying declaration which was used in this case was not properly qualified to show its competency as evidence. It is said that the statement was not made under the realization and solemn sense of impending death. There appears to be no conflict so far as the facts surrounding the making of this dying declaration are concerned. Here was a negro badly cut. The only way he could get any relief came by way of the hypodermic route. He was making the statement that he was going to die; that he was cut to death; that he would never be any better. He was continually complaining that even with the hypodermics he was unable to rest. There is no dispute as to any of these conditions.

Bell v. State, 72 Miss. 507, 17 So. 232; Wiltcher v. State, 99 Miss. 374, 54 So. 766; House v. State, 94 Miss. 107, 48 So. 3; Early v. State, 128 Miss. 715, 91 So. 417.

In the early case of McDaniel v. State, 16 Miss. (8 S. & M.) 401, 47 Am. Dec. 93, this court said that the declarant at the time of making his declaration, does not have to accompany it by saying that he is conscious of impending dissolution.

Lewis v. State, 9 S. & M. 115.

The declarant was shown to have been badly wounded, knew that he would not get any better, and repeatedly stated that he had been cut to death. He was shown to have been in great pain and suffering. He never, at any time, expressed any hope of recovery. His death actually occurred within a short time after the wound. All of these attendant circumstances indicate that declarant was fully conscious of the fact that death was dosing in upon him. At any rate, the evidence was sufficient to justify the trial court in admitting the declaration as testified by Lilly James, the wife of deceased, and this court will not reverse the trial court's finding in this respect unless and until it is shown that such finding was manifestly wrong.

Scott v. State, 166 Miss. 6, 148 So. 239.

As a general rule, all parties should be heard at the preliminary inquiry. If the defendant has any evidence to rebut the showing made by the state, it is his duty to present it at that time. This appears to be the rule in all cases where the competency of the evidence is determined by the court before allowing it to go to the jury.

Wilkerson v. State, 134 Miss. 853, 98 So. 770; Perkins v. State, 160 Miss. 720, 135 So. 357; Weatherford v. State, 164 Miss. 888, 143 So. 853; Lee v. State, 137 Miss. 329, 102 So. 296; Ellis v. State, 65 Miss. 44, 3 So. 188.

The record does not indicate that the defendant ever requested the court to allow him, or his witnesses, to testify relative to the dying declaration. There was, therefore, no refusal on the part of the trial court to allow this character of testimony as was the case in Warren v. State, 174 Miss. 63, 164 So. 234, and no error can be claimed here with the record as it is.

Assuming that the defendant was entitled to another preliminary inquiry when Mrs. Davis' version of the declarations was offered, this court will not reverse because it was denied him, if the record shows that all the testimony was, in fact, competent.

Pickett v. State, 155 Miss. 386:, 124 So. 364.

We submit the declaration was one of fact and not an opinion.

Beauchamp v. State, 128 Miss. 523, 91 So. 202; McNeal v. State, 115 Miss. 678, 76 So. 625; House v. State, 94 Miss. 107, 48 So. 3.

Argued orally by Geo. L. Martin, for appellant.

OPINION

Anderson, J.

Appellant was indicted and convicted in the Circuit Court of Lawrence County of the crime of the murder of one J. W. James, and upon the jury's being unable to agree as to the punishment he was sentenced to the penitentiary for life. From that judgment appellant prosecutes this appeal.

Appellant is a negro and so was the deceased. The wound from which the deceased died was inflicted on a Saturday night. He lived until the next Monday morning about eleven o'clock, when he died as a result of the wound which was inflicted with a knife. The negroes had what is commonly known as a fish fry at China Lee School in Lawrence County. They were in three or four groups. The evidence showed without any substantial conflict that there was no justification for the stabbing. The question was as to the identity of the guilty person.

Four witnesses, Hartwell, Jackson, Hartzog, and Ratliff, testified that appellant came to the group where the deceased was and inflicted the death wound without any provocation whatever.

On the other hand, the witnesses, Swan Ward, and Van Ward, and Sanders, testified that appellant was not present in the group at the time the wound was...