Bell v. State

• Citation: 72 Miss. 507,17 So. 232
• Court: United States State Supreme Court of Mississippi
• Decision Date: 25 March 1895
• Parties: ED BELL v. THE STATE

17 So. 232

72 Miss. 507

ED BELL v. THE STATE

Supreme Court of Mississippi

March 25, 1895

FROM the circuit court of the first district of Perry county, HON S. H. TERRAL, Judge.

Appellant has been convicted of the murder of one John Powe. The circumstances of the killing, as testified to by the accused himself, briefly stated, are as follows: Accused and deceased had quarreled over some trivial matter, and, according to the testimony of accused, deceased had threatened to kill him. On the occasion in question, accused went out into the yard where deceased was cutting wood, and the quarrel was renewed whereupon deceased drew back the ax, saying, "I will kill you now," and struck at deceased several times, the latter retreating backward. After retreating about twenty feet in this manner, accused picked up a large piece of iron and struck deceased with it, whereupon the latter caught hold of it and accused took the ax out of his hand and struck him with it, inflicting blows which, after six or seven days resulted fatally. The facts touching the question of the admissibility of the dying declaration are stated in the opinion.

Judgment reversed.

W. F. Stevens and M. U. Mounger, for appellant.

It seems the state cannot prove a dying declaration by anyone except the wife of deceased. No one else that came near him heard him say that he expected to die. McSwain, a witness for the state, says the deceased asked him to sell him meat, and risk his paying for it when he got well. The evidence is wholly insufficient.

Southworth & Stevens, on the same side.

It was error to exclude evidence as to the character of the deceased. Wharton on Crim. Ev., 766. The rule is that, when defendant, by his own or other testimony, shows a prima facie case of self-defense, the evidence of his own good character or of the violent character of the deceased, is admissible. Coleman v. State, 59 Miss. 484; McDaniel v. State, 8 Smed. & M., 401; 1 Greenl. on Ev., 765; 2 Starkie on Ev., 214; Wesley v. State, 37 Miss. 327. The alleged dying declarations were not admissible, because no sufficient predicate was laid. It does not appear that there was no hope of recovery. Even if faint hope was raised, the statement should be excluded. Wharton on Crim. Ev., § 285; Rex v. Jenkins, 11 Cox C. C., 250; 1 Bishop on Crim. Proc., § 1207. The evidence and circumstances rather show that deceased expected to recover. See Owens v. State, 59 Miss. 547; Lambeth v. State, 23 Ib., 322; Nelms v. State, 13 Smed. & M., 500; Wharton on Crim. Ev., §§ 236, 304.

Frank Johnston, attorney-general, for the state.

The court properly excluded evidence of the character of deceased. This is not an exceptional case, where there is a doubt as to which party made the attack, and the defendant claims to have acted in self-defense, and the whole evidence is circumstantial. 2 Bishop on Crim. Proc., 213, 616. By his testimony, defendant is precluded from the doctrine of self-defense. Chase v. State, 46 Miss. 683.

OPINION

COOPER, C. J.

The circumstances of the homicide were not such as to make competent evidence of the character of the deceased for peace or violence. That he was of good or evil repute--irascible or quarrelsome or given to broils--would thrown no light upon the character of the homicide, in view of the evidence. Spivey v. The State, 58 Miss. 858.

The testimony of the wife of the deceased, in which is detailed his supposed dying declaration, was improperly admitted. Repeated examinations of the record deepens our conviction that the court should have required a full and careful disclosure of the circumstances under which the declarations were made, and of the facts going to show that the declarations were made by the deceased under that solemn and settled conviction of impending death which is alone recognized by law as the equivalent of the oath of the person by whom they are made. The question of the admissibility of dying declarations is to be decided by the court, and, when offered in evidence, it is "the duty of the court to fully investigate the circumstances under which they were made, with the view of ascertaining whether they are admissible in evidence, as such, under the rules of law with respect to that sort of evidence. Owen v. State, 59 Miss. 547.

Mr. Greenleaf states the principles under which this character of evidence is controlled, as follows: "It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough, if it satisfactorily appears in any mode, that they were made under that sanction, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of his medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are to be resorted to in order to ascertain the state of the declarant's mind. The length of time which elapsed between the declaration and the death of declarant furnishes no rule for the admission or rejection of the evidence, though, in the absence of better testimony, it may serve as one of the exponents of the deceased's belief that his dissolution was or was not impending. It is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible. Therefore, when it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterwards, the declaration is inadmissible. On the other hand, a belief that he will not recover, is not in itself sufficient, unless there be also the prospect of almost immediate dissolution." 1 Greenleaf on Ev., § 158.

We have no doubt that the wounds inflicted by the appellant on the head of the deceased with the ax caused his death. But this is not the question involved. The true inquiry is, whether the deceased, at the time he made the declaration, believed that these injuries would certainly result in his speedy death. It appears, from the testimony of Mr. McSwain, at whose house the homicide occurred, that the deceased was struck thrice on the head, "one wound back of the head the scar of which was almost one inch wide and three inches long," which looked as though "it might have been made with the pole of the ax. There was a scar in the top of the head, as if made with the eye of the ax, and a chop in front, on the forehead, as if made with the blade of the ax." The witness, Hinlon, who saw the deceased after his death, gave substantially the same description of the wounds, except the one on the forehead, which he says "cut through the skull, and I could see something like the brain in there." No other witness thus describes the wound on the forehead, and, in view of all the evidence, we do not think the court would have been warranted in finding, as a fact, that such was the character of that wound known to the deceased. It is not suggested, in the evidence of those, who, immediately after the injury, saw the deceased, that the blows...