Brooks v. State

• Decision Date: 19 March 1946
• Docket Number: 8 Div. 471.
• Citation: 32 Ala.App. 389,27 So.2d 48
• Parties: BROOKS v. STATE.
• Court: Alabama Court of Appeals

27 So.2d 48

32 Ala.App. 389

BROOKS v. STATE.

8 Div. 471.

Alabama Court of Appeals

March 19, 1946

Rehearing Denied June 4, 1946.

Melvin Hutson and S. A. Lynne, both of Decatur for appellant.

Wm N. McQueen, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

The following charges were refused to defendant:

'1. The Court instructs you that dying declarations are not to be considered as given under the sanctity of an oath.'

'4. The Court instructs the jury that the dying declarations of the deceased, if you find from the evidence, there were any such dying declarations of the deceased, are not entitled to the same credit and force as if the deceased were still alive and testified in the presence of the jury, under oath; that is a species of hearsay evidence, and is intrinsically weaker than if the declarant was present and subject to cross examination; and the jury alone, are the judges of its weight and force.'

'5. The Court instructs the jury that the dying declarations of the deceased, if you find from the evidence there were such dying declarations of the deceased, are not to be considered by you as having the same probative value as the testimony of a witness given in open court, subject to cross examination.' '6. The Court charges you that the law is on all doubtful questions as to who was the aggressor, the violent and blood thirsty character of deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood thirsty nature.'

'16. The Court instructs the jury that the defendant had a right to be in her home, and she was not required to leave the same upon a mere belief or apprehension or even threat, that the deceased contemplated doing her grevious bodily harm, and if you are reasonably satisfied from the evidence the defendant was threatened by words or hostile demonstrations by and on the part of the deceased, she violated no law if she procured her pistol for the purpose of preparing herself for defense against such threatened and dangerous attack.'

HARWOOD Judge.

On September 4, 1944 the appellant, Mrs. Edna Brooks, shot her husband twice with a pistol. He lived for some twenty days thereafter. Appellant was indicted for murder in the first degree, found guilty of manslaughter in the first degree, and sentenced to five years' imprisonment in the penitentiary.

According to appellant's testimony her husband returned to their farm about 6:30 on the morning of the shooting, having been away throughout the night. He went to the barn and there met his son, by a former marriage, Solon Brooks. She overheard Solon Brooks make threats against her to his father. The deceased returned to the porch, or dog-run, of the house and began to berate her because she had allegedly neglected some farm chores. Words led to blows, and, quoting appellant: 'Blood flew all over me. I straightened up in the chair, but I couldn't speak; I sat there I guess a second may be, and I commenced crying, told him he had hurt me, he had hurt me bad. He said, 'God damn you, I meant to kill you,' and he slapped this jaw (indicating) as hard as he could, and he stepped backwards, slinging his hand. He said, 'Hush that God damn screaming; you just want to get the neighbors.' He run his hand in his pocket and got his knife, and he said, 'I cut hell out of my other wife, I'll cut hell out of you,' and I screamed, and he dropped his knife and he stooped down and got his knife, and I grabbed the gun and shot him twice.'

After the shooting appellant ran down the highway to the home of Robert Byars and was by him taken to her daughter's home.

Appellant said that during deceased's attack on her he tore her hair, beat her with his fists about her head and shoulders, and kicked her, and one bruise was black for twenty-six days.

Mr. and Mrs. Byars, to whose home appellant fled immediately after the shooting, each testified that appellant was suffering from nose bleed when she arrived at their home, and noticed no other significant physical signs of combat.

Pearl McDonald noticed bruises on appellant's leg two or three days after the shooting, and Mrs. Alice Glover, sister of appellant, testified that when she saw appellant after the shooting she was bruised about the arms and legs, her eyes were swollen, her nose was skinned, and there were knots on her head.

However, Dr. Price Irwin, a practicing physician of Moulton, examined appellant about 48 hours after the shooting and this physician found no knots on her head, or bruises anywhere other than a bruise on one knee 'as you would expect from a fall.'

Showings were permitted as to two of appellant's absent witnesses. The material portion of these showings was that these two witnesses, who lived in the neighborhood of the Brooks home, heard two shots fired immediately together and after the lapse of a short space of time heard a third shot. One of the above showings also was to the effect that prior to the shooting there had been loud talk and cursing at the Brooks about a calf being out, the voices being recognized as those of deceased and his son Solon Brooks. The State however presented some three neighbors as witnesses who testified that they heard only two gun reports.

The State's case was dependent on the admission as dying declarations of certain statements made by deceased to Solon Brooks, his son, and Mrs. Ruby Hill, his daughter, to whose home he was brought after his stay in the hospital.

The deceased was carried to a hospital by his son Solon Brooks shortly after he was shot on September 4. He was suffering from two bullet wounds which penetrated the left shoulder and ranged downward, penetrating the chest cavity and lung. In the opinion of his physician he improved at the hospital, and left the hospital some sixteen days after his admission, and was taken to the home of his daughter Mrs. Ruby Hill. On the twentieth day after he was shot his physician was called to Mrs. Hill's home and deceased died of a hemorrhage about thirty minutes to an hour after the physician's visit.

Solon Brooks testified that immediately on reaching the hospital deceased told him that 'he wouldn't get well,' and made numerous statements to him to this same effect, such as he 'wasn't aiming to get well,' 'she had got him,' all during his stay at the hospital, and on the day he died told him again that he would not get well.

Mrs. Hill testified that deceased told her at the hospital 'Ruby I'm going to die,' and on the day he did die he made similar statements to her, the last one being made shortly before the visit of the physician, and about three or three and a half hours before he did die.

Dying declarations of course constitute one of the numerous exceptions to the hearsay rule. Lack of oath, and opportunity to cross-examine are the usual reasons assigned for excluding hearsay testimony. Today the lack of opportunity to cross-examine is the reason emphasized, said by some to result from the decreasing regard for the sanctity of oaths. In the case of dying declarations these two objections resulting from their hearsay character are thought to be counterbalanced by the pure and reverent mood that should pervade a human being harboring a consciousness he is about to enter the abyss of death. That such theories for the admission of this type of testimony are sometimes fallacious has been recognized. In People v. Falletto, 202 N.Y. 494, 96 N.E. 355, 357, the New York Court of Appeals said 'Experience shows that dying persons have made self-serving declarations, such as false accusations, in order to destroy their enemies, and false excuses * * * to save their friends.' Illustrative of the soundness of the above statement, completely conflicting dying declarations are present in the early Alabama case of Moore v. State, 12 Ala. 764, 46 Am.Dec. 276. The functional necessity of dying declarations has been candidly recognized, demanded by the interests of society in the suppression of human killings. As stated by Edmund Morgan in his foreword to the Model Code of Evidence of the American Law Institute: 'Some judges have frankly said that the policy of facilitating the criminal prosecution of manslayers induces the courts to accept this evidence despite its frailties; hearsay is better than nothing, and it is needed because the chief witness in this class of case has always been put out of the way.'

Regardless of the assigned reason for the admission of dying declarations, that they are competent evidence is now completely established.

A comprehensive summary of the principles evolved by the Alabama decisions in connection with the admission of dying declarations is set forth in Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, 414, certiorari denied 245 Ala. 641, 18 So.2d 417, wherein Justice Simpson, then a member of this court, wrote:

'No hard and fast general rule can be laid down to control the admissibility of dying declarations. The circumstances of each case must be considered--the condition of the person, as well as what he says in regard to approaching dissolution. Lewis v. State, 231 Ala. 211, 164 So. 92; Parker v. State, 165 Ala. 1, 8, 51 So. 260, 262. The Parker case approvingly quotes Professor Wigmore on the subject: 'No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the rulings of the trial judge upon the meaning of these circumstances.' 2 Wigmore on Evidence, p. 1809, § 1442.

'Nor is it an indispensable prerequisite to admissibility that declarant should state in haec verba that he is in extremis that there is no hope of life, and that death is imminent,...