Clements v. State

• Decision Date: 06 November 1939
• Docket Number: 4141
• Parties: CLEMENTS v. STATE
• Court: Arkansas Supreme Court

133 S.W.2d 844

199 Ark. 69

CLEMENTS v. STATE

4141

Supreme Court of Arkansas

November 6, 1939

Appeal from Lawrence Circuit Court, Western District; S. M. Bone Judge; affirmed.

Judgment affirmed.

R C. Waldron, Hugh U. Williamson, W. A. Jackson and Roy Richardson, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

HOLT, J.

Appellant, Marvin Clements, was charged in an information in the western district of Lawrence county, with the murder of Carson Higginbotham, and upon a trial was convicted of murder in the second degree and his punishment fixed at five years in the state penitentiary.

He appeals to this court and assigns twelve different grounds upon which he relies for a reversal.

We consider them in the order presented.

It is first contended that the trial court erred in admitting in evidence the purported written dying declaration or statement of deceased, on the ground that no proper foundation for its introduction had first been laid.

A dying declaration constitutes an exception to the rule rejecting hearsay evidence. To warrant its admission, it must be shown that the statement or declaration was made by the deceased under the belief or apprehension of impending death. The theory of the law being that one who realizes or believes that he is about to step into eternity will speak the truth. Deceased's realization of impending death, at the time of making the statement, may be gathered from the statement itself and any other facts and circumstances surrounding him at the time, nor is it essential that deceased should apprehend immediate dissolution. The dying statement objected to is as follows:

"Statement of Carson Higginbotham relative to the shooting at Ravenden, Arkansas, March 19, 1939, at Ravenden, Arkansas.

"I, Carson Higginbotham, do make this my last dying statement, and declaration. I realize that I am on the verge of death, and I want the facts and truth known.

"I came to Ravenden about 5:30 p. m., Monday afternoon. I stopped in front of my funeral home and I saw Marvin Clements sitting in front of my store. I got out of my car and spoke to Clements and said, 'What do you say, Marvin.' He got up and said, 'I'm going to kill you.' I said, 'Please don't do that.' He pulled his gun and commenced to shoot at me. I ran around the car and tried to get away from him. I was unarmed, and had no gun or pistol about me. I did not put my hand in my hip pocket or any other pocket to draw a gun. I asked him to not shoot me, and he kept crowding on me and said again, 'I'm going to kill you.' The first shot struck my hand, and about the fourth shot hit me in the back. I fell as I was trying to get around the car and he kept firing while I was begging him not to kill me. Had it not been for John Hanni he would have killed me there on the scene.

"I had nothing to do with his being discharged by the postal department. I did not make a statement or affidavit to anyone insisting on his dismissal. I did make an affidavit two or four years ago in an attempt to help him hold his position. I have loaned him money on numerous occasions for the purpose of securing counsel to represent him in holding his job.

"I have here given the true facts. Carson Higginbotham. Witnesses: Don Penn, Agnes Barre, R. N. Filed this 28 day of March, 1939, W. H. Davis, J. P."

The record reflects that at the time this statement was executed by the deceased he was in a hospital in a serious condition from bullet wounds, inflicted by appellant, and that he died within forty-eight hours of the statement.

The nurse who attended him constantly, testified that she was present when the dying declaration was executed by the deceased and that he asked his brother who wrote it out for him to let him read it over before he signed it and signed it in her presence. She further testified that in her opinion he was in a serious condition at the time and realized it, and further: "Well, he said that he was pretty sick, and says: 'I am going to have a hard time if I make it.' . . . He was in a very serious condition at the time he made the statement. . . . The statement was made on Thursday afternoon, and he died at 12:24 on Sunday morning."

Before this dying declaration could be offered a preliminary question is presented to the trial court for his determination as to whether it is admissible at all. If he concludes that it is admissible, it then goes to the jury for whatever weight the jury may give it.

The rule is well stated in Freels v. State, 130 Ark. 189, 196 S.W. 913: "Whether declarations are made under a sense of impending death so as to render them admissible as dying declarations is a preliminary question for the trial court, and its finding will not be disturbed if there is evidence to support it. Fogg v. State, 81 Ark. 417, 99 S.W. 537; Jones v. State, 88 Ark. 579, 115 S.W. 166; Robinson v. State, 99 Ark. 208, 137 S.W. 831. In determining the question the court should consider all the facts and circumstances surrounding the declarant at the time the declarations were made, such as the character of the wound, the declaration of the deceased himself that he could not live, and the fact that he died shortly afterwards. Robinson v. State, supra; Cantrell v. State, 117 Ark. 233, 174 S.W. 521. The question as to the admissibility of such declarations is for the court to determine; the weight and credit to be given them is for the jury. Rhea v. State, 104 Ark. 162, 147 S.W. 463."

In the late case of Goynes v. State, 184 Ark. 303, 42 S.W.2d 406, this court said: "It is the province of the court to determine whether a dying declaration was made under circumstances that it would justify the court in admitting it, and the weight to be given to the statement is to be determined by the jury. Sanderlin v. State, 176 Ark. 217, 2 S.W.2d 11; Adcock v. State, 179 Ark. 1055, 20 S.W.2d 120."

In Evans v. State, 58 Ark. 47, 22 S.W. 1026, this court held (quoting headnote): "A statement by one who has been shot respecting the circumstances under which the wound was inflicted is admissible as a dying declaration, in a prosecution for the killing of such person, if made at a time when he did not expect to survive the injury, although this was five or six days before his death and at a time when he did not apprehend immediate dissolution."

The record further reflects that the statement in question was dictated by deceased to his brother, who typed it and was then signed and executed by deceased and contained the statement: "I realize that I am on the verge of death, and I want the facts and truth known."

We think the statement itself and the testimony of the nurse clearly make it admissible in evidence and that no error was committed by the court in allowing it to go to the jury.

Appellant next contends the court erred in refusing to permit him to impeach the purported dying declaration of deceased.

The first instance in the testimony to which appellant complains is in the examination of one J. H. White by whom he sought to prove a certain conversation with deceased in which he claimed deceased had made a statement concerning appellant. This testimony is as follows: "Q. Do you know anything about any threats that were made by Carson Higginbotham against the life of Marvin Clements, if you do, tell the jury? A. I do not. Q. You don't know of any made by Carson? A. That is what I understood you to say. Q. Did you ever talk to Carson Higginbotham any about Marvin? A. Yes, sir. Q. Tell what he said with reference to Marvin, about his job. A. It wasn't about his job (interrupted)."

Upon objection to this testimony by the state, the court ruled: "Unless you can show threats against the life of Clements by Higginbotham, it would not be competent. The objection is sustained."

The next testimony about which appellant complains because the trial court sustained the state's objection to its admission is that of Chili Childers and is as follows:

"Q. Did you ever hear Carson Higginbotham make any threats against Marvin Clements? A. No, I didn't. Q. Did you ever know of him threatening to get his job?"

The next is the testimony of Dr. C. C. Ball, which is as follows: "A. Yes, there was a bad feeling between them. Q. How long had that feeling existed, if you know? A. It had existed since the school election in 1937. And they had aggravated Mr. Clements badly. Q. Aggravated him how? A. Well, trying to get his job and fooling with him. Objection by the state because he said 'they.' Q. You know the feeling between him and Carson Higginbotham was bad? A. It was a bad feeling. Q. And had been since that school election? A. Yes, sir, it sure had. Mr. Richardson: Can he say how he knew it, Judge? The Court: No. The Witness: I could tell you how I knew it. Mr. Richardson: Well, the court says you can't tell it."

We think the mere reading of the above testimony shows that it did not tend to contradict or impeach the dying declaration in question and that no error was committed by the trial court in ruling it incompetent.

Appellant further contends that the court erred in refusing to allow him to introduce certain affidavits filed in Washington by various parties who sought to cause appellant to lose his job, and a certain letter of deceased's brother which accompanied the affidavits. Appellant sought the introduction of these affidavits for the purpose of contradicting that part of the dying declaration which declared that he, deceased, had nothing to do with trying to cause appellant to lose his job.

Upon objection by the state to the introduction of these affidavits, and its insistence that only affidavits be received in evidence of those persons making them who had testified in ...