Delaney v. State

• Decision Date: 20 December 1906
• Parties: DELANEY v. STATE.
• Court: Alabama Supreme Court

42 So. 815

148 Ala. 586

DELANEY v. STATE.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Ridley Delaney was convicted of murder in the second degree, and he appeals. Affirmed.

The character of the offense for which the defendant was tried and the sentence of conviction sufficiently appear from the opinion. The defendant offered a showing for an absent witness, John Smith, which was admitted by the state, subject to legal exceptions, and which showing contained these words "He expects to be able to prove by John Smith that said Smith was with the deceased before he died, and, after deceased knew he was going to die in a short time, he said to witness that Ridley Delaney did not shoot him, but that some other persons did." Solicitor objected to this as a mere conclusion of the witness, and as not laying the proper predicate for dying declarations. The court sustained the objection, and the defendant reserved an exception.

Dickinson & Brown, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

This appeal is from a judgment of the circuit court of Chambers county adjudging the defendant guilty of murder in the second degree and sentencing him to the penitentiary for a period of 25 years.

To make the statement of the deceased competent as a dying declaration, it was indispensable that it should have been shown that the declarant was impressed with the belief that death was impending and would certainly ensue; and this could not be shown by the bare conclusion of the witness that "deceased knew he was going to die in a short time." If the statements made to the witness or in his hearing, which led him to the conclusion that the declarant knew he was going to die, had been before the court, the court might have come to another conclusion than that reached by the witness. Young's Case, 95 Ala. 4, 10 So. 913; Moses' Case, 88 Ala. 78, 7 So. 101, 16 Am. St. Rep. 21. Furthermore, "the mental status, the cognition of another, is not a fact. It is of necessity matter of opinion or conclusion, dependent on the facts from which the opinion is formed, or the conclusion drawn." And while a witness, when it is proper to do so, may testify to his own mental status, yet he cannot testify that another knew or did not know a certain fact, but must detail the facts from which such conclusion is drawn. The objection to the showing offered...