Dillon v. State

• Decision Date: 12 June 1944
• Docket Number: 35484.
• Citation: 196 Miss. 625,18 So.2d 454
• Court: Mississippi Supreme Court
• Parties: DILLON v. STATE.

18 So.2d 454

196 Miss. 625

DILLON v. STATE.

No. 35484.

Supreme Court of Mississippi

June 12, 1944

J M. Alford, of Tylertown, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington, Asst. Atty. Gen for appellee.

ROBERDS Justice.

Dillon was convicted of murder of one Claudie Nichols and sentenced to death.

The lower court admitted in evidence a dying declaration of Nichols. Appellant says this was error; that the proof fails to show that the statement was made under a realization of impending death. As bearing upon that question the proof is that Dillon came to the home of Nichols about 2 o'clock at night; awakened and called Nichols to the door and immediately shot him with a small gauge shotgun, being at the time within a few feet of Nichols, the load of shot entering the left breast above and within about three inches of the heart, making a hole of about two inches; that Nichols walked and crawled a half mile to the home of a neighbor, who carried him to the Walthall Hospital at Tylertown Mississippi, arriving there about 3 o'clock; that he had lost much blood, was extremely weak and suffering from shock. Nichols was placed upon an emergency, operating table, and Dr. Crawford tried to dress his wound but did not undertake to operate. Dr. Crawford testified that Nichols was conscious and entirely rational but did not have a chance to live, although it is not shown that he told Nichols that. Thus situated and under these circumstances Nichols told the sheriff of the county more than once that he was going to die, and after so saying he made his declaration to the sheriff. He did die from this wound at 11 o'clock of the same morning. In the meantime the sheriff had been back to see him and he repeated to the sheriff that he was going to die, and never at any time after getting to the hospital did he indicate the slightest hope or expectation of living. It is clear that Nichols had no hope of recovery. He thought he was going to die and his statement was made under a sense of impending death. The declaration was competent. Jones v. State, 133 Miss. 842, 98 So. 340; Walton v. State, 156 Miss. 499, 126 So. 29; Dean v. State, 173 Miss. 254, 160 So. 584, 162 So. 155.

The state was granted this instruction:

"The Court instructs the jury for the State that in case you may return either one of the following verdicts;

1-'We, the jury, find the defendant guilty as charged'. (In which event it will be the duty of the Court to sentence the defendant to death in the electric chair) or,

2-'We, the jury find the defendant guilty as charged and fix his punishment at life imprisonment in the state penitentiary'. (In which event it will be the duty of the Court to sentence the defendant to life imprisonment in the State penitentiary.)

3-'We, the jury find the defendant guilty as charged but disagree as to his punishment.' (In which event it will be the duty of the Court to sentence the defendant to life imprisonment in the state penitentiary.) Or,

4-'We, the jury find the defendant not guilty'."

It will be noted this instruction did not authorize the jury to return a verdict of manslaughter. Nor did the defendant request a manslaughter instruction. Appellant urges that the failure of the state's instruction to tell the jurors they might return a manslaughter verdict is fatal error. A sufficient answer to that contention is that the proof in this case shows no element of manslaughter. All of the...