Evans v. State

• Decision Date: 31 May 1923
• Docket Number: 2 Div. 810.
• Citation: 96 So. 923,209 Ala. 563
• Parties: EVANS v. STATE.
• Court: Alabama Supreme Court

96 So. 923

209 Ala. 563

EVANS v. STATE.

2 Div. 810.

Supreme Court of Alabama

May 31, 1923

Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.

Governor Evans was convicted of murder in the second degree, and he appeals. Affirmed.

Thomas Sayre, and Miller, JJ., dissenting.

I. I Canterbury, of Linden, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The indictment was for murder.

The predicate for the dying declaration was laid by the state through the witnesses Dr. Robinson and Lewis, that about two or three weeks before Jennie's death she called her mother, the witness Lewis, to her bedside, and said: "I have something to tell you; I think I am going to die." This was sufficient to authorize the question: "What did Jennie state to you about being shot?" Patterson v. State, 171 Ala. 2, 54 So. 696; McEwen v. State, 152 Ala. 38, 44 So. 619; Gibson v. State, 193 Ala. 12, 69 So. 533; Martin v. State, 196 Ala. 584, 71 So. 693; Carmichael v. State, 197 Ala. 185, 72 So. 405; Watts v. State, 204 Ala. 372, 86 So. 70. In Parker v. State, 165 Ala. 1, 9, 51 So. 260, the quotation from Mr. Wigmore, which was approved, was that-

"No rule can here be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances." 2 Wigmore on Evidence, p. 1809, § 1442.

In the instant predicate the statement was not a mere exclamation, as it was in Titus v. State, 117 Ala. 16, 23 So. 77, but it was such a statement as showed the intention of declarant to make it evidence under the solemnity of the knowledge of her impending dissolution. The statement was: "I have something to tell you; I think I am going to die." Jennie (decedent) said that she "had been afraid to say that Governor, her husband, had shot her, but she wanted to tell her (Evaline Lewis) the truth." No error was committed in overruling the defendant's objections and exceptions to the introduction of the dying declaration in evidence.

Separate objection to the declaration of the witness Lewis that "Jennie said that she had been afraid to say that Governor, her husband, had shot her" was made and overruled; the statement was admissible as tending to show the reason that impelled the decedent to first state that her injury was accidental, and as tending further to show that her statement was deliberately made, and that she intended it to be used as evidence after her death. So, also, there was no error in overruling defendant's motion to exclude so much of the dying declaration as "she wanted to tell the truth." This was a part of the circumstances surrounding the decedent at the time the declaration admitted in evidence was made, giving the same the sanctity of an oath. In Sullivan v. State, 102 Ala. 135, 142, 15 So. 264, 48 Am. St. Rep. 222, the expression, "I pray God to forgive him," was held inadmissible, on the ground that it in no way related to or shed any light on the act of killing or that which apparently led to it. The fact that the instant decedent had theretofore said that she accidentally shot herself made competent her whole dying declaration, including that "she wanted to tell the truth," and accompanying her statement of the reason for having made such former statement competent.

There is nothing in the insistence that it is not within the legal power of the court to excuse a juror for a cause regarded as sufficient by the court. Caldwell v. State, 203 Ala. 412, 84 So. 272; Culver v. State, 207 Ala. 657, 93 So. 521. Defendant moved to quash the special venire for his trial because the name of one Jas. A. Mitchell appeared twice on the said list, etc. It was admitted, and arguments of counsel proceeded on the assumption that the name, Jas. A. Mitchell, duplicated on the venire, referred to "one and the same person." This motion was properly overruled under the statute.

The defendant further objected to being required to strike from such venire for the reasons assigned-"that James A. Mitchell appears twice on said list"; "that said Mitchell is one and the same person," and that "by reason of said list" and duplication therein "the list is reduced" by one "as he should have and to which he is entitled." The court overruled "defendant's objection," and compelled him to strike from the venire containing this duplication, and to the action of the court defendant duly reserved exception. The latter method was proper to present for review the action of the trial court in compelling defendant to strike from a venire constituting a less number of jurors than that provided by the order of the court on defendant's arraignment.

The statute requires special venires in capital cases to be duly designated by the court in its order therefor at the arraignment, that is, to fix the size of it within certain limits-from 50 to 100 jurors-"and shall then in open court draw from the jury box the number of names required with the regular jurors drawn for the week set for the trial to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant, and must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff." Gen. Acts 1919, p. 1041. Analogy is found in rulings under the former statutes, providing that, whenever any person or persons stand indicted for a capital felony, the court must make an order commanding the sheriff to summon not less than 50 nor more than 100 persons, including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then, in open court,

draw from the jury box the number of names required, with the regular jurors drawn and summoned for the week set for the trial, to make the number named in the order, etc.; that a failure in compliance therewith as to such venire provided by the order was available to a defendant on seasonable objection. Gen. Laws, Sp. Sess. 1909, p. 319; Acts 1919, p. 1041. Thus, in Roberts v. State, 68 Ala. 515, where the court fixed the number at 100, and only 99 were summoned, as one...