Evans v. State, 2 Div. 810.

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

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. [96 So. 924]

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...