Ex parte Key
| Decision Date | 16 May 1912 |
| Citation | 59 So. 331,5 Ala.App. 274 |
| Parties | EX PARTE KEY. |
| Court | Alabama Court of Appeals |
Appeal from Probate Court, Russell County; H. T. Benton, Judge.
Application of Elbert Key, indicted for murder, for his release on bail. From an order of the Probate Court denying bail, he appeals. Affirmed.
Glenn & De Graffenried, of Seale, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The petitioner does not contend but that the crime committed, and for which he is being held under an indictment charging him with the commission thereof, is one for which the guilty party might properly be punished capitally, but does contend that there is no legal evidence connecting the petitioner with the commission of the offense; that there is not sufficient admissible testimony showing there is a probable cause for holding the petitioner without bail charged with the commission of the crime.
The evidence shows that the deceased, Arthur Green, was found lying upon a public street in the town or village of Hurtsboro, in Russell county, within 50 yards of his home about 7 o'clock in the evening, mortally wounded and was carried to his home, where he died in about 2 1/2 hours after he was first found on the street. The deceased was wounded in two places; the wounds having been inflicted by pistol shots, one of the shots taking effect in the thigh and the other entering the cheek about an inch below the left eye and ranging downward and lodging in the back of the neck. The testimony of the defendant tended to prove an alibi, and the defendant himself was a witness and denied participation in the crime and all knowledge of it. The state's evidence connecting the defendant with the commission of the offense consisted in the proof of threats made by the petitioner against the deceased on the evening preceding the night the deceased was killed, and the dying declarations of the deceased. The principal evidence showing probable cause that petitioner was guilty of having committed the crime is the dying declaration of the deceased, which counsel for petitioner ably and most earnestly contends was improperly admitted because no sufficient predicate was laid from which it would appear that the declaration was made under the conviction of impending death.
In this we cannot agree with counsel, for it is shown by the evidence set out in the transcript that the doctor who was called to attend the deceased when he was found in the street suffering from the pistol-shot wounds, and who had deceased removed to his home and attended him there, testified that after the deceased was taken to his home he (the doctor) stated in the presence and hearing of the deceased that he had but one chance in a thousand to live; that at this time, although mortally wounded, the mind of the deceased was clear; that he was able to answer questions and knew the doctor and the fact that he was a physician; and that he died very shortly afterwards. It is also shown by the testimony that subsequently, and when deceased "was beginning to get into the death agony" and just before he died, but while still conscious and able to answer questions, the doctor informed one Tucker in the presence and within the hearing of the deceased that there was no chance; that "there wasn't any hope" for him to live. After each of these statements was made by the doctor at the bedside of the deceased, he was asked by the doctor who shot him, and he replied, "El Key shot him." While it is not shown by any positive testimony that the deceased heard the statements made by the doctor, they are shown to have been made in the hearing of the deceased when his mind was clear and when he was able to answer questions and very shortly before his death. There can be no question but that at the time the declarations were made the deceased was in extremis, and we think it sufficiently appears that he was convinced that such was his condition.
It is not an essential to the admissibility of dying declarations as evidence that the declarant express the conviction that he must die; if made under a sense of impending dissolution, this is sufficient, notwithstanding nothing was said by the declarant expressing the conviction. Wills v. State, 74 Ala. 21. The Wills Case on the proposition of dying declarations has been cited with approval in the following cases: Ward v. State, 78 Ala. 446; Jordan v. State, 82 Ala. 4, 2 So. 460; Hussey v. State, 87 Ala. 129, 6 So. 420; Young v. State, 95 Ala. 8, 10 So. 913. See, also, Sanders v. State, 2 Ala. App. 13, 56 So. 69, in which this court held that it is not an indispensable prerequisite that the deceased should in so many words express his conviction that he was in extremis.
To establish the prerequisite facts showing a proper predicate, "it is not necessary," says the Supreme Court in Ward v. State, supra, at page 446 of 78 Ala., ...
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Naugher v. State
...Gregory v. State, 148 Ala. 566, 42 So. 829; Walker v. State, 146 Ala. 45, 41 So. 878; Walker v. State, 139 Ala. 56, 35 So. 1011; Ex parte Key, 59 So. 331. A differs from the charges of a similar character passed on in the cases of Hammond v. State, 147 Ala. 79, 41 So. 761, Jackson v. State,......
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