Fannie v. State

• Decision Date: 08 April 1912
• Docket Number: 15578
• Citation: 58 So. 2,101 Miss. 378
• Court: Mississippi Supreme Court
• Parties: GEORGE FANNIE v. STATE

58 So. 2

101 Miss. 378

GEORGE FANNIE v. STATE

No. 15578

Supreme Court of Mississippi

April 8, 1912

APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.

Geo Fannie was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

Howie &amp Howie, for appellant, filed an extended brief too long for publication in full contending.

First. That the dying declaration admitted in evidence was not made under a sense of impending death, citing: Underhill on Criminal Evidence, p. 191; 2 Wigmore on Evidence, p. 1805; Bell v. State, 17 So. 232; Askley v. State, 37 So. 960; Slarks v. State, 6 So. 843; Matteley v. Commonwealth, 19 S.W. 977.

Second. That it was error for the court to allow the district attorney to comment on the fact that the accused did not put his wife on the witness stand and overruled the objection of defendant to sad comment, citing; 6 Ency. Evidence, p. 895; Knowles v. People, 15 Mich. 413; State v. Watcher, 29 Ore. 309; Greaves v. United States, 150 U.S. 118; Byrd v. State, 57 Miss. 243; Greenleaf on Evidence, par. 334; 4 Wigmore on Evidence, p. 3065; Johnson v. State, 63 Miss. 313.

Frank Johnson, assistant attorney-general, for appellee, filed an elaborate brief too long for publication and citing the following authorities: Lester v. State, 20 So. 232; Brown's case, 32 Miss. 433; McDaniel's case, 8 S. & M., 401; McQueen v. State, 103 Ala. 12; Regina v. Howell, 15 Dennison (Crown Cases), p. 1; State v. Tillman, 11 Iredel, 513; State v. Evans, 124 Mo. 397; Lambeth's case, 13 Smedes & Marshall, 322. Johnson v. State, 63 Miss. 313; 6 Ency. Evidence, p. 893; Cole case, 21 So. 706; People v. McWhorter, 4 N.Y. 438; Gavini v. Scott, 51 Mich. 373; Commonwealth v. Webster, 5 Cush. (Mass.) 295; McDonough v. Neal, 113 Mass. 91; Robertson v. State, 44 Tex.Crim.App. 211; Mercer v. State, 17 Tex.App. 452; People v. Hovey, 92 N.Y. 555; Harris v. State, 47 So. 643; Hall v. State, 22 So. 141; Blatch v. Archer, Cowpens Reporter, 63.

Argued orally by Virgil R. Howie, for appellant.

Argued orally by Frank Johnston, assistant attorney-general, for appellee.

OPINION

SMITH, J.

Appellant seems to have been practically separated from his wife, who was living temporarily with her aunt. On the night that he killed the deceased, he went to this aunt's house, and, not finding his wife there, went in search of her, and found her in a buggy with deceased returning from church to her aunt's. A difficulty then ensued between appellant and deceased; several shots being fired by each. The only eyewitnesses were appellant, his wife, and deceased. The wife did not testify. Deceased was shot in the neck, from which he bled to death in about an hour and a half or two hours thereafter.

A few minutes after he was shot a man met him "driving along," and, at his request, went with him in his buggy in search of a doctor. Before finding a doctor they met deceased's mother, who then went with them in their search for a doctor. When his mother asked him "how he let that nigger shoot him," he answered: "I could not help myself. He just run up and hailed me and I turned around, and he shot me the first fire right through." This statement was introduced, over appellant's objection, as a dying declaration, to show that appellant was the aggressor in the difficulty. Appellant admitted the killing, but claimed to have acted in self-defense. The evidence introduced by the state, in order to qualify this statement as a dying declaration, was that deceased, when he first met the man who went with him in search of a doctor, said to him: "Come carry me back to the doctor, I am shot to death." And, while they were looking for the doctor, said: "I am going to die. Make haste and get the doctor. I am bleeding to death. I am going to die. Don't bother me and get the doctor." And again: "Make haste, mamma, and get the doctor, I am going to die." A doctor was finally found, but he did not succeed in stopping the flow of blood. In order that a dying declaration may be admissible as evidence, it must appear, beyond a reasonable doubt, to have been made under the realization and solemn sense of impending death. The deceased, at the time of making the declaration, must have had no hope, however slight, of recovery. Bell v. State, 72 Miss. 507, 17 So. 232. Such does not appear to have been the situation of deceased here, when this declaration was made. All that this evidence can be said to prove is that deceased realized that he was bleeding to such an extent that he would die if the flow of blood was not quickly stopped. If this could have been done, he probably would have recovered. It was for this purpose that he was urging his mother and friend to make haste and find a doctor, and there is nothing in this evidence from which it can be said that he did not think that a doctor would be found in time to stop, and who, when found, would in fact succeed in stopping the flow of blood. It cannot be said, therefore, that he had abandoned all hope of recovery. The declaration, therefore, ought...