Gambrell v. State

• Decision Date: 27 April 1908
• Docket Number: 13,039
• Citation: Gambrell v. State, 92 Miss. 728, 46 So. 138 (Miss. 1908)
• Court: Mississippi Supreme Court
• Parties: WILLIAM L. GAMBRELL v. STATE OF MISSISSIPPI

46 So. 138

92 Miss. 728

WILLIAM L. GAMBRELL v. STATE OF MISSISSIPPI

No. 13,039

Supreme Court of Mississippi

April 27, 1908

FROM the circuit court of Smith county, HON. ROBERT L. BULLARD Judge.

Gambrell appellant, was indicted and tried for the murder of Robert Grayson, was convicted and sentenced to the penitentiary for life and appealed to the supreme court.

The deceased was shot from ambush, there being no eyewitnesses.Deceased, however, made a dying declaration shortly before his death stating that he recognized the appellant as the assassin, and this evidence is chiefly relied on bye the state for conviction.Among other errors assigned is the action of the court in refusing to admit testimony to show that deceased was an infidel.

Reversed and remanded.

J. J Stubbs, B. W. Sharbrough, R. S. Tullos, G. R. Noble, W. H Hughes and Stone Deavours, for appellant.

The court below erred in sustaining the objection of the state to the testimony offered by the appellant that the deceased Grayson was a man without religious convictions, who boasted of his infidelity, who did not believe in any hell, or in a state of future reward or punishment.On the trial of the case in the court below the state was permitted to prove the alleged dying declaration of the deceased Grayson.The appellant sought to impeach this alleged dying declaration by. offering testimony to show that the deceased was a man without religious convictions, one who boasted of his infidelity, who did not believe in God, or in any hell or heaven, or in any state of future reward or punishment.The court below sustained the objection of the state to this testimony.The court will understand that this testimony was offered by the appellant in the court below, not for the purpose of showing that the alleged dying declaration was inadmissible, but for the purpose of affecting the weight to be attached to the declaration.This testimony ought to have been admitted because it went to the credibility of the man who made the dying declaration.The precise question has been passed upon by this court in the case of Hill v. State,64 Miss. 431, 1 So. 494.It is true that in the Hill casethe decision of the trial court was affirmed for the express reason that by the testimony of the appellant himself he was guilty of manslaughter of which crime the jury had found him guilty.In the Hill case, CAMPBELL, Judge, in delivering the opinion of the court said: "We are clearly of the opinion that the court erred in not permitting the testimony to show that Brown's religious belief was such as to detract from the value of his dying declaration."We do not remember any decision by this court in which a statement of the law has been made any more clearly.The great weight of authority, so far as we have been able to find, is in harmony with the Hill case.In 4 Encyclopedia of Evidence, 1014, par. 3, we find the following: "For the purpose of affecting the credibility of the declarations, it is competent to show that the declarant because of his want of religious belief, was not a person of such character as was likely to be impressed with a religious sense of his approaching dissolution, and that consequently no reliance is to be placed upon what he said."In a note to 10 Am. & Eng. Ency. of Law (2d ed.), 375, we find the following: "But under some of these statutes(referring to the statutes making witnesses competent to testify regardless of their religious belief) the declarant's want of religious belief may be shown as affecting the credibility of the dying declaration."In support of this note, in addition to the case of Hill v. State, supra, there are cited Nesbit v. State,43 Ga. 238, andGoodall v. State, 1 Ore., 333.On page 384 of the same book the following statement of the law is made: "The value of the declarations as evidence may be impaired by showing that the declarant did not believe in a future state of reward or punishment."In Goodall v. State,80 Am. Dec., 396, the first paragraph of the decision is as follows: "The dying declaration of the deceased being admitted in evidence, the counsel for the prisoner offered to prove that the deceased was a disbeliever in a future state of rewards and punishments, for the purpose of discrediting the dying declarations.And I am of opinion that such evidence should have been admitted; for this belief, and the anticipation of future retribution, is the only sanction of such declarations.It is supposed that one impressed with the fear of immediately impending dissolution, and believing the he will soon be called to answer for the truth of his statement to his final Judge, will be under restraint against falsehood sufficient to make the admission of such evidence safe, and generally contribute to the ends of justice.But when the deceased was a disbeliever, and consequently under no apprehension of future punishment for his falsehood, it is reasonable to believe that, however much he may be impressed with the fear of immediate and certain death, still he would not be under such strong influences to make a true statement of the facts as one impressed with the belief of future accountability; 2 Russell on Crimes, 764, 766."In Greenleaf on Evidence (16th ed.), 253, sec. 162, under the head of "Weight of Declarations,"we find the following: "Where the witness has not a deep and strong sense of accountability to his Maker, and an enlightened conscience, the passion of anger and feelings of revenge may, as they have not unfrequently been found to do, affect the truth and accuracy of his statements, especially as the salutary and restraining fear of perjury in such cases is withdrawn."We call the court's attention to section 1443 of Wigmore on Evidence, note 2, p. 1810, and especially to that part of the section at the top of page 1811; from this section is clearly to be deduced that the author believes in the doctrine that the religious belief of the party making the dying declaration "goes to the weight of his statements."In 21 Cyc., 991, par. 11, we find the following: "And where by statute a want of religious belief is no longer a disqualification of witnesses, although the irreligious character of the declarant be relied on to exclude his dying declaration, it may be shown that he did not believe in a future state of rewards and punishments for the purpose of impeaching his credibility; for such a person, although in articulo mortis might not be so solemnly impressed with the necessity of speaking the truth."And on page 994 of the same volume we find the following: "What ever may be the rule as to the competency of witnesses the accused may always show by way of impeachment that the declarant was without an enlightened conscience, or a deep sense of accountability to his Maker; for where the declarant was without fear of final retribution it cannot be said that the solemnity of the occasion was equivalent to the sanction of an oath, and his dying declarations should not be given much consideration by the jury."In State v. Elliot,45 Iowa 436, we find the following: "Proof that declarant was an atheist or materialist is not admissible to render dying declarations incompetent, but may be received to impeach his credibility."

We have not found any authorities holding that this testimony offered by the appellant in the court below was not competent.There can be no doubt...