Handley v. State

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 233
• Citation: 102 So. 628,212 Ala. 347
• Parties: HANDLEY v. STATE.
• Court: Alabama Supreme Court

102 So. 628

212 Ala. 347

HANDLEY v. STATE.

6 Div. 233

Supreme Court of Alabama

January 15, 1925

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Emma Handley, alias Johnson, was convicted of murder in the first degree for the killing of Jim Johnson, her husband, and she appeals. Reversed and remanded.

Mathews & Mathews, of Bessemer, for appellant.

Ben G Perry, Deputy Sol., of Bessemer, for the State.

SAYRE J.

Many rulings are in appellant's brief assigned for error, but such as need specific treatment may be grouped under two heads: (1) The overruling of appellant's objections to parts of the dying declaration, and (2) the admission, over appellant's objection of testimony to the effect that on sundry detached occasions deceased had accused defendant of efforts to poison him.

1. Dying declarations, to be admissible against the defendant must have reference to facts and circumstances constituting a part of the res gestae of the killing. They must be confined in their scope to the act which causes death and its attendant circumstances. 8 Mich. Dig. p. 311, § 192. To employ the language of McClellan, J., in Johnson v State, 102 Ala. 20, 16 So. 99, the facts declared must be connected with the killing by way of cause, effect, or incident, in the sense necessary to incorporate them in the res gestae of the transaction. To clear the ground for the application of the foregoing rule it must be stated that defendant was being tried on an indictment which charged that she had killed her husband by shooting him with a pistol. The only witness to the main fact was one Isaac Hillman, who testified that he had shot and killed deceased, having been procured and paid by defendant to do so. There was evidence that defendant kept a boarding house at Bessemer; that she and her husband had become estranged by reason of his attentions to another woman and he was away from home; that, in pursuance of her purpose to dispose of him, defendant sent to deceased a message of concillation and invitation to return home, which he did; that she then gave him money and sent him to get whisky, sending the witness along to show him where the whisky could be got; that deceased and witness went by trolley and jitney to a place miles away where they alighted from the jitney and went off the road and through the woods to the place where the witness did shoot and kill deceased. We intend only to state the tendencies of the evidence necessary to be considered in passing upon the exceptions to which we will refer. The facts must be determined by a jury.

Under the rule stated above the judgment of the court is that the following parts of the dying declaration admitted in...