Heninburg v. State

• Decision Date: 09 May 1907
• Citation: 43 So. 959,151 Ala. 26
• Parties: HENINBURG v. STATE.
• Court: Alabama Supreme Court

43 So. 959

151 Ala. 26

HENINBURG v. STATE.

Supreme Court of Alabama

May 9, 1907

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Antwine Heninburg was convicted of murder in the second degree, and appeals. Reversed and remanded.

Antwine Heninburg was indicted and tried for the unlawful killing of Florence Heninburg by shooting her with a pistol. Dr. Jones was introduced by the state, and testified that he was called to see her, and that her death was caused by a pistol bullet that he was not present when the woman died, but that the wound was necessarily fatal. "Deceased made a statement after I got there, saying she believed she would die. Her mind seemed clear and normal." The state then asked the witness, "What did she say, doctor?" Objection was interposed to the question by defendant on the ground that no sufficient predicate had been laid for the testimony and because same was irrelevant, illegal, and immaterial. The witness answered: "She said that her husband came home and began cursing and abusing her, and that she attempted to leave the room several times, and the last time he called her back, and when she turned around he shot her, saying that they both had to die together that night." On cross-examination it was shown that the witness asked deceased if she knew she was fatally wounded, and she said she did, and that she knew she was going to die. This testimony was reduced to writing and sworn to before a justice of the peace, and was offered in evidence and admitted over the objection of the defendant. The other facts sufficiently appear from the opinion of the court.

The court, in its oral charge, charged upon drunkenness as applicable to murder in the first and second degrees, and charged that drunkenness will not reduce a homicide below manslaughter in the first degree, to which an exception was reserved. The defendant also requested a number of charges which were refused, among them the following: "(C) If the jury believe that the defendant, at the time he is said to have shot his wife, was so drunk that he was incapable of forming the purpose to do a voluntary act, then he cannot be convicted of any offense higher than manslaughter in the second degree. (D) If the jury find that the defendant was too drunk to perform a voluntary act, then he cannot be convicted of anything more than manslaughter in the second degree. * * * (G) If the defendant was so drunk that he was incapable of volition, incapable of voluntarily doing anything, and incapable of entertaining malice, then the defendant cannot be convicted of anything more than manslaughter in the second degree." The defendant was found guilty of murder in the second degree, and sentenced to 20 years in the penitentiary.

McAlpine & Robinson, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL J.

The predicate for admission in evidence of dying declarations was sufficiently made, and the court committed no error in its ruling on this question.

On the cross-examination by the defendant's counsel of the state's witness...