Houston v. State

• Decision Date: 04 February 1963
• Docket Number: No. 42400,42400
• Citation: 149 So.2d 331,246 Miss. 77
• Parties: Mamie Lee HOUSTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 331

149 So.2d 331

246 Miss. 77

Mamie Lee HOUSTON v. STATE of Mississippi.

No. 42400.

Supreme Court of Mississippi.

Feb. 4, 1963.

Ethridge & Grisham, Oxford, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

McELROY, Justice.

The appellant was indicted by the Grand Jury of Lafayette County, Mississippi, for the murder of Mathis Jones. She was found guilty of manslaughter and sentenced to serve eleven years in the state penitentiary.

Several assignments of error were filed. The Court will consider these two: First, the court erred in admitting into evidence as a dying declaration a statement made by Mathis Jones, the deceased, to the witness, Boyce Bratton, Sheriff of Lafayette County; and second, the court erred in failing to grant defendant's motion for a directed verdict of not guilty. The so-called dying declaration was inadmissable, and the appellant, as the only eyewitness, made out a case of self-defense which is reasonable, uncontradicted by admissable evidence, and corroborated.

The state called three witnesses: Dr. E. V. Bramlett, the attending physician; Boyce Bratton, former sheriff; and Newt King, former city marshal.

Jones died at 5:15 p. m. on April 27, 1959 of a shotgun wound which was inflicted earlier that day. The wound was no larger than a silver dollar. He entered the hospital between 11:15 and 11:30 a. m. and was taken into the operating room at 11:45 a. m.

Boyce Bratton, the Sheriff, interviewed Jones at the hospital between the time that he entered the hospital and the time he was taken into the operating room. According to Bratton, Jones stated that he went to the defendant's home, that they argued, that he started to leave, and that she shot him while she was in the house and while he was in her yard, which was about thirty-five feet down the hill. Bratton testified that he thought Jones knew he was going to die when Jones was talking to him. He thought he was rational at the time he made his statement. His opinion was that Jones was under the impression that he was going to die, because he put his arm across his stomach there and said: 'She's killed me.' The sheriff further stated: 'I think if I'd been his shape I'd have realized that I was going to die, and when he put his hand across his stomach and said more than once, 'She's killed me', I felt like he realized that was the end.'

Dr. Bramlett testified that he did not know whether or not Jones recognized or was conscious of impending death at the time he talked with Jones, which was only minutes after Bratton's conversation with Jones. Immediately after Jones talked with Bratton, Dr. Bramlett asked Jones what happened; Jones told Dr. Bramlett that (in Dr. Bramlett's words), 'he was too sick to talk, that he would talk when he felt better.' The doctor was asked: 'In your professional opinion, when you were there examining him, did he appear to be rational and understand the import of the questions that you asked him?' Dr. Bramlett answered: 'I think he did. [He said] That he did not feel like talking then, he would have to feel better.' The doctor said also that Jones had been recently shot, within the hour, when he saw him. The court questioned the doctor: 'Doctor, at the time, did this man recognize or was he conscious of impending death?' The doctor answered, 'Judge, I don't know. I think he was as rational as any man could be that had just been shot.'

King, the Marshal, stated that 'I was standing back away from him and couldn't hear or understand exactly what they were saying, so I didn't say anything until he got through.' However, King was of the opinion, based upon observation from his conversation, that he appeared to be sane and a rational person. The sheriff further stated: 'I feel like he was sensible enough to know that he couldn't live.'

Is this sufficient evidence to say that Mathis Jones made a dying declaration?

The court allowed this evidence, over timely objections of the defendant, as a dying declaration, these statements allegedly made by Jones to Bratton prior to Jones being taken into the operating room.

The court admitted this as a dying declaration in spite of the fact that Dr. Eugene Bramlett, who attended and operated on Jones, stated in response to the question by the trial judge that he did not know whether or not the deceased at the time recognized or was conscious of impending death; furthermore, in spite of the fact that immediately after Jones had his conversation with Bratton, Jones stated to Dr. Bramlett in response to a question as to what happened that he 'was too sick to talk and that he would talk when he felt better.'

On cross-examination of the sheriff in reference to the testimony Dr. Bramlett gave, in which Bramlett stated that the deceased said when he got better or felt better that he would probably talk, that the deceased must have thought that he wasn't going to die, the sheriff said: 'I feel like that if he made that statement that he was hoping that he would live.'

From the above evidence, the question before the Court is not what other people thought concerning whether or not he would die, but whether deceased himself thought he was going to die. From this evidence we must determine if the judge was justified in believing beyond a reasonable doubt that this was in all of its material parts a dying declaration and complies in every way with the law in reference to dying declarations.

As this Court stated in Lea v. State, 138 Miss. 761, 103 So. 368: 'A dying declaration is made without the sanctity of an oath and without an opportunity to cross-examine the declarant. To take the place of that sanctity and that right there must be an undoubting belief in the mind of the declarant, at the time the declaration is made, that death is upon him. If it shall appear in any manner that there was hope of recovery, however faint it may have been, still lingering in his breast, the required sanctity is not afforded, and the statement cannot be received. The belief by the declarant that he may ultimately die as a result of his injury is not sufficient to authorize the admission of his statement as a dying declaration. The predicate must exclude all hope of life. It must reach the point of absolute certainty in the mind of the declarant. All hope must be gone. He must feel sure that the finger of death is upon him.' As this Court stated in Hardeman v. State, 216 Miss. 115, 61 So.2d 797, after quoting from Lea v. State, supra: 'And the trial judge, in order to admit such a declaration, must believe beyond a reasonable doubt that declaration was made under realization and solemn sense of impending death. Such declaration should be admitted with great caution.' The test is not whether or not the witness knew the deceased was dying, nor even that the dying man should have known it. Simmons v. State, 206 Miss. 535, 40 So.2d 289.

In Lea v. State, supra, the trial court admitted, over objection, an alleged...