Jackson v. State

• Decision Date: 09 November 1908
• Docket Number: 13,491
• Citation: 94 Miss. 83,47 So. 502
• Court: Mississippi Supreme Court
• Parties: WILLIS JACKSON v. STATE OF MISSISSIPPI

47 So. 502

94 Miss. 83

WILLIS JACKSON v. STATE OF MISSISSIPPI

No. 13,491

Supreme Court of Mississippi

November 9, 1908

FROM the circuit court of Yazoo county, HON. WILEY H. POTTER Judge.

Jackson appellant, was indicted for the murder of one Bunk Wilson was tried, convicted of manslaughter, sentenced to the penitentiary for three years, and appealed to the supreme court.

Appellant deceased, and several other negroes were at the home of a negro woman, and as a result of certain remarks passing between appellant stabbed deceased with a knife. Before his death the deceased made statements to different persons, as set forth in the opinion, and after being told by a physician that he was bound to die in a very short while and had better say anything he desired to say, the dying man stated: "I didn't do nothing to Willis Jackson to make him cut me that way. I only told him that I did not joke."

In the supreme court the appellant assigned as error the admission of the dying declaration in evidence, on the ground that a predicate had not been properly laid in that deceased was not sufficiently shown to have been at the time in apprehension of immediate death. The remarks made to the jury by the prosecuting lawyer in his speech were also assigned as error the lawyer said: "Gentlemen, your county is running red with human blood from the northern boundary at Free Run to the southern boundary where she bathes her feet in the muddy waters of the Big Black, and from the banks of Sunflower to Illinois Central Railroad at the town of Vaughns. There have been more murders committed in your county than in any other county in the state, and there are more being committed now in this county than ever before in its history, there being fourteen murder cases pending for trial in this county. It is high time that the juries of the county shall put a stop to these murders." When the foregoing language was used, counsel for the defense immediately interposed an objection thereto as being improper, and the objection was at once sustained by the court, the jury being advised by the court to pay no attention to the remarks touching other murders or cases but to try the case solely upon the evidence. The court further, in the jury's presence, reprimanded the prosecuting attorney for his language, whereupon the attorney stated that when interrupted he was about to tell the jury, that they should not try the defendant by any other evidence than that adduced at the trial and if they did not believe from the evidence that defendant was guilty beyond reasonable doubt they should acquit him.

Judgment affirmed.

Holmes & Holmes, for appellant.

The court below erred in admitting the testimony of the three different witnesses in reference to the dying declaration of deceased. The predicate of such declaration was based upon the following preceding remarks of the declarant, made to each of the three witnesses respectively: (1) "I am going to die. I cannot live. My stomach is killing me." (2) "Austin, I am dying. I cannot live." (3) "Uncle Will, my stomach is killing me." The principle is too well known for comment that the declarant must not only feel the absolute certainty of death, but his expectation must be of a speedy death. An expectation of ultimate, yet distant, death does not produce that sincerity of statement which the law desires. The impression of immediate dissolution must exist in the declarant's mind before his statements will be admissible after his death. The mere fact that the deceased shortly before his death stated that he could not live, and that he was going to die, will not show that he believed that he was then in extremis and that death was not only inevitable but impending and immediate. Titus v. State (Ala.), 23 So. 77. The expressions, "my stomach is killing me" and "I cannot live" are expressions of great pain, of physical suffering, but not direct expressions tending to show that the declarant expected his death to be...