Lawrence v. State

• Decision Date: 30 June 1947
• Docket Number: 6 Div. 405.
• Citation: 33 Ala.App. 224,32 So.2d 223
• Parties: LAWRENCE v. STATE.
• Court: Alabama Court of Appeals

32 So.2d 223

33 Ala.App. 224

LAWRENCE v. STATE.

6 Div. 405.

Alabama Court of Appeals

June 30, 1947

Rehearing Denied Sept. 2, 1947.

C M. Holder and Wright & Smith, all of Fayette, for appellant.

A A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty Gen., for the State.

HARWOOD Judge

This appellant was originally indicted for murder in the second degree. On his first trial under the indictment he was found guilty of manslaughter in the first degree and his punishment was fixed at imprisonment in the state penitentiary for a term of five years. This conviction and sentence was set aside upon appellant's motion for a new trial being granted by the trial court. Upon his second trial the appellant filed in the court below a plea of not guilty, and also a plea of former jeopardy as to the offense of murder in the second degree. The plea of former jeopardy was confessed by the state and the trial proceeded under the charge of manslaughter. This second trial resulted in appellant again being found guilty of manslaughter in the first degree and sentenced to a term of imprisonment of eight years in the state penitentiary.

Evidence presented by the state was directed toward showing that the appellant, his wife, Nodie, Van Monroe, and the deceased were in appellant's home early on a Sunday morning in March 1945. The deceased had been out all night, and had been drinking. The group were apparently on amiable terms and had lived as neighbors for some time. Appellant pulled a pistol from his pocket, it discharged, and the bullet struck deceased. She was taken to a hospital, and died the following day, Monday. On the Sunday deceased was taken to the hospital she was interviewed about noon by the Chief of Police of Fayette. She was in an extremely bad physical condition from her wound and stated to this officer that she was dying. She then stated that appellant had been 'playing' with the pistol as she arose and announced she was leaving. Appellant then asked her 'You don't believe I'll shoot you, do you,' to which she answered 'No,' whereupon appellant aimed the pistol at her and fired. The above declaration by the deceased was received in evidence over the objections of appellant, one of the grounds being that deceased's declaration had been reduced to writing.

On cross-examination of the Chief of Police it was developed that after the deceased had made her statement to him he left, had the statement reduced to writing, then returned and had it signed by mark by deceased, the officer signing as a witness. The defense thereafter moved to exclude his testimony as to the dying declaration on the grounds that it was not the best evidence, a documentary declaration having been made. The court overruled this motion to which action of the court the appellant duly excepted.

Testifying in his own behalf the appellant claimed that the pistol went off as he was removing it from his pocket. He denied that he intentionally pointed the weapon at deceased, or intentionally pulled the trigger.

Two friends of the deceased who had visited her in the hospital testified for the defense to the effect that the deceased had told them appellant had shot her, but 'she didn't believe he meant to do it, it was an accident.'

Nodie Lawrence, appellant's wife, and Van Monroe, the two witnesses to the shooting also testified for the defense, the substance of their accounts being that appellant and deceased were 'playing,' and the gun accidentally fired. In rebuttal to the testimony of these two witnesses the state introduced two police officers who had interviewed them shortly after the shooting. At that time the accounts giver by these two as to the shooting were substantially in accord with the facts recited by deceased in her dying declaration. These witnesses denied making such statements to the officers.

It has repeatedly been held in this State in the case of dying declarations that where the declarant's statement is reduced to writing, but is not signed by the declarant, such writing is nothing more than a memorandum made by the hearer and he may testify as to the declaration without accounting for the writing. Kelly v. State, 52 Ala. 361; Darby v. State, 92 Ala. 9, 9 So. 429; Jarvis v. State, 138 Ala. 17, 34 So. 1025; Kirby v. State, 151 Ala. 66, 44 So. 38.

One of the points considered in Boulden v. State, 102 Ala. 78, 15 So. 341, 343, was the admissibility of oral evidence as to a dying declaration where such declaration had been reduced to writing. It is not shown whether in the report of this case the written declaration had been signed. However, as to the question of the sufficiency of the predicate for the admission of the oral testimony to establish the dying declaration, in said case, and as to the rule of admissibility where a signed declaration of the deceased exists, the court wrote: 'The dying declarations were reduced to writing at the time they were made. The court permitted oral evidence of them to go to the jury without the production of the writing, to which the defendant excepted. Witness Banks, who testified to the declarations, and that they had been reduced to writing, was asked by the court where said dying declaration was. He replied that he had turned it over to the grand jury of the city court at the June term, 1893, and had never seen it since; that he had made diligent search among all of his own papers, and had failed to find it; and that he, together with the solicitor and clerk, made diligent search through the grand jury papers, and failed to find it. Upon this predicate the court admitted the secondary evidence. We think the predicate was insufficient. It is of the highest importance, particularly in a cause involving such consequences as this, when important evidence exists in writing, that the writing itself be produced; and its production should be required, if by any means it is practicable. Every reasonable effort which it appears might have resulted in its production should be shown to have been made without avail, before secondary evidence should be received. The reason of the rule is too obvious to require elaboration. The production of the writing in the present case, rather than proof of the dying declarations by the possibly uncertain and inaccurate memories of witnesses, may have heen of the last importance to the prisoner.'

Some 10 years later, in Sims v. State, 139 Ala. 74, 36 So 138, 139, 101 Am.St.Rep. 17, this...