Lewis v. State, 4 Div. 817

• Decision Date: 14 November 1935
• Docket Number: 4 Div. 817
• Citation: 231 Ala. 211,164 So. 92
• Parties: LEWIS v. STATE.
• Court: Alabama Supreme Court

164 So. 92

231 Ala. 211

LEWIS v. STATE.

4 Div. 817

Supreme Court of Alabama

November 14, 1935

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Monroe Lewis was convicted of murder in the first degree, and he appeals.

Affirmed.

Clayton Clayton & Clayton, of Clayton, for appellant.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

KNIGHT Justice.

The appellant, Monroe Lewis, was indicted for, and convicted of the offense of murder in the first degree, and his punishment fixed by the jury at imprisonment in the penitentiary for the term of his natural life. From this conviction and sentence, he appeals.

It appears from the record that the indictment is in proper form; that the defendant was duly arraigned on the indictment; that a day was set, and a special venire was drawn and summoned for his trial; and that during the entire progress of the trial the defendant was personally present in court, attended by his attorney. The record proper shows no errors, and none are suggested in brief of counsel for appellant.

It is first insisted by appellant that the trial court committed error to reversal in permitting the state to introduce in evidence what purports to be a dying declaration, made by the deceased to Dr. Salter, when the latter was called to treat the deceased a short time after the difficulty.

It appears that a difficulty occurred between the defendant and the deceased in a pea field, cultivated by the former on a plantation in Barbour county owned by a Mr. Calhoun, and that the deceased was Mr. Calhoun's overseer.

In the difficulty between the defendant and the deceased, the defendant inflicted two knife wounds upon the deceased, from which he died within a few days.

After the difficulty, the deceased was carried at once to the hospital of Dr. Salter. This physician was examined as a witness by the state and testified: "I knew Eli Stringer. He is dead. He died on the 31st of October. He was carried to my hospital on the 18th or 19th day of October. At that time, he was suffering from a knife cut of the chest and abdomen, and the loss of blood. There were two wounds on him, one was against the ribs and the other started in the ninth interspace and came forward the whole length of the rib. It penetrated the lung and went into his abdomen and cut the stomach."

Against the objection and exception of the defendant, the witness was permitted to further testify, in answer to question by the solicitor: "He didn't make any statement until I told him. They had him undressed when I got there and on the bed, and then I made the examination of the wound, and found he was practically pulseless, and pulled the wound open and air and part of his breakfast came out, I told him he would have to have an operation and as severe as it was, he probably wouldn't get well and if he had a statement he had better make it to me and he made the statement in the room there. I don't think any one else was present except my negro boy Charlie." The bill of exceptions continues: "After asking the witness if he told Mr. Stringer he was in a critical condition and the witness answering yes, and the witness also informing the court that Mr. Stringer was about pulseless at that time, but conscious, the witness was examined further by the court and stated as follows: I told him that he was in a critical condition, and that I thought death was impending."

Upon this testimony of the physician-witness, the court, over the objection and exception of the defendant, permitted the state to give in evidence the statement of the deceased as to the facts of the difficulty.

It has been uniformly held that dying declarations are admitted upon the sole theory that the consciousness of approaching dissolution dispels from the mind all motive for making a false statement, in view of the fact that the declarant recognizes that he shall soon appear in the presence of the Maker. The recognition of this fact, it is held, is as binding upon the conscience of the declarant as the sanction of an oath.

No general rule has ever been laid down by the courts for the admission of dying declarations, and the facts of each case must be weighed and considered in determining whether the requisite consciousness of impending dissolution existed. Parker v. State, 165 Ala. 1, 51 So. 260.

It appears that, when Dr. Salter informed the deceased that he was in a critical condition, and that he "thought" death was impending, the deceased made no reply, nor did he indicate in any other way whether he was conscious or not of his impending death.

However in the case of Gilmer v. State, 181 Ala. 23, 61 So. 377, as well as in a number of other cases, we have held that it is not an indispensable prerequisite to the admission of a dying declaration that the deceased should, in so many words, express a conviction that he is in extremis, that death is impending, and that he has no hope of life; but such a declaration is admissible when, after a careful consideration of the circumstances, the judicial mind is convinced, by legally sufficient evidence, that, at the time the declaration was made, the deceased was in extremis, that he believed death to be impending, and that he entertained no hope of life. This seems to be the well-nigh universal rule, and it has been the declared rule of evidence on the subject of admitting dying declarations, which forms an exception to the...