Maloy v. State

• Decision Date: 21 June 1913
• Citation: 62 So. 961,8 Ala.App. 73
• Parties: MALOY v. STATE.
• Court: Alabama Court of Appeals

62 So. 961

8 Ala.App. 73

MALOY v. STATE.

Court of Appeals of Alabama

June 21, 1913

Rehearing Denied July 8, 1913

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Jim Maloy was convicted of murder in the second degree, and he appeals. Affirmed.

The defendant was jointly indicted with his father, V.L. Maloy for the murder of one McDougal; the evidence tending to show that the Maloys and McDougals were friendly at that time or just prior thereto, but that while on the fairground at Samson, Ala., the father and the deceased got into an altercation about a bond, which resulted in deceased striking the elder Maloy, whereupon the present defendant rushed into the fray and cut deceased twice in the abdomen. The elder Maloy having recovered, again engaged in the affray and cut deceased in the back; the witnesses differing as to the details of the cutting.

The following charges were refused to the defendant: (1) "If the jury have a reasonable doubt as to whether Jim Maloy cut the blow that killed McDougal, you should acquit the defendant." (3) "Before the jury can convict the defendant, they must believe beyond a reasonable doubt not only that Jim Maloy cut the deceased, but they must go further and be convinced beyond all reasonable doubt that such cutting caused his death, and if you have a reasonable doubt as to either proposition, then you should acquit the defendant." (4) "If it is probable from the evidence that Jim Maloy did not cut deceased to death or that the cutting by defendant, if he did any, did not produce or contribute to produce death, the defendant is not guilty." (6) "If you have a reasonable doubt as to who struck the fatal blow, or the cutting that produced death, then you should acquit." (7) "If you believe the evidence, you cannot convict the defendant of murder in the second degree."

W.O Mulkey, of Geneva, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM J.

One of the propositions most earnestly insisted upon by the appellant relates to the admission of dying declarations of the deceased, made at different times to the witnesses deposing to them between the time deceased received the fatal wound on the night of Saturday, Oct. 25, 1911, and the hour of his death on the following Monday morning. The contention is not based upon an attack on the rules of law so often laid down as to the admissibility of testimony of this nature, but is to the effect that no sufficient predicate was laid for the admission of the evidence in this case, in that it was not sufficiently shown that at the time the declarations were uttered the declarant was under the sense of impending dissolution--that he had the solemn conviction that death was near at hand and had abandoned hope of recovery at the particular time of the utterances testified to by the witnesses.

The bill of exceptions contains the statement that it sets out all of the evidence in the case; but it is self-contradictory on its face in this respect, for it does not even purport to set out the substance of the testimony of a number of the witnesses, but contains a loose summary of the tendencies of the evidence of many of the witnesses in such a form as to conclusively show that there was considerable evidence before the court below that is not pretended to be set out in substance for our consideration here. From what does appear it is shown that the deceased was killed in a rencounter with the defendant and his father at night in the fairgrounds at Samson, Ala., by being stabbed or cut by one or the other of the Maloys--father and son. The fatal difficulty occurred about 9 o'clock Saturday night within the radius of the light from the swinging gaslights used for lighting the fairgrounds, and in the presence of many witnesses, who differed widely in their versions of the affair; but it seems to be practically without contradiction that the...