Mathis v. State

• Decision Date: 28 November 1916
• Docket Number: 4 Div. 394
• Citation: 15 Ala.App. 245,73 So. 122
• Parties: MATHIS v. STATE.
• Court: Alabama Court of Appeals

73 So. 122

15 Ala.App. 245

MATHIS v. STATE.

4 Div. 394

Court of Appeals of Alabama

November 28, 1916

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

John Mathis was convicted of murder in the second degree, and he appeals.Affirmed.

Farmer & Farmer, of Dothan, for appellant.

W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

EVANS J.

Appellant was convicted of murder in the second degree for killing one Simmie Daniels.It is insisted that the trial court erred in the admission of the testimony of Dr. J.H. Flowers, tending to prove the range of the shot, in that the witness had not qualified as an expert.Dr. Flowers testified that he was a practicing physician in Houston county, and had professional attended the deceased when he was shot.Whether a witness is shown to possess the requisite qualifications to speak as an expert is a preliminary question, largely within the discretion of the trial court.Tesney's Case, 77 Ala. 33;White's Case133 Ala. 122, 126, 32 So. 139;Barlew's Case, 5 Ala.App. 290, 294, 57 So. 601.Aside from this, the question of the range of a bullet or load of a gun does not necessarily involve or call for expert knowledge; it may, perchance, be open to observation or be ascertainable upon examination by a nonexpert and testified to as any other fact.Reid's Case, 181 Ala. 14, 61 So. 324;Sanders' Case, 134 Ala. 74, 32 So. 654.It is not competent for a witness, expert or nonexpert, to draw inferences for the jury from the slant or angle of the wound as to the relative positions of the combatants when the fatal shot was fired.This would be invasive of the province of the jury and a matter of which they would be quite as competent to judge as the witness, having been given a description of the wound.Dumas' Case, 159 Ala. 42, 49 So. 224, 133 Am.St.Rep. 17;McKee's Case, 82 Ala. 32, 2 So. 451.But we do not think the testimony of Dr. Flowers trenched upon the prerogative of the jury in this respect in his answer that:

"It [the load] didn't look to be shot right straight in front; it looked to be a little bit that way (indicating)."

This was merely an effort to describe the character of the wound and the range the load took.

It is argued that a proper predicate was not laid for the introduction of the dying declaration of the deceased, because it is not shown that deceased was rational at the time.While dying declarations should be cautiously received, it is sufficient if, from the preliminary facts, it is made to appear to the trial court that at the time of the declaration by the deceased, he was under a sense of impending death, and had abandoned all hope of recovery.If at the time of the declaration the declarant was flighty or not entirely rational from opiates, drugs, or other cause, that fact could be shown, and would go to the weight and credibility of the declaration, instead of to its competency.Gilmer's Case, 181 Ala. 23, 61 So. 377;Justice's Case, 99 Ala. 180, 13 So. 658;Underhill's Criminal Evidence(2d Ed.) § 112.Of course, if the preliminary facts should reveal that, at the time of the supposed declaration, the state of declarant's mind or reason was such as to render him pro hac vice incompetent as a witness, this would be a matter for the trial court and, on a proper showing, justify the rejection of the so-called declaration.The burden, however, is not upon the state in presenting its predicate to show that the declarant was rational, for this will be presumed; it is upon the defendant to show that he was not.

Conceding the materiality of the question to Nelson Daniels(transcript page 7), as to whether he had testified on the preliminary examination, the ruling of the court was rendered innocuous by witness' answer to the same matter on page 8, transcript.Francis' Case, 188 Ala. 39, 45, 65 So. 969.

The threats of the appellant--as testified by several witnesses--that he was going to kill one of the Daniels were not improperly admitted as being too indefinite.Whether these threats, when taken in connection with the other evidence, had reference to the deceased, was a question for the jury.Montgomery's Case, 160 Ala. 7, 24, 49 So. 902;Olive's Case, 2 Ala.App. 77, 57 So. 66;Ford's Case, 71 Ala. 385, 396.

The objection to the question propounded to Will Kannady on the ground of the insufficiency of the predicate was not well taken.The question reads:

"That same evening of the shooting, nobody being present but you and these three men [Wes Jackson, Jack Daniels, and Nelson Daniels], and after you had carried the shot man up there [Nelson Daniels' house] didn't you say," etc.

The above italicized portions of the question apprised the witness of the time, place, and persons involved.In Burton's Case, 115 Ala. 1, 22 So. 585, a predicate was held sufficiently definite and certain that asked the witness if she had not made certain statements before the coroner's inquest and before the grand jury.See, also, Phillips' Case, 11 Ala.App. 168, 65 So. 673.

It is insisted that the court erred in sustaining the objection to the question asked defendant's witness Will Kannady on redirect examination:

"You say he[deceased] had his knife in his hand when he went in that gate, when he opened that gate?"

The same matter was testified to on this witness' direct examination, and the court cannot be put in error for not permitting a repetition of it on the redirect examination, nor from the fact that the question, as framed, was leading.

The question by the state to impeaching witness Jake Daniels was faulty, in that it did not substantially follow the predicate laid in the testimony of witness Kannady, directing the mind of the impeaching witness with definiteness to the particular matters about which it was...