McEwen v. State

• Decision Date: 02 July 1907
• Citation: 152 Ala. 38,44 So. 619
• Parties: MCEWEN v. STATE.
• Court: Alabama Supreme Court

44 So. 619

152 Ala. 38

MCEWEN v. STATE.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Limestone County; Osceola Kyle, Special Judge.

Ernest McEwen was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The facts are sufficiently stated in the opinion of the court. The court refused the following charges requested by the defendant: (R) "In this case the proof was not shifted from the state to the defendant, and the presumption of innocence abides with the defendant until all of the evidence in the case convinces the jury to a moral certainty that the defendant cannot be guiltless." (F) "I charge you gentlemen of the jury, that if deceased first used verbal insult towards the defendant, and the defendant retorted by using the same character of insult to him, then he was assaulted by the deceased, and defendant had the right to defend himself against such aggression on the part of the deceased, if such you find occurred, provided he (defendant) did not fight willingly nor by his voluntary consent, and provided, further, there was no reasonable means of escape by retreat without increasing his real or apparent danger, and if you further find that under the circumstances existing at the time defendant struck the blow he entertained honestly the belief that he was in imminent danger to life or limb and the conditions at the time were such as would have impressed upon the minds of a reasonable person that there was such imminent danger, though there was no such danger in fact, but that it was only apparent." (G) "The jury should be satisfied beyond all reasonable doubt and to the exclusion of every other reasonable hypothesis and of every circumstance necessary to show the defendant is guilty before they can convict the defendant, and the burden is on the state to show this." The following charge was given for the state: "I charge you, gentlemen of the jury, that if you believe from all the evidence in this case beyond a reasonable doubt that the defendant entered into the fight willingly in which Bert McCormack lost his life, then he cannot invoke the doctrine of self-defense."

W. R Walker, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

The defendant was convicted of manslaughter in the first degree under an indictment charging him with the murder of Bert McCormack. The defendant, the deceased, and several others, all under the influence of liquor, were engaged on a Sunday morning in playing craps, when the difficulty in which the deceased lost his life occurred. From the evidence it is made to appear that the difficulty was mutual, and was commenced by the defendant and the deceased bandying epithets between themselves; there being conflict as to which used the first epithet. In the language of the state's witness the real difficulty was preceded by a "cuss fight." The defendant cut the deceased with a pocket knife; the knife penetrating the liver. From the wound made by the knife the deceased in about two weeks died. The attending physician testified that the knife penetrated deceased's liver, and that he died from peritonitis superinduced by this wound.

The first exception reserved by defendant on the trial presents for review the ruling of the court in respect to the sufficiency of the predicate for the admission of the declaration made by the deceased as a dying declaration. State's witness Haywood testified that at the time the cutting was done he said to the deceased, "That boy [defendant] has cut you," and that deceased replied, "Yes; he has cut me and cut me to death." State's witness Surginer testified that he was with the deceased after he was cut, and nursed him; that deceased talked with him on Thursday before the Sunday on which he died, and told him (witness) that he (deceased) was going to die, and that he was killed for nothing. He further testified that the deceased had had a chill the night before, and was worse on this day. While the solemnity under which dying declarations are usually made is deemed in some sense an equivalent for the sanctity of an oath, yet the admissibility of such declarations rests upon the grounds of necessity and public policy, and upon the presumption that, in the absence of other proof, crimes might go unpunished. The rules which govern the admissibility of such testimony are familiar and rudimental. The authorities abound with discussion of the reasons and considerations upon which such declarations are admitted, and we deem it unnecessary to repeat them in extenso here. However it must appear that they were made under the realization and solemn sense impending death, when the motive for falsehood may be presumed to have been lost in the despair of life. McClean's Case, 16 Ala. 672; Kilgore's Case, 74 Ala. 1; Jordan's Case, 82 Ala. 1, 2 So. 460; Hussey's Case, 87 Ala. 121, 6 So. 420; Pulliam's Case, 88 Ala. 1, 6 So. 839; Walker's Case, 139 Ala. 56, 35 So. 1011; Gregory's Case, 140 Ala. 16, 37 So. 259.

The defendant insists that the evidence did not show that the declarant was laboring under a sense of impending death, and amongst the authorities cited in support of the insistence is Titus' Case, 117 Ala. 16, 23 So. 77, cited as the one nearest in point. The declaration in that case held inadmissible was based on this testimony: A witness testified that she was present at the bedside of James Harris (the declarant), after he had been cut several days, and that he said he would die from his wounds. It will be observed that there was no proof whatever of the declarant's...