Mcleod v. State.

• Decision Date: 01 January 1920
• Docket Number: 22421
• Citation: 130 Miss. 83,93 So. 928
• Court: Mississippi Supreme Court
• Parties: Mcleod v. State.

93 So. 928

130 Miss. 83

Mcleod v. State.

No. 22421

Supreme Court of Mississippi

January 1, 1920

1 HOMICIDE. Statement made in extremis admissible as dying declaration.

Where a person who was fatally shot realized that he was in extremis and was rational, his statement that the accused shot him and that he did not know what he shot him for, as there had been no cross words between them that day, and that he would not have done a dog that way, is admissible in a prosecution for murder; the proper preliminary proof being made to make the statement a dying declaration.

2 WITNESSES. Cross-examination of witness for accused as to statements set out in affidavit for continuance held proper.

Where a continuance was granted a person accused of murder on account of absent witnesses whose evidence is purported to be set out in the affidavit, the said witnesses appearing and testifying in the trial at a later term to different facts, such witnesses may be examined on cross-examination with reference to the allegations in the affidavit by the defendant as to what he expected to prove by them.

3. CRIMINAL LAW. Failure to charge on manslaughter where evidence supported murder not error when charge not requested and refused.

Under section 793, Code 1906 (section 577, Hemingway's Code), forbidding a circuit judge to grant instructions not requested in writing by one of the parties to the suit, no error can be assigned for the failure of the trial judge to grant a manslaughter instruction if there is evidence to support murder. In order to assign error in such case for failure to give manslaughter it must be requested and refused.

4. CRIMINAL LAW. Limiting time for argument not error unless accused prejudiced; where time allowed not consumed no error in limitation.

Before an appellant can complain of the limiting of the time for argument in a case it must appear from the record that he was prejudiced by the court's ruling; where the time allowed is not consumed no error in the ruling exists.

5. CRIMINAL LAW. Conviction not disturbed for improper argument unless bill of exceptions taken at time shows remarks prejudicial.

The court on appeal will not reverse a conviction on the ground of improper argument unless a bill of exceptions be taken at the time showing that the remarks were prejudicial.

HON. J. D. FATHEREE, Judge.

Hard McLeod was convicted of murder, and he appeals. Affirmed.

A. F. Moss, for appellant.

We submit that the alleged dying declarations testified to by Tal McLeod, Robert McLeod and Lee Brown should not have been admitted over the objection of defendant. In the first place, the proper predicate was not laid for the admission of these so-called dying declarations. No doctor or any one else had told deceased that he could not live. In fact, the testimony itself shows that deceased never said that he knew his dissolution was imminent and impending. His statement was that he would never get up. that he could not stand it, and that it was useless to go to this expense. We submit that in neither case was the proper predicate laid to render these so-called dying declarations admissible.

A proper predicate for the admission of a dying declaration must be laid. Sparks. v. State, 113 Miss. 266, 74 So. 1.23. Where deceased said that he would never get up, a dying declaration is not admissible. Snell v. State, 109 Miss. 744, 69 So. 593. We submit that this case is directly in point. At the best dying declarations are intrinsically weak, being a statement of one not sworn and not subject to cross-examination. Merrill v. State, 58 Miss. 65.

Before a dying declaration is admissible, the person making the declaration must be in extermis and death must be immediate and impending. McLean v. State, 12 So. 905. We submit further that said dying declarations are not admissible because they clearly show that deceased was actuated by malice and desired accused to be punished, because he said that he would not have treated a dog as appellant treated him. Reeves v. State, 106 Miss. 885, 64 So. 836.

We further submit that these alleged dying declarations are inadmissible because they do not show that deceased, at the time they were made, had abandoned all nope of recovery. Fannie v. State, 101 Miss. 378, 58 So. 2; Sparks v. State, supra. The burden is on the state to show beyond a reasonable doubt that the deceased believed in his immediate and impending dissolution, to make his declarations admissible, and we submit that in the present case the state failed entirely to meet this burden. McNeil v. State, 115 Miss. 678, 76 So. 625.

In a murder case the question whether declarant realized his condition and whether this declaration was made in extremis and should be submitted to the jury is for the trial court, but the weight to be given to the declaration, if admitted in evidence, is for the jury. Marley v. State, 109 Miss. 717, 69 So. 210.

We submit that the district attorney in his closing argument should not have used the words: "I had rather go to the penitentiary and stay there and rot than to walk out of this courthouse a free man on the good name of my mother," as shown by special bill of exceptions. These remarks are not supported by the evidence and have reference to facts entirely without the issue. There is nothing in the record to show whether or not appellant's mother had a good name or not. Such remarks could have no other effect than to prejudice the jury against the defendant, and we submit that this case should be reversed on account of such highly improper remarks by said district attorney. Evans v. State, 98 Miss. 697, 54 So. 154; Sykes v. State, 89 Miss. 766, 42 So. 875; Long v. State, 81 Miss. 448, 33 So. 224; Middleton v. State, 80 Miss. 393, 31 So. 809; Collins v. State, 99 Miss. 52, 54 So. 666.

We also submit that the court erred in limiting the argument of this case to one hour on each side as shown by special bill of exceptions shown on page 283 of the record. There were two attorneys for the defendant in this case as shown by the record, and the testimony was voluminous, there being twelve witnesses for the state offered on the direct proof, thirteen witnesses for the defendant and six witnesses introduced by the state in rebuttal. It is true, as certified by the trial judge, that the attorneys for defendant did not use all of the hour allotted to them in this case, but the writer of this brief was one of these attorneys and on account of the time fixed by the court, the writer in that case did not attempt to sum up the testimony as he would have done had he been given more time. For that reason a large part of the argument that the writer intended and desired to make was necessarily dispensed with on account of this arbitrary ruling of the court, which, we submit, is contrary to the ruling of this court announced by this court in the case of Wingo v. State, 62 Miss. 311, expressly overruling the old rule laid down in the case of Lee v. State, 51 Miss. 566. The court will note that in the Wingo case there were only seven witnesses for the state and five for the accused, that two attorneys represented the defendant, and the lower court limited their argument to one hour, which was held by this court to be reversible error.

We submit that the evidence in this case shows that the killing was done in the heat of passion and was not murder, and hence the court erred in charging as to murder. Stagger v. State, 110 Miss. 557, 70 So. 690; Pigott v. State, 107 Miss. 552, 65 So. 583. The evidence in this case, and even the confession of defendant testified to by other witnesses, showed that this killing was done in the heat of passion, and only issues of selfdefense or manslaughter were raised. A conviction of murder on evidence which raises only issues of self-defense or manslaughter will be reversed. Jones v. State, 98 Miss. 899, 54 So. 724.

Where the evidence in the prosecution for homicide does not warrant conviction of a greater offense than manslaughter, the court must instruct as to manslaughter though not requested so to do. May v. State, 89 Miss. 291, 42 So. 164; Johnson v. State, 23 So. 579; McDonald v. State, 78 Miss. 369, 29 So. 171; Gamlin v. State, 29 So. 764.

The defendant in this case requested the lower court to charge the jury to find him not guilty of murder, but this the lower court refused to do. We submit that the defendant in this case was justified in said shooting on the ground of self defense, but if we be mistaken in this, we submit that the evidence shows conclusively that he could have been guilty of manslaughter only, and we think this case comes squarely under the ruling in the late case of Williams v. State, 90 So. 705. Therefore, we respectfully submit that the judgment of the lower court ought to be reversed. W. C. Churchwell, for appellant.

The principles under which dying declarations may be admitted in evidence, was cited by our supreme court in Bell v. State, 72 Miss. 507, 17 So. 232. The authorities all agree that to make a dying declaration competent it must be made "under the realization and solemn sense of impending death." Bell v. State, 72 Miss. 507, 17 So. 232; Fannie v. State, 101 Miss. 378, 58 So. 2; Reeves v. State, 106 Miss. 885, 64 So. 836; Sparks v. State, 11 Miss. 266, 74 So. 123; Ashley v. State, 37 So. 960; Guest v. State, 96 Miss. 871, 52 So. 211.

In McNeal v. State, 115 Miss. 678, 76 So. 625, the court said: "The burden is on the state to show the court beyond a reasonable doubt that the deceased believed in his immediate and impending dissolution, to make his declaration admissible, and where deceased says nothing about impending death, but prays to the Lord 'Who has helped him before,' his declarations are inadmissible." Snell v. Stat...