McNair v. State
| Decision Date | 10 December 1934 |
| Docket Number | 31459 |
| Citation | 157 So. 908,171 Miss. 358 |
| Court | Mississippi Supreme Court |
| Parties | MCNAIR v. STATE |
Where circumstances showed that victim was under sense of immediate and impending death when he made statement absolving accused of murder, excluding statement offered by accused as a dying declaration held reversible error.
APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.
T. D McNair was convicted of murder, and he appeals. Reversed and remanded.
Reversed and remanded.
Leonard B. Melvin, of Laurel, for appellant.
The court erred in permitting the witness, Mott Pearcy, the deputy sheriff, to testify in detail to the dying declaration of the deceased before the jury, and then the next day instructing the jury to disregard his testimony.
Wilkerson v. State, 98 So. 770; Lea v. State, 103 So. 368; McNeal v. State, 76 So. 625; Haney v. State, 92 So. 627; Hathorn v. State, 102 So. 771; Sparks v. State, 74 So. 123; Reeves v. State, 64 So. 836; Bell v. State, 17 So. 232; Lipscomb v. State, 23 So. 210; Fannie v. State, 58 So. 2; McNeil v. State, 76 So. 625.
The court erred in refusing to permit Dr. Cranford's testimony to go to the jury.
The testimony of Dr. Cranford plainly shows the deceased was dying. He knew he was dying. That immediately after making the statement "I am going," he made the further statement, and further stated "Jenkins killed me."
Collins v. State, 56 So. 527; Darby v. State, 84 So. 6; Mathews v. State, 114 So. 816; Walton v. State, 112 So. 601; Moseley v. State, 73 So. 791; Hardaway v. State, 54 So. 883; Williams v. State, 84 So. 8.
Wm. H. Maynard, Assistant Attorney-General, for the state.
The lower court did not commit any error with reference to the dying declaration testified to by Mott Pearcy.
This court has laid down the test to be followed in determining the competency of a dying declaration in numerous cases. The first of these tests is that the declaration must have been made under a sense of impending death. Reviewing the Mississippi cases which have considered dying declarations, I submit that the present case presents a sufficient qualification of the declaration as laid down in this test. In the following cases statements similar to the one in the case at hand were allowed.
Guest v. State, 96 Miss. 871, 52 So. 211; Wiltcher v. State, 99 Miss. 374, 54 So. 726; Jackson v. State, 94 Miss. 83, 47 So. 502; Echols v. State, 110 Miss. 577, 70 So. 694; House v. State, 94 Miss. 107, 48 So. 3; Ealy v. State, 128 Miss. 715, 91 So. 417; Crawford v. State, 144 Miss. 793, 110 So. 517; Walton v. State, 156 Miss. 499, 126 So. 29; Yarbrough v. State, 165 Miss. 847, 147 So. 780; McDaniel v. State, 8 S. & M. 401; 2 Bishop's New Criminal Procedure (2 Ed.), p. 1036.
The court properly refused to permit the witness, Hattie Pruitt, to testify as to the alleged dying declaration.
Wilkinson v. State, 143 Miss. 324, 108 So. 711; Smith v. State, 161 Miss. 430, 137 So. 96.
Appellant was convicted of murder and sentenced to life imprisonment in the state penitentiary; and, from this conviction and sentence, this appeal was prosecuted.
The deceased, Jesse Mason, was shot in his home; and shortly thereafter he was carried to the South Mississippi Charity Hospital, where he died thirty-three days later. The evidence as to the identity of the person who fired the fatal shot is conflicting; but, in view of the conclusion we have reached upon one assignment of error, a detailed statement of this evidence would serve no useful purpose.
The appellant offered as a dying declaration a statement made by the wounded man to Dr. R. H. Cranford a few hours before he died. After a full preliminary examination as to its competency, this declaration was excluded, and the appellant assigns as error the action of the court in so doing. Throughout the time the deceased was confined in the South Mississippi Charity Hospital, he was under the care and treatment of Dr. Cranford, superintendent and chief surgeon of the hospital. Dr. Cranford testified that he had known the deceased for years, and had been his physician for ten or fifteen years, that, during the entire thirty-three days that he was confined in the hospital, he was in a serious condition, and that he talked to him often about his condition and about the shooting. He further testified that a few hours before death of the deceased he stated to him "Jesse, we have lost--we are going to lose," and that the deceased replied, ...
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Fulton v. State, 37617
...death, as set forth in such cases as Morrow v. State, 168 Ga. 575, 148 S.E. 500, which we cite as to that point only. See also McNair v. State, infra. The rule is laid down as: 'It is well settled that the sense of impending death which a dying person must have had in order to render a dyin......