McNeal v. State

• Decision Date: 05 November 1917
• Docket Number: 19926
• Court: Mississippi Supreme Court
• Parties: MCNEAL v. STATE

76 So. 625

115 Miss. 678

MCNEAL v. STATE

No. 19926

Supreme Court of Mississippi

November 5, 1917

Division A

APPEAL from the circuit court of Winston county, HON. H. H. RODGERS Judge.

Frank McNeal was convicted of manslaughter and appeals.

Instructions Nos. 1 and 4, referred to in the opinion, are as follows:

"No 1. The court instructs the jury for the state that they do not have to know the defendant is guilty before they can convict the defendant, but it is only necessary that the jury do believe from all the evidence in the cause beyond every reasonable doubt that the defendant is guilty, and if the jury do so believe from all the evidence in the case beyond every reasonable doubt that the defendant is guilty, then it is the sworn duty of the jury to find the defendant guilty as charged."

"No 4. The court charges the jury for the state that in trying this case you should not hunt for doubts, with the view of finding any excuse or apology for your verdict, nor should you indulge in such doubts as are merely conjectural or chimerical, but the doubts which ought to make you pause and hesitate, must be reasonable doubts, and they must arise out of the evidence or the want of evidence in the case. You are not required by the laws of the state to know defendant is guilty of the crime charged against him before you can convict him, and you should not hesitate to find that he is guilty before you are able to say outside of the evidence that he might have been innocent, but, after considering all the evidence in the case, if you believe beyond every reasonable doubt that he is guilty, you should discharge your duty fearlessly under your oaths and under the law and say so by your verdict."

Reversed and remanded.

Green & Green and Geo. Richardson, for appellants.

The rule is settled in this state that to make dying declarations admissible, the party must believe in his immediate and impending dissolution. Lembeth v. State, 23 Miss. 354; Fannie v. State, 101 Miss. 380; Bell v. State, 72 Miss. 507, 17 So. 232; Ashley v. State, 37 So. 960; Sparks v. State, 74 So. 124, reiterates and approves the rule in Bell v. State, 72 Miss. 507, supra.

Proof of the competency of the dying declaration must be made to the court, as a predicate, beyond a reasonable doubt. Fannie v. State, 101 Miss. supra; Bell v. State, 72 Miss. 507, supra; Guest v. State, 96 Miss. 872.

In Jones v. State, 79 Miss. 309, it is held: "The admissibility of a dying declaration is to be determined by the court, and where the declaration is manifestly the statement of an opinion, although in form one of fact, it is inadmissible." Dee House v. State, 94 Miss. 123; Owens v. State, 59 Miss. 549; Gould v. Crawford, 2 Pa. St. 90; 1 Wigmore on Evidence, 632.

It is held in the Lipscomb case, 75 Miss. 559, that caution should be exercised by the court in admitting dying declarations, and as shown, supra, the proof of the competency must be made beyond a reasonable doubt.

Where the preliminary hearing establishing the predicate is in the absence of the jury, as here, it is error to admit evidence of the declaration without submitting to the jury the evidence upon which the admissibility was decided. 21 Cyc. 985-6.

The alleged declaration is condemned by Norwood v. State, 65 So. 851-2, where deceased said he was going to die, "and that they had met him down there to kill him without a cause, and just had it made up with each other to do so," and this the court held (p. 852) was not admissible as the statement of a fact attending the killing. This case is clearly applicable to the case here. Ford v. State, 73 Miss. 734; Shehan v. Kearney, 82 Miss. 702; Wood v. State, 58 Miss. 742.

Instruction No. 5, for the state undertakes to instruct the jury as to manslaughter. It is fatally defective in its definition of manslaughter under the statute, in omitting, under sections 1236-38, Code 1906, the words "without authority of law." Ivy v. State, 84 Miss. 264.

The court erred in modifying instruction No. 1 for the defendant. This instruction, as asked, asserted the right of McNeal to defend his home and the chastity of his family against the threatened action of Williams, and the court modified it by inserting, as a basis of this right that he "used such force as was absolutely necessary to prevent him from carrying such threats into execution." The instruction, as asked, did not require that McNeal should be allowed to use only such as was "absolutely necessary to prevent him from carrying such threats into execution," and we submit that the requirement that he should only use such force as was "absolutely necessary" was stating the rule too strongly against McNeal. Staten v. State, 30 Miss. 619.

We respectfully submit that on the facts of this case, appellant could not be convicted of any offense. We respectfully submit that there was no foundation for the verdict of manslaughter, and are at a loss to understand how the court, under the circumstances, could have inflicted a penalty of eighteen years upon this unfortunate appellant.

Wherefore the judgment should be reversed and a new trial awarded, or that appellant be discharged.

Frank Robinson, for appellee.

While it is essential to the admissibility of dying declarations, that they were made under a sense of impending dissolution and this must be satisfactorily established to the judge before being admitted, yet it is not necessary that the declarant should state that they were so made at the time. It is sufficient if it be satisfactorily shown in any manner, that they were made under the sense of impending dissolution, whether it be proven directly by the language of the deceased, or be inferred from his evident danger, or the opinions of the physicians or other attendants, stated to the deceased, or from his conduct or other circumstances of the case. McDaniel v. State, 8 S. & M. 401, 47 Am. Decisions 93; Brown v. State, 34 Miss. 433; Bell v. State, 72 Miss. 507, 17 So. 232; House v. State, 94 Miss. 107.

It is argued by able counsel for the appellant when the deceased was praying and stated that the Lord had helped him once and he would help him again, that this showed that he had hope of recovery. I do not think that this showed that this expression could be strained to mean this, especially in view of the fact that there is not a solitary line of other testimony to show that the deceased had, at any time, ever thought that he would recover. In the case of Dee House v. State, 94 Miss. 107, one of the leading cases in this state on dying declaration, the declarant stated, "that he was going to die; that he believed he was, and would like to see his wife before he died; that 'if I have to die, I want to die brave.' He said that Dee House had killed him and killed him without cause." Counsel in that case, as in this, argued that the use of the words, "if I have to die" by deceased raised a reasonable doubt of his entire conviction of impending dissolution. So taking into consideration, the condition of Bill Williams, the deceased, in the case at bar, as testified to by Winfred Thomason and Mrs. Williams and Dr. Sanders, I think a proper predicate was laid for the introduction of the dying declaration.

As was said in Dee House v. State, supra: "Taking into consideration all that deceased said and the condition under which his declaration was made, we think deceased was fully conscious that his end was at hand and that his declaration was made under the realization and solemn sense of impending death, and therefore hold that the proper predicate was laid." Wiltcher v. State, 54 So. 726.

It is illegal for the court to submit to the jury by charges questions of fact on which the admissibility of dying declaration depend. The point is further made that the dying declaration was not a statement of facts but a conclusion by the declarant, and that such a declaration is condemned by the case of Norwood v. State, 65 So. 851. This as an Alabama case. The test as to the admissibility was well stated by the court in the case of Dee House v. State, supra, on page 123, as follows: "To us the true and proper test as to admissibility is whether the statement is the direct result of observation through the declarant's senses, or comes from a course of reasoning from collateral facts. If the former, it is admissible; if the latter, it is inadmissible."

The statement that accused shot the deceased "without any cause whatever" is admissible. Payne v. State, 61 Miss. 161; Powers v. State, 74 Miss. 777, 21 So. 657. The assertion of the deceased that the accused killed him for nothing was properly received as a dying declaration. Jackson v. State, 94 Miss. 83, 47 So. 502. When everything, as shown by all the evidence, was fully known to the declarant his dying assertion that the accused "killed me and killed me without a cause;" may be accepted as the statement of a fact and be received in evidence. House v. State, 94 Miss. 107, 48 So. 3, 21 L. R. A. (N. S.) 840, note.

The fifth instruction for the state in as follows: "The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life or of receiving great bodily harm at the hands of the deceased, you will find him guilty of manslaughter, and the form of your verdict will be: 'We, the jury, find the defendant guilty of manslaughter.'"

Complaint is made of this instruction because it omits the words "without authority of law" found in the statutory definition of manslaughter. Sections 1236-1238, of the Code of 1906. This case was reversed because of the improper omission of certain testimony,...