Muse v. State

• Decision Date: 10 November 1930
• Docket Number: 28965
• Court: Mississippi Supreme Court
• Parties: MUSE v. STATE

130 So. 693

158 Miss. 449

MUSE v. STATE

No. 28965

Supreme Court of Mississippi

November 10, 1930

Division A

1 HOMICIDE.

Evidence showed dying declaration was made under sense of impending death.

2 HOMICIDE.

Evidence that deceased was unconscious when witness arrived upon scene, shortly after shooting, was competent to impeach testimony regarding dying declaration, and was erroneously excluded.

3 HOMICIDE.

In murder prosecution, evidence that deputy sheriff, at scene of shooting, took snapped shell from shotgun of deceased, held improperly excluded.

4. HOMICIDE.

In murder prosecution, evidence regarding deceased's uncommunicated threats, showing deceased's state of mind, held improperly excluded.

5. CRIMINAL LAW.

Instruction that dying declarations are not entitled to same credit and force as if deceased were alive and testifying held improperly refused.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Marshall county, HON. T. E. PEGRAM, Judge.

Elliot Muse was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

Smith & Smith, of Holly Springs, for appellant.

The burden is on the state to show that at the time the declaration was made the deceased believed he was going to die and had no hope of recovery. It must be made under the realization and solemn sense of impending death.

Fannie v. State, 101 Miss. 380, 58 So. 2; Bell v. State, 72 Miss. 507, 17 So. 323; Lambeth v. State, 23 Miss. 354; McNeal v. State, 76 So. 625, 115 Miss. 678; Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230; Wade v. State, 112 So. 677; Wilkerson v. State, 134 Miss. 854, 98 So. 770; Haney v. State, 129 Miss. 486, 92 So. 627; McNeal v. State, 115 Miss. 678, 76 So. 625; Lea v. State, 138 Miss. 761, 103 So. 368.

Preliminary evidence held not to meet requirement as to admissibility of declarations.

Brandon v. State, 99 Miss. 784, 56 So. 165; Starks v. State, 6 So. 843; Joslem v. State, 75 Miss. 838, 23 So. 515.

The dying declaration of a party is simply a part of the evidence. It is not regarded in law as more sacred than the testimony of a witness, to say the least of it. It is subject to discredit and impeachment by any competent testimony which impairs its value.

Ganbrell v. State, 92 Miss. 728, 46 So. 138, 17 L. R. A. (N. S.) 291, 121 Am. St. Rep. 549, 16 Ann. Cas. 147; Hill v. State, 64 Miss. 432, 1 So. 494.

An instruction telling the jury that a dying declaration is a class of hearsay testimony and is not entitled to the same weight as if the declarant were present testifying in court and is, at best secondary evidence and is not entitled to the same weight, which is due to direct testimony, should be given.

Lambeth v. State, 23 Miss. 322; Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230.

W. A. Shipman, Assistant Attorney-General, for the state.

Dying declarations of a decedent offered in evidence are at best but hearsay testimony and nothing but an imperative sense of public necessity justifies their admission; and hence the courts constantly declare that they should be received with great caution; that in admitting such statements for the consideration of the jury, the law substitutes the situation of the party making them, in lieu of the oath which is usually required, and thus renders the testimony competent.

Merrill v. State, 58 Miss. 67; Lipscomb v. State, 23 Miss. 322.

The instruction asked by the defendant, as to the credit jury should give a dying declaration, and refused by the court is almost identical, word for word, with the instruction requested by the appellant in the case of Lipscomb v. State, 75 Miss. 559, and unless this case is to be overruled the refusal of such error probably constituted error.

An instruction telling the jury in effect that they were the sole and only judges of the weight and worth and credibility of the dying declaration of the deceased and that of every other part and parcel of the evidence in the case; that it was their duty to give to each and every part of the evidence such weight as the jury thought it entitled to, and that the court did not intimate what worth it thought the jury should give to the testimony, or any part of it, for this was the sole province of the jury and upon their shoulders alone was placed the duty of passing on the question of what weight, if any, should be given to the evidence by the jury, is an approved form of instruction as to the credit to be given dying declarations.

Wilkerson v. State, 134 Miss. 853.

OPINION

McGowen, J.

On an indictment for murder, appellant was convicted of manslaughter and sentenced to serve a term of seven years in the state penitentiary, from which judgment he appeals.

We shall not undertake to detail all the facts of this homicide. The conviction must rest upon the testimony of two witnesses who detailed a statement made by the deceased to them shortly after the difficulty, in which they stated that Hayes Walton, the deceased, was conscious at the time he made the statement, and further represented him as saying: "There is no hope for me to live, I am dying and the way I am shot there is no possible way for me to live, that I can feel the clots of blood in my side," and further stated that Elliot Muse shot him. He said he was walking down the road and did not see the boys and all at once they, Elliot Muse (the defendant) and Will Ellis Dawkins, "hollered 'hands up,' and he was shot all at the same time, and when he fell to the ground they charged up and started to hit him and 'I begged them to spare my life,' and he didn't say whether they hit him or not." It was shown that after this statement, by his consent, friends undertook to carry him to a physician at Holly Springs some miles away, but there is no showing as to what he said or how his consent was obtained. He died a few minutes after reaching the hospital at Holly Springs. The attending physician was not offered as a witness, nor is it shown that he was available as such, nor is it shown that he advised the declarant of his physical condition.

The defendant's evidence, if believed established a case of self-defense. Muse and Dawkins said they did not know Walton was near them, that they were hunting near the public road; the defendant being armed with a single-barrel shotgun, and his companion, Dawkins, had a stick. They were hunting rabbits. They said when they saw Walton first he had his double-barrel shotgun to his shoulder leveled on them, and the appellant threw his single-barrel gun to his hip and shot. A disinterested witness to some extent corroborated this statement of the appellant and his companion. Muse and Dawkins went over to where the deceased fell in the public road and took from him his...