Oldham v. State

• Decision Date: 22 January 1935
• Docket Number: 7 Div. 48
• Parties: OLDHAM v. STATE.
• Court: Alabama Court of Appeals

161 So. 546

26 Ala.App. 339

OLDHAM v. STATE.

7 Div. 48

Court of Appeals of Alabama

January 22, 1935

Rehearing Denied Feb. 19, 1935

Appeal from Circuit Court, Etowah County; W.B. Merrill, Judge.

Emory Oldham was convicted of murder in the second degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Oldham v. State (7 Div 316) 161 So. 548.

Alto V Lee and McCord & McCord, all of Gadsden, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Ben. F. Ray, Sp. Prosecutor of Birmingham, for the State.

RICE, Judge.

Appellant was convicted of the offense of murder in the second degree and his punishment fixed at imprisonment in the penitentiary for the term of ten years.

The deceased, Euclid Sullivan Weaver, known as Mac Weaver, was grievously wounded with a pistol ball, fired from a pistol of what is called a.44 or .45 caliber. The ball "entered in the back about a half or three quarters of an inch from the center of the spine, to the left of the spine, entering the middle portion of the body called the dorsal vertebra or the first lumbra (sic) and penetrated the spine and the liver and made its exit on the chest bone about two inches higher than its entrance on the opposite side of the body, about three quarters of an inch to the middle line."

Deceased was shot at noon, or a little after, on Monday, April 3d. He died at about 4:30 p.m. on April 5th.

Dr. Howell Cross, a witness for the state, testified that he saw deceased about 1:30 p.m. on the same day he was shot; that at that time deceased was "breathing like a man with his breath cut off, about fifty times a minute (eighteen being normal), and was blue, cynotic, and his pulse was hardly countable, extreme shock and he was suffering extremely with his right leg and he had the appearance of fear or fright of death;" that deceased "was in his right mind"; that "I told him he was going to die"; that deceased said he wanted to make a statement; that deceased said that "if he was going to die he would like to make a death statement"; that "we never tell a patient positively that they are going to die. I told him in all probability Mac, you are dying;" that in response to that he said "if I am dying I would like to make a death statement"; that deceased then said "that while riding a cultivator that a man named Franklin came up with a man named Oldham and that Franklin knocked him from the cultivator to the ground and on arising Oldham shot him from behind"; that that was all deceased said.

Strenuous objection was interposed by appellant to the admission in evidence of the statement of deceased, Weaver, narrated by Dr. Cross, which we have italicized.

As said by our Supreme Court in the opinion in the case of Gilmer v. State, 181 Ala. 23, 61 So. 377, 378: "It is not an indispensable prerequisite to the admission of a dying declaration that the deceased should, in so many words, express a conviction that he is in extremis, that death is impending, and that he has no hope of life; but such a declaration is admissible when, after a careful consideration of all the circumstances, the judicial mind is convinced, by legally sufficient evidence, that, at the time the declaration was made, the deceased was in extremis, that he believed death to be impending, and that he entertained no hope of life."

The statement admitted in evidence, which we have identified above, seems to us to fall within the law as we have quoted. It was properly admitted in evidence. Wills v. State, 74 Ala. 21; Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560.

The fact that the statement was made on the afternoon of April 3d, and that deceased did not die until the afternoon of April 5th, does not militate against this holding. See Moomaw v. State, 24 Ala.App. 459, 137 So. 40.

We have read the evidence in this case, sitting en banc. It appears to us, and we hold, that under the "facts, acts of the parties, and circumstances shown by phases of the testimony," the question of whether or not there was a conspiracy entered into on the morning of April 3d by appellant, J.M. Franklin, and the three parties accompanying them, to go from appellant's home to the home of deceased, and there "post their land line," which they...