Owens v. The State
| Citation | 59 Miss. 547 |
| Court | Mississippi Supreme Court |
| Decision Date | 10 May 1882 |
| Parties | JOSEPH OWENS v. THE STATE |
Appeal from the Circuit Court of Adams County Hon. Ralph North Judge
Special bills of exceptions, signed at the appellant's trial which resulted in his conviction for the murder of J. P Boarman show that a member of the board of supervisors was called by the State and testified that he had written a document which was produced as Boarman's dying declaration, as the questions which he asked were answered by Boarman, who after hearing the whole read over to him approved and signed it, that the appellant then proposed to cross-examine the witness in order to show that Boarman was not aware that he would die when he signed the paper, but that the court refused to allow any investigation until the conclusion of the examination of the witness by the State and permitted the writing to be read in evidence over the appellant's objection; that the contents of this paper were that Boarman went with the appellant's wife to get her clothing from her husband, with whom he was friendly when unexpectedly the appellant drove him away, and, as he fled, pursued him on horseback, overtook him, and deliberately shot at him while he was trying to screen himself behind an obstruction and missed him, and then, while he was begging the appellant not to shoot and telling him that he was getting away as fast as he could, fired the second charge with fatal effect; that after the State closed its evidence the appellant offered to testify in his own behalf, under Code 1880, § 1603, to his version of the shooting, but the court, on the district attorney's objection, refused to permit him to be introduced.
Judgment reversed.
J. F. Sessions and T. R. Stockdale, for the appellant.
1. No foundation was laid for the introduction of the dying declarations. The appellant should have been permitted to cross-examine the magistrate. No investigation was permitted; and, for all that appears, material statements of the wounded man may be omitted from this paper. Full inquiry must be allowed before the declaration goes to the jury. Afterwards it is useless. The competency of this kind of evidence is a preliminary fact essential to be proved before its admission. It is a question for the court alone, and a separate and independent inquiry is necessary. McDaniel v. State, 8 S. & M. 401; Nelms v. State, 13 S. & M. 500; Lambeth v. State, 23 Miss. 322. It may be that Boarman was delirious; and this the magistrate only could know. Arch. Crim. Pr. 432.
2. Boarman was, within the spirit and intent of Code 1880 § 1603, "introduced as a witness by the State." Were he alive and subject to cross-examination, the appellant could testify. His ex parte statement should be subject to the same check. The object of the statute is to admit each party's...
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Lipscomb v. State
...Cr. Ev., 689; 1 Phil. Ev., 3, 7, 573; Simmons v. State , 61 Miss. 243; State v. Burns , 33 Mo. 483; Kilgore v. State , 74 Ala. 1; Owens v. State , 59 Miss. 547; Ellis v. State , 65 Miss. 44, So. 188; Bell v. State , 72 Miss. 507. It is therefore pertinent to inquire what degree of proof in ......
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Dean v. State
... ... competency of a dying declaration is a question to be ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v ... State, 59 Miss. 549; Simmons v. State, 61 Miss ... 257; Holly v. State, 55 Miss. 430; Ellis v. State, ... 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under ... ...
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Dean v. State
... ... competency of a dying declaration is a question to be ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v. State, 59 Miss ... 549; Simmons v. State, 61 Miss. 257; Holly v. State, 55 Miss ... 430; Ellis v. State, 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under a sense ... ...
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Woulard v. State
... ... "guess" for the jury. In the Bell case, supra, it ... is settled that the admissibility of the evidence is for the ... court in the absence of the jury, it being the duty of the ... court to investigate the circumstances under which the ... declarations were made, citing Owens v. State, 59 ... Miss. 547, to the same effect, that is, to fully investigate ... by the rules of law as to the competency of such evidence, ... which is a preliminary inquiry to be made by the court, ... before the jury is permitted to hear it--a few of the ... authorities are, Williams Case, ... ...