Reeves v. State

• Decision Date: 02 March 1914
• Docket Number: 16817
• Citation: Reeves v. State, 64 So. 836, 106 Miss. 885 (Miss. 1914)
• Court: Mississippi Supreme Court
• Parties: BARNEY REEVES v. STATE

64 So. 836

106 Miss. 885

BARNEY REEVES v. STATE

No. 16817

Supreme Court of Mississippi

March 2, 1914

APPEAL from the circuit court of Lauderdale county, HON. JNO. L BUCKLEY, Judge.

Barney Reeves was convicted of murder and appeals.

Appellant was convicted of murder for the killing of one John Hughes and sentenced to imprisonment in the penitentiary for life. The state's theory of the case is that the killing was murder, and the defendant's theory was that the shooting was accidental. On appeal, among other errors, the action of the court in admitting as evidence two alleged dying declarations of deceased, one to the physician, Dr. Bounds who attended him, and the other to a friend named Howse.

Dr Bounds testified, over the objection of appellant, as follows: "Q. You are Dr. George Bounds? A. Yes, sir. Q. You are a practicing physician? A. Yes, sir. Q. Did you attend John Hughes in his last illness, Doctor? A. Yes, sir. Q. Did he live or die? A. He died. Q. What was the cause of his death? A. Blood poison from gunshot wound. Q. Blood poison from a gunshot wound? A. Yes sir. Q. Where was the gunshot wound? A. On the right limb, just above the knee--just a little bit above the right knee. Q. How soon after the shooting were you called in? A. I was called between three and four o'clock on Sunday morning, and I think the shooting was somewhere about eleven o'clock between eleven and twelve o'clock, I don't know. Q. When you got to him and examined the wound, what condition did you find the wound in relative to some wadding or any foreign substance in it? A. Well, you couldn't see any of the wadding, anything at all; just a hole about the size little bit larger than a dollar, and bleeding pretty free then, and the limb--feel the bones crushing. Q. Feel the bones crush? A. Yes, sir. Q. Blood poison, as I understand you, Doctor, is due to an infection, is it not? A. Yes, sir. Q. Some sort of blood-- A. Yes, sir. Q. What do you call that germ? A. Stephyococis, four or five different kinds. Q. How long did you attend this man? A. About thirteen days. Q. Did he ever make any statement to you about-- Now, in answering these questions, there are only certain conditions upon which these questions are relative. Did he ever make any statement to you relative to the circumstances? A. Yes, sir. Q. At the time he made those statements, state whether or not he knew he was going to live or die. A. Well that was--the evening he made the statement was--on Thursday evening before he died Friday morning. I saw him about four o'clock in the afternoon, and I told him that he could not live at the time, and I asked him about how it was done. It was the only time he ever made a statement, and he said Barney Reeves ought to be punished for it, for murdering a man like he did him; that he was--that Barney said he was going to shoot him, and got the gun, and was leveling it on him, and he grabbed hold of the barrel, and was pulling it down, and about the time it got level or even with his knees it shot. Q. That is the statement he made to you after you told him he was going to die? A. Yes, sir. Q. And he did die the next morning? A. Yes, sir. Q. Was it right after you told him that that he made this statement to you? A. Yes, sir. Q. He got no better after that, did he? A. No, sir; nor worse. Q. That was on Thursday about four o'clock? A. Yes, sir. Q. And he died Friday morning? A. Yes, sir. Q. And your statement was, I believe, that he said that Barney ought to be punished for murdering a man the way he had him? A. Yes, sir. Q. That Barney had gotten the gun, leveled it on him, he grabbed it and pushed it down, and when he got it level with his knees the gun fired? A. Yes, sir. Q. That is his statement, is it? A. Yes, sir."

The witness Howse testified as follows: "Q. Will, were you present at the time that John Hughes died? A. Yes, sir. Q. Did you have a conversation with him prior to the time of his death? A. No, sir; I never did. Q. Did he make any statement to you before his death? A. That was all the statement he made to me after he--Q. That is what I am asking you about now? A. Yes, sir. Q. How long was that before he died that he made this statement to you? A. I never particularly noticed the clock, but from the time-- John was in a terrible lot of misery from the time he made the statement till he died, and from the time he made the statement was about three hours before he deceased? Q. Did he know he was going to die when he made this statement? A. He explained to his wife and mother that he was going to die. Q. He did? A. Yes, sir; and in about three hours he died. Q. What sort of condition was he in at that time? A. Along at the time he was dying and talking, he looked like that the misery would get here somewhere about his heart, and it just looked like every blood vessel in his arm and neck looked like he was going to bust, and part of us having to rub against his neck and against his heart. Q. Suffering greatly, was he? A. Yes, sir. Q. You have stated, I believe, he told his wife and children? A. Yes, sir, he told his wife-- Q. What did he tell his wife and children? A. He told his wife to take his chaps back to her brother at Enterprise where he had married her, and tell her brother to take them and do the best he could by them, because he would be bound to die. Q. He would be bound to die? A. Yes, sir; he said a man, he says, 'in the fix I am, I can't live.' Q. You say he did in about three hours after that? A. Yes, sir; after he got through doing the talking. Q. What statement did he make to you, if any, at that time, about how the shooting happened? (Mr. Gilbert: We object. Overruled.) Q. Go ahead and state what statement. A. He told me then--I went to the bed, I was standing there rubbing him, after he had got through talking to his wife, I says, 'John, do you know did Barney shoot you? He says, 'Yes, I know Barney Reeves shot me.' I says 'A lot of times a man makes a mistake.' He says, 'I made no mistake, because at the time I had hold of the barrel of the gun, and I thought when he made the shot I had pulled it between my legs, but I hadn't.' He says he didn't know, at the time Barney had shot him, of any trouble between him and Barney, why he shot him. He says, 'No; I didn't know of any trouble between me and Barney, why he has shot me.' Q. Did he make any further statement about it? A. Yes, sir; he says, Barney have murdered me, and I hope the people won't let Barney walk about and not do nothing to him after he have murdered me like he have.' (Mr. Gilbert: We move to exclude this witness' testimony, for the reason that it shows that at the time the declaration was made that the deceased was in such a frame of mind as to destroy trustworthiness of the statement; that he was dominated by a sense of hatred and revenge against the defendant, and for other reasons. Which motion was by the court overruled. To which action and ruling of the court the defendant then and there excepted.)"

Reversed and remanded.

V. W. Gilbert, for appellant.

With reference to the testimony of Dr. Bounds, who testified that deceased made a dying declaration to him, it is submitted that this testimony was clearly incompetent, for the reason that his testimony does not show that the deceased was laboring at that time under a sense of speedy death or of impending dissolution.

The mere fact that Dr. Bounds informed the deceased that he was going to die does not satisfy the rule of law. It must be the mental attitude and condition and the sense or realization of impending dissolution entertained by the declarant at the time the declaration is made. 2 Wigmore, sections 1441, 1442; Lipscomb v. State, 75 Miss. 559.

Without protracting this brief into an elaborate and minute argument and analysis of the testimony in this case, it is finally submitted to the court, with all earnestness, that the dying declaration of the deceased John Hughes, as testified to by both Dr. Bounds and the negro witness Will Howze (Howell), should have been excluded by the court, for the reason that the declarations as testified to are wholly lacking in the essential elements of trustworthiness which should surround all dying declarations.

Dying declarations are admitted under the law for two reasons principally because of the necessity in a great many ...