Rogers v. State

• Decision Date: 01 August 1916
• Docket Number: 2 Div. 118
• Citation: 72 So. 689,15 Ala.App. 148
• Parties: ROGERS v. STATE.
• Court: Alabama Court of Appeals

72 So. 689

15 Ala.App. 148

ROGERS v. STATE.

2 Div. 118

Court of Appeals of Alabama

August 1, 1916

Rehearing Denied Sept. 7, 1916

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

John Rogers was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The pleas referred to present the same matter as that presented by the appeal in Ex parte Rogers, 190 Ala. 627, 67 So. 253. The other facts sufficiently appear.

Craig &amp Craig, of Selma, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

BROWN J.

The questions presented on this appeal as to the organization of the grand jury were presented to and considered by the Supreme Court in Ex parte Rogers, 190 Ala. 627, 67 So. 253 the court holding that the matters complained of did not affect the validity of the indictment, and were not available to the defendant as a ground for having the indictment quashed. The cases of Hafley v State, 8 Ala.App. 378, 62 So. 319, and Yeager v. State, 8 Ala.App. 374, 62 So. 318, relied on by appellant, were declared to be unsound on this point in Ex parte Lawler, 185 Ala. 428, 64 So. 102. The result is that the rulings of the court on the several motions of the defendant, if error, were without injury.

Under the holding of the Supreme Court, the demurrers of the state to the defendant's pleas should have been sustained, but the same result was reached by the holding that the replications were a complete answer to the pleas and giving the affirmative charge to find for the state on the issues thus presented; and if technical error was committed in any of the rulings, no injury resulted. Friedman Bros. v. Cullman Building & Loan Association, 124 Ala. 344, 27 So. 332.

The testimony of the witnesses who relate the "dying declarations" of the deceased clearly show that the statements of the deceased relative to the shooting were made under a sense of impending death, that he answered the questions asked him by the witness Turner intelligently, and that his declarations were in reference to the shooting of deceased by the defendant, and the defendant's objection to this evidence was properly overruled. Patterson v. State, 171 Ala. 2, 54 So. 696; McEwen v. State, 152 Ala. 38, 44 So. 619; Gregory v. State, 140 Ala. 16, 37 So. 259. In McHugh v. State, 31 Ala. 319, relied on by appellant, the dying man made no statements whatever, but merely "nodded his head," and the court there said:

"It is clear that the language of the statement is not the language of deceased; unless made so by his mere 'nodding his head.' If there was anything to convince us that he perfectly understood the language employed in the statement, or that he was at the time able to have detected any erroneous inference as to his real meaning, which his friends might have expressed in the answers given by them and embodied in the statement, we should regard the assent given by nodding his head as sufficient. But we see nothing which satisfies us that he either perfectly understood the language, or was able to have detected the erroneous inference as to his meaning, which his friends may have honestly drawn in making the answer set forth in the statement. H

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