Scott v. State

• Decision Date: 08 May 1933
• Docket Number: 30534
• Citation: 148 So. 239,166 Miss. 6
• Court: Mississippi Supreme Court
• Parties: SCOTT v. STATE

148 So. 239

166 Miss. 6

SCOTT v. STATE

No. 30534

Supreme Court of Mississippi

May 8, 1933

Division B

1. CRIMINAL LAW.

Refusal of requested instruction substantially covered in instructions given or which were inaccurate or abstract held not error.

2 HOMICIDE.

Dying declarations may be received in favor of defendant.

3 HOMICIDE.

Court should hear evidence in jury's absence to determine whether dying declarations are competent, and if there is reasonable doubt of competency, declarations should be excluded.

4 HOMICIDE. Dying declaration is competent only if made when deceased had sincere belief of impending death as result of wound and had abandoned all hope of recovery.

5. HOMICIDE. Trial judge's finding that one making dying declaration had not abandoned all hope of recovery or that testimony produced made competency of declaration doubtful not being manifestly wrong, supreme court cannot interfere.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Wilbur Scott was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

Good & Lawrence, of Vicksburg, for appellant.

The verdict of the jury was contrary to the law and evidence.

The testimony shows that the deceased was not engaged in the card game and had no right to engage in any controversy between the appellant and others. The state did not show by testimony in any form or manner to any extent that the appellant had any malice toward the deceased, nor any desire to take her life or to do her any bodily harm or injury, but to the contrary that they were good friends, and that the appellant was a constant visitor to the deceased home for the purpose of engaging in gambling and drinking.

The court erred in sustaining the state's objection to the dying declaration of Mary Sones (Marie Sones) deceased.

A dying declaration is admissible on behalf of the defendant as well as on behalf of the state.

Sparks v. State, 113 Miss. 266.

The dying declaration so made by the deceased is clearly shown to have been made under the realization of impending death; that she was then and there conscious of immediate pending dissolution. It seems to us that the condition of deceased mind was such as to render the statement or dying declaration admissible. It is sufficient when the deceased had abandoned all hope of recovery, and that she believed that she would die.

Under the testimony in the case the court should have admitted in the evidence the dying declaration so made by the deceased for the consideration of the jury.

Marley v. State, 109 Miss. 717.

Herbert Nunnery, Assistant Attorney-General, for the state.

The case is particularly for the jury where the evidence is conflicting, and its verdict will not be disturbed although the appellate court would have rendered a different verdict.

Stewart v. State, 154 Miss. 858, 123 So. 859; Chandler v. State, 143 Miss. 312, 108 So. 273; Wells v. State, 112 Miss. 76, 72 So. 859; Matthews v. State, 148 Miss. 696, 114 So. 816.

We submit that the lower court was eminently correct in sustaining the state's objection to certain proposed dying declarations and should be sustained in this view, because as suggested by him, the fact that the deceased did not want the appellant punished was no justification of the crime, and no intimation or declaration that he did not shoot her. In other words, the effect of the entire statement of this witness, Malinda Barney, as to what the deceased said to her, that she did not want the defendant proceeded against, is not competent, because there is no evidence whatever to show that the woman administered the wound to herself, but to the contrary, it has been shown conclusively, in our opinion, that the appellant fired the fatal shot.

The belief by the declarant that he may ultimately die as a result of his injury is not sufficient to authorize the admission of his statement as a dying declaration. . . . It must reach the point of absolute certainty in the mind of the declarant.

Lambeth v. State, 23 Miss. 354; Sparks v. State, 133 Miss. 266, 74 So. 124; Lea v. State, 138 Miss. 761, 103 So. 368.

Argued orally by V. W. Good, for appellant, and by Herbert Nunnery, Assistant Attorney-General for the state.

OPINION

Griffith, J.

Appellant was indicted for murder, and was convicted of manslaughter. There is sufficient reasonable direct evidence to support the verdict, and the refused instructions requested by defendant were either covered in substance by other instructions which were granted, or else the instructions so refused were (1) inaccurately drawn and did not state the law correctly, or (2) were of mere abstract propositions not appropriate or definitely pertinent to the issues being tried.

The deceased, a few days before her death, made certain declarations which while not entirely specific and were vague in a certain degree, yet were sufficient, if otherwise competent, for submission to the jury as tending to exculpate appellant of blame, and as corroborating his testimony and that of the other witness introduced in his behalf. These declarations were offered by appellant as dying declarations and were excluded by the court; and, judging from the briefs and the course of the oral argument, appellant has based his expectation of a reversal chiefly on this alleged error. And appel...