Shell v. State
| Decision Date | 13 December 1889 |
| Parties | SHELL v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.
The indictment in this case charged that the defendant, Tom Shell, "unlawfully, and with malice aforethought, killed George Sargent, by stabbing him with a knife." On the trial, issue being joined on the plea of not guilty, the defendant was convicted of manslaughter in the first degree and sentenced to the penitentiary for a term of 10 years. It was shown that the difficulty between the parties occured at the mill of the deceased, on the night of December 19, 1887. That the defendant had been told that day that the deceased had charged him with the larceny of some eggs and other things, and went to the mill, in company of one Mayo, for the declared purpose of asking about it. That the deceased acknowledged that he had made, the said charge, and repeated it. That the defendant called him a liar, and they immediately engaged in combat. The light was extinguished during the fight, several other persons being present, one or more of whom participated in the fight; and, when another light was procured, it was found that the deceased was badly cut on the neck. The defendant was also cut about the face or neck, but by whom it was not proved, and he denied that he cut the deceased. It was shown, also, that the deceased "was walking about the next day, and moved his family to another house, a distance of one mile and a half;" but blood poison supervened, and he died on the night of January 7, 1888. Two practicing physicians, who were called in about five days before the death of the deceased, testified, on the part of the state, that blood poisoning had then ensued, and that the wound was in such a condition that they could not do anything with it; that they prescribed morphine; that two days afterwards, when they saw him again, "the morphine and the effects of the blood poison made his mind flighty his speech incoherent, and tended to make him irrational;" and one of them further testified that these effects would necessarily increase until death ensued and that, in his opinion, "Sargent was not rational for two or three days before his death." The state afterwards introduced one Mabbitt as a witness, "who was a minister of the gospel, and who testified that he went to see Sargent the evening before his death, and thought he was then rational; that Sargent talked about dying, and said he was going to die; that he had no hope of getting well, and had no fears of the future; that he was satisfied to die, and wanted witness to attend his funeral, and to write his obituary." On this testimony the state offered to prove as dying declarations, statements made by the deceased to said witness, as to the circumstances attending the difficulty; and the court admitted them, against the objection and exception of defendant. The defendant afterwards offered to introduce, "but not as to dying declarations, evidence of statements made by Sargent while on his bed sick, which tended to contradict the dying declaration introduced by the state," and he duly excepted to the exclusion of the evidence by the court.
The court gave the following charge to the jury, at the instance of the state: "If, from a survey of all the evidence, the jury should find and believe, beyond all reasonable doubt, that the defendant called on the deceased, at the saw-mill, for no other purpose than inquiring about the rumor as to what deceased had said about him, and asked deceased as to what he said about him; and that deceased admitted having said that defendant had stolen eggs, and said it again; and that defendant then said, 'You are a liar;' and that deceased thereupon struck the defendant; and if the jury should further find that the circumstances were such as to reasonably impress the defendant, and did so impress him, that it was necessary to strike the fatal blow, in order to save himself from the loss of life or the infliction of great bodily harm; and if the jury should further believe, beyond such reasonable doubt, that the defendant could have retreated, and avoided the necessity of striking the fatal blow,-then he cannot be acquitted on the ground of self-defense." The defendant excepted to this charge, and requested the court to give the following charge in writing: "If the jury believe from the evidence that Shell, when he asked Sargent about charging him with stealing eggs, did so with no intention to provoke a difficulty; and that Sargent repeated the charge in substance; and that Shell said it was a lie; and that the parties then grabbed each other, and scuffled; and that, after this, the appearances and circumstances surrounding the defendant were such as to produce in his mind a reasonable belief that he was about to lose his life, or to suffer great bodily harm, and that he had no reasonable way to retreat,-then defendant could cut or strike Sargent in defense of his life, or to save his person from great bodily harm, and if the jury believe from the evidence that defendant cut Sargent under such circumstances, then the law says he is not guilty, and the jury should so find by their verdict." The court refused this charge, and the defendant thereupon excepted.
Denson & Tanner, for appellant.
W. L. Martin, Atty. Gen., for the State.
Deceased received his death wound December 19, 1887, and died January 7, 1888. The dying declarations of deceased were introduced in evidence against the defendant, and, as we think, the circuit court did not err in receiving them. If the testimony be believed, they were made under a sense of impending death. Hussey v. State, 87 Ala. 121, 6 South. Rep. 420; 3 Brick. Dig. 226, § 663 et seq.
Defendant offered evidence of statements made by deceased after he had received the fatal blow, "which tended to contradict the dying declaration introduced by the state," but stated it "was not offered" as a dying declaration. This evidence, on objection, was ruled out, and defendant excepted. There are many reasons why dying declarations should be received and weighed with great caution. First. They are necessarily wanting in that greatest test of the credibility of oral testimony,...
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Marshall v. State
... ... He ... reached the room soon after the shooting, and found deceased ... on his knees, very pale, with a gunshot wound in his back, ... which caused his death two days later. He found a pistol in ... the room on the cot, where deceased had apparently been ... lying. It had one empty shell and five loaded ones. This cot ... was the only bed in the room. Over defendant's objection ... and exception that the question called for hearsay testimony, ... the witness was allowed to testify as follows: "When I ... went in he [deceased] said, 'Doctor, she has got me.' ... I said, 'Who ... ...
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State v. Gardner
...the court to decide. We are of opinion that this charge was erroneous in itself, (Perkins v. State, 78 Wis. 551, 47 N.W. 827; Shell v. State, 88 Ala. 14, 7 So. 40), and not applicable to the facts proven. The common-law doctrine of "retreat to the wall" is thus referred to in a frequently q......
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Cotney v. State
... ... It is that there is a well established rule ... that a dying declaration may be impeached by evidence of ... another statement by the deceased at another time, though he ... was not then impressed that his death was inevitable. We set ... it down for argument on that question. Shell v ... State, 88 Ala. 14, 7 So. 40; Gregory v. State, ... 140 Ala. 16, 37 So. 259; Title v. State, 188 Ala ... 46, 66 So. 10, 52 L.R.A.,N.S., 910; Spicer v. State, ... 188 Ala. 9, 31, 65 So. 972; Carter v. State, 191 ... Ala. 3, 67 So. 981; Carver v. United States, 164 ... U.S. 694, 17 S.Ct ... ...
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State v. Gardner
...for the court to decide.’ We are of opinion that this charge was erroneous in itself (Perkins v. State, 78 Wis. 551, 47 N. W. 827;Shell v. State, 88 Ala. 14, 7 South. 40), and was not applicable to the facts proven. The common-law doctrine of ‘retreat to the wall’ is thus referred to in a f......