Sims v. State

• Decision Date: 04 February 1904
• Citation: 139 Ala. 74,36 So. 138
• Parties: SIMS v. STATE.
• Court: Alabama Supreme Court

36 So. 138

139 Ala. 74

SIMS v. STATE.

Supreme Court of Alabama

February 4, 1904

Appeal from Clay County Court; G. K. Miller, Judge.

John B Sims was convicted of manslaughter, and appeals. Reversed.

The appellant in this case, John B. Sims, was indicted and tried for the murder of Howard L. Pace, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for seven years. The facts relating to the rulings of the court upon the introduction of the testimony of the attending physician and of the dying declarations made by the deceased are sufficiently shown in the opinion. One Thos. Barnhill was introduced as a witness for the state, and testified that he was the father of G. R. Barnhill, and in reference to the absence of G. R. Barnhill he testified as follows: "He is in Texas. I received a letter from him dated at Dublin, Texas, a few days ago." After proving that said G. R. Barnhill was examined as a witness on the preliminary trial of the defendant, and that his testimony was reduced to writing, and signed by him, and the proving the signature, the state offered to introduce in evidence the paper containing the written testimony of said Barnhill. The defendant objected upon the ground that no sufficient predicate had been laid for the introduction thereof. The court overruled the objection, and the defendant duly excepted. During the examination of Will Steed as a witness for the defendant, and after testifying that he was with the defendant just before the homicide, he further testified that the deceased owned two pistols, and tried to sell him one. Thereupon the defendant's counsel asked the said witness the following question: "State whether or not you knew Pace was in the habit of carrying a pistol." The state objected to this evidence, because it called for irrelevant immaterial, and illegal evidence. The court sustained the objection, and to this ruling the defendant duly excepted. The defendant requested the court to give to the jury, among others, the following charges, and separately excepted to the court's refusal to give each of them as asked: "(9) The law of retreat does not require a man to run or retire from a pistol or knife in shooting or striking distance because to do so would tend to increase the peril, and no man is required to do that." "(13) It is not the law that a dying declaration should be regarded as better or equal to the testimony of a witness delivered in your presence under oath and under cross-examination." It is unnecessary to set out the seventh and sixteenth charges.

Knox Bowie & Dixon and Lackey & Bowling, for appellant.

Massey Wilson, Atty. Gen., for the State.

TYSON J.

The matters presented for review by the record in the case involve rulings by the trial court upon the admission and exclusion of evidence and the refusal of certain written charges requested by defendant. Proceeding to consider the exceptions taken to the admission of evidence, the first of these relates to the testimony of the physician who attended the deceased after he had received the wound which caused his death, in which the witness was permitted to state in his opinion the wound was fatal. There was no error in this. Simon v. State, 108 Ala. 27, 18 So. 731; Page v. State, 61 Ala. 16.

Assuming, for the purposes in hand, that the dying declarations, which were reduced to writing, but not signed by the declarant, were not lost, but actually in the possession of the prosecuting attorney, the objection taken to the oral proof of them because of the writing is without merit. Kelly v. State, 52 Ala. 361; Anderson v. State, 79 Ala. 5; Darby v. State, 92 Ala. 9, 9 So. 429; Jarvis v. State (Ala.) 34 So. 1025. The defendant relies upon Boulden v. State, 102 Ala. 78, 15 So. 341, as supporting his objection. It must be admitted that this case is not in accord with those cited above, if the writing evidencing the declarations was not signed by the declarant, which fact is not shown either in the statement of the facts by the reporter or by the learned judge in his opinion. If such was the fact, the decision is wrong, and we must decline to follow it. We are not prepared to concede its correctness if the fact was that the declarant signed the writing.

Two other objections were interposed to the admission of the dying declarations as testified to by some of the witnesses examined on behalf of the state. They were these: First, it did not appear that the declarant was conscious of his condition and was entirely without hope of recovery; second that it appeared that he was not in a condition to make an intelligent statement. It is undoubtedly true that it is not the condition of the declarant as known to his family or his attending physician that makes his declaration admissible. "It is essential to their admissibility that at the time when they are made the declarant should have been in actual danger of death, that he should then have had a full apprehension of his danger, and that death has ensued." 1 Taylor's Ev. 718. "It is the impression of impending death, and not the rapid succession of death in point of fact, which renders the testimony admissible." Pulliam v. State, 88 Ala. 3, 6 So. 840. The evidence shows that the deceased was...