Smith v. State

• Decision Date: 10 April 1917
• Docket Number: 2 Div. 144
• Citation: 16 Ala.App. 47,75 So. 192
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

75 So. 192

16 Ala.App. 47

SMITH v. STATE.

2 Div. 144

Court of Appeals of Alabama

April 10, 1917

Rehearing Denied May 15, 1917

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

R.C Smith was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The person alleged to have been killed was Riley B. Stone, and the instrument alleged was a pistol. The question to Humphrey Laster was as follows:

"Was Mr. Stone, or not, of a character in that community that if he made a threat to take the life of a person it would be generally expected that he intended to do it?"

The witness D.Y. Wood testified that he saw Mr. Stone during the week he was killed, and that he thought it was on Wednesday and he was asked:

"Did he have a pistol or not?"

Witness J.O. Hain was asked the following question, to which objection was sustained, said question referring to Riley B Stone, the dead man:

"First, was he the kind of man that if he made a threat to take your life, you would treat it as not amounting to anything or that he meant business?" "Second, would you consider him a man of good character who threatened to take the life of the owner of a piece of land if he came on it?"

The following charges were refused to defendant:

(9) It is your duty to consider the testimony of defendant as much as it is your duty to consider the evidence of any other witness in the case, and if the testimony of defendant raises in your mind a reasonable doubt of his guilt, then you should not convict him but should acquit.

(2) The probability of a thing being true means that there is more evidence in favor of its being true than there is evidence in favor of its being the opposite of true.

Craig & Craig, of Selma, for appellant.

W.L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the state.

BRICKEN J.

The defendant was indicted for murder. He was tried and convicted of manslaughter, from which judgment of conviction he appeals. The killing was admitted, and the defendant undertook to justify it by his plea of self-defense. Pending the trial, many exceptions were reserved to the rulings of the court upon the evidence, and also upon the charge of the court and the court's refusal of written charges requested by the defendant.

The first insistence of error relative to the ruling of the court in sustaining the state's objection to question propounded to witness F.D. Stewart, while seemingly without error, need not be discussed here, as it does not appear that the defendant reserved any exceptions as to ruling of the court on these questions. McPherson v. State, 73 So. 387.

It is contended that the court erred in permitting the state to introduce the dying declarations of the deceased, on the grounds that no sufficient predicate had been laid, etc. The admissibility or competency of dying declarations is for the determination of the trial court in the first instance; and in this connection it has been well said:

"No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances." Parker v. State, 165 Ala. 9, 51 So. 260.

The weight, credibility and sufficiency of dying declarations is within the province of the jury to pass upon. Faire v. State, 58 Ala. 74. Where the attending facts and circumstances disclosed by the testimony show, as in the instant case, that the deceased was conscious, and talked perfectly rationally, and stated that he knew he was going to die, that he never had any hope of recovery, that he made these statements just before he made the dying declarations, and the attending physician stated to him that his condition was such that he could not offer him any hope, such a showing meets every requirement of the law, and complies fully with the rules laid down for the admissibility of this character of testimony. The ruling of the court in this connection was free from error, and the dying declarations were properly admitted. Johnson v. State, 169 Ala. 10, 53 So. 769; Ex parte Key, 5 Ala.App. 274, 59 So. 331; Jarvis v. State, 138 Ala. 17, 34 So. 1025. The court did not err in overruling the motion to exclude the dying declarations. Authorities supra. Nor were the dying declarations objectionable on the ground that they stated a conclusion of the deceased. The court properly excluded the only objectionable portion of the dying declaration. Smith v. State, 133 Ala. 73, 31 So. 942; Walker v. State, 52 Ala. 192.

The question propounded to witness Humphrey Laster was objectionable in that it called for the opinion of this witness as to his conception or idea as to what deceased would have done under certain conditions. The question clearly called for the private opinion of the witness and invaded the province of the jury, and the objection thereto was properly sustained. Bennett v. State, 52 Ala. 370.

The court committed no error in sustaining the state's objection to question asked witness D.Y. Wood, it not having been shown that the fact sought to be proven by this witness had been made known to the defendant. One witness had been permitted to testify that on Wednesday before the day of the fatal difficulty, which was on Friday, he had seen the deceased with a pistol, and that he made threats against the defendant, etc. This testimony was properly permitted to go to the jury, for these facts had been brought to knowledge of the defendant. Inasmuch as the other instances sought to be shown along this line were not brought to the knowledge of the defendant, they were not admissible. Jackson v. State, 41 So. 178; ^[1] Rodgers v. State, 144 Ala. 32, 40 So. 572; Bluett v. State, 151 Ala. 41, 44 So. 84; Crumpton v. State, 167 Ala. 9, 52 So. 605.

The court properly overruled the objection to the question propounded to witness Mrs. Riley D. Stone: "Have you ever seen that pistol?" (The pistol that testimony of witnesses for defendant stated was found on ground near the place of shooting was shown to her.) This question clearly called for material testimony on a material issue in this case. It was clear that the defendant's insistence was that the pistol in question was in the possession of deceased at the time and place of the fatal difficulty; while, on the other hand, it was clearly the insistence of the state that this was a manufactured piece of evidence, and that deceased had no pistol on...