Smith v. State, 29661

CourtMississippi Supreme Court
Writing for the CourtAnderson, J.
Citation137 So. 96,161 Miss. 430
Docket Number29661
Decision Date12 November 1931
PartiesSMITH v. STATE

137 So. 96

161 Miss. 430

SMITH
v.
STATE

No. 29661

Supreme Court of Mississippi

November 12, 1931


Division B

1. HOMICIDE.

To make deceased's declaration admissible as dying declaration, state has burden of showing beyond reasonable doubt that deceased believed in his immediate and impending dissolution when he made declaration.

2. HOMICIDE. Deceased's declaration that he believed he was fatally shot held inadmissible as dying declaration.

Facts were that deceased lived about seventy-two hours after being shot, and was taken to hospital a few minutes after he was shot, and a few minutes after he arrived at hospital stated to doctor who examined him that he was glad to see him and that he thought he was fatally shot and would tell doctor how it happened.

3. CRIMINAL LAW. Instruction respecting presumption of innocence and burden of proof, though embodying correct legal principles, held misleading and confusing.

Instruction, among other things, stated that presumption of innocence which law throws around defendant as shield is not intended to shield from punishment any One who is in fact guilty, but is simply a humane provision of the law to guard against conviction of Innocent persons, and that, if jury believe from evidence beyond reasonable doubt that defendant is guilty, it is jury's sworn duty to find him guilty, regardless of presumption of Innocence and burden of proof on state.

4. CRIMINAL LAW.

Instruction not supported by any evidence was Improperly given on behalf of state.

5. HOMICIDE.

Where all facts of homicide were in evidence, presumption of malice arising from use of deadly weapon disappeared, and instruction relating to such presumption was improperly given. [161 Miss. 431]

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

J. N. Smith was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

B. F. Carter, of Laurel, for appellant.

A dying declaration is unsworn, hearsay testimony. Being without the sanctity of the usual oath, the law requires that the declarant must believe that the finger of death is upon him; that there is no hope for recovery, however small, and this must be proven to the trial court, to a moral certainty, and beyond every reasonable doubt, before the alleged dying declaration is admissible before the jury.

McNeal v. State, 115 Miss. 678, 76 So. 625.

There must be an undoubted belief existing in the mind of the declarant, at the time of the alleged dying declaration, that death is impending; that there is no hope whatsoever of recovery. If it appears, in any manner, that there was hope of recovery, however, faint it may have been still lingering in the mind of the declarant, then the sanctity is gone, and the declaration is not admissible.

Bell v. State, 72 Miss. 507, 17 So. 232; Sparks v. State, 113 Miss. 226, 74 So. 132; McNeal v. State, 115 Miss. 678, 76 So. 25; Haney v. State, 129 Miss. 486, 92 So. 627; Lea v. State, 138 Miss. 761, 103 So. 368; Fannie v. State, 101 Miss. 378, 58 So. 2.

The mere fact that the declarant said he would die does not necessarily show that he is without hope, or that he expects a speedy dissolution and such statements maybe overcome by the surrounding circumstances.

30 C. J., sec. 504, pp. 255, 256.

The main ground for admitting dying declarations being that the danger of immediate death and the belief of the declarant that he is in extremis are regarded as [161 Miss. 432] equivalent to an oath, it follows that every dying declaration will be presumed, until the contrary appears, to be made under a solemn and religious sense of responsibility to a deity who will punish perjury. But accused may show on cross-examination that deceased, in making the statements was in a reckless, irreverent state of mind, and entertained feelings of malice and hostility toward the accused.

Underhill's Criminal Evidence (3 Ed.), p. 229, sec. 170.

To admit a dying declaration in evidence it must be shown to the court that the decedent was possessed with a consciousness of impending death. The burden is on the one offering a dying declaration in evidence to show that such declarations was made under a sense of death.

Underhill's Criminal Evidence (3 Ed.), sec. 171; Hathorn v. State, 138 Miss. 11, 102 So. 771; Wilkerson v. State, 143 Miss. 324, 108 So. 711; Magee v. State, 145 Miss. 227, 110 So. 500.

The giving of the instruction for the state virtually saying to the jury that ordinarily a defendant is presumed to be innocent, but that "Yet the court now says to you," that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment anyone who is in fact guilty is erroneous.

Suttle v. State, 88 Miss. 177, 40 So. 552; Cunningham v. State, 87 Miss. 417, 39 So. 531; Stringer v. State, 38 So. 97.

An instruction to the jury while correct as an abstract principle of law, is erroneous, when not based on the testimony.

Wilkerson v. State, 143 Miss. 324, 108 So. 711; Cooper v. State, 80 Miss. 175, 31 So. 579; Canterbury v. State, 90 Miss. 579, 43 So. 678; Williams v. State, 90 Miss. 319, 43 So. 467; Prince v. State, 93 Miss. 263, 46 So. 537; Johnson v. State, 124 Miss. 429, 86 So. 863. [161 Miss. 433]

Collins & Collins, of Laurel, for appellant.

The instruction given the State on the burden of proof and presumption of innocence was erroneous because of the use of the word "now" and the conclusion of the instruction.

The instruction emphasizes the fact that while the presumption of innocence and burden of proof is the law generally, the court now has a different case, because the defendant in this case is in fact "guilty" and because the law only applies to an "innocent person."

The last clause tells the jury that they can disregard the presumption of innocence and the fact that the burden is upon the state in this case and this is emphasized by the word "now." The instruction by inference means that the court could not have said this until it had come to the conclusion that the defendant is guilty by the testimony. The court indicates that it could not have said this at the beginning of this trial but since it has heard the testimony it says now that there is a different rule.

An instruction charging the jury that if the defendant voluntarily and intentionally entered into a combat, difficulty quarrel or altercation with the deceased armed with a pistol with the intention to use said pistol and shoot and kill the deceased therewith that the defendant is guilty and the jury should convict him, is erroneous. There is no testimony in the record upon which to base this instruction.

Lee v. State, 103 So. 233; Patterson v. State, 23 So. 647; Thomas v. State, 61 Miss. 60; Williamson v. State, 76 So. 637.

This instruction does not negative the self-defense theory.

Herring v. State, 40 So. 230; Jones v. State, 36 So. 243; Pulpus v. State, 34 So. 2; Lopton v. State, 31 So. 720; Cooper v. State, 31 So. 579. [161 Miss. 434]

The court erred in giving the following instruction:

"The court instructs the jury for the state that malice is implied by law from the nature and character of the weapon used and that the use of the deadly weapon in a difficulty and not necessarily in self-defense, is in law evidence of malice."

All the evidence as to the details of the killing were in evidence, and this abstract proposition is improper and erroneous. This presumption yields to the testimony and the jury must determine malice from the evidence.

The only justification for the admission of dying declarations...

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31 practice notes
  • Dean v. State, 31454
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ...Miss. 486, 92 So. 627; Lee v. State, 103 So. 368; Wilkerson v. State, 124 Miss. 854, 98 So. 770; 1 R. C. L. 539, sec. 82; Smith v. State, 137 So. 96; Bell v. State, 72 Miss. 507, 17 So. 232; Jones v. State, 79 Miss. 309, 30 So. 759; Berry v. State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v.......
  • Dean v. State, 31454
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...Miss. 486, 92 So, 627; Lee v. State, 103 So. 368; Wilkerson v. State, 124 Miss. 854, 98 So. 770; 1 R. C. L. 539, sec. 82; Smith v. State, 137 So. 96; Bell v. State, 72 Miss. 507, 17 So. 232; Jones v. State, 79 Miss. 309, 30 So. 759; Berry v. State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v.......
  • Winchester v. State, 30072
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1932
    ..."The court charges the jury for the state that they may imply malice or infer malice from the use of a deadly weapon." Smith v. State, 137 So. 96, 98; Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673; Nelson v. State, 129 Miss. 288, 92 So. 66. The ......
  • Eagan v. State, 2227
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1942
    ...216 N.W. 656; Raines v. State, 81 Miss. 489, [58 Wyo. 197] 499, 33 So. 19; State v. Cross, 42 W.Va. 253, 24 S.E. 996; Smith v. State, 161 Miss. 430, 137 So. 96; Wigmore, Ev. (3rd Ed.) Sec. 2511 and cases cited. The rule applies where the state relies, as in the case at bar, on the statement......
  • Request a trial to view additional results
31 cases
  • Dean v. State, 31454
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ...Miss. 486, 92 So. 627; Lee v. State, 103 So. 368; Wilkerson v. State, 124 Miss. 854, 98 So. 770; 1 R. C. L. 539, sec. 82; Smith v. State, 137 So. 96; Bell v. State, 72 Miss. 507, 17 So. 232; Jones v. State, 79 Miss. 309, 30 So. 759; Berry v. State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v.......
  • Dean v. State, 31454
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...Miss. 486, 92 So, 627; Lee v. State, 103 So. 368; Wilkerson v. State, 124 Miss. 854, 98 So. 770; 1 R. C. L. 539, sec. 82; Smith v. State, 137 So. 96; Bell v. State, 72 Miss. 507, 17 So. 232; Jones v. State, 79 Miss. 309, 30 So. 759; Berry v. State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v.......
  • Winchester v. State, 30072
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1932
    ..."The court charges the jury for the state that they may imply malice or infer malice from the use of a deadly weapon." Smith v. State, 137 So. 96, 98; Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673; Nelson v. State, 129 Miss. 288, 92 So. 66. The ......
  • Eagan v. State, 2227
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1942
    ...216 N.W. 656; Raines v. State, 81 Miss. 489, [58 Wyo. 197] 499, 33 So. 19; State v. Cross, 42 W.Va. 253, 24 S.E. 996; Smith v. State, 161 Miss. 430, 137 So. 96; Wigmore, Ev. (3rd Ed.) Sec. 2511 and cases cited. The rule applies where the state relies, as in the case at bar, on the statement......
  • Request a trial to view additional results

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