Sparks v. State

• Decision Date: 19 February 1917
• Citation: 113 Miss. 266,74 So. 123
• Court: Mississippi Supreme Court
• Parties: SPARKS v. STATE

74 So. 123

113 Miss. 266

SPARKS v. STATE

Supreme Court of Mississippi

February 19, 1917

October 1916

Division B

APPEAL from the circuit court of Tippah county, HON. J. L. BATES Judge,

Dan Sparks was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

Spight & Street for appellant.

The testimony shows conclusively, and it is nowhere denied, that immediately after the deceased was shot and before the firing of the second shot which missed him, the deceased was heard to exclaim: "Brumley, don't shoot any more, you have killed me," and "he has killed me." This testimony was admitted because it was a part of the res gestae, but it served the further purpose of laying the predicate for the admission of dying declaration to come later. After the deceased had walked a few steps and fell by the side of the tree where he died, Elma Cox, unwittingly no doubt, further strengthened the predicate by saying that she heard him declare: "Lord, they have killed me." Any one of these three declarations was a sufficient predicate and this is further strengthened by the testimony of Dr. Ford as to the character and location of the wound in the region of the heart, and his certainty that the wound was necessarily a fatal one. It is true that Elma Cox testified that the deceased didn't live more than three minutes but this cannot be true, because Dr. Ford states that a messenger was sent for him at his home and that the deceased lived five or ten minutes after he got to him, and his estimate of the time is that he lived twenty or thirty minutes after being shot.

Counsel for the appellee, in his brief, says: "There is some doubt as to whether a proper predicate had been laid to admit the dying declaration." In Smith v. The State, 62 So. 864, the Alabama supreme court in delivering the opinion found in the last paragraph on the first column, page 869, say this: "After deceased had been shot he staggered and was helped into the drug store immediately at hand where he died within a few minutes. As he lay upon the floor he said, 'boys, he has killed me.' The nature of his wound, the form of the statement, and the absence of any expression of hope were sufficient to warrant an inference that deceased realized his condition, and spoke under a sense of impending dissolution. In truth, the statement was nothing more than an expression of his appreciation of the fact that he was wounded to death." The court held that his statement was properly admitted as a dying declaration.

In another Alabama Case, Parker v. The State, 65 So. 90, in which the court, in speaking of the statement, made by the wounded man, who died about a week after being shot, said at the time of making the statement that was admitted as a dying declaration, the deceased said: "That he was shot very badly (seriously) and that he had been killed," shows a sufficient predicate to justify the court in admitting the dying declaration. Kirklin v. The State, 53 So. (Ala.), page 253; Greer v. The State, 47 So. 300.

None of these cases are stronger than the one at bar, and were all used against the defendant and each resulted in a conviction of murder.

Counsel for the appellee does not contend that dying declarations are not to be admitted in behalf of a defendant on trial for murder, and this is so well settled by the authorities as cited in our original brief that we do not think it necessary to argue this phase of the case any further.

It is urged by counsel for the appellee that a part of the testimony showing the statements of the deceased at the very time of the shooting was before the jury and that, therefore, the admission of the dying declaration as given in the testimony of Roy Cameron and Luna Flake, both of whom are disinterested witnesses, would not have changed the result of the trial. But this cannot be true as a matter of law. Deceased evidently believed at the moment of being shot that he was mortally wounded as evidenced by the declaration, "Don't shoot any more, you have killed me," and "He has killed me," but after undertaking to walk and going only a few steps, and falling at the tree where he died a few minutes afterward, the even more impressive declaration "Lord, they have killed me" was a complete confirmation of his first impression that he was mortally wounded. If the proper predicate was laid, as we insist it was, then his declaration as to who shot him was clearly competent, and neither the trial court nor this court could undertake to pass upon the credibility of the witness testifying to the fact, but it was solely one for the jury. Jackson v. State, 94 Miss. 83; Marley v. State (Miss.), 69 So. 210.

Earle H. Floyd, Assistant Attorney-General for the state.

It is manifest that a conspiracy existed between Brumley and the appellant to kill the deceased. To warrant the admission of such threats or declarations it is only necessary that it be shown that they were made as a result of a conspiracy, express or implied while together pursuing an unlawful end. The death of the deceased followed quickly on the heels of this threat or declaration and it is a most logical and lawful inference that the said remark was directed towards the deceased. Gillum v. State, 62 Miss. 547.

The next and perhaps most strongly argued of alleged errors relates to the action of the court in refusing to admit...