Wade v. State

• Court: Mississippi Supreme Court
• Writing for the Court: HOLDEN, P. J.
• Citation: Wade v. State, 147 Miss. 479, 112 So. 677 (Miss. 1927)
• Decision Date: 16 May 1927
• Docket Number: 26327
• Parties: WADE v. STATE. [*]

112 So. 677

147 Miss. 479

WADE v. STATE. ^[*]

No. 26327

Supreme Court of Mississippi

May 16, 1927

(In Banc.)

1 HOMICIDE. Statement by deceased as to who shot him held admissible as dying declaration, though he asked for doctor shortly after making statement.

Statement of deceased relative as to who had shot him, wherein he expressed belief that he was going to die and asked those around to pray for him, held admissible as a dying declaration, notwithstanding that, after making statement deceased had asked that a doctor be sent for, since such request is not alone sufficient to show that he had hopes of living at time he made statement.

2 HOMICIDE. Test of "dying declaration" is honest and reasonable belief of deceased of impending death at time of statement.

Test of whether deceased's statement is admissible as "dying declaration" is honest and reasonable belief of deceased as to impending death at time he made statement.

3 HOMICIDE. Evidence held to sustain conviction for murder.

Evidence, in prosecution for murder, held sufficient to sustain conviction.

ANDERSON and ETHRIDGE, JJ., dissenting.

HON. S. F. Davis, Judge.

APPEAL from circuit court of Holmes county HON. S. F. DAVIS, Judge.

Will Wade was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Carl F. Drake, for appellant.

Appointed by the court to defend this negro without recompense, I am resolved to do my part as best I can to give him the benefit of every legal right to which he is entitled. As a foundation for the admission of the alleged dying declaration of deceased the court seems to have relied mainly upon the statement of deceased that he was going to die. While the declarant's statements may be sufficient to show a sense of impending dissolution, this is not always true. The mere fact that declarant said that he would die does not necessarily show that he was without hope of recovery. His statements may be overcome by the surrounding circumstances. 30 C. J. 265; Bell v. State, 72 Miss. 507, 17 So. 232.

From the circumstances of this case, it appears to be a positive fact that deceased was mistaken as to Will Wade's taking part in the shooting. If deceased had not been laboring under a mistake he would in his dying declaration have accused Fred Chambers instead of Will Wade. We submit that the record fails to show that the accused did anything to incite, encourage or assist the person or persons who fired the fatal shot; and, therefore, under the rule announced in Crawford v. State, 110 So. 517, and Bruce v. State, 103 So. 133, the judgment should not be allowed to stand.

J. A. Lauderdale, Assistant Attorney-General, for the state.

Counsel for appellant insists that the dying declaration of Jones made to Mackey was incompetent and inadmissible. The leading case on dying declarations in this state is Lipscomb v. State, 75 Miss. 559. The doctrine laid down in this case has been consistently followed by this court. The last utterance of the court on this question is found in Crawford v. State, 110 So. 517. In the Crawford case the court sets out the testimony with reference to the competency of a dying declaration in full. I submit that the testimony in this case is much stronger than that in the Crawford case.

We submit that the proof in this case is amply sufficient to show that Will Wade was a joint actor and an active participant in the shooting. Not only that, but it is sufficient to prove beyond a reasonable doubt that the shot fired by Will Wade was the one that produced the death of the deceased. McCoy v. State, 91 Miss. 257.

The judgment of the trial court should be affirmed.

Argued orally by C. F. Drake, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

HOLDEN, P. J. ANDERSON, J., and ETHRIDGE, JJ., dissenting.

OPINION

HOLDEN, P. J.

Will Wade appeals from a conviction of the murder of H. L. Jones, city marshal of Pickens, and a sentence of death.

The facts and circumstances of the homicide are substantially as follows: About 11 o'clock on a Saturday night in July, 1926, H. L. Jones, the marshal of Pickens, was shot in the abdomen, from which wound he died on the following Tuesday. The shooting occurred on the main street of Pickens, at a point where Mr. Jones, the marshal, operated a pressing shop on the west side of the street, and a negro barber shop was located on the opposite side of the street. Mr. Jones was shot while near the middle of the street, between these two places, just after he had left his pressing shop and was approaching the automobiles of Lou Arthur Wade and the appellant, Will Wade.

Lou Arthur Wade and the appellant, Will Wade, were brothers. The latter had stopped his car in the street, and then he went into the barber shop, got his pistol, and placed it on the front seat of his car, which he attempted to crank. About this time Lou Arthur Wade and one Chambers drove south on this street, and stopped their car near the rear end of appellant's car, and Will Wade was trying to buy some whisky from his brother, and they disagreed about the measurement of the liquor. While thus quarreling, the deceased, H. L. Jones, came out of his pressing shop and walked across the street toward the end of the car occupied by Lou Arthur Wade, and some one in this car shot at Mr. Jones with a pistol, whereupon Jones reached into his right hip pocket, pulled his pistol out, and began firing; when this shooting started, two shots were fired from the front end of the car occupied by Will Wade, both shots being fired at or in the direction of Mr. Jones, who was close by. A total of twenty-five shots were fired. Lou Arthur Wade was killed. Jones was shot through the abdomen. The other negroes fled from the scene.

After Jones was shot, he walked to the pressing shop, left his pistol, and then walked about a block and a half to the home of H. S. Mackie, mayor of Pickens. Mayor Mackie heard some one call and opened the door, and just as the door opened Jones fell on the front porch. He was afterwards taken into the house, where he lay mortally wounded, and, while in this condition, and within a few minutes after he had reached the home of the mayor, Jones made a dying statement as to who shot him, in which statement he said that the appellant, Will Wade, and Lou Arthur Wade had shot him.

Before the deceased made this statement, he said to Mr. Mackie:

"Hardie, I was doing my duty; they have killed me and I am going to die, and I am not ready to go.

"Q. What did you ask him? A. I said, 'Hubert, who killed you?' And he said, 'Lou Arthur Wade and Will Wade.' And I said, 'Wasn't there more shooting besides you three?' And he said, 'I don't know; I know I hit Lou Arthur Wade, but I don't know whether I killed him or not.'

"Q. And he said Lou Arthur Wade and Will Wade were both shooting at him? A. Yes, sir."

The witness Mackie further testified that the deceased asked those around him to pray for him, which he and Jones' wife did. On cross-examination, the question was asked Mackie, "Did he ask you to phone for a doctor? A. Yes, sir." It seems that the deceased asked that a doctor be phoned for shortly after he had made the statement as to who shot him; that the deceased, at the same time, also asked Mackie to phone for his wife, that he was suffering great pain and agony from the wound he had received in the abdomen. Jones was afterwards removed to a hospital, where he died.

The defendant offered no evidence at the trial, nor did he take the stand in his own behalf.

The appellant presents several grounds for reversal, but only one merits discussion by us; that is, whether or not the dying declaration was admissible.

It is contended that the statement of deceased was not admissible as a dying declaration, because he had asked that a doctor be phoned for shortly after he had made the dying statement. It is urged that the declaration of deceased was incompetent because, when he asked Mackie to phone for a doctor, he evinced the hope that he was not going to die at the time he made the statement; that this fact showed that the deceased had not abandoned all hope, and that therefore the statement was not made in view of impending dissolution, but that the statement was made at a time when the deceased had hopes of living, because he had asked for a doctor to attend him.

We think the statement of the deceased was admissible as a dying declaration. He had positively expressed the belief that he was going to die--that death was then impending in his thought. He had said, "Hardie, I was doing my duty; they have killed me and I am going to die and I am not ready to go." He had also asked that those around him pray for him. While in this state of mind he had said that Lou Arthur Wade and the appellant, Will Wade, shot him. As best we can discern from the record, deceased then asked Mackie to phone for a doctor and also for his wife.

The circuit judge after hearing the preliminary inquiry as to whether the dying statement was admissible, was of the opinion that it was a statement made in view of impending dissolution. While the decision of the trial judge on such a question is not conclusive on review, yet it is persuasive and should not be disturbed unless it be clear that the statement was not made in view of impending death. It should appear to the trial judge, beyond all reasonable doubt, that the statement was made in the solemn sense of impending death.

The fact that the deceased asked for a doctor after making the statement is not alone sufficient to show that he had hopes of living at the time he made the statement in this case. It would be natural for a man suffering from a mortal wound, and who believed he was dying, to ask for a doctor and his...