Wilson v. State

• Decision Date: 18 April 1939
• Docket Number: 8 Div. 836.
• Citation: 188 So. 274,28 Ala.App. 496
• Parties: WILSON v. STATE.
• Court: Alabama Court of Appeals

188 So. 274

28 Ala.App. 496

WILSON v. STATE.

8 Div. 836.

Court of Appeals of Alabama

April 18, 1939

Appeal from Circuit Court, Colbert County; R. B. Carr, Special Judge.

F. S alias Buck, Wilson was convicted of murder in the second degree, and he appeals.

Affirmed.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, III, Asst. Atty Gen., for the State.

RICE, Judge.

Appellant admitted that he shot and killed one Wilbur Harris; but claimed that he did it in self-defense, as that term is known to the law.

Upon a trial under an indictment charging him with the offense of murder in the first degree, he was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of ten years.

The testimony was in hopeless conflict; that for the State making out a clear case of murder in the first degree; and that for the defendant (appellant) tending to support his plea of not guilty by reason of "self-defense." None but a jury, it seems to us, could adequately mete out justice in such circumstances.

Appellant was the operator of what was variously described as a "beer joint," or "dance hall and beer parlor"--at any rate it was a place where people resorted for the purpose of buying and drinking beer, eating dancing, and sometimes fighting.

On the night when the killing here in question took place, it seems to well merit the description "hell-hole."

Wilbur Harris was killed as a sort of aftermath to a more or less general fight within the confines of the "dance hall,"--largely among drunken people. We do not see that it would be profitable to say more of the testimony than we have said hereinabove.

One of the principal exceptions apparent is to the ruling by which testimony as to a "dying declaration" made by deceased was admitted into the evidence.

No general rule has ever been laid down by the courts for the admission of dying declarations, and the facts of each case must be weighed and considered in determining whether the requisite consciousness of impending dissolution existed. Parker v. State, 165 Ala. 1, 51 So. 260.

However, our Supreme Court and, perforce, this Court, have held, in the cases of Lewis v. State, 231 Ala. 211, 164 So. 92; Gilmer v. State, 181 Ala. 23, 61 So. 377; Oldham v. State, 26 Ala.App. 339, 161 So. 546; Moomaw v. State, 24 Ala.App. 459 137 So. 40, and other cases that might be cited--the holding in nearly all of said cases referring back to what was said by Mr. Justice Stone in the case of Wills v. State, 74 Ala. 21--to-wit, that "The pre-requisite is, that they [referring to dying declarations, we interpolate] shall be made under a sense of impending dissolution. When this is shown, the testimony is properly admitted, although the declarant may never have expressed the conviction that he or she must die."

As said by Mr. Justice Knight, in the opinion in the case of Lewis v. State, supra [231 Ala. 211, 164 So. 94] "The question, of course, of...