Young v. State

• Decision Date: 14 April 1892
• Citation: 10 So. 913,95 Ala. 4
• Parties: YOUNG v. STATE.
• Court: Alabama Supreme Court

10 So. 913

95 Ala. 4

YOUNG v. STATE.

Supreme Court of Alabama

April 14, 1892

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Robert Young was indicted for murder. The facts necessary to a full understanding of the decision of the court are sufficiently stated in the opinion. The court, at the request of the state, gave, among others, the following charges: (1) "In case of homicide, the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption, unless the evidence which proves the killing shows also that it was perpetrated without malice; and whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts in evidence, there can be no conviction for any less degree of homicide than murder." The defendant excepted to the giving of this charge, as well as the other charges given at the request of the state; and also separately excepted to the refusal of the court to give the several charges requested by him, and, among the number, the following: (7) "The court charges the jury that if from all the evidence the jury believe that it is possible, or that it may be, or perhaps, the defendant is not guilty, and if they are not morally certain that he is guilty, this amounts to a reasonable doubt, and entitles the defendant to an acquittal." There was a judgment of conviction, and defendant appeals. Reversed.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was tried and convicted of murder in the second degree, and was sentenced by the court to confinement in the penitentiary for 10 years. The first exception relates to the admission of statements by the deceased as dying declarations. The testimony tends to show that the attending physician was called professionally to see deceased on the 7th day of May, 1891, immediately after the fatal shot was fired. The physician testifies that deceased "was suffering very much, and was then in a dying condition;" "that he died at 6 o'clock A. M. on May 9, 1891 that it was hardly two days from the time he was first called that he told deceased that he was going to die." With the exception of a description of the wound, and that it caused the death of White, the deceased, the foregoing statement contains the entire predicate upon which the declarations were admitted. Before declarations of deceased are entitled to be received in evidence as dying declarations, it must appear that declarant, at the time they were made, was impressed with the belief that death was impending, and would certainly ensue. It is not necessary to their admissibility, in point of fact, that they be made in articulo mortis, and that dissolution resulted immediately afterwards, but declarant must be impressed with the conviction that he cannot possibly recover. Hammil v State, 90 Ala. 580, 8 South. Rep. 380; Pulliam v State, 88 Ala. 3, 6 South. Rep. 839; Reynolds v. State, 68 Ala. 506; Whart. Ev. §§ 282, 286; 1 Greenl. § 158. The facts and circumstances testified to by the physician, and the statement made by the physician to deceased, were all legitimate for the consideration of the court, which must determine the admissibility of the evidence. Faire v. State, 58 Ala. 80. We fail to discover anything in his testimony, or elsewhere in the record, which indicates directly the state of mind of the...