McEwen v. State , 152 Ala. 38 ( 1907 )

DENSON, J.

The defendant was convicted of manslaughter in the first degree, under an indictment charging him with the murder of Bert McCormack. The defendant, the deceased, and several others, all under the influence of liquor, were engaged on a Sunday morning in rdfivin o- craps, when the difficulty in which the deceased lost his life occurred. From the evidence it is made to appear that the difficulty was mutual, and was commenced by the defendant and the deceased bandying epithets between themselves; there being conflict as to which usd the first epithet. In the language of the state’s witness the real difficulty was preceded by a “cuss fight.” The defendant cut the deceased with a pocket knife; the knife penetrating the liver. From the wound made by the knife the deceased in about two weeks died. The attending physician testified that the knife penetrated deceased’s liver, and that he died from peritonitis super-induced by this wound.

The first exception reserved by defendant on the trial presents for review the ruling of the court in respect to the sufficiency of the predicat for the admission of the declaration made by the deceased as a dying declaration. State’s witness Haywood testified that at the time the cutting was done he said to the deceased, “That boy [defendant] has cut you,” and that deceased replied, “Tes; he has cut me and cut me to death.” State’s witness Surginer testified that he was with the deceased after he was cut, and nursed him; that deceased talked with him on Thursday before the Sunday on which he died, and told him (witness) that he (deceased) was going to die, and that he was killed for nothing. He further testified that the deceased had had a chill the night before, and was worse on this day. While the solemnity under which dying declarations are usually made is deemed in some sense an equivalent for the sanctity of an oath, yet the admissibility of such declarations rests upon the grounds of necessity and public policy, and upon the presumption that, in the absence of other proof, crimes might go unpunished. The rules which govern the admissibility of such testimony are familiar and ru-dimental. The authorities abound with discussion of the reasons and considerations upon which such declarations are admitted, and we deem it unnecessary to repeat them in extenso here. However it must appear that they were made under the realization and solemn sense of impending death, when the motive for falsehood may be presumed to' have been lost in the despair of life.— McCleans Case, 16 Ala. 672; Kilgore’s Case, 74 Ala. 1; Jordan’s Case, 82 Ala. 1, 2 South. 460; Hussey’s Case, 8 Ala. 121, 6 South. 420; Pulliam’s Case, 88 Ala. 1, 6 South. 889; Walker’s Case, 139 Ala. 56, 35 South. 1011; Gregory’s Case, 140 Ala. 16, 37 South. 259.

The defendant insists that the evidence did not show that the declarant was laboring under a sense of impending death, and amongst the authorities cited in support of the insistence is Titus’ Case, 117 Ala. 16, 23 South. 77, cited as the one nearest in point. The declaration in that case held inadmissible was based on this testimony: A witness testified that she was present at the bedside of James Harris (the declarant) after he had been cut several days, and that he said he would die from his wounds.. It will be observed that there was no proof whatever of the declarant’s condition physically, and no proof of any previous expression by the declarant in respect of the effect the wound would have upon him. In the instant case the declaration made by the deceased immediately after the wound was received manifested a realization on his part of its serious nature from the time it was inflicted. He lingered nearly two weeks before the declaration was made, and the night before it was made he had a chill. He was worse at the time of the declaration, and died three days after it was made. Coupling all this with the declaration, “I am going to die,” we think distinguishes the case from the Titus Case, and afforded a basis from which it was reasonable for the court to infer that the declarant was sensible of his danger and realized that death was impending. The sufficiency of the predicate .was a question to be determined by the court, and on the considerations adverted to we feel warranted in sustaining the finding of the court. — McClean’s Case, 16 Ala. 672; Sim’s Case, 139 Ala. 74, 36 South. 138, 101 Am. St. Rep. 17; and authorities cited supra.

There is no merit in the other exceptions reserved to the rulings of the court on the evidence, and they are not argued in brief by counsel for appellant.

Three charges refused to the defendant, designated, respectively, “R,” “F,” and “G,” are presented for review by the bill of exceptions. Taking them up in the order in which they are discussed in the brief, we will first consider charge It, which is in this language: “In this case the proof is not shifted from the state, to the defendant, and the presumption of innocence abides with the defendant until all of the evidence in the case convinces the jury to a moral certainty that the defendant cannot be acquitted.” This charge, without any discussion of it, was held good in the case of Smith v. State, 68 Ala. 424. The charge was again presented for consideration in Adams’ Case, 133 Ala. 166, 31 South. 851, and, with the Smith Case, called to the court’s attention, the charge Avas held to be faulty, because misleading in its tendency. We are now asked to recede from the Adams Case, and to hold the charge a good one, and its refusal error. We are firmly of the opinion that the charge is misleading, in that the jury might have been impressed that the “burden of proof” rested upon the state to show that the defendant could not be guiltless. It is obvious that this exacts too high a degree of proof, and our later cases condemn charges asserting the proposition. The charge was properly refused — Webb’s Case, 106 Ala. 52, 18 South. 491; Barnes’ Case, 111 Ala. 56, 20 South. 565; Allen’s Case, 111 Ala. 80, 20 South. 490; Thomas’ Case, 107 Ala. 13, 18 South. 229; Bonner’s Case, 107 Ala. 97, 18 South. 226; Andrew’s Case, 134 Ala. 47, 32 South. 665.

Aside from the fact that charge P is not clear in its meaning, all that is stated in it may be true, and yet the defendant may by his misconduct have provoked the deceased to the first use of insulting language; and, if he did, it cannot be said that he did not encourage the difficulty. A person must not be disregardful of the consequences of any wrongful word or act, and must refrain from saying or doing that which may encourage or provoke a difficulty, to keep himself in the attitude of one free from fault and entitled to invoke the doctrine of self-defense. The charge was properly refused. — Gilmore’s Case, 126 Ala. 21, 28 South. 595; Wilkins’ Case, 98 Ala. 1, 13 South. 312.

Charge G lacks clearness of meaning as to what it is the state bears the burden of showing; and by the use of the word “and” after “hypothesis” the charge is rendered confusing.

The charge given at the request of the state asserts a correct proposition, and the criticism made of it by appellant’s counsel is not well founded. A charge which invokes the doctrine of self-defense must, of course, state the constituent elements which go to make up self-defense, and, if in such charge all the elements should be set out except freedom from fault, by all the decisions of this court it would be faulty; and, it being the law that one who enters willingly into a difficulty is not free from fault, it must follow that the court properly gave the charge for the state. — Gilmore’s Case, 126 Ala. 21, 28 South. 595.

There is no error in the record, and the judgment of conviction must be affirmed.

Affirmed.

Tyson, O. J., and Habalson and Simpson. JT . concur.