Cotney v. State , 248 Ala. 1 ( 1945 )

I join Mr. Justice BROWN in dissent upon the theory that the opinion of the Court of Appeals is properly to be interpreted as disclosing that that Court, the trial court, and all parties interested in the trial, considered the first statement of the deceased as merely a part of the res gestae, as Mr. Justice BROWN has said, and the subsequent, excluded statement as a dying declaration and not by way of any contradiction of a dying declaration. I am therefore persuaded the principle recognized in Thompson v. Drake, 32 Ala. 99; 64 C.J. p. 134; 16 C.J. p. 852; 23 C.J.S., Criminal Law, § 1031 (cited with majority opinion) is applicable, and that of Collins v. Jones,83 Ala. 365, 3 So. 591, concerning evidence offered generally, is inapplicable. Being persuaded the opinion of the Court of Appeals sufficiently discloses this excluded statement was offered solely as a dying declaration and nothing more, I do not think this Court justified in disturbing the ruling and opinion of the Court of Appeals.

As to the excluded statement, I am not prepared to differ with the opinion of the majority in holding that in such cases it was not objectionable upon the theory it states a conclusion. Smith v. State, 133 Ala. 73, 31 So. 942; Mealer v. State, 242 Ala. 682, 8 So.2d 178; 30 C.J. p. 274; 40 C.J.S., Homicide, § 299.

I therefore rest my dissent upon the foregoing reasoning.