Anderson v. State , 79 Ala. 5 ( 1885 )

SOMERYILLE, J.

We think it clear that the predicate was sufficient to authorize the admission of the dying declarations'of the deceased. He was fatally wounded by being shot with a gun, from the effects of which he immediately fell to the ground. He lay there perfectly helpless, bleeding profusely from his wound, and spitting blood frequently. He was discovered, in a few minutes after the report of the gun was heard, and was suffering with great pain, and groaning heavily. He declared that he was going to die on the spot where he had fallen — that he “had a death-load in him, and would not get over it,” — that he “ was not going to live long.”' The shooting was done about 11 o’clock at night, and the death of deceased ensued the same night, so far as we can infer from the evidence in the record.

There can be little or-no doubt of the fact, that the deceased, at the time of making these declarations, believed that he was at the point of death — that the surrounding circumstances, in other words, impressed him with a sense of almost immediate dissolution. The declarations were, therefore, admissible, and it was immaterial that one of these statements w7as elicited by an inquiry propounded to the declarant.—1 Greenl. Ev. §§ 156-158; Reynolds v. State, 68 Ala. 502; West v. State, 76 Ala. 98; Kilgore v. State, 74 Ala. 1.

The fact that a written memorandum was made of such dying declarations, did not preclude the right to prove them by oral evidence. It is not shown that this statement was read over to the deceased, or signed by him. It was a mere memorandum of what was said, not in itself original evidence, but competent only to be referred to by the witness who made it, for the purpose of refreshing his memory.—1 Greenl. Ev. (14th Ed.) § 161; Com. v. Haney, 127 Mass. 455.

The threat shown to have been made by the defendant on the day before the killing, as testified to by the witness Hickman, was properly allowed to go to the jury, although it was of a general character, and menaced no person definitely designated. It may have had reference to the deceased, and this was a question to be determined by the jury, in connection with the other facts in evidence.—Jones v. State, 76 Ala. 8; Ford v. State, 71 Ala. 286; Harrison v. State, 78 Ala. 5.

We see no error in admitting the testimony of the witness Barnett, as to the conduct of the defendant, a few hours before the deceased was killed, in taking his brother aside, and talking to him privately, when they met at McHugh’s. The evidence showed that the brother owned a gun, the kind of deadly weapon with which the homicide in question was perpetrated, and that defendant was' seen coming from the direction of his brother’s house, the evening before the killing, carrying a gun. This evidence was admissible, as was said in Ford's case, 71 Ala. 396, “ as one link in the chain of circumstances intervening during the several hours immediately prior to the killing,” which tended to interpret his conduct.

We discover no error in the record, and the judgment is affirmed.