Jordan v. State , 82 Ala. 1 ( 1886 )

STONE, C. J.

— When this case was before us on a former day of this term, the testimony shown by the record was, that after receiving the wound of which he died, deceased “ said repeatedly he thought he would die.” Deceased then made a statement, which was offered in evidence as a dying declaration. The trial court admitted the evidence. We ruled there was no error in this. Our opinion was, that it sufficiently appeared the declaration was made under the conviction of impending death. — Jordan v. State, 1 So. Rep. 577; s. c., 81 Ala. 20.

The testimony of the same witness, as found in the present record, was that deceased said, “he did not think he would get well.” Immediately after this, he made the statement — repeated several times afterwards' — which was again proved as a dying declaration, against the objection and exception of defendants. This statement was made by deceased about two hours after he received the mortal wound, and when that wound and its probable effect were the subject of conversation. The wound was a pistol shot, passing substantially through his body from right to left.

Spoken as the words were in this case, and having reference to the wound which proved fatal soon afterwards, we think there is no material difference between the two expressions, “ he thought he would die,” and “ he did not think he would get well.” Not to get well, as he intended to be understood, meant that he thought he would die of the wound.- Rex v. Reany, 40 Eng. L. & Eq. 552; Jordan v. State, supra; Walker v. State, 52 Ala. 192; May v. State, 55 Ala. 39; Kilgore v. State, 74 Ala. 1; Wills v. State, Ib. 21; Ward v. State, 78 Ala. 441.

2. Handy Jordan cut the deceased with a knife, and almost immediately Jule Jordan shot him with a pistol. Both wounds were inflicted in one rencontre. There was some testimony that Handy aided and abetted Jule in the encounter. That he was present, and engaged in the fight on Jule’s side, can not be denied. That he employed a dangerous weapon, can not be disputed. Hence, any charge which assumed that either defendant did not aid or abet the other, or that the two Jordans acted without common purpose, would have been an invasion of the province of the jury. It is not necessary to the guilt of either, that there should be positive proof of a common purpose, previously formed. If it be shown that the killing was unlawful, the fact that the mortal wound was the work of only one of the defendants, does not excuse the other, if he was present, aiding, abetting, or encouraging the unlawful act. Each would be guilty of the homicide.

In giving the charges requested, and in refusing the charges asked, the City Court conformed strictly to these rules. — Jordan v. State, 79 Ala. 9; same v. same, 1 So. Rep. 577.

Affirmed.