Jones v. State , 103 Ala. 1 ( 1893 )

PER CURIAM.

We are of opinion that the declaration of the prisoner to the witness, Alexander, that the gun was not loaded, and there was no danger in it, was admissible in evidence, and should not have been excluded from the jury. The degree of the guilt of the prisoner depended on the inquiry, whether, at the time of the homicide, he believed the gun was unloaded, and the reasonableness of the belief. The declaration was uttered a few hours before the homicide, on the train on which the prisoner was an employé, in the course of continuous travel to the station at which the homicide occurred. It was a natural, instinctive response to the direction of his attention by the witness to the falling of the gun, intending to allay the apprehension of danger, he reasonably supposed had been excited in the mind of the witness. The declaration may not, strictly speaking, form part of the res gestae. But it is connected with, and can not be disconnected from, the inquiry, Avhat was the state of the prisoner’s mind at the time of the homicide — did he then believe the gun was unloaded? The evidence without conflict, shows that he saw the gun unloaded on the night before, and did not know, and had no opportunity of knowing, that it was subsequently reloaded, when the declaration was uttered. The truth and spontaniety of the declaration are apparent, and it is corroboratory of the evidence of the prisoner that at the time of the homicide he did not believe the gun was loaded. We have no purpose to relax the general rule, that declarations made by a defendant in his own favor, not forming part of the res gestae, self-serving declarations, as they are termed, are inadmissible as evidence for him. But when, as in the present case, the inquiry is as to the state or condition of the mind of the defendant, his declarations uttered instinctively, with no purpose of producing a particular effect in the future, and which have a tendency to elucidate or illustrate his mental condition, are admissible. The declaration becomes a fact, which the jury must consider in connection with the other evidence, giving to it such weight as they may deem it entitled to receive. If, as there is evidence tending to show, after the utterance of the declaration, and before the homicide, the prisoner ascertained and knew the gun was loaded, the declaration loses all significance and becomes wholly immaterial. Upon this point, the evidence was not free from conflict. If the jury were not satisfied beyond a reasonable doubt, that the prisoner had, before the homicide, ascertained, or had reason to believe, the gun was loaded, the declaration is a fact, which may aid the jury in determining the mental condition of the prisoner at the time of the homicide.

Let the judgment be reversed and the cause remanded, the prisoner remaining in custody, until discharged by due course of law.

Reversed and remanded.