Milton v. State , 134 Ala. 42 ( 1901 )

SHARPE, J.

The trial court’s minute entry of March 12, 1902, shows affirmatively that defendant was present in court when the orders were made which appointed the day for trial and fixed the number of special jurors therefor at fifty, and when names of special jurors were drawn until the jury box was exhausted, and also when the order was made for summoning additional special jurors from, which to obtain the fifty. It is immaterial whether that entry be construed as showing he was present when the court ordered the clerk to issue a mandate ü> the sheriff commanding him to summon the fifty special jurors to attend the trial. The latter order was not judicial, and involving as it did mere ministerial preparation in which the defendant could not have had voice or participation, his presence at the making thereof was not required.

In determining whether dying declarations were made under the conviction of impending death so as to make1, them receivable in evidence as such, request made by the deceased for a physician’s aid may, in connection with his other expressions and the circumstances, be regarded as indicating a hope: of cure. — Justice v. State, 99 Ala. 180. But not necessarily so; since a physician may be desired merely to alleviate pain or other purpose, than to prolong ife. — McQueen v. State, 103 Ala. 12.

Here it was proved that shortly after receiving the fatal knife thrust the deceased while lying down said several times lie was dying, that liis bowels had been cut out, that, he would die before morning, and that he “wanted a doctor.” Taken in connection with the proof that the deceased was in fact in extremis while speaking them, the expressions of belief as to his condition are not controlled by his request for a doctor, and were ample as a predicate for admitting the declaration made at the same time by the deceased to effect that defendant killed him for nothing and other like declarations made on the same occasion. — McQueen’s case, supra; Sullivan v. State, 102 Ala. 135.

What instruction the. court gave the jury orally and what written charges were given for defendant are not disclosed by the record, hence it does not appear that the. charge given at the solicitor’s request in any way qualified any charge given for defendant.

Defendant’s refused charge was properly refused.

Affirmed.