Jones v. State , 52 Ark. 345 ( 1889 )

Per Curiam.

1. Instructions: As to degrees of homicide. The first, second and third grounds of appellant’s motion for a new trial are that the verdict is contrary to the law and evidence. The fourth is that the court neglected to properly instruct the jury as to all the different degrees of homicide. The fifth, that the court erred in refusing to give instructions asked by defendant, numbered from one to five, inclusive. The sixth, because of newly-discovered evidence. Many matters, not presented by the record, have-been argued by counsel and considered by the court.

As to the first, second and third grounds of the motion, we think the verdict warranted by the evidence apd the law as given by the court. Nor was it error to refuse the first, fourth and fifth instructions asked by defendant, in view of the charge actually given. The sixth ground for new trial was matter resting in the sound discretion of the court, and no abuse of such discretion appears. The fourth ground of the motion challenges the correctness of the charge in that it failed to state, the law applicable to the lower degrees of homicide. The charge should be based upon the evidence, and it is difficult to imagine how instructions as to murder in the second degree or manslaughter could have been given when all the evidence was to the effect that the killing was: assassination of Keltner, at night, by his fireside, by some one who fired through a crack from without. The trial court should in no case indicate an opinion as to what the facts establish but in properly giving the lazv the court must of necessity determine whether there is any ezñdence at all justifying a particular instruction. See Fagg v. State, 50 Ark., 506, and cases cited.

One of the matters argued, though not raised in proper ■form, is the alleged error of the court in excluding the testimony offered as to the dying declaration of Keltner. The witness says that some hours after the shooting Keltner said that Samuel Hall shot him.

2. evidence: dying declaration. A mere expression of opinjon by the dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself, or from other undisputed evidence showing that it was impossible for the declarant to have known the fact stated. If, upon any view of the evidence, it is possible for the declarant to know the truth of what he states, his declarations, being otherwise competent, should be received and considered by the jury in the light of all the evidence.

In the case at bar it was a physical impossibility for Keltner . to have seen who shot him, and the consciousness of wrong done in the killing of Hall’s father made him swift to suspect Hall of the commission of this crime.

The facts in the case of Nick Walker v. State, 39 Ark., 225, were very similar to those now before the court, and the-declarations in that case were held to be properly admitted.

The court divided, however, upon the question as to whether it was possible for the declarant to have seen Walker, and a majority sustained the trial court in the view that it was possible.

Affirmed.