Jones v. State , 79 Miss. 309 ( 1901 )

Whitfield, C. J.,

delivered the opinion of the court.

It was fatal error to admit in evidence the testimony of Gordin as to the dying declaration of Ella Bradley. It is manifest that she did not see, and could not possibly have seen, who shot her, and that she said appellant shot her simply because he had threatened to shoot her. She was, therefore, clearly not testifying as a fact that Jones shot her, but was merely stating her opinion that he must have shot her, since he had told her he was going to do so. This was not competent. All the evidence in the case as to the situation of the parties in the room and as to the manner of the killing, makes it too clear for disputation that she could not have seen the person who shot her. The killing was an atrocious assassination, and the chief point of inquiry was, who did the killing ? There was no question as to the crime being murder. The only question was whether Washington Jones was the party who committed the murder. Identity being the sole issue involved, the tremendous importance of the dying declaration testified to by Gordin becomes at once manifest. This evidence is too vital to say that the error is not reversible. The attorney-general, with that admirable candor and fairness which have ever characterized his arguments to this court, recognizing it to be his duty as well to see that the innocent go free as that the guilty are punished, concedes that the admission of this testimony was error, endeavoring to show the error not to be a reversible one. But we think it is. Nor is the error cured by instructions 10 and 12. The twelfth instruction told the jury that, if they believed that the alleged dying declaration was the statement of an opinion, they should wholly disregard it. But it was for the court, not the jury, to say whether it was the statement of an opinion. Whether it was the statement of an opinion or of fact was a question as to its admissibility — a question for the court alone, the determination of which could not be left to the jury. Lipscomb v. State, 75 Miss., 600, 602 (23 So., 221, 222); McDaniel’s case, 8 Smed. & M., 401; Chism’s case, 70 Miss., 754 (12 So., 855).

The tenth instruction told the jury that, ‘£ unless they believed from the physical facts offered in evidence that the deceased saw the defendant at the window through which the bullet passed that hit the deceased, they should wholly disregard the evidence offered by the state purporting to be the dying declaration of the deceased. ’ ’ But there is no evidence in the record which shows that deceased could have seen the defendant. On the contrary, she did not see him. The case is not like the case of State v. Williams, 67 N. C., 12, approved in Lipscomb’s case, supra. It cannot be said here, £<from all the circumstances attending the declarant at the time of the killing, ’ ’ that it was reasonably probable that she had knowledge of what she stated as a fact. Lipscomb’s case, 75 Miss., 607 (23 So., 224). The very contrary is apparent here.

We confine our observations to this single point — the error in admitting this part of Gordin’s testimony. It is impossible to affirm confidently that the result would have been the same with this testimony out. We refer for authorities to the admirable brief of counsel for appellant, which we direct to be published in full, on this point.

Reversed and remanded.