Griggs v. State , 21 Ala. App. 530 ( 1926 )

The principal insistence of error is the admission of a statement made by deceased, shortly after receiving the shot wound from which he subsequently died; the objection being that the predicate for the admission of a dying declaration had not been properly laid. The predicate made the basis for the declaration was, as testified to by the witness Leach:

"The first I saw of Clark [deceased] he was up on the bank hollering for us. I went immediately. I talked to him there. He asked some of us to carry him home, that he was dying. He was shot, wounded at the time." "Deceased said he drove up and Jesse came out from behind a car and shot him."

It was proven by other witnesses that at a time subsequent to the foregoing statement, and about three hours before he died, deceased said he would die unless something was done, but no declaration of deceased was admitted on this predicate. If this was the only predicate for the dying declaration, it would perhaps be insufficient. The first predicate, however, was sufficient. Evans v. State, 209 Ala. 563, 96 So. 923.

In the course of his argument to the jury, the solicitor stated to the jury that from the evidence he believed the defendant was guilty, and that, if he did not believe the defendant was guilty, he would not ask the jury to convict him. Exception was reserved to the court's refusal to exclude this remark. It is apparent that the opinion above expressed was based upon the evidence in the case. Where this is the case, such expression of opinion will not be sufficient upon which to predicate a reversal. 16 Corpus Juris, p. 908, par. 2257n.

We find no error in the record, and the judgment is affirmed.

Affirmed.