Cotney v. State

26 So. 2d 603, 248 Ala. 1, 1945 Ala. LEXIS 443

• Court: Supreme Court of Alabama
• Decided: April 12, 1945
• Docket: 7 Div. 829.
• Status: Published

Opinions

FOSTER, Justice.

The deceased had been shot and had fallen. There is no question but that defendant did it. The question was whether it was accidental. Deceased’s wife testified that the defendant started to shoot him again, and was standing over him. Deceased looked up at him and said “don’t shoot me again, Amos (that is the defendant), you have already killed me.” That was on Friday night near midnight. He died the next ensuing Wednesday. During the interval, defendant offered to prove “that the deceased asked Dr. Cole if they put Amos Cotney in jail and he told him, he didn’t know. The deceased said ‘well I hope they don’t, he is one of the best friends I ever had and I am sure this was an accident.’ ” The trial court held that it was not admissible because at the time the statement was made deceased was not impressed with a belief that death was impending, and that he entertained no hope of life. The opinion of the Court of Appeals is based on the theory that no other question was raised in the trial court as to the admissibility of the evidence, and that the court was not in error in holding that sufficient preliminary proof was not offered to permit the introduction of it as a dying declaration.

The petition for certiorari to this Court challenges that holding of the Court of Appeals as the only ground for1 reversing that court. In denying the writ, we thought and still think that the Court of Appeals- cannot be reversed for that holding. It is an inference of fact drawn from the evidence. We will not review that finding by the Court of Appeals when such inference is a reasonable one." Rainey v. State, 245 Ala. 458, 17 So.2d 687(4); 7 Ala.Dig., Criminal Law, @^1179.

We still think that the finding is reasonable, but we granted a rehearing and ordered the writ for a reason not relied on in the briefs nor mentioned in the opinion of the Court of Appeals. It is that there is a well established rule that a dying declaration may be impeached by evidence of another statement by the deceased at another time, though he was not then impressed that his death was inevitable. We set it down for argument on that question. Shell v. State, 88 Ala. 14, 7 So. 40; Gregory v. State, 140 Ala. 16, 37 So. 259; Title v. State, 188 Ala. 46, 66 So. 10, 52 L.R.A.,N.S., 910; Spicer v. State, 188 Ala. 9, 31, 65 So. 972; Carter v. State, 191 Ala. 3, 67 So. 981; Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602; Marshall v. State, 219 Ala. 83(7), 121 So. 72, 63 A.L.R. 560.

We thought there was reasonable ground to contend that the first statement of deceased referred to above, though a part of the res gestae was also itself a dying declaration. See, Marshall v. State, supra; Norris v. State, 16 Ala.App. 126, 75 So. 718, certiorari denied Ex Parte Norris, 200 Ala. 699, 76 So. 997; Moomaw v. State, 24 Ala.App. 459, 137 So. 40, certiorari denied 223 Ala. 438, 137 So. 42; Parker v. State, 10 Ala.App. 53, 65 So. 90; Parker v. State, 165 Ala. 1, 51 So. 260; 40 C.J.S., Homicide, § 305, p. 1285; 30 C.J. 280.

And upon the question of whether the second statement was a conclusion, we had in mind the principle declared in Smith v. State, 133 Ala. 73, 31 So. 942; Mealer v. State, 242 Ala 682(5), 8 So.2d 178; Shikles v. State, 31 Ala.App. 423, 18 So.2d 412(5); Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am.St.Rep. 22.

Further, we think that a witness whose testimony is received on any legal theory, whether as a dying declaration, or a part of the res gestae, is subject to impeachment by proving contradictory statements, which are not admissible for any other purpose.

The opinion of .the Court of Appeals does not show that the evidence was offered for any specific purpose. If evidence is offered for a specific purpose, it is not error to exclude it if not admissible for that purpose, though it may be admissible for some other purpose. Thompson v. Drake, 32 Ala. 99; Randolph v. Sharpe, 42 Ala. 265, 272; Johnson v. Marshall, 34 Ala. 522; Collins v. Jones, 83 Ala. 365, 3 So. 591; 64 Corpus Juris 134, § 152; 16 C.J. 852, § 2153; 23 C.J.S., Criminal Law, § 1031. But if evidence is offered generally, and it is excluded, but it is admissible for a certain purpose, it was error to exclude it. Collins v. Jones, supra.

We think the evidence was admissible as impeaching a prior statement attributed to deceased, and in evidence; We think that it was error therefore to exclude it whether or not it was admissible as a clying declaration.

The judgment of the Court of Appeals is therefore reversed and the cause remanded to it.

THOMAS, LIVINGSTON, STAKELY, and SIMPSON, JJ., concur. GARDNER, C. J., and BROWN, J., dissent.

On Rehearing.