DuBose v. State

120 Ala. 300

Opinion

McCLELLAN, C. J.

The court very properly admitted the dying declarations testified to by Dr. Pate on the predicate laid in the evidence of that witness. — McQueen v. State, 94 Ala. 50.

The charge refused to defendant was clearly an invasion of the province of the jux-y. It was for them to determine what weight to give to the dying declarations of the wounded man, and not for the court to instruct them that such declarations were “not entitled to the same credit and force as if deceased was still alive and testifying in the presence of the jury on oath” etc.—Kennedy v. State, 85 Ala. 326.

There is no other question in this case. The fact stated in the brief for appellant that one of the grand jury which found the indictment was on the jury which tried the defendant does not appear by the x*ecord ; and if it had, no ruling was had upon it in the trial court, and, of course, no exception was reserved in that connection for the consideration of this court.

The j udgment of the circuit coxxrt xnust be affirmed ; and the day fixed for the execution of the sentence of death imposed upon the defendant by the court below having passed, Friday, March 10th, 1899 is fixed by this court for the execixtioxi of said sentence.