Dumas v. State

49 So. 224, 159 Ala. 42, 1909 Ala. LEXIS 701

• Court: Supreme Court of Alabama
• Decided: April 8, 1909
• Status: Published

Opinion

McCLELLAN, J.

The defendant was convicted of murder in the second degree for the killing of John Goode. All the errors asserted relate to rulings on the admission and rejection of evidence. The deceased Avas shot in the side and arm; the weapon used being a pistol. He lived about three weeks after being shot. The physician attending deceased testified that the prime cause of his death was these wounds, and that blood poison developed. The defendant sought to show the diseased condition of deceased. There was no prejudicial error in the disallowance of that testimony. What ever may have been the physical condition of deceased at the time the wounds were received could not have benefited the defendant. Even though the wounds “were at first, trifling,” defendant cofild not justify or minimize his criminal act by the fact, if so, that the person of the victim was so diseased as to more readily become infected with blood poison. The causal connection between the wound and the death of deceased was clearly shown; and that the disease with which Goode suffered contributed, if so, to the extreme result, did not interrupt the order of causation.

No injury resulted to defendant from the exclusion of certain declarations said to have been made by alleged co-conspirators with the deceased in their assault on defendant. This testimony was later admitted, and error, if any, cured.

The inquiry of Dr. Semmes as to what the deceased said, during his last sickness, about the difficulty, was not preceded by the requisite predicate to admit dying-declarations. We know of no reason why the rule in this respect should he different when the statement of one deceased is attempted to be offered by the defendant or otherwise. The question indicated was properly disallowed on appropriate objection.

The question purporting to call for expert opinion as to the relative attitude of the deceased and the instrument or person inflicting- the wound was correctly ruled out. — McKee’s Case 82 Ala. 32, 38, 2 South. 451. It related to an inference of fact, as capable of being- drawn by the jury as by any other.

Dan Watson testified to threats by the deceased against defendant, and that he communicated them to defendant. The state then asked the witness what defendant said when so informed by witness. The defendant objected, and the court overruled it. The ansiver Avas that defendant said: “If he is going to kill me, I Avill go home.” We cannot see any prejudice resulting to defendant from this rnliing.

There is no harmful error to defendant in the record, and the judgment is affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.