Darby v. State

Powell, J.

'This court, after carefully considering the many assignments of error contained in the somewhat voluminous record, has finally been able to agree that the trial was free from error except as to the points sets out in the first three lieadnotes preceding this opinion, and even as to them the Chief Judge is not convinced that what seems to the majority of the court to be error was such error as to justify a new trial.

•1. The homicide occurred while the defendant and the deceased were having an altercation in a public street. The defendant, it seems, used opprobrious language to the deceased (though there was some denial of this) ; the deceased struck the defendant a blow in the face with his hand, and, according to the defendant’s.statement and according to the testimony of the defendant’s witnesses, threw his hand towards his pocket as if to draw a weapon. At this moment the pistol of the defendant, which was in his side coat-pocket, was fired, and the mortal wound was inflicted. The defendant stated to the jury, and contended, that this firing of the pistol was accidental. It appears that the defendant was 'a small man, afflicted with a rheumatic infirmity in his lower limbs; and in addition to this he had been maimed by having the thumb and one finger cut from his right hand. The deceased was a large, strong man. The defendant stated to the jury, and contended, that when he was struck by the deceased, and saw him make a movement as if to continue the assault, he reached in his pocket with his maimed hand in order to get his pistol, so as to defend himself if the deceased in fact pursued the attack, and that in attempting to withdraw the pistol, which was an automatic revolver, his finger caught over the trigger, which he mistook for the guard, and the pulling upon the trigger caused the pistol to fire. The judge in his charge nowhere instructed the jury upon the theory of an accidental shooting, except in the following language: “If you find, from all the facts and circumstances of the case, that the defendant was making an attack upon the deceased with an unlawful intention to kill, unjustifiably,, and the defendant’s -pistol was discharged accidentally, and the deceased was killed, I charge you that such killing would constitute the crime of murder.” It may be further noted that he also instructed the jury upon the subject of involuntary manslaughter in the commission of an unlawful act, as well as in the commission of a lawful act without due circumspection. We deem the omission of the court to instruct the jury as to the defense of accidental homicide a material error. I-f the defendant’s statement as to the manner in which the pistol was fired be true, he was guilty of no offense, and the court should so have informed the jury.

2. The other members of the court somewhat share the doubt of the Chief Judge as to the point we are now about to discuss, but, after careful consideration, we have decided that the court erred in his ruling upon it. As soon as the shot was fired, friends of each' party ran up. One of them took the deceased to a buggy, and the statement which the deceased there made as to how the homicide occurred was admitted by the judge as a part of the res gesta?. The court, however, rejected the testimony of another person, to the effect that he immediately approached the defendant and withdrew with him a few steps from the place where he was standing when he did the shooting, and asked him why he shot, to which the defendant replied, “I did not intend to shoot.” This all occurred within less than two minutes from the time of the shooting, and the surrounding circumstances concerning the making of the statement are detailed by the witnesses. In the judgment of the majority of tlie court, tlie statement was sufficiently close to the act, and was apparently sufficiently free from afterthought (or rather forethought and deliberation) to require its admission as a part of the res gestse.

3. An alleged dying declaration of the deceased was allowed in evidence. Tlie testimony as to whether the deceased was in fact in the article of death at the time he made the statement is somewhat equivocal, though it was perhaps sufficient to justify the court in submitting tlie matter to the jury. But the court charged the jury as follows: “If you find, from all the facts and circumstances of ■this case, that after the deceased was wounded, and between the time of receiving the wound and his death, he made certain statements as to who killed him, and the cause of his death, and if you find that these statements were made at a time when ho was conscious that he would die, — that lie was aware of his approaching death, — I charge you should consider that testimony along with the other testimony in the ease, in determining the main, issue, — that is, as to whether or not the defendant is guilty as charged, beyond a reasonable doubt.” It will be noticed that under the language of this charge the judge did not make the fact of the declarant’s being in the article of death one of the prerequisites to his declaration being received as a dying declaration. A statement made “after the deceased was wounded, and between the time of receiving the wound and his death,” was not necessarily a statement made while he was in the article of death. The law is plain that the declaration is not admissible unless the declarant was in the article of death at the time of making it. The man may be conscious that he is going to die, and may be aware of his approaching death without being in a dying condition, or, as the law phrase is, “in the article of death.”

4. Except in the particulars which have already been discussed, we find no error, but we deem these sufficient to justify the grant of a new trial, as they seem to go to the very vitals of the case.

Judgment reversed.