
    Blackburn v. The State.
    
      Indictment for Murder.
    
    1. Dying declarations. — When a person, who has been shot and greatly prostrated by the shock, and suffering much, states in a conversation the day before his death, “that he was freer from pain, and was not suffering so much,” and gave no expression in said conversation, of liis opinion as to the result of his wounds, whether he thought he would die or get well, though the attending physician was satisfied, upon his examination of his wounds, that the injured person would die; this Court is not persuaded that such primary evidence justified the admission of the conversation as dying declarations of the deceased.
    2. Sume ; when admissible. — The declaration of the deceased to be admitted in evidence as “dying declarations” must have been made under a sense of certain and impending death, and relate to the circumstances causing his death.
    Ekom: the City Court of Montgomery.
    Tried before the HoN. Thomas M. Arrington.
    The facts sufficiently appear from the opinion of the Court.
    Jas. S. Fuller, for appellant,
    insisted thab the predicate for the admission of the declarations of deceased, as his dying declarations, was not sufficiently laid; and, filed a brief and argument, citing Hussey v. State, 87 Ala. 127; Walker v. State, 52 Ala. 192; May v. State, 55 Ala. 41; Kil-gore v. State, 74 Ala. 2; Russell on Crimes, 9 Ed. 3 Yol. pp. 250-2-3.
    Wm. L. Marten, Attorney-General for the State,
    cited Ward v. State, 78 Ala. 44Í; McLean v. State, 16 Ala. 672; Willis v. State, 74 Ala. 21; 1 Gr. Ev. §§ 158-60 and Wharton Or. Ev. § 282.
   HARALSON, J.

Two witnesses, Ur. Hill and J. B. Scott, were examined by the State, preliminary to the admission of what are termed the dying declaration of the deceased.

The substance of the Doctor’s evidence was, that he was called to see the deceased, and in the presence of another party who aided him, examined the wound, and came to the conclusion that it was fatal; that he said to the party assisting him, in the presence and hearing of deceased, “that all the shot had gone to the hollow;” that deceased made no reply to this remark; that he did not ask witness what he thought would be the result of the injury, and made no statement about what he thought of his own condition.

The witness Scott testified, that he visited the deceased in the morning of the day, the evening of which he died, (as he supposed, for they buried him the next day), and had a conversation with him, in which he told him of an angry altercation which occurred between him and the defendant, on the day he was shot, and when and how he was shot, about a half or three quarters of an bour afterwards; that in that conversation, the deceased did not state who shot him, or what he thought would be the result of his injuries; that he did not say, that he thought he would die, or that he would get well, and made no statement to the witness how he felt, except, when ashed by him, before he made the statement referred to, how he felt, and he stated “that he was freer from pain and was not suffering so much.” It was also shown, that deceased was much prostrated from the shock of the wound and suffered greatly, so much so, that the physician when he visited him, and Scott, after-wards, gave him, each, a dose of morphine.

On the foregoing preliminary proofs, the Court admitted in evidence against the objection and exception of defendant, the statements of deceased to said Scott, as dying declarations.

The law in respect to the admissibility of such declarations has been so repeatedly discussed, and is so well settled by this Court, as to require no necessity for an attempt to further elucidate it. "We simply refer to some of the well understood rules on that subject, as applicable to this case. Such declarations are not admissible unless they appear to have been made under a sense of certain and impending death. It is .not what the Court, which passes upon their admissibility, may believe the character of the deceased was; for, although it may appear to the Court, or to any one capable of thinking rationally, that there was no possible hope of recovery, yet the question, aside from that is, what was the state of the declarant’s mind, when the declarations were made ; did he appreciate the fatal character of his injury, and were his declarations uttered under the sense and solemnities of impending dissolution. ' If so, then, “when the death of the deceased is the subject of the charge, and the circumstances the subject of the dying declarations,” they may be admitted in evidence, otherwise not. Walker v. The State, 52 Ala. 192; Kilgore v. The State, 74 Ala. 7; Ward v. The State, 78 Ala. 441; Hussey v. The State, 87 Ala. 121.

It will appear from the evidence of the physician, that he said nothing to the deceased in respect to the character of his wound, nor did deceased say anything to him about it, or ask him any questions. The only thing that was said by the doctor, that tended to show any intimation by him to deceased as to the character of the injury, was that he said in his presence to another party, that the shot had all entered the hollow; but we are not sure, deceased heard this remark, and. if be did, tbat it conveyed tbe impression.to bim, tbat bis injury was, on tbat account fatal.

"Wben tbe witness, Scott, bad tbe conversation with bim, deceased said be was feeling- freer from pain, and made no intimations at all, as to whether be tbougbt be would or would not recover. If be bad supposed be was certainly going to die, be would very likely bave said something about it. Tbe very facts be detailed, bis reticence on tbe subject of bis condition, and tbat be expressed bimself as feeling better, would seem to indicate tbat deceased was not ■yet in despair of recovery, especially wben we remember tliat a party in bis condition, incapable of reasoning and reflecting well on bis own condition, is often hopeful until unconsciousness and death ensue.

In tbe face of tbe scrutinizing caution with which tbe authorities admonish trial judges, in tbe admission of such evidence, we are persuaded tbat tbe primary proofs in this case, did not justify tbe admission of tbe conversation bad between tbe deceased and tbe witness Scott, as dying declarations.

Reversed and remanded.  