
    Maloy v. The State.
    
      Murder,
    
    (Decided June 21, 1913.
    Rehearing denied July 8, 1913.
    62 South. 961.)
    1. Homicide; Dying Declarations. — -Where deceased said" to '' two witnesses on the night of the homicide, and to two others1 the n.ext morning that he could not get well, and the evidence in connection with the nature of the wound showed that he entertained no hope of recovery, statements made to such witnesses were, admissible,, as dying declarations.
    2. Same; Credibility. — The credibility of evidence on the preliminary proof as a predicate for the admission of dying declarations is for the trial court.
    3. Same. — The fact that a witness testified to contradictory statements as to what decedent said on some other trial or some other occasion would not authorize the exclusion of .the declarations- -if the proper predicate had been laid for their admission.
    
      4. Same; Aiding and Abetting. — Where both defendant and his father participated in the encounter with deceased, it was for the jury to determine from the evidence which party started the fight, and whether defendant aided, abetted, assisted or encouraged his father, and if he did, and his father was guilty, the defendant was guilty, though the father may have struck the fatal blow, and though there may not have been a conspiracy.
    Appeal from Geneva Circuit Court.
    Heard before Hon. H. A. Pearce.
    ' Jim Maloy was convicted of murder in the second degree, and he appeals.
    Affirmed.
    The defendant was jointly indicted with his father, Y. L. Maloy, for the murder of one McDougal; the evidence tending to show that the Maloys and McDougals were friendly at that time or just prior thereto, but that while on the fair ground at Samson, Ala., the father and the deceased got into an altercation about a bond, which resulted in deceased striking the elder Maloy, whereupon the present defendant rushed into the fray and cut deceased twice in the abdomen. The elder Maloy having recovered, again engaged in the affray and cut deceased in the back; the witnesses differing as to the details of the cutting.
    The following charges were refused to the defendant: (1) “If the jury have a reasonable doubt as to whether Jim Maloy cut the blow that killed McDougal, you should acquit the defendant.” (3) “Before the jury can convict the defendant, they must believe beyond a reasonable doubt not only that Jim Maloy cut the deceased, but they must go further and be convinced beyond all reasonable doubt that such cutting caused his death, and if you have a reasonable doubt as to either proposition, then you should acquit the defendant.” (4) “If it is probable from the evidence that Jim Maloy did not cut deceased to death or that the cutting by defendant, if he did any, did not produce or contribute to produce death, the defendant is not guilty.” (6) “If you have a reasonable doubt as to who struck the fatal blow, or the cutting that produced death, then you should acquit.” (7) “If you believe the evidence, you cannot convict the defendant of murder in the second degree.”
    W. 0. Mulkey, for appellant.
    Even if the father had killed McDougal, he could not have been guilty under the evidence of any higher offense than manslaughter.— Ex Parte Brown, 65 Ala. 446; Smith v. State, 83 Ala. 28; Scales v. State, 96 Ala. 69. The son, therefore, having struck in defense of the father could be guilty of no higher offense than the father was guilty of. The evidence was not sufficient to authorize the admission of dying declarations. — 1 Greenl. sec. 156; Justice v. State, 99 Ala. 180, and cases there cited. There was no legal evidence of a conspiracy, and hence, charges requested by defendant should have been given.
    B. C. Beickell, Attorney General, and W. L. Martin, Assistant Attorney General,
    for the State. Proper predicate was laid for the admission of dying declarations. —Husey v. State, 87 Ala. 121; Ex Parte Key, 5 Ala. App. 274. The charges requested by defendant were properly refused. — Henderson v. State, 156 Ala. 1; Thomas v. State, 130 Ala. 62.
   PELHAM, J.

— One of the propositions most earnestly insisted upon by the appellant relates to the admission of dying declarations of the deceased, made at different times to the witnesses deposing to them between the time deceased received the fatal wound on the night of Saturday, October 25, 1911, and the hour of his death on the following Monday morning. The contention is not based upon an attack on the rules of law so often laid down as to the admissibility of testimony of this nature, but is to the effect that no sufficient predicate was laid for the admission of the evidence in this case, in that it was not sufficiently shown that at the time the declarations were uttered the declarant was under the sense of impending dissolution — that he had the solemn conviction that death was near at hand and had abandoned hope of recovery at the particular time of the utterances testified to by the witnesses.

The bill of exceptions contains the statement that it sets out all of the evidence in the case; but it is self-contradictory on its face in this respect, for it does not even purport to set out the substance of the testimony of a number of the witnesses, but contains a loóse summary of the tendencies of the evidence of many of the witnesses in such a form as to conclusively show that there was considerable evidence before the court below that is not pretended to be set out in substance for our consideration here. From what does appear, it is shown that the deceased was killed in a rencounter with the defendant and his father at night in the fairgrounds at S'amson, Ala., by being stabbed or cut by one or the other of the Maloys — father and son. The fatal difficulty occurred about 9 o’clock Saturday night within the radius of the light from the swinging gaslights used for lighting the fair grounds, and in the presence of many witnesses, who differed widely in their versions of the affair; but it seems to be practically without contradiction that the elder Maloy (Vince L.) who was jointly indicted with the defendant, but separately tried, and whose case is not before us on this appeal, and the deceased were first engaged in the difficulty, when the defendant took a part in it. There.was more than one knife wound inflicted upon the body of deceased, and the evidence is in conflict as to whether father or son inflicted the fatal wonnd — some of the testimony showing that each of them had an open knife that was nsed during the progress of the difficulty. There is, however, no controversy but that a wound received by the deceased at the hands of one of the Maloys, inflicted in the abdomen during the progress of the fight, was the direct cause of the death of the deceased. This wound was made by a severe lick that produced a cut in the abdomen from which the entrails protruded. The father of the deceased testified that he was with his son during the principal part of the time after the cutting about 9 o’clock Saturday night until he died the following Monday morning at 11 o’clock, and that the deceased stated that they had killed him for nothing, and that he was going to die; that this utterance was made Saturday night shortly after he got to where the declarant was; and that he made practically the same statement Sunday morning, and said: “I am doing to die; I will never get up from here.” Another witness testified that the declarant told him at the house where he was lying Saturday night after the difficulty that he thought he could not get over it — that he was “obliged to die.” Still another witness testified that the deceased told him on Sunday morning that he (declarant) could not live. The dying declarations admitted in evidence were made Saturday night and Sunday morning, and every utterance made by the declarant on these days shows his belief that death was imminent, and that he entertained no hope of recovery; nor was there any evidence going to show that there was a revival of hope upon his part at any time before dissolution; but on the contrary it appears Avith sufficient clearness, from the evidence going to show a predicate, taken in connection with the nature and extent of the wound from which the declarant was suffering, that be bad a settled and unaltered conviction that death was impending at tbe time of making tbe declarations admitted in evidence.

Tbe fact that tbe father of tbe declarant bad made contradictory statements on some prior occasion or former trial with reference to what tbe declarant said, or did not say, we do not think was sufficient to authorize tbe trial court to exclude tbe dying declaration testified to by him. Tbe declarations were nevertheless admissible, if tbe proper predicate bad been shown on this trial — and tbe credibility of tbe evidence on preliminary proof was a matter for tbe trial court. We can arrive at no other conclusion from tbe evidence before us bearing on this subject, under tbe well-known and often declared principles, than that tbe trial court properly admitted the dying declarations testified to by tbe witnesses, as set out in tbe bill of exceptions. — Hussey v. State, 87 Ala. 121, 6 South. 420; Ex Parte Key, 5 Ala. App. 274, 59 South. 331; and authorities cited in these two cases.

Tbe tendencies of tbe evidence, as we read tbe recitals of tbe bill of exceptions, clearly leave tbe question for tbe determination of tbe jury as to who Avas at fault in bringing on tbe difficulty as between tbe first combatants (i. e., Yince L. Maloy and.tbe deceased). Even though it be conceded, as contended by appellant, that no inference can be dra.Avn from tbe evidence authorizing tbe conclusion that there existed any prearrangement, or conspiracy between tbe Maloys to slay tbe deceased,, or do any other unlaAvful act Avhich resulted in bis death,, and that tbe rencounter Avas an occurrence taking place under tbe exigencies of tbe moment, yet it is Avithout conflict in tbe evidence that tbe defendant Avas present and participating. It was certainly open for tbe jury to infer from tbe tendencies of tbe evidence in this case-that he aided, abetted, incited, or encouraged his father to strike the fatal blow (if he did not do so himself); and if he did one or all of these things he was guilty, if his father was guilty, although there may have existed no prearrangement or conspiracy between them. — Henderson v. State, 156 Ala. 1, 47 South. 76; Thomas v. State, 130 Ala. 62, 30 South. 391. The conclusion follows that the court was not in error in refusing charges Nos. 1, 3, 4, 6, and 7, requested by the defendant.

The record contains no error that would justify a reversal.

Affirmed.  