State v. . Blackburn

Ashe, J. Since the argument of this case, a petition has been presented to this court for a certiorari to supply alleged omissions in the statement of the case made out by the judge before whom it was tried. To grant the petition, would establish a precedent for a practice that would lead to the greatest confusion and uncertainty in the administration of the criminal law. This court can only look to the record and the statement of the case made by the judge which accompanies it, to see whether there was error in the proceedings of the court below by which the prisoner has been prejudiced. A different practice cannot be allowed to obtain. The certiorari is therefore refused. The prisoner moved to quash the indictment, after he had plead not guilty, for an alleged defect in the organization of the grand jury. The objection came too late. It was not taken in apt time. State v. Davis, ante, 412, and the authorities there cited. To show how the fight between the prisoner and the deceased commenced, the state proposed to prove the dying declarations of deceased, and for that purpose introduced Dr. A. M. Lee, a practicing physician, who testified that he was called in to see the deceased on the first of November, 1877, and found him propped up in a rocking chair, with a wound on the side of his head above the left ear, which was made with a sharp instrument, and cut through the skull, which produced his death, and another slight wound on the top of his head. The deceased then told him that he was *478 going to die, or the wounds would kill him. On the third of November, he saw him again, and the deceased told him “ he was going to die and would never be able to get out of the house again.” On the fifth he saw him again, and he said “he was going to die;” and he was unconscious from that time until he died on the twentieth of the month. The prisoner objected to the introduction of the dying declarations, but Elis Honor overruled the objection and admitted the evidence, and the prisoner excepted. There was no error in this ruling. State v. Poll, 1 Hawks, 442; State v. Tilghman, 11 Ire., 613; State v. Moody, 2 Hay., 31. After the state had rested in its examination of the witnesses, the prisoner introduced two witnesses w'hose testimony contradicted the dying declarations of the deceased in material points. Thereupon, the state in order to corroborate the dying declarations introduced one J. R. Beaman to prove declarations of deceased made within a few minutes after the fight, as to how it had occurred. The prisoner objected to the evidence, and the objection was properly overruled. State v. Thomason, 1 Jones, 274; March v. Harrell, Ibid., 329 ; State v. Twitty, 2 Hawks, 449; State v. George, 8 Ire., 324 ; State v. Dove, 10 Ire., 469. At the close of the testimony, the prisoner prayed the court for the special instructions set out in the statement of the case. The first was given, but His Honor refused to give the others on the ground that they were not applicable to the facts. In this there wras no error. . In any view of the case, the killing wras manslaughter. Taking the testimony of the witnesses forthe defence alone, together with the facts which it is proposed by the petition for the certiorari to interpolate in the statement of the case, and there is no ground upon which the killing can be justified as an act of self-defence. The prisoner should be content with the verdict, and might congratulate himself that the jury have awarded to him the full benefit of the benig *479 nity of the law. There is no error. Let this be certified to the court below that further proceedings may be had according to law. Per Gust ají. No error.