Ealy v. State

Cook, J., delivered the opinion of the court. Appellant, Mack Ealy, and Anthony Sparkman were jointly indicted for the murder of John McDougal. A severance was granted, and appellant was tried, convicted, and sentenced to the penitentiary for life, and from this judgment and sentence, he prosecuted this appeal. According to the testimony of the witnesses for the state the facts are substantially as follows: On the night of August 5, 1920, while services were in progress at Harmony Church, near Lena, Miss., John McDougal, the deceased, and Anthony Sparkman left the church together and walked some distance dowrn the road, where they were discussing some previous trouble between Sparkman and McDougal’s Avife. In the meantime, appellant Avas informed that Sparkman and McDougal had gone down the road, and that he had better go down there. Appellant dreAV his pistol and proceeded to the place where the two men were talking, and as he approached them McDougal saAv him and told him to go back, that they did not. need [720] him, and that he and Sparkman had about settled their differences. Appellant refused to go, and after haying told him a second time to go back, McDougal started toward him, whereupon Sparkman shot twice at McDougal. McDougal then turned towards Sparkman, and as he did so appellant shot him in the back and ran towards the church. McDougal pursued appellant and fell near the church. The appellant testified that when lie approached the place where McDougal and Sparkman were talking, Mc-Dougal told him not to come down there, and immediately ran towards .him and began shooting at him; that he, appellant, shot twice at McDougal witli a 38-caliber pistol, and then ran toward the church with McDougal pursuing him. Sparkman testified that he and the deceased were in a dispute at the time appellant approached them; that, when deceased saw appellant approaching, he ordered him to go back; that the deceased immediately started towards appellant and began shooting at him; that he, Sparkman, then pulled his pistol which was a 32-caliber, and shot twice at deceased. The deceased was killed by a-38-caliber bullet, which entered his body four or five inches from the spinal column. As to what occurred at the scene of the killing, the state’s case rests solely upon the testimony of one Percy Gilmore, an eyewitness, and the dying declarations of the deceased, and one of the assignments of error is based upon the action of the court in admitting these dying declarations. We think the preliminary examination as to the competency of these several declarations clearly shows that they were made under the realization and solemn sense of impending death. The first statement he made was shortly after the shooting, and at that time he said he realized that he was going to die and he gave directions about the disposition of certain property and the care of his children. He repeated the declarations as to the hopelessness of his condition several times prior to his death the following [721] day, and at no time did he express any hope of recovery. It is true that a witness, Moreland, a justice of the peace, who took his statement a few hours before his death, testified that after the deceased had made the statement to him concerning the difficulty, and at a time when he was so weak he could hardly talk, the witness undertook to encourage the deceased by telling him he thought he would get well, and that the deceased replied: “I don’t know, I am feeling mighty bad.” In the light of all the other statements, made to this witness and others by the deceased, which clearly shorved that he had a settled conviction that he was going to die and that death was then impending, we do not think this reply of deceased to the words of encouragement was an expression of hope of recovery, and we think the dying declarations of deceased were properly admitted in evidence. Appellant next insists that the evidence does not warrant a conviction for a greater offense than manslaughter, and he assigns as error the failure of the court to grant an instruction submitting to the jury the question of manslaughter. Under the facts in evidence against this defendant, we do not think there is any element of manslaughter involved. Under the state’s evidence, if believed, the defendant is guilty of murder. The defendant’s testimony, if believed, establishes a clear and unquestioned case of self-defense. Neither the state nor the defendant asked an instruction in inference to manslaughter, and there was no error in failing to grant an instruction submitting this question to the jury. The final assignment of error urged by counsel for appellant is based upon the refusal of certain instructions requested by the defendant. All of these refused instructions presented the theory that the appellant was justified in shooting the deceased, if he liad reasonable cause to believe and did believe that Anthony Sparkman was in danger of losing his life or suffering some great bodily harm at the hands of the deceased, and that appellant, acting on such belief, killed deceased in order to save the [722] life of Anthony Sparkman, or to protect Mm from real or apparent danger of suffering some great bodily harm at the hands of deceased. Both the appellant and Sparkman testified that, when they began shooting, the deceased was advancing on appellant and shooting at him; there is not the slightest evidence that the deceased ever made any sort of demonstration which indicated a purpose or design to do any bodily harm to Sparkman, and since there was no evidence whatever to suppoi't these instructions they were all properly refused. Affirmed.