Hutcherson and Mattie Pearl Gaddis were, on February 6, 1957, indicted for the first degree murder of Dartis Kelly by cutting him with "a sharp instrument." Tried February 14, 1957, on a severance, he was convicted by a jury of first degree manslaughter and sentenced to two years' imprisonment.
The case for the prosecution was built around Dartis Kelly's dying declaration, wherein he stated that Mattie Pearl plunged a butcher knife in his abdomen, and this defendant hit him with a doublebit axe. There was medical testimony that the knife wound caused a blood clot that moved into his lung, thereby killing him.
Lavada Kelly was the prolocutrix for the departed Dartis, her brother-in-law. From her cross-examination, we excerpt:
"Mr. Young: We object.
"Mr. Young: If the Court please, we object.
Undoubtedly Lavada's answers indicate confusion as to the trend of the questioning.
The admission of dying declarations in homicide cases is, on the surface, an exception to the hearsay rule, the generalities being ably discussed in Cotney v. State, 32 Ala.App. 46, 26 So.2d 598. However, the declarant is the true witness and is subject to impeachment as much as any other witness. Shell v. State, 88 Ala. 14, 7 So. 40 (error to exclude inconsistent statements made after fatal blow). Carter v. State, 191 Ala. 3, 67 So. 981 (credibility).
A witness should not be a lunatic during lunacy, Code 1940, T. 7, § 439, Redwine v. State, 258 Ala. 196, 61 So.2d 724.
The trial judge decides a witness' competency, § 440 (Ib.). A presumption of competency attends a witness. If properly presented, an issue of sanity is to be decided by the court without a jury, the event of which controls competency.
Yet beyond competency lie weight and credibility of the testimony of which the jury are the judges.
On direct examination she said she had known him "from when about that high." If her answer to the question had been affirmative, the enquiry could have gone into factors affecting weight and credibility as well as competency. For a general discussion of insanity of a witness, see Redwine v. State, supra.
This incident occurred on cross-examination. Code 1940, T. 7, § 443, first sentence, reads:
While in Moody v. State, 267 Ala. 204, 100 So.2d 733, the error was in confining cross-examination touching the sanity of the defendant, yet we do not read the wide latitude rule as being confined to cases where a prisoner pleads not guilty by reason of insanity, see Judge McElroy's Relevancy of Evidence, etc., as to Mental Capacity, 4 Ala.Lawyer 384.
Though a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye. It is predicated on the assumption of death-bed freedom from vengefulness and mendacity. The validity of this assumption would seem difficult of demonstration.
Thus, in Shell v. State, supra [88 Ala. 14, 7 So. 41], we find Stone, C. J., giving this warning:
Bearing in mind the potential frailty of a dying declaration as evidence, the latitude permissible in cross-examination, together with the wide scope of an enquiry concerning sanity, we conclude the sustaining of the objection was reversible error.
Reversed and remanded.