State v. . Ham

172 S.E. 473, 205 N.C. 749, 1934 N.C. LEXIS 57

• Court: Supreme Court of North Carolina
• Decided: January 24, 1934
• Status: Published

Opinion

ClabicsoN, J.

Defendant’s only exception and assignment of error is to the action of the court below in excluding certain evidence of a witness by the name of Cairo Johnson who was the first witness to reach the deceased after she was shot, wbicb evidence relates to a statement made by the deceased, “I am drunk.”

In S. v. Mills, 91 N. C., 581-594. Speaking to the subject of dying declarations is the following:

“The rule for the admission of such testimony is thus laid down in Taylor on Evidence, 648: (1) ‘At the time they were made, the declarant should have been in actual danger of death. (2) That he should have a full apprehension of his danger; and (3) That death should have ensued.’ From the time the deceased was shot, up to the time he made the declaration as testified to by the witness Ousby, he was heard repeatedly to say, ‘I am bound to die.’ He told the witness Parker that he was shot in the side and back, and was bleeding internally, and ‘was bound to die.’ ” S. v. Wallace, 203 N. C., 284.

The testimony of Hr. Sinnett and others was competent and in fact the defendant does not make any objection to this evidence. The sole exception and assignment of error was the exclusion of the testimony of Cairo Johnson. Q. What, if anything, did she say to you? A. I asked her what her trouble was and she said,- “I’m drunk.”

This conversation took place about 8:30 o’clock from the testimony of Johnson. From the testimony of Dr. Sinnett it was about 9 :30 when she stated to him, “Do something for me, I am dying” and stated that “Isaiah Ham shot her near the bridge.” This evidence of Johnson was for the purpose of impeaching the dying declaration of Maggie Lewis. This testimony, which was objected to, was some hour or so before the dying declarations of Maggie Lewis. The court below admitted the testimony of Johnson to the effect, “I got very close to Maggie and could smell whiskey when I first met her, but not down at the bridge,” further, “I smelled whiskey on her breath when I moved her.” The testimony excluded was a conclusion of Maggie Lewis. The fact that the witness smelled whiskey on her breath was admitted by the court below to impeach Maggie Lewis’ dying declaration. The exclusion of Maggie Lewis’ conclusion that “I am drunk,” we do not think prejudicial or reversible error. S. v. Layton, 204 N. C., 704. Maggie Lewis’ dying-declaration in every detail was clear: First, she said she was shot. This was true. Second, “Do something for me, I am dying.” This was true. Third, “she said she lived at 204 Cobb Street.” This was not disputed. Fourth, “she knew she was at the Lincoln Hospital.” Fifth, she said, “Isaiah Ham shot her near bridge,” the jury so found. On the entire record, we find

No error.