Ashe, J.
We have examined the record, in this case with [593] that care which is due to the consideration of the serious crime with which the prisoner is charged. He has filed a great many exceptions, some of which are perfectly frivolous, but to such as are worthy of consideration we proceed to give the conclusions to which- we have been led.
1. The exception to the ruling of the court, that the juror was a free-holder, who had married a woman seized of land, and had children by her born alive, cannot be sustained. The record does not show when the marriage took place, nor does it show whether the juror was summoned on the original panel or on the special venire. If on the original pan.-l, he was not required to be a free-holder, (The Code, § 1722), and in that case, though there might have been error in the ruling, it could not have prejudiced the prisoner.
If he was married and the land acquired by his wife before the adoption of the constitution of 1868, called the ■“ marriage act,” he was a tenant by the courtesy initiate notwithstanding the act of 1848. Houston v. Brown, 7 Jones, 161. And if he was tenant by the courtesy initiate, he was necessarily entitled to the possession. Wilson v. Arentz, 70 N. C., 670. And if entitled to the possession, he had a right to the pernancy of the rents and profits, and that in contemplation of law made him a free-holder, in the sense of that term as applicable to the qualification of jurors, although he might not be seized of the legal estate. State v. Ragland, 75 N. C., 12,
The court held the juror was a free-holder and we must presume he was either a juror on the original panel or a tenant by the courtesy initiate; for unless the appellant distinctly points out the error sought to be reviewed, this court will presume the ruling of the court below to have been right. Wall v. Hinson, 1 Ired., 276; Flanniken v. Lee, Ib., 293.
2. There is no force in the objection that the name of J. L. Butt, summoned by the sheriff as a juror, was entered on a scroll as “ J. S. Butt.” “ J.” was the initial of the [594] first Christian name in both, and the initial of the second Christian name is unimportant. It is held that the use of a middle letter forms no part of the name. Roscoe’s Crim. Evi., 81, note 1, and McKoy v. Speck, 8 Texas, 376; King v. Hutchins, 8 Foster, 561; Oskin v. Davis, — Ill., 257; 14 Barb., 259. The objection came too late. It should have been taken before the name of the juror, who seems to have been summoned on the special venire, was put in the box, State v. Simmons, 6 Jones, 309, and in no way could the prisoner have been prejudiced, for there was no such man in the county as “J. S. Butt.”
3 and 4. When a juror examined on his voire dire replied to a question asked him, “that he had said it would-ruin or injure any lawyer politically with certain persons in the county to appear for the prisoner,” and the juror was asked by prisoner’s counsel to name thnm, the court very properly held that it was not material upon the question of fairness of th'e juror to know these names. It seems to have been the object of the prisoner to introduce .politics into the jury box, and it was clearly the duty of the court to exclude any such influences from the jury.
5, 7, 9 and 11. There is no merit in the exception to the ruling of the court in receiving the dying declarations of the deceased.
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.”
[595] Before the declarations of deceased as testified to by Dr. Ferguson, on the night of the shooting, deceased said to witness that he “was dyingthat “he was shot all to pieces ; that he had been shot three times and the wound was bleeding internally, and he could not live.” This witness, on cross-examination, stated that on Friday, two days after the shooting, he told the deceased “that he thought he might get well, and deceased seemed more cheerful and said he ‘was better/ ” that the witness had not then examined the wound in the back ; that the deceased died, from secondary hemorrhage caused by the wounds, on the Sunday following.
■The prisoner’s objection to the admission of the declarations seemed tu have been founded upon the fact that the physician, two days after, gave hopes of recovery to the deceased by telling him he thought he might get well. However that might have been, it did not affect the admissibility of the testimony. The deceased was manifestly in the apprehension of impending death when he made both the declarations. He was in the actual danger of death and did die from the effects of the wounds.
This sufficed to make the declarations admissible, and no hope of recovery subsequently inspired could render them incompetent. State v. Tilghman, 11 Ired., 5513.
6. The objection to the rejection of testimony to contradict the witness, Washington Johnson, before he was examined, is too frivolous.
8. There is nothing in the exception to the admission of evidence that the “fast train” on the railroad passed soon after the shooting and the track was near the gin-house when the shooting was done. It was offered in support of the theory entertained by the solicitor that the prisoner, assisted by his son and Cook, proposed to kill the deceased, and place his body on the track. Whatever may have been the motive of the prisoner in conducting the deceased, after plying him with whiskey, to the gin-house, whichjstood not [596] far from the railroad track, and then shooting him in the presence of his son and Cook just before the train was to pass, the theory is not without probability, and there was no error in receiving the evidence.
10. The state was allowed to prove that prisoner and John Henry Mills and Columbus Cook were seen together in Weldon in the afternoon of the day the deceased was shot, and the prisoner was heard to say to Columbus Cook, “that he had money enough to pay him out of all his difficulties, and he intended to have satisfaction before he slept that night,” and afterwards all three of them got on the train going from Weldon to Halifax. The declarations-of a prisoner are always evidence against him when pertinent to the issue. State v. Bryson, 2 Winst., 86. Here was a declaration involving a threat, and in a few hours the deceased was .shot by the prisoner. The most reasonable inference is, that the threat was made agaiust the deceased. The evidence was clearly pertinent and admissible.
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Ashe, J.
We have examined the record, in this case with [593] that care which is due to the consideration of the serious crime with which the prisoner is charged. He has filed a great many exceptions, some of which are perfectly frivolous, but to such as are worthy of consideration we proceed to give the conclusions to which- we have been led.
1. The exception to the ruling of the court, that the juror was a free-holder, who had married a woman seized of land, and had children by her born alive, cannot be sustained. The record does not show when the marriage took place, nor does it show whether the juror was summoned on the original panel or on the special venire. If on the original pan.-l, he was not required to be a free-holder, (The Code, § 1722), and in that case, though there might have been error in the ruling, it could not have prejudiced the prisoner.
If he was married and the land acquired by his wife before the adoption of the constitution of 1868, called the ■“ marriage act,” he was a tenant by the courtesy initiate notwithstanding the act of 1848. Houston v. Brown, 7 Jones, 161. And if he was tenant by the courtesy initiate, he was necessarily entitled to the possession. Wilson v. Arentz, 70 N. C., 670. And if entitled to the possession, he had a right to the pernancy of the rents and profits, and that in contemplation of law made him a free-holder, in the sense of that term as applicable to the qualification of jurors, although he might not be seized of the legal estate. State v. Ragland, 75 N. C., 12,
The court held the juror was a free-holder and we must presume he was either a juror on the original panel or a tenant by the courtesy initiate; for unless the appellant distinctly points out the error sought to be reviewed, this court will presume the ruling of the court below to have been right. Wall v. Hinson, 1 Ired., 276; Flanniken v. Lee, Ib., 293.
2. There is no force in the objection that the name of J. L. Butt, summoned by the sheriff as a juror, was entered on a scroll as “ J. S. Butt.” “ J.” was the initial of the [594] first Christian name in both, and the initial of the second Christian name is unimportant. It is held that the use of a middle letter forms no part of the name. Roscoe’s Crim. Evi., 81, note 1, and McKoy v. Speck, 8 Texas, 376; King v. Hutchins, 8 Foster, 561; Oskin v. Davis, — Ill., 257; 14 Barb., 259. The objection came too late. It should have been taken before the name of the juror, who seems to have been summoned on the special venire, was put in the box, State v. Simmons, 6 Jones, 309, and in no way could the prisoner have been prejudiced, for there was no such man in the county as “J. S. Butt.”
3 and 4. When a juror examined on his voire dire replied to a question asked him, “that he had said it would-ruin or injure any lawyer politically with certain persons in the county to appear for the prisoner,” and the juror was asked by prisoner’s counsel to name thnm, the court very properly held that it was not material upon the question of fairness of th'e juror to know these names. It seems to have been the object of the prisoner to introduce .politics into the jury box, and it was clearly the duty of the court to exclude any such influences from the jury.
5, 7, 9 and 11. There is no merit in the exception to the ruling of the court in receiving the dying declarations of the deceased.
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.”
[595] Before the declarations of deceased as testified to by Dr. Ferguson, on the night of the shooting, deceased said to witness that he “was dyingthat “he was shot all to pieces ; that he had been shot three times and the wound was bleeding internally, and he could not live.” This witness, on cross-examination, stated that on Friday, two days after the shooting, he told the deceased “that he thought he might get well, and deceased seemed more cheerful and said he ‘was better/ ” that the witness had not then examined the wound in the back ; that the deceased died, from secondary hemorrhage caused by the wounds, on the Sunday following.
■The prisoner’s objection to the admission of the declarations seemed tu have been founded upon the fact that the physician, two days after, gave hopes of recovery to the deceased by telling him he thought he might get well. However that might have been, it did not affect the admissibility of the testimony. The deceased was manifestly in the apprehension of impending death when he made both the declarations. He was in the actual danger of death and did die from the effects of the wounds.
This sufficed to make the declarations admissible, and no hope of recovery subsequently inspired could render them incompetent. State v. Tilghman, 11 Ired., 5513.
6. The objection to the rejection of testimony to contradict the witness, Washington Johnson, before he was examined, is too frivolous.
8. There is nothing in the exception to the admission of evidence that the “fast train” on the railroad passed soon after the shooting and the track was near the gin-house when the shooting was done. It was offered in support of the theory entertained by the solicitor that the prisoner, assisted by his son and Cook, proposed to kill the deceased, and place his body on the track. Whatever may have been the motive of the prisoner in conducting the deceased, after plying him with whiskey, to the gin-house, whichjstood not [596] far from the railroad track, and then shooting him in the presence of his son and Cook just before the train was to pass, the theory is not without probability, and there was no error in receiving the evidence.
10. The state was allowed to prove that prisoner and John Henry Mills and Columbus Cook were seen together in Weldon in the afternoon of the day the deceased was shot, and the prisoner was heard to say to Columbus Cook, “that he had money enough to pay him out of all his difficulties, and he intended to have satisfaction before he slept that night,” and afterwards all three of them got on the train going from Weldon to Halifax. The declarations-of a prisoner are always evidence against him when pertinent to the issue. State v. Bryson, 2 Winst., 86. Here was a declaration involving a threat, and in a few hours the deceased was .shot by the prisoner. The most reasonable inference is, that the threat was made agaiust the deceased. The evidence was clearly pertinent and admissible.
12. The prisoner, in defence, offered to prove a statement made by him soon after the shooting as to how it occurred, but it was properly ruled out by the court. No declarations of a prisoner made after the commission of a homicide, as to the manner of the transaction, that are not of the res ges-tee, are admissible. State v. Brandon, 8 Jones, 463; State v. Tilly, 3 Ired., 424; State v. Scott, 1 Hawks, 24. The statement of the case excludes the idea that they were of this nature. The declarations proposed to be proved were after the act was past and done.
13. The prisoner, to impeach the dying declarations of the deceased, proposed to proved by one Garland White, a minister of the Gospel, what weight was to be attached to the dying declarations of colored persons in extremis. The court properly ruled it out. This exception needs no comment.
[597]*59714. The last exception taken by the prisoner was to the declarations of John Henry Mills when he was arrested by the sheriff under a charge of the state for killing Henry Ponton, the deceased, for he had been tried for that offence and acquitted. This evidence was offered by the state, not as substantive evidence, but for the purpose of contradicting the testimony which John Henry Mills had given in behalf of the prisoner on the trial of this case. The testimony we think was competent for that purpose.
The ground of that objection is not stated, but we presume it was upon the ground the statement made by John Henry Mills to the witness, the deputy sheriff, when he was arrested, was made under the influence of hope excited by the remark of the officer “thathe reckoned it would be best for him to make a clear breast of it.”
We are not prepared to say but that the declaration made under those circumstances would have been inadmissible as a confession upon the trial of the prisoner for the crime, in reference to which the declaration was made, as tending to implicate himself. But we think there must certainly be a distinction between a declaration offered in evidence as a confession of a crime against a person charged therewith, and the declaration when offered solely for the purpose of contradicting the testimony of the .declarant given as a witness on the trial of another.
“ A confession is the voluntary declaration by a person who has committed a crime or misdemeanor, to another of the agency or participation of which he had in the same.” Bouvier’s Law Dictionary.
The confession must be voluntary. It is well settled that if induced by the flattery of hope or the torture of fear,” it is inadmissible.
This is a rule adopted by the humanity of the criminal code, in its tenderness for human life, exclusively for the benefit of the accused, upon his trial for the crime confessed, [598] to guard him against the possibility of the danger of falsely implicating himself from a motive of hope or fear.
But the principle of the rule has no application to the declaration, when offered in evidence to contradict the testimony given by the declarant in his examination as a witness on the criminal trial of another. In that case the credibility of the witness is alone involved, and it is a question for the jury to determine, whether his testimony is affected by the contradictory evidence; and if so, to estimate the extent to which it has been impaired by the contradiction, taking into consideration all the circumstances of the case, the hopes, the fears and all influences that might have been employed, to induce the declaration.
If the fact that the preliminary question was not put to John Henry Mills before the contradictory evidence was offered, was a ground of objection to the evidence, it is not tenable. For the declaration offered in evidence to contradict him was directly and immediately material to the issue, and in such case it was not necessary to ask him the preliminary question to call his attention to the statement offered to contradict. That is only necessary where the testimony of the witness relates to some collateral fact, or some act of his tending to show his bias, partiality or prejudice towards one of tfle parties to the action. But where the testimony relates directly to the subject of litigation, it may be met by' evidence of contradictory statements, previously made, without asking him the preliminary question. State v. McQueen, 1 Jones, 177; Jones v. Jones, 80 N. C., 246; State v. Davis, 87 N. C., 514; Radford v. Rice, 2 Dev. & Bat., 39.
Our conclusion is there is no error. This opinion must be certified to the superior court of Halifax county, that the case may be proceeded with in conformity therewith and the law of the state.
No error. •Affirmed.