WALKER, J., dissenting.
The defendant was indicted for the murder of Dillard Hooker. When the case was called for trial the solicitor did not put the defendant on trial for murder in the first degree, but asked for a conviction of murder in the second degree or manslaughter.
The defendant admitted the killing of Hooker with a pistol, and relied on the plea of self-defense, contending that he was justified in shooting the deceased on the ground that, at the time he shot, he was in danger of being killed himself or of receiving great bodily harm by the deceased.
The homicide occurred in the home of the defendant. There was evidence of a difficulty in the yard of the defendant; that the deceased and defendant went into the home of the defendant, where the deceased was shot; that immediately after the shooting the deceased crawled from the house onto the porch and fell to the ground, and there made his dying statement.
Evidence was introduced by the defendant in support of his plea of self-defense.
The defendant was convicted of manslaughter, and appealed from the sentence pronounced thereon.
The exceptions relied on and discussed in the briefs are to the exclusion and reception of evidence.
(1) Was the dying declaration of the deceased, that the defendant shot him without cause, competent?
The objection is to the latter part of the declaration, "without cause," and its admissibility depends on whether it is the estimate or opinion of the deceased of the conduct of the defendant or the statement of a fact.
If the former, it ought to have been excluded, and if the latter, it was properly admitted.
Dying declarations are received in cases of homicide from necessity, as otherwise many criminals would escape punishment, and they are frequently made under conditions which render it impossible for the declarant to state the circumstances in connection with the killing (194) in detail, and make necessary the acceptance of a statement in the form of a collective fact.
The facts here illustrate such conditions. The declarations of the deceased were made within a few minutes after the fatal shots were fired, while he was in a dying condition and apparently not able to give a minute and extended account of all the circumstances.
Mr. Chamberlayne in his valuable treatise on the law of evidence says (Vol. 4, secs. 2849 and 2853):
"If the judge is able rationally to conclude that a fact stated in a dying declaration is, in reality, one of the res gestoe, it will not be rejected because it takes the form of statement appropriate to the assertion of an act of reasoning. . . .
"A sufficient administrative necessity for accepting an inference or conclusion in a dying declaration is furnished where a large number of minute phenomena, often so intangible and interblending as to forbid effective individual statement, are given by the declarant in the form of a `collective fact,' often the only way in which a speaker can well express himself. Thus, a declarant may properly state that a given shooting was an `accident' or that he had been `butchered' by the malpractice of a doctor, and so forth. Even where a considerable element of voluntary or intentional reasoning is present, the declaration may simply amount to the statement of a fact in a vigorous and striking way, summarizing a number of facts in a single vivid expression, e.g., `He shot me down like a dog.'"
In 21 Cyc., 988, many cases are cited in the note in support of the text, that: "A dying declaration by the victim of a homicide that the act was without provocation, or words of a like import, although very general, is as a rule held admissible as the statement of a collective fact and not a mere conclusion."
In White v. The State, 100 Ga. 659, the Court declares that: "The rule of law is that a dying declaration to be admissible must consist of a statement of a matter of fact, and a declaration which amounts to the mere expression of an opinion by the person making it should not be received in evidence. In the course of our examination of the authorities upon that subject we find a well reasoned case cited in the second volume of Taylor on Evidence, p. 470, sub-page 16, in which the doctrine is stated as follows: `The declarant should state facts rather than conclusions.'McBride v. People, 5 Col. App., 91 (1894). `Where a
declarant, however, used the expression, "He shot me down like a dog" (which is the identical expression complained of), the expression was held to be admissible. Declarations of a party in extremis, in order to be admissible, must be as to facts and not conclusions. They are permitted as to those things to which the deceased would have (195) been competent to testify if sworn in the case. But I do not think the expression of the deceased a conclusion. It was given as a part of his narrative relating to the affair, and I think it was merely intended to illustrate the lack of provocation and the wantonness in which the appellant did the act. It was descriptive of the manner in which the act was committed. It conveyed the idea that the appellant disregarded the claims of humanity, and, without giving him any warning, shot him. It was the statement of a fact made by way of illustration.'S. v. Saunders, 14 Ore., 300 (1886). So as to the declaration, `It was done without any provocation on his part.' Wroe v. State,20 O. St., 460 (1870). Or that deceased was `butchered.' S. v. Gile,8 Wn. 12 (1894). In the case of Darby v. The State, 79 Ga. 63, the dying declaration made by the deceased, that the defendant had cut him, and that he had done nothing to cause it, was objected to for the same reason as that urged in the present case against the admission of the declaration now under review; and it was held that the objection to its admission upon the ground that it stated a conclusion rather than a fact was properly overruled."
Where a decedent was asked what reason, if any, a man had for shooting him, and responded. "Not any, that I know of," this was held to be admissible. Boyle v. State, 97 Ind. 322.
A dying declaration by a deceased person that he made no attempt to injure accused is admissible, being a statement of fact. Lane v. State,151 Ind. 511.
The statement of deceased that "he was not doing a thing" is the statement of a fact. Pennington v. Com. (Ky.), 68 S.W. Rep., 451.
A dying declaration, "S. cut me. He cut me for nothing. I never did anything to him," is not incompetent, as an opinion. Jordan v. State,82 Ala. 1; Sullivan v. State, 102 Ala. 135.
A fact and not an opinion is stated in a dying declaration: "I have been stabbed by a man that I had no reason to expect a shot from. He had no reason to shoot me. There was no offense given." S. v. Black, 42 La. Ann., 861.
A statement that "They had no occasion to shoot me" is a statement of fact and not a mere inference or opinion of decedent. Pierson v. State,21 Tex. App., 14.
The decisions in our own Court are to the same effect. In S. v. Mills, 91 N.C. 581, the declaration was "He shot me for nothing," and in S. v.Watkins, 159 N.C. 480
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WALKER, J., dissenting.
The defendant was indicted for the murder of Dillard Hooker. When the case was called for trial the solicitor did not put the defendant on trial for murder in the first degree, but asked for a conviction of murder in the second degree or manslaughter.
The defendant admitted the killing of Hooker with a pistol, and relied on the plea of self-defense, contending that he was justified in shooting the deceased on the ground that, at the time he shot, he was in danger of being killed himself or of receiving great bodily harm by the deceased.
The homicide occurred in the home of the defendant. There was evidence of a difficulty in the yard of the defendant; that the deceased and defendant went into the home of the defendant, where the deceased was shot; that immediately after the shooting the deceased crawled from the house onto the porch and fell to the ground, and there made his dying statement.
Evidence was introduced by the defendant in support of his plea of self-defense.
The defendant was convicted of manslaughter, and appealed from the sentence pronounced thereon.
The exceptions relied on and discussed in the briefs are to the exclusion and reception of evidence.
(1) Was the dying declaration of the deceased, that the defendant shot him without cause, competent?
The objection is to the latter part of the declaration, "without cause," and its admissibility depends on whether it is the estimate or opinion of the deceased of the conduct of the defendant or the statement of a fact.
If the former, it ought to have been excluded, and if the latter, it was properly admitted.
Dying declarations are received in cases of homicide from necessity, as otherwise many criminals would escape punishment, and they are frequently made under conditions which render it impossible for the declarant to state the circumstances in connection with the killing (194) in detail, and make necessary the acceptance of a statement in the form of a collective fact.
The facts here illustrate such conditions. The declarations of the deceased were made within a few minutes after the fatal shots were fired, while he was in a dying condition and apparently not able to give a minute and extended account of all the circumstances.
Mr. Chamberlayne in his valuable treatise on the law of evidence says (Vol. 4, secs. 2849 and 2853):
"If the judge is able rationally to conclude that a fact stated in a dying declaration is, in reality, one of the res gestoe, it will not be rejected because it takes the form of statement appropriate to the assertion of an act of reasoning. . . .
"A sufficient administrative necessity for accepting an inference or conclusion in a dying declaration is furnished where a large number of minute phenomena, often so intangible and interblending as to forbid effective individual statement, are given by the declarant in the form of a `collective fact,' often the only way in which a speaker can well express himself. Thus, a declarant may properly state that a given shooting was an `accident' or that he had been `butchered' by the malpractice of a doctor, and so forth. Even where a considerable element of voluntary or intentional reasoning is present, the declaration may simply amount to the statement of a fact in a vigorous and striking way, summarizing a number of facts in a single vivid expression, e.g., `He shot me down like a dog.'"
In 21 Cyc., 988, many cases are cited in the note in support of the text, that: "A dying declaration by the victim of a homicide that the act was without provocation, or words of a like import, although very general, is as a rule held admissible as the statement of a collective fact and not a mere conclusion."
In White v. The State, 100 Ga. 659, the Court declares that: "The rule of law is that a dying declaration to be admissible must consist of a statement of a matter of fact, and a declaration which amounts to the mere expression of an opinion by the person making it should not be received in evidence. In the course of our examination of the authorities upon that subject we find a well reasoned case cited in the second volume of Taylor on Evidence, p. 470, sub-page 16, in which the doctrine is stated as follows: `The declarant should state facts rather than conclusions.'McBride v. People, 5 Col. App., 91 (1894). `Where a
declarant, however, used the expression, "He shot me down like a dog" (which is the identical expression complained of), the expression was held to be admissible. Declarations of a party in extremis, in order to be admissible, must be as to facts and not conclusions. They are permitted as to those things to which the deceased would have (195) been competent to testify if sworn in the case. But I do not think the expression of the deceased a conclusion. It was given as a part of his narrative relating to the affair, and I think it was merely intended to illustrate the lack of provocation and the wantonness in which the appellant did the act. It was descriptive of the manner in which the act was committed. It conveyed the idea that the appellant disregarded the claims of humanity, and, without giving him any warning, shot him. It was the statement of a fact made by way of illustration.'S. v. Saunders, 14 Ore., 300 (1886). So as to the declaration, `It was done without any provocation on his part.' Wroe v. State,20 O. St., 460 (1870). Or that deceased was `butchered.' S. v. Gile,8 Wn. 12 (1894). In the case of Darby v. The State, 79 Ga. 63, the dying declaration made by the deceased, that the defendant had cut him, and that he had done nothing to cause it, was objected to for the same reason as that urged in the present case against the admission of the declaration now under review; and it was held that the objection to its admission upon the ground that it stated a conclusion rather than a fact was properly overruled."
Where a decedent was asked what reason, if any, a man had for shooting him, and responded. "Not any, that I know of," this was held to be admissible. Boyle v. State, 97 Ind. 322.
A dying declaration by a deceased person that he made no attempt to injure accused is admissible, being a statement of fact. Lane v. State,151 Ind. 511.
The statement of deceased that "he was not doing a thing" is the statement of a fact. Pennington v. Com. (Ky.), 68 S.W. Rep., 451.
A dying declaration, "S. cut me. He cut me for nothing. I never did anything to him," is not incompetent, as an opinion. Jordan v. State,82 Ala. 1; Sullivan v. State, 102 Ala. 135.
A fact and not an opinion is stated in a dying declaration: "I have been stabbed by a man that I had no reason to expect a shot from. He had no reason to shoot me. There was no offense given." S. v. Black, 42 La. Ann., 861.
A statement that "They had no occasion to shoot me" is a statement of fact and not a mere inference or opinion of decedent. Pierson v. State,21 Tex. App., 14.
The decisions in our own Court are to the same effect. In S. v. Mills, 91 N.C. 581, the declaration was "He shot me for nothing," and in S. v.Watkins, 159 N.C. 480, "I have done nothing to be shot for," and both declarations were held competent, and in the last case, White v. State,100 Ga. 63, from which we have quoted, was cited with approval.
The two relevant facts within the scope of the dying declaration were that the defendant shot the deceased, and as to the conduct of the (196) deceased, and if the killing was unprovoked and the deceased did nothing, there was no other way to describe his conduct except by saying so, "I did nothing," and the expression, "without cause," is but another form of conveying the same idea.
If, however, it was doubtful whether the declaration was the opinion of the deceased or the statement of a fact, it ought to have been received, and submitted to the jury under proper instructions (S. v. Watkins, supra), and as the charge is not in the record, and there is no exception to it, we would assume that the jury was fully informed as to its duties.
We are therefore of opinion there is no error in admitting the dying declaration.
(2) The defendant introduced S.C. Ross as a witness, who testified to a difficulty between the deceased and the defendant in the yard of the defendant, a short time before the killing. After making a statement purporting to cover what he saw and heard, he was asked five or six questions by the defendant, which were excluded.
The court then inquired of the witness:
Q. Do you recall anything you have omitted in you testimony? A. Yes, sir; one thing.
Q. All right. A. In driving up to where the men were, I saw Hooker come back on him and strike; I could not see whether he hit him or not, but Mrs. Williams caught his arm.
Q. Is that all? A. Oh, he kept on insisting there, trying to have Williams acknowledge he could kill him.
Q. You have told that before; anything that you have omitted that Hooker said or did? A. That is all.
The questions excluded were objectionable as leading, or there was a failure to show what facts would be elicited by permitting them to be answered, and in either aspect cannot constitute reversible error, and the examination by the court is also conclusive that the witness told all he knew.
The defendant also introduced the testimony of this witness before the coroner as corroborative evidence, which was admitted, except certain parts which, in the opinion of the court, were not testified to on the trial.
Counsel for the defendant in their brief institute a comparison between
the testimony of the witness before the coroner and upon the trial, as follows, the part excluded being in parentheses:
(1) Before the coroner, S.C. Ross testified that Hooker said: ("Damn you! I am going to kill you.") In the trial, S.C. Ross testified: "He kept on trying to make Mr. Williams acknowledge that he could kill him, and Williams did not say anything, and Hooker says, `Damn you! I am going to kill you.'"
(2) Before the coroner, S.C. Ross testified: ("I told Hooker (197) to leave; that he was giving Mrs. Williams a lot of trouble.") In the trial, S.C. Ross testified: "Hooker came right along with us, and I says, `You had better leave here, Hooker.' I asked Hooker to leave Williams and let him alone, but he went back to the bed."
(3) Before the coroner, witness Ross testified: ("Hooker was drunk, too, but not so helpless as Williams.") In the trial he testified: "Williams was, I considered, very drunk. Seeing the condition of the two men, I was afraid they would get into trouble again. Both men were drunk."
(4) Before the coroner, witness Ross testified: ("Hooker said, `Yes, damn you, I could have killed you with the hold I had.") In the trial, witness Ross testified: "Hooker kept on trying to make Mr. Williams acknowledge that he could kill him."
(5) Before the coroner, witness Ross testified: ("I went to Mr. Shinn's and told him they were fighting.") In the trial, he testified: "I got in the buggy, and we went on home. We stopped at Mr. Shinn's, and I told him that Williams and Hooker had been fighting."
The first and most important of these comparisons is not sustained by the record, which shows that the witness testified on the trial that Hooker said "Damn you! I can kill you," and not "Damn you! I am going to kill you," and as to the others there is a substantial difference except as to the last, and as to that the witness said at the trial, in addition to the statement before the coroner, that he told Shinn that they were both drunk and Mrs. Williams was not able to take care of them.
If the excluded parts had been omitted, they would have afforded as many reasons for criticising the witness as for sustaining him, and are not of sufficient importance to justify disturbing the verdict.
(3) The defendant introduced evidence tending to sustain his plea of self-defense, and, while on the witness stand, offered to testify that the deceased "had told him prior to this time that he had a fight with a man in a hotel at Richmond and had stabbed him twice," which was excluded.
It is well established with us that evidence of the general character of the deceased for violence is admissible in cases of homicide when there is evidence of self-defense (S. v. Turpin, 77 N.C. 473; S. v. Blackwell, 162 N.C. 672); and there is also authority for the position, and with good reason, that the defendant may also offer evidence of acts of violence coming under his personal observation or of which he has been informed by the deceased (21 Cyc., 960; People v. Harriss, 95 Mich. 90; United Statesv. Dansmore, 75 P. 33; S. v. Shadwell, 22 Mont. 559; S. v. Sale,119 Iowa 3; People v. Farrell, 100 N.W. 264; S. v. Beird, 118 Iowa 478;Poer v. State, 67 S.W. 501; People v. Rodswold, 177 N.Y. 425); but the evidence excluded does not come within either principle.
(198) The statement that he had a fight and stabbed his opponent twice is consistent with lawful conduct, and is not necessarily evidence of violence. In this case the defendant shot the deceased four times, and he insisted before the jury he had done no wrong.
There was no offer on the part of the defendant to tell all the deceased said, nor that no other statement was made by him.
It is not probable the deceased said, "I had a fight with a man in a hotel at Richmond and stabbed him twice," and nothing more, and he ought at least to have offered to detail the conversation or to say there was none.
There was no offer to prove the general character of the deceased for violence, and all the evidence introduced was that his character was good.
The time of making the statement is not given. It was prior to the homicide, but how long before?
This is material in determining its effect upon the mind of the defendant, and particularly so when it appears that the deceased had boarded with the defendant, and that they were friends up to the fatal encounter.
The defendant did not offer to prove that he believed the deceased to be violent, that he was in fear of him, or that the statement which he says was made to him entered in any way into his right of self-defense.
In the absence of some evidence of this character, a new trial should not be ordered on account of the refusal of the court to admit a statement, which could only be competent as evidence of violent disposition and that defendant knew it, when the statement is consistent with lawful conduct, the time and circumstances under which it was made are not given, the defendant did not offer to prove he believed the deceased to be violent or that he acted upon the statement, and he offered no evidence of his general character for violence.
These are the exceptions chiefly relied on, but we have considered all that are presented in the brief of counsel.
The dying declaration of the deceased was impeached by the evidence of the defendant, and it was therefore competent to corroborate it by evidence of good character or by showing that he had made other similar
statements. 21 Cyc., 994; S. v. Thomason, 46 N.C. 274; S. v. Blackburn,80 N.C. 474.
The dying declarations of the deceased in a homicide case are received as the testimony of any other witness, and their weight and credit is for the jury. S. v. Davis, 134 N.C. 633.
"The same tests to determine their trust worthiness are applicable as are applied to the statements of a witness under examination on oath." Wharton's Criminal Evidence (10 Ed.), sec. 298.
The evidence of the witness Beatty that the defendant was playing and laughing and scrambling in a store several hours before the homicide was properly admitted to show the condition of the (199) defendant, it being in evidence that he was intoxicated; and the evidence of Brady was competent for the same purpose, to which it was restricted by the court.
There is nothing in the record to indicate what would have been the answer of the witness Norris to the question propounded to him, and for that reason the exception based on the refusal of the court to allow him to answer cannot be considered. S. v. Leak, 156 N.C. 643.
The last exception is that, in his argument to the jury, one of the counsel for the defendant proposed to take some disinterested person in the courtroom and demonstrate before the jury on that person the positions that the defendant and the deceased were in at the time of the shooting, as testified to by defendant, in order to show that the wounds would have been inflicted in the body of the deceased at the place and would have had the range or direction which they had as testified to by the doctors.
The defendant Williams, while on the stand as a witness in his own behalf, demonstrated before the jury the position he, the defendant, was in, and the position Hooker, the deceased, was in, and the way Hooker had hold of him when he fired the shots.
We cannot see in this that the defendant has been deprived of any substantial right.
The defendant was permitted to make his demonstration before the jury as a part of his evidence, and it then became the duty and right of counsel to comment on the evidence, but not to introduce new elements. Matters of this kind are left to the sound discretion of the presiding judge.
No error.