State v. Bohanon

• Decision Date: 18 December 1906
• Citation: 55 S.E. 797,142 N.C. 695
• Parties: STATE v. BOHANON.
• Court: North Carolina Supreme Court

55 S.E. 797

142 N.C. 695

STATE v. BOHANON.

Supreme Court of North Carolina

December 18, 1906

Appeal from Superior Court, Guilford County; Long, Judge.

Prosecution of Frank Bohanon for murder. From a conviction of murder in the first degree, defendant appeals. Affirmed.

In a prosecution for murder, testimony of a witness who was with deceased after he was shot and two hours before he died, and who was told by deceased that he was dying, that he said "I do not know what my wife and children will do; I begged Frank [defendant] to go along and let me alone," is competent as a dying declaration.

The defendant, with Kiser Crutchfield and Oscar Crutchfield, was indicted for the murder of R. E. Beacham, on July 31, 1906. He and Kiser Crutchfield were convicted of murder in the first degree, and Oscar Crutchfield was acquitted. The defendant alone appealed.

George S. Bradshaw, for appellant.

The Attorney General, for the State.

WALKER J. (after stating the case).

We have carefully examined the testimony in this case, and find it sufficient to sustain the conviction of the defendant, though no objection was distinctly made that there was no evidence to warrant the verdict. There are seven errors assigned as having been committed in the rulings of the court at the trial, and they will be considered in their order.

The defendant objected to C. C. Townsend as a juror upon the ground that he had formed and expressed the opinion that the defendant is guilty. The court, after hearing the evidence bearing upon this objection, found that the juror was indifferent, and overruled it. The juror was sworn and served. We do not see how this ruling can now be made the subject of an exception. The juror stated that notwithstanding he had formed and expressed an opinion that the defendant is guilty, he was yet satisfied that he could decide fairly and impartially as between the state and the defendant, and the court found upon the evidence that he was indifferent. The findings of fact as to indifference have been held not to be reviewable in this court. State v Ellington, 29 N.C. 61; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771; State v. Kilgore, 93 N.C. 533; State v. Potts, 100 N.C. 457, 6 S.E. 657; State v. De Graff, 113 N.C. 688, 18 S.E. 507; State v. Fuller, 114 N.C. 885, 19 S.E. 797; State v. Kinsauls, 126 N.C. 1096, 36 S.E. 31; State v. Register, 133 N.C. 747, 46 S.E. 21. The case of State v. Potts, 100 N.C. 457, 6 S.E. 657, seems to be directly in point. But there is another familiar principle of the law which fully meets and answers this objection. The defendant did not exhaust his peremptory challenges, but there were many left to him when the panel was completed. When such is the case, the objection to a juror, who could have been rejected peremptorily, is not available. State v. Hensley, 94 N.C. 1021; State v. Pritchett, 106 N.C. 667, 11 S.E. 357; State v. Teachey, 138 N.C. 587, 50 S.E. 232. The same rule has been affirmed three times at this term of the court. Ives v. Railroad Co., 142 N.C. 131, 55 S.E. 74; Hodgin v. Railway Co., 142 N.C. ___, 55 S.E. 413; and State v. Sultan, 142 N.C. 569, 54 S.E. 841.

The defendant next objected to the testimony of the witness W. T. Ausley, who stated that he was with Beacham after he was shot by the defendant, and that he told the witness that he was dying. There was other sufficient evidence tending to show that Bohanon knew that he was in extremis. He died within two hours after the witness had the conversation with him to which the defendant objected. The court permitted Ausley to testify that Beacham said to him: "I do not know what my wife and children will do. I begged Frank [Bohanon] to go along and let me alone." This was competent as a dying declaration. It is evident that the deceased was referring to what had occurred at the time he was shot, so that what he told Beacham he had said to the defendant constituted a part of the res gestae and was not the narration of a past event. It identified the defendant as the one who had committed the homicide. State v. Dixon, 131 N.C. 808, 42 S.E. 944; State v. Boggan, 133 N.C. 761, 46 S.E. 111; State v. Teachey, 138 N.C. 587, 50 S.E. 232. The reference he made to his family merely confirmed the finding that he was, at that time, aware of his critical condition, and well knew that he was fast approaching the supreme moment of his dissolution, when his words had more sanction and solemnity than is ever imparted by the ordinary tests the law applies to insure the accuracy and credibility of human testimony.

The third, fourth, and fifth assignments of error are based on the admission of the testimony of the state's witnesses W. J. Weatherly, D. H. Collins, and C. F. Neely. Weatherly testified that the defendant was arrested in Danville, Va., and that on his way to Greensboro he asked him why he had killed Beacham. He replied that he was working under Beacham, who discharged him and mistreated him by tearing down his tent. The witness chided him for having resorted to violent and serious measures in resentment of such a grievance, whereupon the defendant said that he would not have killed him, if the Crutchfields had not made him drunk and provoked him to it, by telling him that he ought not to submit to such a wrong. Collins testified that the defendant told him he had gone to Greensboro and bought a gun and then went to the railroad camp to look for Beacham; that when he found Beacham, the latter cursed him and told him to go away or he...