State v. Debnam

• Decision Date: 11 November 1942
• Docket Number: 436.
• Citation: 22 S.E.2d 562,222 N.C. 266
• Parties: STATE v. DEBNAM.
• Court: North Carolina Supreme Court

22 S.E.2d 562

222 N.C. 266

STATE v. DEBNAM.

No. 436.

Supreme Court of North Carolina

November 11, 1942

The defendant was charged with the murder of Foster Spivey. At the beginning of the trial the solicitor announced that he would not ask for a verdict of murder in the first degree but only for conviction of murder in the second degree. The jury returned a verdict finding the defendant guilty of manslaughter.

We understand from pertinent evidence in the case that a number of visitors had assembled at the house of one Jimmy Young, in the outskirts of Youngsville. The defendant, Lorenzo Debnam and Foster Spivey approached the house, and a shot was heard by those within the house. Whereupon, several persons rushed out. Debnam and Spivey were seen walking toward the house Spivey holding his right wrist with his left hand, and saying that he was shot. Debnam asked Spivey "Where did I shoot you?" When DeWitt Kearney came out of the house and approached, asking Debnam why he shot the boy, the latter said "Get back, get back." When Kearney attempted to take the pistol from him, Debnam broke and ran around the side on the other side of the house, levelling the gun on Kearney.

Another witness stated that as Debnam and Spivey approached, Debnam was holding Spivey's right wrist with his own left hand holding his pistol in his right hand, and asking Spivey where he had shot him, and that Spivey said "Don't shoot me no more cause you done killed me now"; and that when DeWitt Kearney approached Spivey, he ran under Kearney's arm, backed up to the house, and with his pistol out, said "Stand back, don't a damn soul come on me." Some of the witnesses went around the car and some back up to the house and around the house, and Debnam "tore off across the field" and went up a little road through the plantation.

Spivey pulled his jacket back and blood was seen running out through his ribs along the left side, and Spivey said "I am dying as fast as dirt." Spivey was carried to the hospital, where he died some four days later.

The deceased made a statement to his father, which was introduced upon the trial as a dying declaration. In this statement, he said he was going to die and that Lorenzo Debnam had shot him, but he did not know why or what he shot him for.

The defendant testified in his own behalf, and stated that the shooting was altogether accidental. His version of the occurrence was that Spivey offered to let defendant keep his, Spivey's, pistol, and Debnam agreed to do so; whereupon, Spivey handed him the pistol by the barrel "and just as soon as it was in my hand it shot. I didn't know what had happened. Just as it landed in my hand it shot. I never had nothing against him--me and him run together all the time." Defendant states that he then went to John Emory's house and asked him to keep the pistol, stating that he had shot Foster accidentally, and would not have done it for anything in the world. He later made the same statement to Mr. Mitchell and Mr. Monty Hoyle. He was then carried to the lock-up. The defendant was corroborated as to his statement that the shooting was accidental by Mitchell and Hoyle. Hoyle testified as to the friendly relations between the defendant and the deceased.

This witness visited Foster Spivey while he was in the hospital--on Friday night and again on Sunday--and had a conversation with him in regard to the circumstances of the killing. The witness was asked to relate this conversation, and on objection by the State, it was excluded from the evidence. If permitted to answer, the witness would have testified as follows: "He said--when I went to see him at the hospital--he told me to go back home and tell Mr. Mitchell to get Lorenzo out of jail--that he didn't intend shooting me, it was accidental and I want him out of jail and I want him to come to see me--I didn't want him punished because we are the best of friends and it was accidental." Defendant excepted.

In his charge to the jury, the court gave the following instruction: "The question boils down as to whether or not the State has satisfied you beyond a reasonable doubt that the defendant shot the deceased with a deadly weapon, which resulted in the death of the deceased. If the State has satisfied you of that fact it would be your duty to return a verdict of guilty of manslaughter." To this defendant excepted.

The jury found the defendant guilty of manslaughter, and from the judgment imposed, the defendant appealed, assigning errors, including the matters to which the foregoing exceptions were made.

Yarborough & Yarborough, of Louisburg, for defendant-appellant.

Harry McMullan, Atty. Gen., and George B. Patton and H. J. Rhodes, Asst. Attys. Gen., for the State.

SEAWELL Justice.

We first consider the exception of the defendant to the exclusion of the evidence offered by the defendant through the testimony of M. D. Hoyle relating to a conversation which the latter had with Foster Spivey after the shooting and while the latter was in the hospital. The defendant offered this for the purpose of impeaching the dying declaration of Spivey made to his father, introduced by the State. It must be conceded that, if admitted, it would have had that effect, since the dying declaration made by Spivey shortly after the shooting may properly engender the inference that the shooting was not accidental, but, on the contrary, had some motive, however unknown to the declarant. That is also the appraisal which the State seemed to put upon this item of evidence as justifying its introduction.

The theory on which dying declarations are excepted from the hearsay rule and admitted in evidence is that the declaration is made under the realization of approaching death, when there is no longer any motive for making a false statement thus creating a sanction for truth equal to that of an oath. State v. Williams, 67 N.C. 12, 14; State v. Beal, 199 N.C. 278, 297, 154 S.E. 604; State v. Laughter, 159 N.C. 488, 74 S.E. 913. Perhaps a more potent reason, one strong enough to supersede the right of confrontation, so strongly entrenched in our law, is the necessity of preserving important evidence, which often could come from no other source, of the identity of the killer and such circumstances of the killing as come within the range of the exception. It can be readily understood that such significant declarations, often attended with such dramatic force as to powerfully affect the jury, should in justice be subject to the rules of impeachment which attend other testimony, when impeachment is possible or impeaching...