State v. Franklin

• Decision Date: 15 December 1926
• Docket Number: 484.
• Citation: 135 S.E. 859,192 N.C. 723
• Parties: STATE v. FRANKLIN.
• Court: North Carolina Supreme Court

135 S.E. 859

192 N.C. 723

STATE v. FRANKLIN.

No. 484.

Supreme Court of North Carolina

December 15, 1926

Appeal from Superior Court, Harwood County; Burke, Judge.

Bow Franklin was convicted of manslaughter, and he appeals. No error.

Indictment for murder. From judgment on verdict that defendant is guilty of manslaughter, defendant appealed to the Supreme Court.

Exclusion of defendant's testimony as to misunderstanding with deceased held not reversible error, in view of conviction of manslaughter.

W. C Newland, of Lenoir, and Spainhour & Mull, of Morganton, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CONNOR J.

No exceptions were taken by defendant to the judge's charge to the jury. The only assignments of error relied upon by defendant upon his appeal to this court are based upon exceptions to the rulings of the court, during the progress of the trial, resulting in the admission or exclusion of evidence. These assignments cannot be sustained. We find no error for which defendant is entitled to a new trial.

Witnesses for the state were permitted to testify, over objections aptly made by defendant, as to declarations made to each of them, by deceased, after he received his fatal wounds, and shortly before his death. The court found upon sufficient evidence that at the time deceased made each of these declarations he had an impending sense of his approaching death from the wounds with which he was then suffering. The testimony was competent and was properly admitted as evidence. State v. Watkins, 159 N.C 480, 75 S.E. 22. Evidence of dying declarations does not depend for its competency upon a declaration by the deceased, at the time, that he was dying, for it may be shown by the attending circumstances that he was in actual danger of death, which ensued, with full apprehension of his danger. Such evidence is admissible under an exception to the rule excluding testimony which is "hearsay." The law dispenses with the sanction of an oath when the declaration is made by one who is conscious of approaching death, which thereafter ensues; it holds such declarations competent. It is an exception to the rule which requires that defendant shall have an opportunity to cross-examine witnesses whose testimony is offered as evidence against him, because of necessity. The declaration of the deceased is submitted to the jury only as evidence; its credibility and probative force is to be determined by the jury under the rules which are applicable to testimony given under oath, and subject to cross-examination.

In the instant case, at the time deceased made the declarations offered as evidence, he had been shot in the abdomen and was suffering intense pain. One of the declarations was made to a neighbor who came to his home immediately upon learning that deceased had been shot; another was made to the physician and surgeon at the hospital to which deceased was taken for an operation, and just before the operation was performed; and the other was made to a brother of deceased, on Monday morning after deceased had been fatally wounded on the preceding Sunday afternoon. Deceased said to each of these witnesses that he was "killed." Defendant's counsel did not cross-examine either of the witnesses in order to determine the competency of the testimony. There was no error in the ruling that the testimony was competent upon the evidence offered by the state. State v. Brinkley, 183 N.C. 720, 110 S.E. 783; State v. Alexander, 179 N.C. 759, 103 S.E. 383; State v. Cain, 178 N.C. 724, 100 S.E. 884; State v. Williams, 168 N.C. 191, 83 S.E. 714; State v. Watkins, 159 N.C. 480, 75 S.E. 22; State v. Laughter, 159 N.C. 488, 74 S.E. 913; State v. Finley, 118 N.C. 1161, 24 S.E. 495; State v. Caldwell, 115 N.C. 794, 20 S.E. 523; State v. Whitt, 113 N.C. 716, 18 S.E. 715; State v. Whitson, 111 N.C. 695, 16 S.E. 332; State v. Williams, 67 N.C. 12.

All of these declarations were to the effect that deceased was shot by defendant, Bow Franklin, and Ernest Barrier, who was on trial with defendant, but who was acquitted by the jury. There was ample evidence submitted to the jury, without objection, that defendant fired at deceased with his pistol and inflicted the fatal wounds. Defendant, testifying as a witness in his own behalf, admitted that he shot deceased. He testified also that deceased had first fired at him; he contended that he shot in self-defense. The doctor testified that deceased told him that the trouble arose out of an old grudge. Defendant moved the court to strike out this testimony. The motion was denied, and defendant excepted.

Judge Pearson, in State v. Shelton, 47 N.C. 360, 64 Am. Dec. 587, says:

"According to the general rule, no testimony is admissible unless it is subjected to two 'tests of truth,' an oath and a cross-examination. A sense of impending death is as strong a guaranty of truth as the solemnity of an oath; but dying declarations cannot be subjected to the other test; there is no opportunity for

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