State v. Jefferson

• Decision Date: 22 December 1899
• Citation: 34 S.E. 648,125 N.C. 712
• Parties: STATE v. JEFFERSON.
• Court: North Carolina Supreme Court

34 S.E. 648

125 N.C. 712

STATE v. JEFFERSON.

Supreme Court of North Carolina

December 22, 1899

Appeal from superior court, Wilson county; Hoke, Judge.

J. J Jefferson was indicted and convicted of murder. From an order of the superior court granting the prisoner a new trial, the state appeals. Affirmed.

The Attorney General, for the State.

John E Woodard, for appellee.

MONTGOMERY J.

The prisoner was convicted of murder at the October term, 1899 of the Eastern district criminal court held for the county of Wilson, and sentence of death was passed upon him. The prisoner appealed. At the November term of Wilson superior court, the appeal was heard, and his honor, Judge Hoke presiding, held that there was error in the trial in the criminal court in admitting certain portions of the evidence offered as the "dying declarations" of the deceased, and the prisoner was given a new trial. The solicitor for the state excepted, and appealed to this court.

Calvin Barnes was shot and mortally wounded on the public highway near his home, in Wilson county, about 7 o'clock on the evening of the 29th of August, 1899. His murderer was in ambush. The prisoner was tried for this crime, and convicted and sentenced, as above set forth. On the trial in the criminal court James D. Barnes was introduced to prove the dying declarations of his deceased father. No exception was made by the prisoner's counsel to the ruling of his honor that the dying declarations of the deceased should be admitted, but the prisoner did except to the matters and things which the witness was allowed to testify to, because, as he alleged, those matters and things were not dying declarations of the deceased; that the matters testified to by the witness were not only hearsay evidence, but were also merely opinions of the deceased as to the identity of the prisoner with the person who shot him. The testimony of the witness in reference to the dying declarations was as follows: "He [Dr. Herring] got the ball out, and, after he got it out, he [the deceased] sent for me, and told me to have John Jefferson arrested. That they had had words about tobacco hands and corn, and he had gone off about noon after hands, and had not come back after sunset, when he left. When he got half way down Hominy Hill, somebody shot him. He looked back, and saw a man running out of a clump of bushes at a hogpen, but could not recognize him,--too dark to recognize him." We think that the ruling of Judge Hoke that there was error in the admission of that testimony as a dying declaration of the deceased, and that the prisoner was entitled to a new trial on that account, was correct. At most, the evidence was but the opinion of the deceased that the prisoner shot him, that opinion being founded on what had occurred between the deceased and the prisoner during the morning of the day on which he was mortally wounded; for the deceased did not see the person who shot him, because of the darkness of the hour. The opinion of the deceased as to the identity of the person who shot him with the prisoner was not the direct result of observation through his sense, or any of them. It was an opinion formed through the process of reasoning based upon antecedent transactions and the conduct of the prisoner during the morning of the day on which the deceased was shot. Such evidence was not admissible as dying declarations. State v. Williams, 67 N.C. 12. Again, dying declarations must be confined to the facts connected with the act of the killing,--facts attending the act, and forming a part of the res gestæ. State v. Shelton, 47 N.C. 360. The general rule is that testimony, before it is received in evidence, shall be on the oath of the witness, and subject to the right of cross-examination. The nearness and certainty of death are just as strong...