State v. Mace

• Decision Date: 26 May 1896
• Citation: 24 S.E. 798,118 N.C. 1244
• Parties: STATE v. MACE et al.
• Court: North Carolina Supreme Court

24 S.E. 798

118 N.C. 1244

STATE v. MACE et al.

Supreme Court of North Carolina

May 26, 1896

Appeal from criminal court, Madison county; Ewart, Judge.

Jeff Mace and others were convicted of murder, and appeal. Affirmed.

The rule that a party cannot impeach his own witness does not prevent him from introducing testimony the effect of which is to contradict such witness.

Julius C. Martin, for appellants.

The Attorney General and J. M. Gudger, Jr., for the State.

MONTGOMERY J.

The exceptions which appear in the record are confined exclusively to portions of the evidence. The charge of his honor was not excepted to in any particular, and it seems that the first of defendants' prayers for instructions was given with a qualification (without objection), and the others submitted to the jury as asked. The defendants, Jeff Mace, Newton Mace and John Flasher, brothers, all armed with deadly weapons, on a roadside, at night, returning from a dance, provoked a difficulty with Zeb Whitt, the deceased, and Jeff Mace, the other defendants aiding and abetting, shot with a pistol, and instantly killed, the deceased. Two witnesses, who were present and saw the whole affair, testified that, when the deceased was falling, he cried out, "Oh, Lord! They have murdered me for nothing in the world;" and another "Oh, Lord! They have killed me." The defendants objected to this testimony. The grounds of objection were not stated, and it is difficult to conjecture what they were. The defendants and the deceased were "in a huddle," as the witness said, and the man fell almost at their feet. If the objection was that the dying man did not call the names of his slayers, the answer is that his accusation was made to their faces; that the defendants only were just at the spot of the killing, and the exclamation could have been made only of them. But the evidence was competent as a dying declaration. In State v. Baldwin, 79 Iowa, 721, 45 N.W. 297, the court said: "It has been held that where a person dying from a gunshot declares that 'A. shot me. A killed me. A. is my murderer,'--would be admissible as a statement of a fact, because of the circumstances. To say, under such circumstances. 'A. is my murderer,' would not be an expression of opinion with respect to the degree of the homicide, but a statement of a fact that A. had inflicted the mortal wound."

The defendants also objected to the testimony of one of the witnesses who saw the homicide, and who said, in substance, that, after the killing, he went on and overtook them (the defendants); that Jeff Mace and John Flasher leveled their firearms upon him; and that, upon his telling them he wished to go and inform the family of the deceased of the homicide, Jeff cursed him, and told him to stop, and that he should not pass. This was about a quarter of an hour after the homicide had occurred. The objection was that the matter testified to was a distinct substantive offense, an assault with a deadly weapon upon the witness, and that it could not be admitted in evidence in support of the indictment for the homicide. That is the general rule, but there are exceptions to it. Other criminal acts may be proved if they are connected with the one charged. Evidence of a subsequent criminal act, connected in purpose and character with the offense charged, is admissible. Browne, Cr. Law, p. 20; Kramer v. Com., 87 Pa. St. 301. There is a direct connection between the killing of the deceased and the assault upon the witness. The assault was for the purpose of preventing the witness from communicating to the family of the dead man the death of one of its members; and also there can be no rational conclusion drawn from the act except that the defendants intended to terrorize the witness, and also to escape the probable consequences of their act. And it was also competent to show that the homicide was willful, intended, and malicious, and not accidental. In Goersen v. Com., 99 Pa. St. 398, the court said of such testimony: "It cannot be received to impeach his general character, nor merely to prove a disposition to commit crime; yet, under such circumstances, evidence of another offense by the defendant may be given. Thus, it may be to show the act charged was intentional and willful, not accidental; to prove motive to rebut any impression of mistake; and to connect the other offense with the one charged."

The same witness was asked by the defendants, to show his bias in favor of the state, and against the defendants "Haven't you been drunk with the deceased many times?" ...