State v. Spivey

• Court: North Carolina Supreme Court
• Writing for the Court: MANNING, J.
• Citation: State v. Spivey, 151 N.C. 676, 65 S.E. 995 (N.C. 1909)
• Decision Date: 03 November 1909
• Parties: STATE v. SPIVEY.

65 S.E. 995

151 N.C. 676

STATE v. SPIVEY.

Supreme Court of North Carolina

November 3, 1909

Appeal from Superior Court, Bladen County; W. J. Adams, Judge.

Henry E. Spivey was convicted of murder, and appeals. Affirmed.

The defendant was indicted for the murder of Frank Shaw, his father-in-law, on the night of December 10, 1908, in Bladen county, and upon his plea of not guilty was tried and convicted of murder in the first degree, and from the sentence of death pronounced by the court he appeals to this court.

The immediate circumstances of the homicide are detailed in the testimony of Eugenia Shaw, the wife of the deceased, as follows: "Frank [the deceased] was hauling cotton to Mr Nance's. He came that evening about dusk. There was a walking around the house and noise under the house and the dog got after it. I don't know just what time it was. It was late bedtime. First thing I heard was a walking around the house like somebody under the house, and the dog got to baying it. Frank got up and went out. The gun fired. Me and my daughter [the wife of the prisoner] went out about a minute or two after the gun fired. Just as soon as we heard the gun fire, we went out. Frank was down on his hands and knees at the corner of the house, struggling in blood." Dr. Clark was called in that night, and said: The load of shot took effect in the face, tongue, and throat of the deceased. Both eyes were shot out, and the gun was fired from a point in front of the deceased. That he found the tracks of the murderer at the corner of the house, and under the house a chamber partly filled with kerosene oil and shucks, and indications of a lighted match that went out. That it was a moonlight night. It was in evidence that the vessel belonged to the prisoner's wife, and was last seen at her house. That prisoner's wife was a daughter of the deceased, and had separated that day from him and returned to her father's. That prisoner called at the gate during the afternoon, and calling his wife out, told her, with an oath, that, if she did not leave her father's house, he would kill her or her father that night, and, as he walked off, said: "I'll burn you up." A son of the deceased, awakened by the shot, saw the prisoner running away with a gun in his hands. There was evidence of bad blood between the prisoner and the deceased and of other threats made by the prisoner. Bloodhounds were put on the trail the next day, and followed the track to prisoner's house and to his father's. The prisoner offered evidence that at the time of the shooting and the entire night he was at his father's, 2 1/2 miles from the home of the deceased, and that, when accused the next morning of the homicide, he denied it. There was much evidence on the part of the state, corroboratory of its theory, and from the prisoner, attacking the state's witnesses and sustaining his alibi. The dying declarations of the deceased were offered by the state that the prisoner shot him, and the declarations of the deceased to his wife that the prisoner shot him were offered and admitted as part of the res gestæ. The deceased lingered a few days, and died from the effect of the gunshot wounds received the night of December 10, 1908.

McLean McLean & Snow and McIntyre, Lawrence & Proctor, for appellant.

Attorney General Bickett, for the State.

MANNING J.

In the statement of the case there are 21 exceptions noted and embraced in the prisoner's assignment of errors, but in the well-considered brief of his able and learned counsel only the following numbered exceptions are mentioned, to wit: Exceptions 4, 8, 9, 12, 13, 15, 16, 17, 18, 19, 20, and 21. Under rule 34 (140 N.C. 666, 53 S.E. ix), and the decisions of this court, those not mentioned are deemed abandoned. This rule applies equally to civil and criminal cases. Britt v. Railroad, 148 N.C. 37, 61 S.E. 601; State v. Freeman, 146 N.C. 615, 60 S.E. 986; State v. Register, 133 N.C. 746, 46 S.E. 21. We have, however, in favorem vitæ carefully examined the exceptions omitted in the brief for the prisoner, and we do not think any one of them can be sustained. Exceptions 20 and 21 are formal, the one taken to the refusal of the court to grant a new trial for errors alleged in the trial, and the other to the judgment of the court pronouncing the sentence of death, as demanded by the law, upon the verdict. Exceptions 8 and 9 are taken to the rulings of his honor permitting a witness for the state, Edmond, to narrate the conduct of a bloodhound used by him the day after the homicide in tracking the defendant. This evidence was admitted by his honor after the state had by testimony brought it clearly within the rules laid down by this court for its admissibility in the cases of State v. Moore, 129 N.C. 501, 39 S.E. 626, 55 L. R. A. 96; State v. Hunter, 143 N.C. 607, 56 S.E. 547, 118 Am. St. Rep. 830; State v. Freeman, 146 N.C. 616, 60 S.E. 986. In his charge his honor clearly stated to the jury how they should consider this evidence; that it was not substantive, but corroboratory; and, before it could be considered as corroboratory, they must be satisfied, beyond a reasonable doubt, of the existence of other relevant circumstances in connection therewith, as held in the above cases. No exception was taken to this part of his honor's charge. It was full and clear. We therefore find no error in exceptions 8 and 9.

The prisoner's fourth exception is taken to admission in evidence, over his objection, of the following declarations of the deceased, Frank Shaw, to his wife, on the night of the homicide and immediately thereafter: "Frank told me Henry Spivey shot him. Said: 'Oh, Jenny! Henry Spivey shot me, because I saw him."' The witness--wife of deceased--had given the following account of the events immediately preceding, and at the time of, this declaration "First thing I heard was a walking around the house like somebody under the house, and the dog got to baying it. Frank got up and went out. The gun fired. Me and my daughter went out about a minute or two after the gun fired. Just as soon as we heard the gun fire we went out. Frank was down on his hands and knees at the corner of the house, struggling in blood. I went to him and took him up, and said what is the matter. Me and my daughter were the first to get to him. I took him up, first one, about two minutes after gun fired--just about a minute after gun fired. I shoved out. Never waited for nothing. Frank said: 'Henry Spivey shot me, because I seed him."' After then being permitted to give this statement of the deceased, the witness added: "He said it two or three different times after he was set up on the piazza." Was this statement of Frank Shaw to his wife admissible as pars rei gestæ? In McKelvey on Ev. p. 344, the author says: "The ground of reliability upon which such declarations are received is their spontaneity. They are the extempore utterances of the mind under circumstances and at times when there has been no sufficient opportunity to plan false or misleading statements. They exhibit the mind's impressions of immediate events, and are not narrative of past happenings. They are uttered while the mind is under the influence of the activity of the surroundings." In Underhill on Criminal Evidence, §§ 96, 97, quoted with approval by Connor, J., in the concurring opinion in Seawell v. Railroad, 133 N.C. 515, 45 S.E. 850, the author says: "On the whole, the res gestæ cannot be arbitrarily confined within any limit of time. The element of time is not always material. If they are declarative and descriptive in their form and character, if they are not the impromptu outpourings of the mind, they should be rejected, though uttered only a few minutes after the main transaction. The spontaneous, unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some relevant transaction in which their author was a participant, constitutes the basis of their admission as evidence. If a sufficient period has intervened between the act and the statement for consideration, preparation or taking advice, the statement may be rejected. The mere likelihood that the statement was the result of advice or consideration may exclude it. Actual preparation need not be shown. Declarations made immediately after the principal transaction have been received in homicide cases, and the American cases, as a rule, do not sustain the strict English doctrine that the declarations, to be admissible, must be strictly contemporaneous with the main transaction, if the declarations are illustrative, verbal acts, and not mere narratives of what has passed." In Wharton's Criminal Evidence, § 263, this learned writer says: "Under the rule before us evidence in homicide trials has been received *** of statements of the deceased at the time or so soon before or afterwards as to preclude the hypothesis of concoction or premeditation, charging the defendant with the act." Following the rule clearly established by these authorities a statement made as the "outpouring of the mind" of one of the actors in the tragedy is competent as pars rei gastæ. We conceive there is and ought to be a distinction made between the statements of one of the parties to the tragedy and a bystander or nonparticipant. In the latter case, where the evidence proposed is the statement of a bystander or nonparticipant, whose mind is unmoved by the terrible emotions that overflow and express themselves in words uttered without design or thought or preparation, it must appear, to be admissible, that such statement was made while the thing was being done, the transaction was occurring. They ought to be strictly contemporaneous. State v. McCourry, 128 N.C. 598, 38 S.E. 883; Seawell v. Railroad, 133 N.C....