State v. Stewart
| Decision Date | 30 June 1936 |
| Docket Number | 651. |
| Citation | 186 S.E. 488,210 N.C. 362 |
| Parties | STATE v. STEWART et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Sink, Judge.
C. C Stewart and Ollie Parish were convicted of manslaughter, and they appeal.
Reversed and new trial granted.
Whether statement made by deceased is admissible as a dying declaration, is a question of law for trial court, reviewable by the Supreme Court where admitted, and reversible if requisite facts do not support decision.
The defendants in this action were tried on an indictment in which they were both charged with the murder of Ethel Smith.
When the action was called for trial, the solicitor for the state announced that on the evidence which he would offer, the state would not contend that the defendants are guilty of murder in the first degree, but would contend that they are each guilty of murder in the second degree, or of manslaughter, as the jury should find the facts to be from all the evidence.
Each of the defendants entered a plea of not guilty.
The evidence for the state tended to show that Ethel Smith, the daughter of W. A. Smith, left the home of her father, in Guilford county, about six miles north of the city of Greensboro, about 6:30 o'clock, p. m., on Monday November 5, 1934, in an automobile driven by the defendant Ollie Parish. They arrived at the home of her sister, Mrs Eli R. Brewer, in the city of Greensboro, about 8:30 that evening. At the time she arrived at the home of her sister Ethel Smith was apparently in her usual condition, both physical and mental. The defendant, Ollie Parish, after remaining with her about fifteen minutes, during which time they talked together as usual, left her at her sister's home where she remained Monday night, all day Tuesday, and Tuesday night. During this time she did not leave her sister's home, or have any visitors there. At about 6 o'clock, a. m., on Wednesday, November 7, 1934, she called her sister, Mrs. Brewer, who went to her room, and found her suffering severe pain. Mrs. Brewer immediately called Dr. W. P. Knight, a physician practicing in the city of Greensboro, who arrived at her home about 7 o'clock, a. m. Upon examining Ethel Smith, Dr. Knight discovered that she was pregnant, and was having a miscarriage, which he testified was the result of an abortion caused by the use of instruments. Upon the advice of Dr. Knight, Ethel Smith was removed from the home of her sister to St. Leo's Hospital, in the city of Greensboro, where she remained, under the treatment and care of physicians and nurses, until November 29, 1934, when she died. Her death was the result of an abortion committed on her by the use of instruments prior to November 7, 1934. At the date of her death, Ethel Smith was about 20 years of age, and was unmarried.
The defendant Ollie Parish is about 35 years of age. His home is about three-tenths of a mile from the home of W. A. Smith, the father of Ethel Smith. He had been "going with her" about two and a half years before her death. During this time he had visited her at her father's home only two or three times. He was, however, with her frequently-almost every week-elsewhere. When he called for her on Monday evening, November 5, 1934, he blew the horn on his automobile, and waited for her. After putting on her cloak and hat, she went out and joined him. They left her father's home, driving in the direction of the city of Greensboro. It usually takes about 15 minutes to drive an automobile from the home of W. A. Smith, the father of Ethel Smith, to the home of her sister, Mrs. Brewer, in the city of Greensboro, a distance of about six miles. When the defendant Ollie Parish left Ethel Smith at her sister's home, he told her that he would call there to see her the next day. He did not call on her or see her after he left her sister's home on Monday evening. He was arrested after Ethel Smith was removed from her sister's home to St. Leo's Hospital. After his arrest, and while he was in jail, he said to Mr. Brewer, the brother-in-law of Ethel Smith, who had called at the jail to see him: "I was going to marry her; I intend to marry her."
The defendant, C. C. Stewart, is a negro. He is a physician, and has an office in the Stewart building, on East Market street in the city of Greensboro.
Mrs. Minnie D. Hinton, a witness for the state, testified as follows:
"I am employed by the County Board of Public Welfare of Guilford County as the case supervisor. On Thursday, November 8, 1934, I was directed by the Superintendent of Public Welfare to investigate the case of Ethel Smith. Accordingly, on Friday, November 9, 1934, I went to St. Leo's Hospital in the City of Greensboro, where I found Ethel Smith. She was in bed and was apparently quite sick. After my first visit, I saw her in the Hospital about five times before her death. Her condition did not improve.
On November 16, 1934, in consequence of information which I had received, I went to the hospital and saw Ethel Smith there. I had two conversations with her, the first about supper time. I do not remember what she said then as to whether she thought she would get well. She said she was quite sick, and was afraid that she would not get well. She appeared very weak and I had to get close to her to hear what she said. I knelt down by her bed. She told me that she was pregnant, and that Ollie Parish was responsible for her condition; that he had taken her to a negro doctor to get rid of the 'youngun,' as she expressed it. She said she did not want to do it, but that Ollie Parish told her it would do her no harm. She said the negro doctor was Doctor Stewart, whose office was on East Market Street, beyond the underpass. She said that he put her on a table and used an instrument and that she went to the doctor three times, the last time being Monday night, November 5, 1934. He then put her on a table and placed a tube in her. He told her to leave the tube in her until Tuesday night, and that if any one asked her what had happened to her, to say that she had taken quinine. She said that she became very sick Tuesday night, and was taken to the hospital the next morning by Doctor Knight. She said that Ollie Parish took her from Dr. Stewart's office on Monday night to the home of her sister, where she became very sick.
After this conversation I went home. After I had retired, a call came for me to return to the hospital. This was several hours-four or five-after my first conversation with Ethel Smith, at supper time. I went back to the hospital and found that Ethel Smith was still very, very sick. Mrs. Long, a stenographer, her husband, Mr. Long, and Mr. Ballinger accompanied me. Mrs. Long was with me to take down in shorthand any statement Ethel Smith might make. She took down a statement made by Ethel Smith in my presence. I asked the questions and Mrs. Long took down the answers of Ethel Smith. These questions and answers as transcribed by Mrs. Long are as follows:
Q. Ethel, do you think you are going to die? A. I do.
Q. Tell me what caused your condition? A. I was pregnant.
Q. By whom? A. Ollie Parish. Ollie said I would have to get rid of the youngun. He said it would be no harm. I did not want to do it. He said I would have to.
Q. Where did he take you? A. To a negro doctor.
Q. What negro doctor? A. Dr. Stewart.
Q. What did he take you to Dr. Stewart for? A. To get rid of the kid.
Q. What did Dr. Stewart do to you? A. He put me on the table and used an instrument to open me up.
Q. What did he open you up for? A. To get rid of the child.
Q. What did Dr. Stewart say to you? A. He said not to say anything about it. If anybody asked me what was the matter to tell them I had taken quinine. He said he would open me up that night, and for me to come back on Saturday night, and he would do the rest.
Q. When was the first time Ollie Parish took you to Dr. Stewart? A. He took me about the first of October, at night every time.
Q. When did Ollie Parish take you again to Dr. Stewart? A. About two or three weeks later.
Q. When was the last time Ollie took you to Dr. Stewart? A. Monday night a week ago. Went three times in all.
Q. What did he do the last time? A. He put me on the table and used some kind of instrument.
Q. What else did Dr. Stewart do? A. The last time he put a tube in me. He told me to take it out the next night at the same time. I did so, and that was when I was taken so sick.
Q. Where did you go after leaving Dr. Stewart's office? A. Ollie took me to my sister's and left me there. He said he would call me the next night.
Q. Did he ever call? A. No.
Q. Then what happened? A. I got sick Tuesday night and had my sister to call the doctor (Knight) about day light Wednesday morning. He came and told me he would send an ambulance for me. The ambulance came and took me to the hospital."
The defendants in apt time objected to all the testimony of Mrs. Minnie D. Hinton with respect to any statements made to her by Ethel Smith, and with respect to any answers made by Ethel Smith to questions addressed to her by the witness. These objections were overruled by the court, upon its holding that the testimony was competent as tending to show dying declarations of Ethel Smith, the deceased. The defendants duly excepted to the rulings of the court as to the competency of the testimony and to its admission as evidence against the defendants.
The defendant Ollie Parish, as a witness in his own behalf testified that he had known Ethel Smith since she was a child. He said: ...
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