State v. Tilghman
| Decision Date | 31 December 1850 |
| Citation | 33 N.C. 513,11 Ired. 513 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JOHN TILGHMAN. |
In order to make the declarations of a deceased person evidence, as ““dying declarations,” it is not necessary that the person should be in articulo mortis (in the very act of dying); it is sufficient if he be under the apprehension of impending dissolution, when all motive for concealment or falsehood is presumed to be absent, and the party is in a position as solemn, as if an oath had been administered.
A witness cannot be admitted to state, that “he thought, the deceased thought, he would not die from his wounds,” He cannot give his own opinion, but only depose to the state of the wounds of the deceased and what he then and there said and did, from which the Court may decide what he thought of his condition.
If the deceased, at the time he made the declarations, was, in fact, in a condition to make them competent evidence, a hope of recovery, at a subsequent time, would not render them incompetent.
There is a distinction between a cause for a new trial and a cause for mistrial; the former is a matter of discretion--the latter a matter of law.
Where, on a trial, the circumstances are such, as merely to put suspicion on the verdict, by shewing, not that there was, but that there might have been, undue influence brought to bear on the jury, because there was opportunity and a chance for it; it is matter within the discretion of the presiding Judge. But if the fact be, that undue influence was brought to bear on the jury; as if they were fed at the charge of the prosecutor or the prisoner; or if they be solicited and advised how their verdict should be; or if they hear other evidence, than that which was offered on the trial; in all such cases, there has been, in contemplation of law, no trial, and this Court, as a matter of law, will direct a trial to be had, whether the former proceeding purports to have acquitted or convicted the prisoner.
Where the facts, in relation to the jury on a trial for murder, were, that the jury were placed in the charge of an officer and confined in the ordinary jury room ; that they retired from the Court on Thursday at 6 P. M. and rendered their verdict on Saturday at 10 A. M.; that while out, the members of the jury separated at various times to obey calls of nature--that each one separated himself from the others, more than once for this purpose, and one of them as often as six times; that, when they did this, they went, one at a time, under charge of an officer, and, during such absence, the other jurors remained together in the jury room, with the door locked; that they went about fifty yards from the Court-house, and returned as soon as practicable, holding no intercourse with any one ; that one of the jurors separated himself from his fellows, and visited a drug store, about one hundred and fifty yards from the jury room, for the purpose of procuring medicine, being sick ; that he went under the charge of an officer, and held no conversation except with the keeper of the drug-store, who asked him if they had agreed on their verdict, to which he replied, “they had not ;” that this store was in the most public place in the town of Newberne ; that another juror separated himself from his fellows and stood on the outside of the jury room, near the door closed, and conversed privately for ten or fifteen minutes with a third person, but what was said did not appear ; that the jurors also ate and drank, while out, but not to excess ; that a part of the time they did so with permission of the Court, but when enjoined by the Court not to eat or drink, they violated this injunction, contrary to the wishes of the officer, who had them in charge; that several jurors wrote notes and dropped them from the windows of the jury room, and also received notes from persons not of the jury, but neither the contents of the notes nor the names of the persons, to whom sent or from whom received, appeared ; that some of the jurors conversed from the windows with persons in the street, on various subjects and about this suit, but what was said did not appear ; and that some servants and small children had access to the jury room, the servants for the purpose of carrying food and clothing to the jurors, and the children to see their fathers : Held, that these facts might, in the discretion of the presiding Judge, have been a good cause for granting a new trial, but they could not justify the Court in declaring, as a matter of law, that there was a mistrial.
The admission of dying declarations, as evidence, is not in opposition to that part of the Bill of Rights, which says, that, “In all criminal prosecutions, every man has a right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony.”
The case of the State v?? Miller, 1 Dev. & Bat. 500, cited and approved.
Appeal from the Superior Court of Law of Craven County, at the Fall Term 1850, his Honor Judge ELLIS presiding.
The defendant was tried for murder, upon the following indictment, to wit:
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¦STATE OF NORTH CAROLINA,¦)¦Superior Court of Law, ¦
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¦Lenoir County, ¦)¦Fall Term 1849. ¦
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The Jurors for the State upon their oath present, that John Tilghman, late of the County of Lenoir, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the fifteenth day of August in the year of our Lord one thousand eight hundred and fifty, with force and arms, at and in the County of Lenoir aforesaid, in and upon one Joseph J. Tilghman, in the peace of God and the State then and there being, feloniously, wilfully, and of his malice aforethought did make an assault, and that the said John Tilghman a certain rifle, of the value of five shillings, then and there loaded and charged with gunpowder and one leaden bullet, which rifle he, the said John Tilghman, in both his hands then and there held, to, against and upon the said Joseph J. Tilghman then there felonously, wilfully, and of his malice aforethought did shoot and discharge; and that the said John Tilghman with the leaden bullet aforesaid, out of the rifle aforesaid, then and there by force of the gunpowder, shot and sent forth as aforesaid, the said Joseph J. Tilghman in and upon the right side of the forehead of him, the said Joseph J. Tilghman, a little above the right eye of him, the said Joseph J. Tilghman, then and there felonously, wilfully, and of his malice aforethought did strike, penetrate, and wound, giving the said Joseph J. Tilghman then and there with the leaden bullet aforesaid so as aforesaid shot, discharged and sent forth out of the rifle aforesaid by the said John Tilghman, in and upon the said right side of the forehead of him the said Joseph J. Tilghman, a little above the right eye of him the said Joseph J. Tilghman one mortal wound of the breadth of one inch and of the depth of six inches of which said mortal wound the said Joseph J. Tilghman then and there instantly died: And so the Jurors aforesaid upon their oath aforesaid, do say, that the said John Tilghman, the said Joseph J. Tilghman in manner and form aforesaid feloniously, wilfully and of his malice aforethought did kill and murder, against the peace and dignity of the State: And the Jurors aforesaid, upon their oath aforesaid, do further present, that John Tilghman, late of the County of Lenoir and State of North Carolina, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the fifteenth day of August in the year of our Lord one thousand eight hundred and fifty, with force and arms at and in the County of Lenoir aforesaid, in and upon one Joseph J. Tilghman, in the peace of God and the State then and there being, feloniously, wilfully and of his malice aforethought did make an assault; and that he, the said John Tilghman, then and there with a certain rifle, of the value of five shillings, which he, the said John Tilghman in both his hands then and there had and held, the said Joseph J Tilghman in and upon the right side of the head of him the said Joseph J. Tilghman then and there feloniously, wilfully and of his malice aforethought did strike, penetrate, and wound, giving unto him, the said Joseph J. Tilghman then and there with the said rifle by the stroke aforesaid in manner aforesaid, in and upon the right side of the head of him the said Joseph J?? Tilghman, one mortal wound of the length of three inches and of the depth of three inches, of which said mortal wound the said Joseph J. Tilghman then and there instantly died; and so the jurors, aforesaid, upon ??heir oath aforesaid, do say, that the said John Tilghman, the said Joseph J. Tilghman. in manner and form afore aid, feloniously wilfully and of his malice aforethought did kill and murder, against the peace and dignity of the State.
The prisoner, upon his arraignment, pleaded not guilty??
The bill was found by the Grand Jury of Lenoir County at the Fall Term 1850, and the case was removed by the State, upon the affidavit of the Solicitor, to the County of Craven, where it was tried at the present Term of the Court.
The Solicitor called, as a witness for the State, one Joseph Wilson, who testified, that he knew the prisoner at the bar, and also the deceased, Joseph J. Tilghman: They both lived formerly in Lenoir County, where Joseph J. Tilghman died on the fifteenth day of August, A. D. 1850: that in the afternoon of that day, a few hours before night, the deceased parted with the witness at a hog pen on the land of the deceased, where he had gone to feed his hogs: that the deceased started towards his dwelling house, about four hundred yards distant, and the witness went to resume his labor, at which he...
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