State v. Wiggins

• Decision Date: 31 May 1916
• Docket Number: 572.
• Parties: STATE v. WIGGINS ET AL.
• Court: North Carolina Supreme Court

89 S.E. 58

171 N.C. 813

STATE v. WIGGINS ET AL.

No. 572.

Supreme Court of North Carolina

May 31, 1916

Appeal from Superior Court, Graham County; Ferguson, Judge.

Hardy Wiggins and Merritt Miller were convicted of murder, and they appeal. No error.

Question to a state's witness, on cross-examination, to impeach him, whether he had not been accused of stealing hogs, was properly excluded.

Alley & Leatherwood and Sherrill & Harwood, all of Bryson City, and Dillard & Hill, of Murphy, for appellants.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK C.J.

The prisoners were indicted for murder, the bill charging that they "willfully, premeditatedly, deliberately, and feloniously, and of their malice aforethought, did kill and murder Phillip L. Phillips." There was evidence, which the jury believed, that the prisoners lay in wait and killed the deceased from ambush. There was no evidence tending to show any other state of facts, and the sole issue of fact was as to the identity of the prisoners; that is, whether they were the persons who slew the deceased. The jury returned for their verdict that they found "the prisoners at the bar and both of them guilty of the murder and felony whereof they stand indicted."

The court had refused to charge the jury, as prayed by the prisoners, that:

"Under the evidence of this case they could return a verdict of guilty of murder in the first degree, or guilty of murder in the second degree, or not guilty."

The court properly refused to so charge, for if the jury was satisfied beyond a reasonable doubt that the prisoners slew the deceased in the manner in evidence they were guilty of murder in the first degree, and if they did not find beyond a reasonable doubt that the deceased was thus slain by them then as the court instructed them, the jury should have returned a verdict of not guilty. The jury found that beyond a reasonable doubt the prisoners slew the deceased and found them guilty as charged in the indictment.

The deceased was shot about 7:30 a. m. August 23, 1915, and died about 7 p. m. of the same day. The evidence is that the deceased left home at 7:20 a. m. that day, riding a mule down the road towards Robbinsville. His son and daughter soon after went to the cow lot to milk, when they heard a gun fire and heard their father call twice quickly. The son got one Buck Campbell to go with them, and, going down the road found their father sitting with his back against a tree and the mule hitched to the tree. This was about three-fourths of a mile from the place where the deceased said he had been shot, and the mule tracks showed that he commenced running at that point. The son asked his father the trouble, and he said that Hardy Wiggins or Merritt Miller had shot him at Hazel Branch, near a big chestnut log; that he saw them as he passed there. When asked if he wanted a doctor, he said there is no use. Just at that time the prisoner Merritt Miller came up, when the deceased said, "You are the man that shot me." Miller denied this, and the witness says, "Miller was in a trembling way and could not hold his hands still when he walked up to where witness' father was. This took place right when Miller walked up." After the arrival of other people, the deceased was carried home on a stretcher, and, in passing the chestnut log, he showed them where the two men were when he had passed. He said that one of the men shot after he passed them; the bullet entering about two inches to the right of the backbone and coming out at the breast. There was testimony of ill feeling on the part of the prisoners towards the deceased, and threats by each of them that they would kill him. When the deceased stated that the prisoner shot him and pointed out where he stood he said that he would die, and he did die that evening. The judge properly admitted his statements as dying declarations.

Bloodhounds were brought from Tennessee, and after being put on the tracks, which had been carefully guarded, around the chestnut log they trailed until they came to the home of the prisoner Wiggins and marked him while he stood in the yard. They then followed the track and met the deputy sheriff, who had Miller in custody, whereupon the dogs who were trailing the track ran up to Miller and marked him also.

Exceptions 2, 3, 6, 7, 8, 9, 12, 13, 14, 21, 24, 25, 26, 29, 30, 31, 32, and 33 are not mentioned in the brief of the appellants, and are therefore waived. Rule 34 (81 S.E. xii); State v. Spivey, 151 N.C. 676, 65 S.E. 995.

Exception 1 is because on objection by the state the court excluded the evidence offered to show that two other men were seen the evening before near the spot where deceased was shot. Testimony tending to show that another than the prisoners committed the crime is inadmissible, unless there is direct evidence connecting the other with the corpus delicti, which was not the case here. State v. Millican, 158 N.C. 621, 74 S.E. 107; State v. Lambert, 93 N.C. 623; State v. Beverly, 88 N.C. 633; State v. Baxter, 82 N.C. 604; State v. Bishop, 73 N.C. 45; State v. White, 68 N.C. 159.

A witness for the state was asked on cross-examination, for the purpose of impeaching him, if he had not been accused of stealing a certain person's hogs. On objection, this was properly excluded. The question was not whether he had been convicted, but whether he had been accused, and it is certainly not competent to ask a question foreign to the issue in order to impugn the credit of the witness. It is not stated what the witness' answer would have been. Carr v. Smith, 129 N.C. 232, 39 S.E. 831; State v. Glisson, 93 N.C. 506.

Exceptions 5, 10, 11, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 relate to the admission of testimony as to the trailing of the prisoners by bloodhounds. This testimony has always been held competent within the limits observed in this case. State v. Norman, 153 N.C. 591, 68 S.E. 917; State v. Spivey, 151 N.C. 676, 65 S.E. 995; State v. Freeman, 146 N.C. 615, 60 S.E. 986; State v. Hunter, 143 N.C. 607, 56 S.E. 547, 118 Am. St. Rep. 830; State v. Moore, 129 N.C. 494, 39 S.E. 626, 55 L. R. A. 96; and Chamberlayne on Evidence, § 1760.

In State v. Norman, 153 N.C. 591, 68 S.

E. 917, the court held that in order to render such testimony competent it must not only be shown that the dog is of pure blood and of a stock characterized by acuteness of sense and power of discrimination, but must also be itself possessed of these qualities and have been trained or tested in their exercise in the tracking of human beings. The testimony of the owner and trainer of the dogs fully measured up to these requirements, and need not be discussed.

This having been shown to the satisfaction of the...