State v. Williams

• Decision Date: 02 December 1914
• Docket Number: 433.
• Citation: 83 S.E. 714,168 N.C. 191
• Parties: STATE v. WILLIAMS.
• Court: North Carolina Supreme Court

83 S.E. 714

168 N.C. 191

STATE v. WILLIAMS.

No. 433.

Supreme Court of North Carolina

December 2, 1914

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

H. O Williams was convicted of manslaughter, and he appeals. No error.

Walker J., dissenting.

In a prosecution for homicide questions to defendant's witness as to statements or threats by deceased to defendant held objectionable as leading.

Defendant's witness was asked:

"Can you recall how many times, either in the yard or after you got Mr. Williams in the house, how many times you heard Hooker make any threats against Mr. Williams, as to what he would do?

State what Mr. Hooker said to Mr. Williams in the yard just before you got them apart.

State whether or not Mr. Hooker told Mr. Williams he was going to kill him.

State whether or not, after you took Mr. Williams into the house Hooker stated there he was going to kill Williams.

What did Mr. Hooker say he was going to do to Mr. Williams after you got them in the house?"

These questions were excluded on objection.

The defendant was indicted for the murder of Dillard Hooker. When the case was called for trial, the solicitor did not put the defendant on trial for murder in the first degree, but asked for a conviction of murder in the second degree, or manslaughter. The defendant admitted the killing of Hooker with a pistol, and relied on the plea of self-defense, contending that he was justified in shooting the deceased, on the ground that, at the time he shot, he was in danger of being killed himself, or of receiving great bodily harm by the deceased. The homicide occurred in the home of the defendant. There was evidence of a difficulty in the yard of the defendant; that the deceased and defendant went into the home of the defendant where the deceased was shot; that immediately after the shooting the deceased crawled from the house on the porch and fell to the ground, and there made his dying statement. Evidence was introduced by the defendant in support of his plea of self-defense. The defendant was convicted of manslaughter, and appealed from the sentence pronounced thereon.

Stewart & McRae, of Charlotte, for appellant.

Atty. Gen. Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.

ALLEN J.

The exceptions relied on and discussed in the briefs are to the exclusion and reception of evidence.

1. Was the dying declaration of the deceased that the defendant shot him without cause competent? The objection is to the latter part of the declaration "without cause," and its admissibility depends on whether it is the estimate or opinion of the deceased of the conduct of the defendant or the statement of a fact. If the former it ought to have been excluded, and if the latter it was properly admitted. Dying declarations are received in cases of homicide from necessity, as otherwise many criminals would escape punishment, and they are frequently made under conditions which render it impossible for the declarant to state the circumstances in connection with the killing in detail, and make necessary the acceptance of a statement in the form of a collective fact. The facts here illustrate such conditions. The declarations of the deceased were made within a few minutes after the fatal shots were fired, while he was in a dying condition, and apparently not able to give a minute and extended account of all the circumstances.

Mr. Chamberlayne, in his valuable treatise on the Law of Evidence, says (volume 4, §§ 2849, 2853):

"If the judge is able rationally to conclude that a fact stated in a dying declaration is, in reality, one of the res gestæ, it will not be rejected because it takes the form of statement appropriate to the assertion of an act of reasoning. * * *

A sufficient administrative necessity for accepting an inference or conclusion in a dying declaration is furnished where a large number of minute phenomena, often so intangible and interblending as to forbid effective individual statement, are given by the declarant in the form of a 'collective fact,' often the only way in which a speaker can well express himself. Thus, a declarant may properly state that a given shooting was an 'accident,' or that he had been 'butchered' by the malpractice of a doctor, and so forth. Even where a considerable element of voluntary or intentional reasoning is present, the declaration may simply amount to the statement of a fact in a vigorous and striking way, summarizing a number of facts in a single vivid expression; e. g., he shot me down like a dog."

In 21 Cyc. 988, many cases are cited in the note in support of the text that:

"A dying declaration by the victim of a homicide that the act was without provocation, or words of a like import, although very general, is, as a rule, held admissible as the statement of a collective fact and not a mere conclusion."

In White v. State, 100 Ga. 659, 28 S.E. 423, the court declares that:

"The rule of law is that a dying declaration, to be admissible, must consist of a statement of a matter of fact, and a declaration which amounts to the mere expression of an opinion by the person making it should not be received in evidence. In the course of our examination of the authorities upon that subject, we find a well-reasoned case cited in the second volume of Taylor on Evidence, p. 470, subpage 16, in which the doctrine is stated as follows: 'The declarant should state facts rather than conclusions.' McBride v. People, 5 Colo. App. 91 [37 P. 953 (1894)]. 'Where a declarant, however, used the expression, "He shot me down like a dog" (which is the identical expression complained of), the expression was held admissible. Declarations of a party in extremis, in order to be admissible, must be as to facts and not conclusions. They are permitted as to those things to which the deceased would have been competent to testify, if sworn in the case. But I do not think the expression of the deceased a conclusion. It was given as a part of his narrative relating to the affair, and I think it was merely intended to illustrate the lack of provocation and the wantonness in which the appellant did the act. It was descriptive of the manner in which the act was committed. It conveyed the idea that the appellant disregarded the claims of humanity, and, without giving him any warning, shot him. It was the statement of a fact made by way of illustration.' State v. Saunders, 14 Or. 300 [12 P. 441 (1886)]. So as declaration, 'It was done without any provocation on his part.' Wroe v. State, 20 Ohio St. 460 (1870). Or that deceased was 'butchered.' State v. Gile, 8 Wash. 12 [35 P. 47 (1894)]. In the case of Darby v. State, 79 Ga. 63 , the dying declaration made by the deceased that the defendant had cut him, and that he had done nothing to cause it, was objected to for the same reason as that urged in the present case against the admission of the declaration now under review; and it was held that the objection to its admission upon the ground that it stated a conclusion rather than a fact was properly overruled."

Where a decedent was asked what reason, if any, a man had for shooting him, and responded, "Not any that I know of," this was held to be admissible. Boyle v. State, 97 Ind. 322.

A dying declaration by a deceased person that he made no attempt to injure accused is admissible, being a statement of fact. Lane v. State, 151 Ind. 511, 51 N.E. 1056.

The statement of deceased that "he was not doing a thing" is the statement of a fact. Pennington v. Com. (Ky.) 68 S.W. 451.

A dying declaration: "S. cut me. He cut me for nothing. I never did anything to him"--is not incompetent as an opinion. Jordan v. State, 82 Ala. 1, 2 So. 460; Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. Rep. 22.

A fact, and not an opinion, is stated in a dying declaration:

"I have been shot by a man that I had no reason to expect a shot from. * * * He had no reason to shoot me; there was no offense given." State v. Black, 42 La. Ann. 861, 8 So. 594.

A statement that "they had no occasion to shoot me" is a statement of fact, and not a mere inference or opinion of decedent. Pierson v. State, 21 Tex.App. 14, 17 S.W. 468.

The decisions in our own court are to the same effect.

In State v. Mills, 91 N.C. 594, the declaration was "he shot me for nothing," and in State v. Watkins, 159 N.C. 485, 75 S.E. 24, 'I have done nothing to be shot for," and both declarations were held competent, and in the last case, White v. State, 100 Ga. 659, 28 S.E. 423, from which we have quoted, was cited with approval.

The two relevant facts within the scope of the dying declaration were that the defendant shot the deceased, and as to the conduct of the deceased, and if the killing was unprovoked and the deceased did nothing, there was no other way to describe his conduct except by saying so. "I did nothing," and the expression "without cause," is but another form of conveying the same idea.

If, however, it was doubtful whether the declaration was the opinion of the deceased or the statement of a fact, it ought to have been received, and submitted to the jury under proper instructions (State v. Watkins, supra), and as the charge is not in the record, and there is no exception to it, we would assume that the jury was fully informed as to its duties. We are therefore of opinion there is no error in admitting the dying declaration.

2. The defendant introduced S. C. Ross as a witness, who testified to a difficulty between the deceased and the defendant in the yard of the defendant a short time before the killing. After making a statement purporting to cover what he saw and heard, he was asked five or six questions by the defendant, which were excluded. The court then inquired of the witness:

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