State v. Williams

Decision Date30 June 1872
Citation67 N.C. 12
PartiesSTATE v. EDWARD WILLIAMS AND MARY ANN AVERY.
CourtNorth Carolina Supreme Court
OPINION TEXT STARTS HERE

Dying declarations are admissible only as to those things of which the declarant would have been competent to testify if sworn in the case; and if they be not the statement of a fact, but merely the expression of the opinion of the deceased, they are inadmissible.

Therefore, where the deceased, who was shot at night in a house from the outside through an aperture in the logs, declared, while in extremis,“It was E. W. who shot me, though I did not see him;” Held that the declaration was inadmissible.

The decision of a Judge as to the admissibility of the declarations of a deceased person, made just before his death, comprises a decision both of fact and of law. Of fact, as to what were the declarations, and as to the circumstances under which they were made. Of law, as to whether the declarations were admissible alone or in connection with the circumstances. On the former, the Judge's decision is final. On the latter, it is subject to review.

[ State v. Arnold, 13 Ire. 184 cited, approved and distinguished. State v. Shelton, 2 Jon. 360, cited and approved.]

MURDER, tried before Watts, J., at Spring Term, 1872, of the Superior Court of PITT.

The prisoners were indicted in several counts, Edward Williams for the murder of Silas Avery, and Mary Ann Avery for being accessory before the fact.

It was in evidence that the deceased was shot after dark, in his house, by some one standing outside, through an aperture between the logs of which the house was built. He was sitting by the fire, with his side near the aperture, and was shot in the side.

On the trial, the State proposed to give in evidence the dying declarations of the deceased. Upon examination of witnesses as to his condition at the time of the declarations, and the circumstances attending them, his Honor held that the deceased was in extremis, and the declarations were admissible as dying declarations. Thereupon a witness, Lucinda Wainwright, was permitted to state the declarations of the deceased, to wit: that he knew who shot him. “It was Edward Williams who shot me, though I did not see him.” The witness further stated that, in reply to a question asked the deceased by her as to who shot him, he said, “I don't know what those poor creatures shot me for; it was Ed. Williams who shot me, but I did not see him.” The counsel of the defendants excepted to the admission of the testimony. They contended that the declarations should be entirely excluded from the jury; but the Court ruled that they were admissible, under the circumstances, for what they were worth, and charged the jury to be careful in weighing these declarations, but to consider them in connection with the other testimony in the case, and give them what weight they were entitled to. Defendants' counsel again excepted.

Verdict of guilty. Rule for a new trial discharged. Judgment, and appeal by the defendants.

Attorney General, Battle & Son, and Dupre for the State .

Johnston & Nelson for the defendants .

RODMAN, J.

The admission of dying declarations is an exception to the general rule of evidence, which requires that the witness should be sworn and subject to cross-examination. The solemnity of the occasion may reasonably be held to supply the place of an oath. But nothing can fully supply the absence of a cross-examination. In consequence of this absence, such declarations are often defective and obscure. Hence, several eminent Judges have felt it a duty to say that they should be received with much caution, and that the rule which authorizes their admission should not be extended beyond the reasons which justify it. (See note to Rex v. John, 2 Leading Crim. Cases 396. Regina v. Hinds, Bell, C. C. 256. Regina v. Jenkins, Law Rep. 1 C. C. 1 Phil. Ev. 292, and opinion of Lord Denman in Sussex Peerage Case, 11 Clark & Fin. 112. And this is the more important as such declarations, when received, have great, and sometimes undue weight with juries.

It is settled on authority, and is consistent with reason, that if the declarant would not have been permitted to testify had he survived, either because he was too young to comprehend the nature of an oath, or was disqualified by infamy, or imbecility of mind, his dying declarations are inadmissible. Rex v. Pike, 3 Car. and Payne 598. Regina v. Perkins, 2 Moody C. C. 135. Rex v. Drummond, 1 Leach C. C. 337-38.

It is equally clear that such declarations are admissible only to those things to which the declarant would have been competent to testify if sworn in the case. Consequently, if they be not the statement of a fact, but merely the expression of the opinion of the deceased, they are inadmissible. And so, if merely hearsay, or irrelevant. 2 Lead. Cr. Cas. 404. Rex v. Sellers, Carrington's Crim. Law, 233. Oliver v. the State, 17 Alabama 587. Johnson v. the State, Id. 687.

It is contended, for the prisoners, that the declarations in this case were nothing more than the expression of an opinion or belief.

The case states, that Lucinda Wainwright testified that the deceased said: He knew who shot him. To which she replied that she did not know. Then deceased said, it was Edward Williams, though I did not see him.” Further, in reply to a question by witness as to who shot him, deceased said, “I don't know what those poor creatures shot me for; it was Ed. Williams who shot me, though I did not see him.”

The case further states that the deceased was shot after dark, while sitting in his house at the fire-place, with his right side near an aperture between the logs of the outer wall, about three inches wide. The shooting was done through the aperture by some person standing on the outside of the house. The wounds were in the right wrist and side.

It was said for the State that every allegation of the identity of a person is necessarily the expression of an opinion only, because it is a conclusion drawn from a comparison of the appearance of the person at one time, with the recollection of his appearance at some other time. This is true; but the admission of such evidence is an exception to the general rule excluding opinions, founded on the necessity of the case. Best on Evidence, sec. 349.

But there must be some limit to the exception: a witness cannot be allowed absolutely to substitute his judgment for that of the tribunal to whom the law has committed the decision of the fact. Best Ev. sec. 344-5-6. We think the limit may be drawn without any difficulty, and consistently with the habitual practice of Cour...

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45 cases
  • State v. Beal, 456.
    • United States
    • United States State Supreme Court of North Carolina
    • August 20, 1930
    ...be competent to testify to the matters contained in the declarations. State v. Shelton, 47 N. C. 360, 64 Am. Dec. 587; State v. Williams, 67 N. C. 12; State v. Mills, 91 N. C. 594; State v. Behrman, 114 N. C. 797, 19 S. E. 220, 25 L. K. A. 449; State v. Jefferson, supra; State v. Laughter, ......
  • Lipscomb v. State
    • United States
    • United States State Supreme Court of Mississippi
    • February 19, 1898
    ...and had killed him, was excluded. We also refer to the splendid opinion of the supreme court of North Carolina, in the case of State v. Williams, 67 N.C. 12, and Binns v. State, 46 Ind., 31. These cases lay down and discuss fundamental rules which are applicable here, and before which this ......
  • Dean v. State
    • United States
    • United States State Supreme Court of Mississippi
    • May 27, 1935
    ...observation of the declarant. Jones v. State, 79 Miss. 318-320; Berry v. State, 63 Ark. 382; McNeal v. State, 115 Miss. 678; 133 Miss. 266; 67 N.C. 12; 125 N.C. 712; 63 N.Y. 36; 149 Ky. 705; 235 670; 202 N.Y. 494; 278 Mo. 481; 25 A.L.R. 1359; 63 A.L.R. 567; 21 L.R.A. (N.S.) 840; 2 Wigmore o......
  • Dean v. State
    • United States
    • United States State Supreme Court of Mississippi
    • April 8, 1935
    ...observation of the declarant. Jones v. State, 79 Miss. 318-320; Berry v. State, 63 Ark. 382; McNeal v. State, 115 Miss. 678; 133 Miss. 266; 67 N.C. 12; 125 N.C. 712; 63 N.Y. 36; 149 Ky. 705; 235 670; 202 N.Y. 494; 278 Mo. 481; 25 A. L. R. 1359; 63 A. L. R. 567; 21 L. R. A. (N. S.) 840; 2 Wi......
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