State v. Williams

Citation168 N.C. 191,83 S.E. 714
Decision Date02 December 1914
Docket Number(No. 433.)
PartiesSTATE. v. WILLIAMS.
CourtUnited States State Supreme Court of North Carolina

83 S.E. 714
168 N.C. 191

STATE.
v.
WILLIAMS.

(No. 433.)

Supreme Court of North Carolina.

Dec. 2, 1914.


1. Homicide (§ 215*2-1)—Dying Declarations-Competency—Fact or Conclusion.

In a prosecution for homicide, a dying declaration of deceased that defendant shot him "without cause" was admissible as a statement of fact or of a collective fact, and not incompetent as an estimate or opinion as to defendant's conduct, especially where deceased was unable to give a more minute or extended account.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 451-456; Dec. Dig. § 215.*]

2. Homicide (§ 218*)—Dying Declarations —Instructions.

A dying declaration, if there be doubt whether it was the opinion of the deceased or the statement of a fact, should be received and submitted to the jury under proper instructions.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 458, 459; Dec. Dig. § 218.*]

3. Criminal Law (§ 1144*) — Appeal — Presumptions—Instructions.

Where the charge is not in the record and no exception thereto appears, it will be presumed on appeal that the jury was properly instructed.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771. 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]

4. Criminal Law (§ 670*) — Witnesses (§ 240*)—Examination—Leading Questions.

In a prosecution for homicide, questions to a witness for defendant whether he could recall how many times, either in the yard or after he got defendant in the house, deceased had made threats against defendant as to what he would do, what deceased said to defendant in the yard just before witness got them apart, whether deceased told defendant he was going to kill him, and as to what deceased said he was going to do to defendant, were objectionable either as leading or for failure to disclose what facts

[83 S.E. 715]

were expected to be brought out by the answer, and were properly excluded.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 757, 1593-1596; Dec. Dig. $ 670;* Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.*]

5. Homicide (§ 339*)—Harmless Error—Exclusion of Corroborative Evidence.

In a prosecution for homicide, where defendant introduced the testimony of his witness be-

[Ed. Note.—For other cases, see Homicide,-Cent. Dig. § 714; Dec. Dig. § 339.*]

6. Homicide (§ 1S8*)—Evidence—Character of Deceased—Acts of Violence.

Evidence of the general character of the deceased for violence is admissible, where there Is evidence of self-defense, and defendant may also show deceased's acts of violence coming under his personal notice, or of which he had been informed by deceased.

[Ed. Note.—For other" cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.*]

7. Homicide (§ 188*)—Evidence—Character of Deceased—Act of Violence.

In a prosecution for homicide, where defendant offered evidence to sustain his plea of self-defense, the exclusion of his testimony that deceased had previously told him that he had a fight with a man in a hotel at Richmond and had stabbed him twice, was not error, in the absence of evidence of deceased's general character for violence or any showing as to how long before the homicide the statement was made, or that defendant believed deceased to be violent or feared him, or that such statement entered into his right of self-defense, since the statement did not necessarily show an unlawful act.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.*]

8. Homicide (§ 220*)—Dying Declaration— Corroboration.

Where the dying declaration of deceased was impeached by defendant, it was competent to corroborate it by evidence of good character, or by showing that he had made other similar statements.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 461; Dec. Dig. § 220.*]

9. Homicide (jj 221*) —Weight and Sufficiency of Evidence—Dying Declarations.

Dying declarations of deceased are received in homicide cases as the testimony of any other witness, and their weight and credit are for the jury.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 463, 464; Dec. Dig. § 221.*]

10. Homicide (§ 180*) — Evidence — Circumstances Preceding Homicide.

In a prosecution for homicide, where it was in evidence that defendant was intoxicated, evidence that he was playing and laughing and scrambling in a store several hours before the homicide was admissible to show his condition.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 381; Dec. Dig. § 180.*]

11. Criminal Law (§ 1120*)—Appeal—Exclusion of Evidence.

Where there is nothing in the record to indicate what would have been the answer of a witness to a question put to him, the exception to the refusal to allow him to answer could not be considered.

[Ed. Note.—For other cases, see Criminal Law, Cent Dig. §§ 2931-2937; Dec. Dig. § 1120.*]

12. Criminal Law (§ 715*)—Trial—Discretion of Court—Illustrations.

In a prosecution for homicide, where defendant while a witness in his own behalf, had showed the positions he and the deceased were in, and the way deceased had hold of him when he fired the shots, the refusal to allow his counsel to take some disinterested person and demonstrate on him the positions of defendant and deceased at the shooting, as testified to by the defendant, was within the discretion of the trial court and would not be disturbed, where the court could not say that defendant was deprived of any substantial right.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1666; Dec. Dig. § 715.*]

Walker, J., dissenting.

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

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

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

[83 S.E. 716]

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...

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