35 N.C. 184 | N.C. | 1851
This is an indictment for the murder of Simon Dyson. The prisoner appeared at his trial, in October, 1850, to be a small boy, but his age was not stated. Evidence was given on the part of the State that, within a week or two before the homicide, the prisoner had several times expressed ill-will towards the deceased, and threatened to kill him. One Matilda Merritt then deposed that the prisoner's father lived 300 or 400 yards from the house in which she resided, which was on (185) land belonging to the deceased, and about half a mile from the residence of the deceased; that on 15 May, 1850, the prisoner came to her house when the sum was about an hour high, in the evening, having his gun with him, and that a little before dark there came up a heavy shower of rain, and the deceased came in the house to get out of it, saying he had been out hunting hogs; that the prisoner refused to come into the house after the deceased entered, although the rain had commenced, but, after solicitations from her, he did come in, and he and the deceased soon got to cross questions — the latter alleging several charges against the prisoner about his way of life, some of which the prisoner denied, but admitted others. After some time they appeared to be reconciled, and the prisoner laid down on a table and seemed to be sleeping; but about 10 o'clock at night he got up and, though requested by her to go to bed and stay all night, he said he would go home, and took his gun and went out, but soon called from the yard for a light, in order, as he said, to catch a mole he had found. The witness then handed him a lightwood torch at the door, and he took it and appeared to be searching on the ground; but in a few minutes he put out the torch and bade them goodnight and, as the witness then thought, went home. There was at the time a bright fire in the room, and the door opening into the yard was about one-fourth open, and the deceased was lying on the floor with his feet toward the opening of the door, and about 5 feet from it. The witness was then asked, on the part of the State, whether she and the deceased immediately entered into conversation about the prisoner, and counsel for the prisoner objected to the question being answered; but the court permitted her to answer that they did; and then, on the part of the prisoner, the witness was required to state the conversation particularly, and she said the deceased censured the prisoner's way of life and spoke very disparagingly of him. She further deposed (186) *132 that while she and the deceased were engaged in the conversation, the deceased remarked to her that the prisoner "was eavesdropping, and heard what they were saying"; and that she replied that could not be so, for he had gone home; and the deceased said, "No, he is not gone"; and in one or two minutes afterwards, which was about ten minutes after the prisoner had told them goodnight, a gun was fired and the deceased shot, and at the moment the deceased exclaimed, "Great God! Elijah Arnold has killed me. Bring me some water, for I am a dead man!" Counsel for the prisoner objected to the admissibility of the deceased's exclamation, but the objection was overruled. There was further evidence that the shot struck the privy members of the deceased, and ranged upward into the body, cutting the intestines in several places, and a physician who attended the deceased gave it as his opinion that the shooting caused the death of the deceased, and, from the appearance of the wounds, that the person who fired the gun could not have been more than ten and perhaps not more than five steps from the deceased. The deceased lived until night of the next day; and evidence was given that he suffered great pain, but was all the while in his right mind, and repeatedly declared to the physician and others that the prisoner, and no other person, shot him; and he also made an affidavit in writing before two magistrates that Elijah Arnold shot him. He did not say on those occasions that he saw the prisoner shoot, or that he did not see him, but simply stated the fact that the prisoner, and no other person, shot him. The prisoner's counsel objected to receiving the declarations and affidavit, but there being satisfactory proof that the deceased constantly declared, from the time he was shot until he died, that he believed he should die, they were admitted as dying declarations.
(187) Counsel for the prisoner alleged that he was apparently under the age of 14 years, and, therefore, that it was incumbent on the State to prove that he was over that age, or, if under it, that he had such knowledge of right and wrong as would render him responsible for the homicide, if he committed the act. The court held the onus of proof to lie on the prisoner as to his age. The prisoner was convicted, and from the judgment on the conviction appealed to this Court. The Court is of opinion that neither of the objections to the evidence is valid. As to the first, it is to be observed that the details of the conversation between the deceased and Merritt were brought out by the prisoner — the State proving only that they talked about the prisoner. The most that can be said against that *133 is that it was irrelevant. The court is not obliged to waste time and protract trials by admitting irrelevant evidence, and to an exception for the rejection of evidence it is a sufficient answer that it was irrelevant. But an exception to the admission of evidence on the ground of irrelevancy is, as a general thing, refuted on its face, since what is immaterial cannot be supposed to hurt. It is not necessary to say that a case cannot arise in which evidence really irrelevant in point of law may be calculated to mislead or prejudice the minds of the jury; and in such a case its reception would be erroneous. But, clearly, proof of the fact simply that those persons talked about the prisoner could have no such effect, and, if erroneous, would be no ground for reversing the judgment. The Court, however, is of opinion that the whole conversation was proper evidence for the State. There was such a probability that the prisoner was in the yard and within hearing that the court ought to submit it to the jury as beingprima facie in his presence, and calculated to call forth vengeance, unless the jury think, under the circumstances or from other proof, that the prisoner was not in hearing, in which case they should be told not to allow any weight to the evidence.
The exclamation of the deceased at the moment he was shot was competent on several grounds. One is that above mentioned, that the prisoner was probably within hearing. Another is that it was so immediately connected with the principal fact of the shooting as to be material to a proper comprehension of the fact, and was a part (190) of the res gestae. And a third is, that the wounded man seems to have been instantly and fully convinced that he must speedily die from the wound, so as to render this a most impressive dying declaration, because it was uttered before he could have made up an account, not founded on fact, but the result of ill-will or evil surmises against the prisoner.
The next objection is to receiving any part of the declarations of the deceased as his dying declarations. Several grounds were taken in the argument. It was principally insisted that they do not purport to state the fact, but only the opinion of the deceased, that the prisoner shot him; and also that it did not appear from the declarations or from the situation of the parties at the time that the deceased had the opportunity of knowing the fact, so as to enable him to express more than an opinion on the point. But, undoubtedly, the words do import that the deceased was professing to state the very fact. His language is affirmative throughout: "Elijah Arnold has killed me: He, and no other person, has shot me." And, although the exception states that the deceased did not in so many words say that he saw the prisoner shoot, yet it sets out further that the deceased, in his various declarations, always stated the *134 fact that the prisoner shot him. It must, therefore, be understood,prima facie, if not conclusively, that the deceased intended to affirm as a fact that the prisoner shot him, and of course that he affirmed it upon his knowledge of it. The other branch of the objection, that it did not appear that the deceased could know the fact, and, therefore, that his declarations may have been matter of inference and opinion, seems rather to go to the credit to be given by the jury to the declarations than to their competency. As they purport in themselves to declare (191) the fact, the court was bound to submit them to the jury, although the deceased did not go into the detail of his means of knowledge. If in passing on their weight the same facts on which their competency depended with the court be material to their credibility, the jury must of necessity take them, as well as others, into their consideration for that purpose. It might, therefore, have been a proper subject of observation to the jury that, although the deceased professed to state the fact, he did not expressly say that he saw the prisoner shoot nor how he knew the prisoner to be the person. They might have concluded, from the darkness of the night, the relative positions of the door and fireplace, the degree to which the door was open, the previous misunderstanding between the parties, and other like things, that the deceased did or did not declare the fact upon his own knowledge, but upon suspicion and inference; and if the latter, they would, of course, give no weight to the declarations. But it is not seen how the court could reject an affirmative declaration of a particular fact upon a suspicion of some defect in the party's means of knowledge, because he omitted to state them minutely. In this case, indeed, the circumstances connected with the language of the deceased are strong to show that he had the means of knowing the fact, and that he knew what he affirmed.
The person who fired the gun must have stood in front of the door and very near it, and the deceased was lying within 5 feet of the door with his feet and face towards it, and with a bright firelight thrown on the floor, so that either by the reflection of the light or by the flash of the gun the deceased may, and, it would seem, must have seen the person when he fired. Hence the instantaneous exclamation that the prisoner had killed him — an assertion which the deceased could not have honestly made, and in his condition would not have made, (192) touching the matter of fact, if he inferred it merely as matter of conjecture. But a further and decisive answer to the objection is that it does not appear to have been taken on the trial. As the exception is understood, the objection at the trial was that the declarations were not competent on the ground that it did not appear they were made under the apprehension of impending death, for immediately after *135 stating the objection of the prisoner's counsel, the exception proceeds to state, as the reason of the court for overruling it, that the court was satisfied from the evidence that the party made them under the belief that he was dying; from which the inference is that the objection was founded on that reason alone. Consequently, the facts are not stated with reference to any other point, and the decision here ought not to be on any other.Woodcock's case, 1 Leach, 500, is a direct authority that the affidavit of the deceased, though not taken according to the act of 1715, is competent and proper as being in itself a dying declaration.
On the last point the Court is also of opinion that there was no error. The objection assumed as a fact that the prisoner appeared to be under 14 years of age. As there was no proof on the point, it could only be judged of by inspection, and so far as that goes it must be taken to have been decided against the prisoner both by the court and the jury. As the subject of direct proof, the onus was certainly on the prisoner, as the reputed age of every one is peculiarly within his own knowledge, and also the persons by whom it can be directly proved.
PER CURIAM. No error.
Cited: Holmesby v. Hogue,
(193)
