169 S.E. 650 | N.C. | 1933
The defendant was indicted for the murder of Celia Roberts. The evidence tended to show that Miss Celia Roberts, a young woman, about twenty years of age, became pregnant. Harris, a witness for the State, testified that he came to Raleigh on 11 July, and at the request of a man named Mangum made an appointment with the defendant "to see if she would perform an abortion on Miss Celia Roberts." The defendant informed him that the cost would amount to $30.00. Thereafter on the 14th or 15th of July Miss Roberts came to Raleigh and went to the Carolina Hotel and procured a room. Harris immediately informed the defendant that Miss Roberts was at the hotel. She went to the hotel with Mangum and a woman and went to the room of deceased. Harris thereafter paid to the defendant and she accepted $14.00 in cash. Mangum testified that the deceased Miss Roberts described the defendant to him and that on Tuesday he saw her get off the elevator at the hotel as he was getting on, to visit the deceased in her room. He testified that when he reached the room of the deceased she said: "it was all over, the operation. She said a lady did it" but did not know her name. He had seen the defendant go out. "I did not see Mrs. Layton in the room, but I saw her on the elevator." The State also offered evidence that the defendant stated to Harris that she had left an instrument that Miss Roberts could use, but that she could not perform the operation for the reason that the deceased was then five months pregnant. Dr. Thomas examined the deceased in the hospital on 22 July and found that she was suffering from an incomplete abortion, resulting in death on 24 July. The physician further testified: "She was desperately sick when she came there, and we so advised her. When I was taking her history she told me she knew she was going to die. You know, people talk sometimes when they are sick. She just said: `I am so sick I am going to die.' I told her that she was very sick, but was not necessarily sick enough to die or something like that." At this point in the testimony the court asked the physician the following questions: "Did she appear to you to be in apprehension of impending death?" (A.) "Her temperature was very high and her pulse very rapid." (Q.) "When she made that statement that she thought she was going to die do you think she thought she was going to die?" (A.) "Yes." (Q.) "Did she make any statement to you, and, if so, what did she say?" (A.) "I asked her how long she had been sick? . . . (This was on Tuesday), and she said on last Friday she came to Raleigh and went to the Carolina Hotel, and some lady came to her room and inserted a tube into her womb about eleven o'clock, and at three o'clock in the morning she went to the bath room and the fetus passed. I made a blood test and *706 she was very sick." The defendant objected to the questions so propounded by the court and to the answers of witness, particularly to the answer containing the purported dying declaration of deceased.
There was evidence that the defendant had refused to perform the operation and that the deceased had stated to the witness Harris that "she had done it herself and the woman would not help her." The defendant denied that she had anything to do with the abortion or that she had ever seen the deceased or talked with Harris about performing the operation. Several witnesses testified that the character of the defendant was good. The jury convicted the defendant and recommended mercy. The trial judge imposed a sentence of five years in the State's prison, and from the judgment so pronounced the defendant appealed. (1) Was the dying declaration of deceased competent?
(2) Was there sufficient evidence that the defendant committed the crime laid in the bill of indictment?
The general principle is that "dying declarations must be confined to the facts connected with the act of killing, facts attending the act and forming a part of the res gestae." S. v. Jefferson,
The foregoing facts and circumstances are sufficient in probative value to warrant the submission of the disputed issue to the jury. The charge of the court is not in the record and it is therefore assumed that the jury was correctly instructed upon all phases of the case.
No error.