State v. . Laughter

May 15, 1912

Versions:

Walker, J.,

after stating the case: While the sense of impending death is considered by the law as sufficient, a guaranty of truth as the solemnity of an oath, a dying declaration cannot be subjected to the other test, there being no opportunity for cross-examination and nothing to meet: the objection to it, as hearsay, which will answer as an equivalent for such an examination; hence the exception to the heаrsay rule in favor of dying declarations rests solely upon the ground of necessity and public policy; for if they were not admitted as evidence it would be impossible to conviсt in a case of homicide, the knowledge of the facts, in many cases, being confined to the *490 party slain and the perpetrator of the crime; but as the exception can only be sustained upon the ground of necessity, the declaration is admissible only ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in indictments for homicide, and is restriсted to the act of killing and the circumstances immediately attending the act and forming a part of the res gestœ. S. v. Shelton, 47 N. C., 360; S. v. Jefferson, 125 N. C., 712. The rule for the admission of such testimony is thus stated in S. v. Mills, 91 N. C., 581, quoting from Taylor on Evidencе, sec. 648: “(1) At the time the declaration was añade, the declarant should have ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been in actual danger of death; (2) He should have a full apprehension of his danger; (3) Deаth should have ensued.”

The evideiace in this case showing the declarant was in ex-tremis, aaid was conscious or apрi-ekensive of approaching death and had abandoned all hope of recovery, is quite as strong and convincing as was that in S. v. Quick, 150 N. C., 820, and S. v. Bagley, 158 N. C., 608. In the case last cited we said: “Dying deсlarations are admissible in cases of hnanicide when they appear to have been made by deceаsed in present anticipation of death. It is not always necessary that the deceased should declare liiiаiself that he believes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that he is about to pass away; but аll the circumstances and surrouiadings in which he is placed should iaidicate that he is fully under the influence of the solemnity оf such a belief.” To like effect is Wigmore on Evidence, sеcs. 1430 and 1442. S. v. Brogden, 111 N. C., 656. We held in S. v. Tilghmam, 33 N. C., 513, that “In order to make the declarations of a deceased person evidence as 'dying declаrations/ it is not necessary that the person should be in articulo mortis (in the very act of dying), it is sufficient if he is undei* the apprehension of impending dissolution, when all motive for concealment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or fаlsehood is presumed to be absent, and the party is in a position as solemn as if an oath had been administered.”

The wife of the defendant appeared to have knоwn of her delicate conditioaa, and to have bеcome suddenly aware, the day before she died, that the violent assault of her husband and the injua-ies which he iaafliеted upon her would l’esult fatally, and stibsequent events disclosed, unfortunately, that, her appre *491 hension was well-founded. Hеx dissolution was impending, and no one knew it better tban she did. There was no error in admitting her declarations ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as to the assault upon her by the defendant, the evidence showing that the wounds she received were sufficient to cause death.

No error.