1 N.C. App. 524 | N.C. Ct. App. | 1968
The defendant offered the testimony of a niece of the defendant that while deceased was lying on the ground in his back yard after being burned, she asked him, “George, what happened?” George looked up at her and said, “Leta didn’t do this.”
Upon objection by the State, the trial judge overruled the objection and allowed the testimony; but the trial judge ruled that George Stalnaker’s statement was not a dying declaration. The trial judge ruled that since the defense opened the door to hearsay evidence, the State could explore the whole area of hearsay evidence. The defendant assigns as error that the trial judge refused to rule that the statement was a “dying declaration.”
The defendant was in no way prejudiced by the ruling of the trial judge that the statement was not a dying declaration; the testimony of the statement was allowed in evidence over objection anyway. A ruling that it was a dying declaration would have added no credibility or unusual dignity to the testimony given by the witness, nor to the declaration itself. “A dying declaration by no means imports absolute verity.” Carver v. U. S., 164 U.S. 694, 41 L. Ed. 602. And a dying declaration is subject to impeachment or corroboration in the same manner as the testimony of a witness. Stansbury, N. C. Evidence 2d, § 146. The defendant had the full benefit of the testimony of the witness as to the declaration of the deceased.
The defendant further assigns as error that the trial judge ruled that the State could explore the whole area of hearsay testimony since the defense had opened the door. From the Record on Appeal and the brief of the defendant it is clear that this ruling was made in chambers and not in open Court. Also it is obvious that the trial judge was merely stating the correct law of evidence concerning impeachment if the declaration was offered by defendant and allowed into evidence. The State would be entitled to impeach the declaration whether allowed as a dying declaration or not. Stansbury, N. C. Evidence 2d, § 146, p. 363. Whether impeaching or inconsistent declarations are admissible as dying declarations or not is immaterial, since they are admissible as tending to impeach the declaration of the deceased which was already admitted. Carver v. U. S., supra.
The defendant further assigns as error that the trial judge submitted the case to the jury upon only three possible verdicts: guilty of murder in the second degree, guilty of manslaughter, or not guilty. Defendant urges that the lesser offense of involuntary manslaughter should have been submitted to the jury also.
The State’s evidence in this case is to the effect that defendant set fire to deceased after having verbally threatened to do so, and after throwing fire at him on two occasions; no reasonable inference could be drawn that it was later done accidentally. The only evidence to the contrary is that defendant did not know anything about the fire, that she was lying on the couch inside the house watching television. There is therefore no reasonable inference from the evidence in this case which would support a verdict of involuntary manslaughter. The provisions of G.S. 15-169 and G.S. 15-170 are applicable only when there is evidence tending to show that a defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 184, 105 S.E. 2d 277. The case of State v. Smith, 268 N.C. 167, 150 S.E. 2d 194, cited by defendant in support of this assignment of error holds the same as State v. Jones, supra. The first headnote by the reporter of Smith seems to be in error, and apparently misled counsel.
We have carefully examined all of defendant’s assignments of error. In the trial of defendant we find.
No error.