State v. . Stewart

Connor, J. On their appeal to this Court, each of the defendants relies chiefly on his contention that there was error in the trial of this action, in the admission as evidence against him of the testimony of Mrs. Minnie D. Hinton, with respect to statements made to her or in her presence by Ethel Smith, and with respect to answers made by Ethel Smith to questions addressed to her by the witness. These contentions must be sustained. *368 The testimony of Mrs. Minnie D. Hinton, which was admitted as evidence subject to the exceptions of the defendants, if competent for any purpose, was competent as evidence tending to show dying declarations by Ethel Smith, the deceased, with respect to the facts and circumstances which resulted in her death. If the statements made by Ethel Smith, and her answers to the questions addressed to her, were not admissible as dying declarations, the testimony should have been excluded as hearsay. In S. v. Shelton, 47 N. C., 360, it was said by Pearson, J.: “According to the general rule, no testimony is admissible unless it is subjected to two tests of truth, an oath and a cross-examination. A sense of impending death is as strong a guaranty of truth as the solemnity of an oath; but dying declarations cannot be subjected to the other test; there is no opportunity for cross-examination, and there is nothing to meet this objection and answer as air equivalent for the want of cross-examination; hence, the exception in respect to dying declarations rests solely upon the ground of public policy and the principle of necessity.” In S. v. Williams, 67 N. C., 13, it was said by Rodman, J.: “The admission of dying declarations is an exception to the general rule of evidence, which requires that the witness shall be sworn and subject to cross-examination. The solemnity of the occasion may reasonably be held to supply the place of an oath. But nothing can fully supply the absence of a cross-examination. In consequence of this absence, such declarations are often defective and obscure. Hence, eminent judges have felt it their duty to say that they should be received with much caution, and that the rule which authorizes their admission should not be extended beyond the reasons which justify it. And this is the more important as such declarations, when received, have great and sometimes undue weight with juries.” In S. v. Jefferson, 125 N. C., 712, 34 S. E., 648, it was said by Montgomery, J.: “The general rule is that testimony before it is received as evidence shall be on the oath of the witness and subject to the right of cross-examination. The nearness and certainty of death are just as strong an incentive to the telling of the truth as the solemnity of an oath, but you cannot subject the deceased, and what be said as a dying-declaration, to the test of cross-examination. The exception to the general rule of evidence, therefore, in regard to dying declarations rests upon the ground of public policy and the necessity of the thing, and as the exception can only be sustained on the grounds above mentioned, such evidence is restricted by the law to the act of killing and the facts and circumstances directly attending the act and forming a part of the res gestee. All of this is clearly decided in S. v. Shelton, 47 N. C., 360.” *369 In S. v. Collins, 189 N. C., 15, 126 S. E., 98, it was said by Adams, J.: “The rule for the admission of dying declarations is thus stated: (1) At the time they were made, the declarant should have been in actual danger of death; (2) he should have had full apprehension of his danger; (3) death should have ensued. S. v. Mills, 91 N. C., 581.” In S. v. Beal, 199 N. C., 278, 154 S. E., 604, it was said by Stacy, C. J.: “The general rule is that in prosecutions for homicide, declarations of the deceased, made while sane, when in extremis or in articulo mortis, and under the solemn conviction of approaching dissolution, concerning the killing or facts and circumstances which go to make up the res gestee of the act, are admissible in evidence, provided the deceased, if living and offered as a witness in the case, would be competent to testify to the matters contained in the declarations. S. v. Shelton, 47 N. C., 360; S. v. Williams, 67 N. C., 12; S. v. Mills, 91 N. C., 594; S. v. Behrman, 114 N. C., 797, 19 S. E., 220; S. v. Jefferson, 125 N. C., 712, 34 S. E., 648; S. v. Laughter, 159 N. C., 488, 74 S. E., 913. "We have a number of decisions to the effect that dying declarations are admissible in cases of homicide when they relate to the act of killing or to the circumstances so immediately attendant thereon as to constitute a part of the res gestee, and appear to have been made by the victim in the present anticipation of death, which ensues. S. v. Laughter, supra. It is not always necessary that the deceased should express a belief in his impending demise; it is sufficient if the circumstances and surroundings in which he is placed indicate that he is fully under the influence of the solemnity of such a belief, and so near the point of death as to ‘lose the use of all deceit’ — in Shakespeare’s phrase. S. v. Bagley, 158 N. C., 608, 73 S. E., 995. In S. v. Tilghman, 33 N. C., 513, the Court said: 'It is not necessary that the person should be in articulo mortis (the very act of dying) ; it is sufficient if he be under the apprehension of impending dissolution, when all motive for concealment or falsehood is presumed to be absent and the party in a position as solemn as if the oath had been administered.” In S. v. Wallace, 203 N. C., 284, 165 S. E., 716, it was said by Adams, J.: “Dying declarations are an exception to the rule which rejects hearsay evidence, but the conditions under which they are admitted by the courts have often been defined. At the time they are made, the declarant must be in actual danger of death and must have full apprehension of his danger; and when the proof is offered, death must have ensued. S. v. Mills, 91 N. C., 581. These declarations are received on the general principle that they are made in extremity — 'When,’ as was said by Eyre, C. B., the party is at the point of death and when every hope of this world is gone; when every motive of falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. *370 A situation so solemn and so awful is considered by tbe law as creating an obligation equal to that which is imposed by an oath administered in a court of justice.’ Rex v. Woodcock, 168 Eng. Reports, 352.” Whether or not a statement made by the deceased is admissible as a dying declaration is a question for the trial court to decide. It is a question of law, and if the decision results in the admission of the statement as evidence against the defendant, it is reviewable by this Court, on defendant’s appeal from a judgment against him. If there was evidence at the trial tending to show the requisite facts to support the decision, it cannot be disturbed by this Court; but in the absence of such evidence, the decision must be reversed. A careful examination of the record in this appeal fails to disclose any evidence at the trial which tended to show that at the time she made the statement or answered the questions, as testified by Mrs. Minnie D. Hinton, Ethel Smith, the deceased, was in extremis, or in articulo mortis, or in danger of death from her present illness; or that she was under apprehension of her approaching dissolution. All the evidence is to the contrary. The statements were made and the questions answered by Ethel Smith on 16 November, 1934. She had then been in the hospital since 7 November, 1934 — a period of nine days. During this time she had been under the constant care of nurses and under the daily treatment of physicians. It does not appear that she was at any time, on or prior to 16 November, 1934, advised by a nurse or by a physician that her illness would probably be fatal. Nor does it appear that at any time on or prior to 16 November, 1934, she expressed to any nurse or to any physician or to any of her relatives or friends who visited her at the hospital, apprehension that she would die of her present illness. It is true that she said to Mrs. Hinton that she was afraid she would not get well, and that in response to Mrs. Hinton’s question, “Ethel, do you think you are going to die?” she whispered, “I do.” This evidence is not sufficient to support a finding of fact that Ethel Smith was fully apprehensive on 16 November, 1934, of her approaching dissolution. She did not die until 29 November, 1934 — thirteen days after she made the statement and answered the questions, which were admitted as her dying declaration. For error in the admission of the testimony of Mrs. Minnie D. Hinton as evidence tending to show dying declarations of the deceased, the defendants are entitled to a new trial. They have been convicted upon testimony which under well settled principle of the law of evidence should not have been admitted as evidence against them. Under the judgment in this conviction they will be deprived of their liberty contrary to the law of the land. The judgment is reversed to the end that they may have a New trial.