State v. Bohanon.

Waleer, J., after stating the case: We have carefully examined the testimony in this case and find it sufficient to sustain the conviction of the defendant, though no objection was distinctly made that there was no evidence to warrant the verdict. There are seven errors assigned as having been committed in the rulings of the Court at the trial, and they will be considered in their order. The defendant objected to C. C. Townsend as a juror, upon the ground that he had formed and expressed the opinion that the defendant is guilty. The Court, after hearing the evidence bearing upon this objection, found that the juror was indifferent, and overruled it. The juror was sworn and served. We do not see how this ruling can now be made the subject of an exception. The juror stated that notwith *697 standing be bad formed and expressed an opinion that tbe defendant is guilty, be was yet satisfied that be could decide fairly and impartially as between tbe State and tbe defendant, and tbe Court found upon tbe evidence that be was indifferent. Tbe findings of fact, as to indifferency, have been held not to be reviewable in this Court. State v. Ellington, 29 N. C., 61; State v. Collins, 70 N. C., 241; State v. Kilgore, 93 N. C., 533; State v. Potts, 100 N. C., 457; State v. De Graff, 113 N. C., 688; Stale v. Fuller, 114 N. C., 885; State v. Kinsauls, 126 N. C., 1096; State v. Register, 133 N. C., 747. Tbe case of State v. Potts, 100 N. C., 457, seems to be directly in point. But there is another familiar principle of tbe. law which fully meets and answers this objection. The defendant did not exhaust.bis peremptory challenges, but there were many left to him when tbe panel was completed. When such is tbe case, tbe objection to a juror who could have been rejected peremptorily is not available. State v. Hensley, 94 N. C., 1021; State v. Pritchett, 106 N. C., 667; State v. Teachey, 138 N. C., 587. The same rule has been affirmed three times at this term of tbe Court. Ives v. Railroad, Hodgin v. Railroad, and State v. Sultan. Tbe defendant next objected to the testimony of tbe witness W. T. Ausley, who stated that be was with Beacbam after be was shot by tbe defendant, and that be told tbe witness that he was dying. There was other sufficient evidence tending to show that Beacbam knew that be was in extremis. Lie died within two hours after tbe witness bad tbe conversation with him to which tbe defendant objected. Tbe Court permitted Ausley to testify that Beacbam said to him: “I do not know what my wife and children will do. I begged Frank (Bobanon) to go along and let me alone.” This was competent as a dying declaration. It is evident that tbe deceased was referring to what bad occurred at tbe time be was shot, so that what be told Ausley be bad said to tbe defendant constituted a part of tbe res gestee and was not *698 tbe narration of a past event. It identified tbe defendant as tbe one wbo bad committed tbe homicide. State v. Dixon, 131 N. C., 808; State v. Boggan, 133 N. C., 761; State v. Teachey, 138 N. C., 587. Tbe reference be made to bis family merely confirmed tbe finding tbat be was at tbat time aware of bis critical condition, and well knew tbat be was fast approaching tbe supreme moment of bis dissolution, when bis words bad more sanction and solemnity than is ever imparted by tbe ordinary tests tbe law applies to insure tbe accuracy and credibility of human testimony. Tbe third, fourth and fifth assignments of error are based on tbe admission of tbe testimony of tbe State’s witnesses, W. J. Weatherly, D. H. Collins and O. E. Neely. Weatherly testified tbat tbe defendant was arrested in Danville, Ya., and tbat on bis way to Greensboro be asked him why be bad killed Beacbam. He replied that be was working under Beacbam, wbo discharged him and mistreated him by tearing down bis tent. Tbe witness chided him for having resorted to violent and serious measures in resentment of such a grievance, whereupon tbe defendant said tbat be would not have killed him if tbe Crutchfields bad not made him drunk and provoked him to it by telling him tbat be ought not to submit to such a wrong. Collins testified tbat tbe defendant told him be bad gone to Greensboro and bought a gun, and then went to tbe railroad camp to look for Beacbam. Tbat when be found Beacbam tbe latter cursed him and told him to go away or be would kill him, or something like tbat, and tbe defendant replied tbat be bad come there for trouble, and be then shot Beacbam. After tbe shooting occurred, be went to Kiser Crutchfield’s, and then be lay in the pines all day,' where be saw tbe officers searching for him. Neely testified tbat tbe defendant admitted to him be bad killed Beacbam, and added tbat be would not have done it if tbe Crutchfields bad not persuaded and helped him to do it. He said, in a second statement, tbat Beacbam bad a pistol, and “tbat be *699 bad to slioot bim to keep from being shot.” There was evidence on. tbe part of tbe State that Beacbam did not bave bis pistol in bis bands at tbe time be was shot, and that tbe act of tbe defendant was wilful and deliberate, and not done in self-defense. Tbe testimony of tbe three witnesses, Weath-erly, Collins and Neely, was competent and relevant. We bave examined tbe preliminary proof taken by the Court to ascertain if tbe defendant’s confessions were voluntary. There is nothing to be found there to indicate that they were not. No promise was made to induce bim to make tbe confessions, nor was any threat used to extort them. So far as we are able to see, they were entirely voluntary. His Honor having so found, tbe testimony was admissible. State v. Bishop, 98 N. C., 773; State v. De Graff, 113 N. C., 688; State v. Daniels, 134 N. C., 641; State v. Exum, 138 N. C., 599; State v. Smith, 138 N. C., 700. Tbe sixth exception is without any merit, and if it were not for tbe gravity of tbe charge we would pass it by without comment. Tbe defendant in that exception complains that bis ITonor did not present to tbe jury tbe contentions of bis counsel. Tbe charge of the Court in this respect was very full and explicit, and so clear in statement that tbe jury could not bave failed to understand tbe defendant’s theory in all its phases. Besides, tbe defendant did not ask for any additional instructions, if those already given were, in bis opinion, not sufficient to cover the case. Simmons v. Davenport, 140 N. C., 407; State v. Martin, 141 N. C., 832. The seventh and last exception is also untenable. It appears that tbe Court not only instructed tbe jury clearly and fully as to the doctrine of reasonable doubt, but repeated its instructions, as to that matter, more than once, and cautioned tbe jury that tbe burden was on tbe State, at all stages of tbe prosecution, and that they should not convict of any degree of homicide without being fully satisfied of tbe defendant’s guilt to tbe exclusion of every reasonable doubt. *700 Upon a review of the whole record, we conclude that no error was committed by the Court in the trial of the case. No Error.