State v. . Carraway

AlleN, J. The rulings on evidence are erroneous and entitle the defendant to a new trial. The declaration of Martin, “Joe, he is going to cut him to pieces, ain’t he?” — made after the deceased had cut the defendant once, and while he had one arm around his neck and the knife on his throat, was competent as a part of° the res gestae. McKelvey says, p. 278: “The ground of reliability upon which such unknown declarations are received is their spontaneity. They are the ex tempore utterances of the mind-under circumstances and at times when there has been no sufficient opportunity to plan false or misleading statements; they exhibit the mind’s impressions of immediate events, and are not narrative of past happenings; they are uttered while the mind is under the influence of the activity of the surroundings.” *565 Tbe question is discussed, and the distinction drawn between the exclamation of the bystander brought out by the occasion, and declarations that are narrative of a past occurrence in Harrill v. R. R., 132 N. C., 655, and Bumgardner v. R. R., 132 N. C., 440, and the Court says in this last ease: “The law proscribes hearsay evidence’, but there are certain necessary exceptions to that general rule. Amongst those exceptions are certain declarations made at the time of the main transaction — the principal fact under investigation — if they are connected with the transaction and explain it as to its character and purpose. Such declarations are often called 'verbal acts indicating a present purpose and intention,’ and are admissible as original evidence like any other material facts. It is said in Greenleaf on Evidence, sec. 108: ‘The principal points of attention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, 'and whether they were so connected with it as to illustrate its character.’ The same author, in the same book, sec. 110, further says: ‘It is to be observed that where declarations offered in evidence are merely narrative of a past occurrence, they cannot be received as proof of the existence of such occurrence. They must be concomitant with the principal act, and so connected with it as to be regarded as a mere result and consequence of the coexisting motives in order to form a proper criterion for directing the judgment, which is to be formed upon the whole conduct.’ In S. v. McCourry, 128 N. C., 594, the prisoner was indicted for murder. Melvin Ray, one of the witnesses, said at the time of the homicide, in answer to a question by a person who was present, ‘What that was?’ referring to a ‘lick,’ ‘Elijah Mc-Courry hit Bob Ray (the deceased) with a rock.’ This Court said the evidence was competent because it was spoken at the instant the fatal blow was given. The Court also quoted with approval from Underhill’s Criminal Evidence, sec. 1, the following: ‘The exclamations of persons who were present at a fracas in which a homicide occurred, showing the means and mode of killing, are admissible for or against the accused because of their unpremeditated character and their connection with the event by which the attention of the speaker was engrossed.’ ” The evidence excluded comes clearly within this principle. It was also error to exclude the reputation of the deceased for violence when drunk, as there was evidence the deceased was drunk at the time, and the threat communicated to the defendant by a close relative of the deceased, ought to have been submitted to the jury. Both classes of evidence were material and important on the contention of the defendant, supported by evidence, that he killed the deceased under the reasonable apprehension that he was about to suffer death or great bodily harm, and have been uniformly held to be competent, when *566 there is evidence of self-defense and the defendant knows of the reputation for violence, aúd threats have been communicated to him, since Turpin’s case, 77 N. C., 473, which has been approved twenty-one times. There is an exception to the charge, which appears to be erroneous on the record, but it is reasonably certain there is some mistake in the transcript, and his Honor is made to use the word “inculpate” for “exculpate.” There must be a New trial.