State v. . Ellis

Adams, J. After describing the wound the first witness for the State testified that Beauchamp’s death bad been caused by “the bullet that went through bis bead.” He bad -not qualified as an expert witness and for this reason the defendant excepted to the testimony. Considered in the light of all the evidence the conclusion of the witness seems to be self-evident; but conceding for the moment that bis opinion is technically within the domain of expert evidence (S. v. Jones, 68 N. C., 413), we think the error, if any, was cured by testimony subsequently offered by the defendant. Dr. Greene, a witness for the defendant, made an examination of the dead body. He said the caliber of the pistol was *839 38 or 44, the diameter of the wound as large as that of a lead pencil, and the place of exit the size of a nickel. This wound, he asserted, could have produced instant death and the only other wound he found was not sufficient to kill. This is the defendant’s evidence and from it only one deduction can be made: death was caused by the pistol shot. The first, second and thirteenth exceptions are therefore overruled. S. v. Bowman, 78 N. C., 509; S. v. Stewart, 156 N. C., 636. Before the ninth day of March, Richmond Bailey, the principal witness for the State, had made several statements in regard to the homicide which were inconsistent, if not positively contradictory. He urged as a reason his fear of the defendant, who “with an anathema in the corner of his eye” had repeatedly stressed such reminders as these: “If you ever tell it, you have told your last” . . . “If you ever tell this, off goes your head.” At the time mentioned Bailey told the sheriff he wanted to take back what he had previously said “in some particulars” and to make a clean breast of the whole matter. He then gave the officer a written, signed, and corrected statement of the facts which was read to the jury. The defendant excepted. The question arose in S. v. Grier, ante, 586, and was resolved against the contention of the appellant, the decision in that case disposing of the eighth and ninth exceptions. The court instructed the jury that they were at liberty to consider the credibility of the witnesses, their interest in the result of the verdict, their sympathy, their prejudice, their means of knowing the facts, “or any other circumstances.” The defendant excepted to the last clause on the ground that it includes all circumstances whether in evidence or not; but the objection is removed by other instructions restricting the deliberation of the jury to circumstances which, having been offered in evidence, tended to “throw light upon the matter.” An exception of this sort must be considered in connection with the entire charge and is not to be determined by detaching clauses from their appropriate setting. S. v. Exum, 138 N. C., 600; S. v. Tate, 161 N. C., 280; S. v. Lee, 192 N. C., 225. The twenty-second exception relates to the court’s statement of a contention made by the State in reference to the finding of the dead body several days after the commission of the homicide. The basis of- the exception is the alleged want of evidence upon which to rest the contention. The crucial point is whether there is evidence tending to show that the body was “discovered” at the instance of the defendant. Bailey testified: “We didn’t have a conversation about the body going on, but we had one coming back. I don’t know how he (the defendant) brought it up now, but he asked me a good one to tell to go in and find the body and keep him out of it; go in there and find it and say nothing about it, *840 and I told bim I didn’t know.” Dr. Greene said: “I was one of the first ones to get to the scene where the dead body was found. Mr. Thomas Ellis, Sr., told me that there was a dead man up there in the woods. I was at Mr. Ellis’s. Mrs. Charlie Ward and Mrs. Samuel Hege found the body. Mrs. liege is Mr. Ellis’s daughter.” Upon consideration of all the evidence on this subject we are unable to say that there is none in support of the contention, at least so far as it concerns the defendant. It is argued that the trial court disregarded the provisions of C. S., 564, particularly in failing to refer to an alleged combat between the deceased and the defendant before the shot was fired and in failing to apply the law to certain phases of the evidence. With respect to the evidence the charge is sufficient, and as to the instruction relating to manslaughter the defendant has no just cause of complaint. The charge points out and explains the substantive features of the case and in reference to those which were subordinate it was incumbent upon the defendant to make proper request for special instructions. S. v. Merrick, 171 N. C., 795; S. v. O’Neal, 187 N. C., 22; S. v. Johnson, 193 N. C., 701. There are other exceptions, either formal or taken as a matter of precaution, which call for no special comment. We find No error.