State v. . Layton

BeogdeN, J. (1) Was the dying declaration of deceased competent? (2) Was there sufficient evidence that the defendant committed the crime laid in the bill of indictment ? The general principle is that “dying declarations must be confined to the facts connected with the act of killing, facts attending the act and forming a part of the res gestee ’’ S. v. Jefferson, 125 N. C., 712, 34 S. E., 648. The competency of dying declarations is determined by the same standard as the testimony of a living witness in the court and subject to cross-examination. That is to say, the fact that a certain declaration is made by a dying person, does not make the declaration competent unless the same person could take the witness stand and testify to the identical fact contained in the declaration. Consequently it has been held with unbroken uniformity that the mere opinion and conclusions of a dying declarant are not admissible. S. v. Mills, 91 N. C., 594; S. v. Jefferson, 125 N. C., 712; S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Stone, ante, 666. Hence the opinion of the physician as to whether the deceased “thought she was going to die” is immaterial because the ultimate inquiry was not what the physician thought but what the deceased thought about her impending death. The testimony discloses that the deceased declared that she was going to die. She was then desperately sick and death ensued within two days. Such testimony constituted a proper foundation for the admissibility of her dying declaration. S. v. Shelton, 47 N. C., 360; S. v. Jefferson, supra; S. v. Wallace, 203 N. C., 284. Therefore, the opinion of the physician as to her state of mind, while immaterial, does not warrant the overthrow of the judgment. Nor is the dying declaration incompetent for the reason *707 that the deceased did not positively identify the defendant. S. v. Beal, supra; S. v. Wallace, supra. If there had been no evidence tending to connect the defendant with the crime except the dying declaration of deceased that “some lady came to her room and inserted a tube into her womb,” the case should have been nonsuited, but the evidence discloses other pertinent facts and circumstances pointing to the accused. These may be capitulated from the State’s evidence, as follows: (1) The defendant had agreed to perform an abortion upon the deceased for the sum of $30.00. (2) The defendant visited the deceased at the hotel and stated that she had left an instrument with the deceased which she could use if she so desired. (3) The defendant was seen coming down on the elevator and the State’s witness went to the room of the deceased immediately and she said “it was all over, the operation. ... a lady did it.” (4) The defendant received $14.00 in money paid by the witness Harris. The foregoing facts and circumstances are sufficient in probative value to warrant the submission of the disputed issue to the jury. The charge of the court is not in the record and it is therefore assumed that the jury was correctly instructed upon all phases of the case. No error.