#### STATE v. BRAD BAGLEY.

(Filed 6 March, 1912.)

1. Murder — Evidence—Dying Declarations.

Declarations of the deceased are admissible in evidence ’ on trial of the prisoner charged with his murder, when from the circumstances and surroundings and from- information given him by the attending physician it appeared that the. deceased made the declarations in anticipation of his death.

2. Same — Identification.

With evidence tending to show that deceased died from the effect of being shot by the prisoner from behind, on the street of a town, about 9 o’clock at night, and that his attending physician informed him that his death was near, and that if he had any message he wanted to leave, it were best that he do so: Hold, competent as dying declarations, made a short time before his death, that it was the prisoner who. had shot him; that he saw his outline very distinctly as he ran down the street, and he was certain that the prisoner was the one.

3. Murder — Verdict — Findings — Practice — Interpretation of Statutes.

It is required by our statute that a Jury should render their verdict in a trial for murder so as to show, if murder was their verdict, whether it was in the first or second degree. Revisal, sec. 3271.

4. Same — Direction's—Reconsideration—Recording.

A verdict rendered in open court is not complete until accepted by the court for record, and it is the duty of the trial judge to prevent the recording of a doubtful or insufficient finding ; and in this case it is Held, that his Honor, on seeing that the degree 'of murder was not expressed in the verdict, correctly told the jury to reconsider their finding, for the purpose of specifying the crime, and upon response being made by them of murder in the first degree, the verdict was properly recorded accordingly.

Appeal from Qoolce, J., at September Term, 1911, of Martlet.

Tbis is an indictment for murder. The prisoner was convicted of murder in the first degree, and from the sentence of death appeals to the Supreme Court.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

*609 Attorney-General Bicleett and Assistant Attorney-General Gal-vert for the State.

Winston & Mathews for the prisoner.

BeowN, J.

Tbe prisoner was convicted of tbe murder of one William R. White, wbo died on tbe nigbt of 15 August, 1911. The evidence tends to prove that while passing a gate on one of tbe public streets of tbe town of Williamston, about 9 o’clock p. mv tbe deceased was shot from behind, and died tbe same nigbt. There is evidence of circumstances tending to prove that tbe prisoner waylaid and shot tbe deceased.

But it is contended by tbe learned counsel for tbe prisoner that tbe evidence is insufficient to convict, if tbe dying declarations of tbe deceased are excluded. Many exceptions of tbe prisoner relate to tbe competency of these declarations.

Dying declarations are admissible in cases of homicide when they appear to have been made by tbe deceased in present anticipation of death. It is not always necessary that tbe deceased should declare himself, that be believes be is about to pass away, but all tbe circumstances and surroundings in which be is placed should indicate that be is fully under tbe influence of tbe solemnity of such a belief.

Tbe evidence in this case shows that tbe doctor, wbo was present with tbe deceased when be expired, told him that be was in a critical condition and was likely to die, and that if there was any message be wanted to leave, be bad better do so.

Tbe doctor informed him distinctly that be could not live, and it was then that be said that it was tbe prisoner wbo shot him; that, be saw bis outline very distinctly as be ran down tbe street, and be was certain it was tbe prisoner.

Tbe witness says that tbe deceased’s mind was perfectly clear as long as be bad sense to talk; that be made tbe same statement to different persons as they would come in tbe room, and that be repeated it only fifteen minutes before be died. Other testimony corroborates this evidence.

We think tbe evidence indicates clearly that tbe deceased fully realized not only that bis death was sure, but that it Was also *610near, and that the court properly admitted his declaration. S. v. Quick, 150 N. C., 820; "Wigmore on Evidence, sec. 1430 et seq.

We have examined carefully all the exceptions in the case, and are unable to" find anything whatever that will warrant a new trial. The last exception which was taken to the manner of receiving the verdict is untenable. When the jury came .in with their verdict, in reply to the clerk they responded “Guilty.” His Honor told the jury to reconsider their response, and specify the crime of which they found the prisoner guilty. The jurors stated they found the prisoner guilty of murder in the first degree. This was in accordance with the statute^ Revisal, 3271, which requires the jury to determine in their verdict whether the crime is murder in the first or second degree.

In S. v. Godwin, 138 N. C., 583, the principle is recognized and enunciated that before a verdict returned into open court by a jury is complete, it must be accepted by the court for record.

It is the duty of the judge to look after the form and substance of a verdict so as to prevent a doubtful or insufficient finding from passing into the records of the court, and to accomplish such ends it is the duty of the court to see that the jury may amend their verdict in form so as to meet the requirement of the law. S. v. McKay, 150 N. C., 813.

No error.