{
  "id": 11269554,
  "name": "STATE v. ALBERT SHOUSE",
  "name_abbreviation": "State v. Shouse",
  "decision_date": "1914-04-08",
  "docket_number": "",
  "first_page": "306",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
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  "last_updated": "2023-07-14T20:23:48.430184+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. ALBERT SHOUSE."
    ],
    "opinions": [
      {
        "text": "BeowN, J.\nThe prisoner has been convicted of the crime of murder in the second degree in the killing of one James Webster on 12 October^ 1913.\nThe testimony of the witnesses for the State tended to show that on 22 October the deceased was at the house of one Jess Anthony. While the deceased was sitting on the doorstep the prisoner came around the corner of .the house and threw a rock towards the deceased, hitting him on the foot, and the deceased said, \u201cLook out,. AI.\u201d\nThe prisoner immediately jerked out a pistol and pointed it at the deceased and shot. The bullet entered near the extreme lower part of the bowel and was extracted a little above the small of the back. He died the following day.\nThe first five assignments of error are directed to the ruling of the court admitting the dying declarations of the deceased.\nIt is contended that the deceased, when he made the declarations, was not in such condition of mind and body as rendered the declarations competent.\nThe witness James Holmes testified that he saw the deceased on the evening of the day on-which he was shot, and he said to the witness that he was in bad shape. Deceased said: \u201cI know I am going to die from the wound.\u201d Jim Webster, Sr., father of the deceased, said that he told witness that he was bound to die.\nDr. D. 0. Speas testified that when he had examined the deceased, he made a statement to him about the result of the wound. \u201cI told Jim Webster there was very little chance, if any, for him, and in my estimation there was none. I administered medicine to revive him. He asked me if he could get well, and I told him no.\u201d This witness testified on his first examination : \u201cI found the patient very much depressed, suffering from shock due to the wound.\u201d\nThe declarations o\u00a3 the deceased, together with the evidence as to his actual condition, justified the admission of his statement as to what occurred at the time of the shooting.\nIn S. v. Bagley, 158 N. C., 608, we said: \u201cIt is not always necessary that the deceased should declare himself that he believes be is about to pass away, but all tbe circumstances and surroundings in which he is placed should indicate that he is fully under the influence of the solemnity of such a belief.\u201d\nThe principle upon which these dying declarations are admitted is that they must be made by one who is in a condition so solemn and awful as to exclude the supposition that he could be influenced by malice, revenge, or any conceivable motive\u2019to speak anything except the truth. S. v. Williams, 67 N. C., 12; S. v. Moody, 3 N. C., 31; S. v. Jefferson, 125 N. C., 712.\nAll the evidence shows clearly that the deceased was in such condition when the declarations were made.\nThe three remaining assignments of error relate to the admission of certain threats.\nWilliam Crutchfield, a witness for the State, testified that when the prisoner returned from Virginia about three weeks before Webster was killed, the prisoner told witness that he had killed one man, and was going to kill two more, and then he would be willing to die and to go to torment like, his brother.\nAnnie Dean, a witness for the State, testified that when the prisoner came to her house about three weeks before Webster was killed, that he said \u2019he had got in some trouble in West Virginia, that he had killed a man and left him in the mountains, and never expected to rest until he had killed two more ;> said he was going to kill two more, and that would be as many as his brother had killed; he said one time he thought he wanted to go to heaven, but now he wanted to go to hell.\nWe admit the principle that general threats to kill not shown to have any reference to the deceased are not admissible in evidence, but a threat to kill or injure some one not definitely designated is admissible in evidence, where other facts adduced give individuation to it. 21 Cyc., 922.\nBut these threats were offered to show premeditation, deliberation, and previous express malice, necessary to convict of murder in the first degree. S. v. Tate, 161 N. C., 280.\nThey were practically irrelevant, unnecessary, and harmless, as prisoner was acquitted of the capital felony.\nTbe prisoner admitted that be killed tbe deceased witb a deadly weapon. He testified: \u201cI was playing witb tbe deceased. I pitched a rock at tbe deceased, and be said, \u2018Look out, Al.,\u2019 and I went to get my gun and went to pull it out, and it got caugbt, and went off. I was about 14 feet from tbe deceased. My coat was on my right arm. I am a right-handed man. I carried tbe rock witb my left band. I reached to get tbe pistol witb my left band, and my finger caugbt it, and it went off.\u201d\nTbe killing of tbe deceased (who admittedly was unarmed and engaged in no unlawful act) witb a deadly weapon being-admitted, tbe law presumes malice, and it was tbe duty of tbe jury to convict of murder in tbe second degree unless tbe prisoner satisfied them that tbe killing was done under such circumstances as justified tbe act, or reduced it to manslaughter. This be failed to do.\n\u00a5e have examined tbe record, and find\nNo error.",
        "type": "majority",
        "author": "BeowN, J."
      }
    ],
    "attorneys": [
      "Attorney-General Biclcett and Assistant Attorney-General Galv\u00e9rt for the State.",
      "Louis M. Swinlc, W. T. Wilson for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ALBERT SHOUSE.\n(Filed 8 April, 1914.)\n1. Homicide \u2014 Dying Declarations \u2014 Trials\u2014Evidence.\nWhere the prisoner shot the deceased, causing death the following day, and there is evidence that the deceased was informed by his attending physician that he could not recover from the wound, and that he was aware of its fatal nature, his declarations are competent evidence against the prisoner upon trial for the homicide.\n2. Homicide \u2014 Deadly Weapon \u2014 Trials\u2014Presumptions\u2014Evidence\u2014 Appeal and Error \u2014 Harmless Error.\nUpon the trial for murder, the law presumes malice from the killing with a pistol shot, and it is for the prisoner to show that the shooting was done under such circumstances as -would justify the act or render it manslaughter; and where the jury has returned, in such ease, a verdict of. murder in the second- degree, errors committed in admitting evidence of previous threats upon \u2022the question of premeditation and deliberation necessary for conviction of murder in the first degree are rendered harmless.\nAppeal by defendant from Lame, J., at December Term, 1913, of Forsyth.\nIndictment for murder. The defendant was convicted of murder in the second degree, and from this judgment pronounced, appeals.\nAttorney-General Biclcett and Assistant Attorney-General Galv\u00e9rt for the State.\nLouis M. Swinlc, W. T. Wilson for defendant."
  },
  "file_name": "0306-01",
  "first_page_order": 348,
  "last_page_order": 351
}