#### STATE v. SOPHIA E. LAYTON.

(Filed 14 June, 1933.)

1. Homicide G c — Foundation for admissibility of dying declaration held properly laid in this case.

Testimony that deceased declared she was going to die, and that at the time of the declaration she was desperately sick and that death ensued within two days, constitutes a proper foundation for the admissibility of her dying declaration, and since a dying declaration is judged by the same standards as other evidence and is not admissible unless the declarant could testify to the same facts if he were a witness, the testimony of declarant’s attending physician as to whether declarant thought she was going to die at the time of the declaration is immaterial.

2. Same—

The fact that a dying declaration does not identify defendant does not render it incompetent where there is other sufficient evidence of defendant’s identity as the perpetrator of the crime, the dying declaration being of a material fact connected with the crime.

3. Homicide G e — Evidence of defendant’s identity as person who committed abortion resulting in death held sufficient.

In this prosecution for performing an abortion resulting in death there was evidence that defendant had agreed to perform an abortion upon deceased for a stated sum, that defendant visited deceased’s room at a hotel and stated that she left an instrument with deceased which deceased could use if she desired, that defendant was seen leaving the elevator in deceased^ hotel and that the witness immediately went to deceased’s room and that deceased immediatly said that a lady had performed the operation, and that defendant received a sum of money from deceased’s associate, is held, sufficient to be submitted to the jury on the question of defendant’s identity as the person who had committed the abortion.

*705CeimiNal action, before Granmer, J., at January Term, 1933, of "Waice.

Tbe defendant was indicted for tbe murder of Celia Roberts. Tbe evidence tended to sbow that Miss Celia Roberts, a young woman, about twenty years of age, became pregnant. Harris, a witness for tbe State, testified that be came to Raleigb on 11 July, and at tbe request of a man named Mangum made an appointment witb tbe defendant “to see if sbe would perform an abortion on Miss Celia Roberts.” Tbe defendant informed bim that tbe cost would amount to $30.00. Thereafter on tbe 14th or 15tb of July Miss Roberts came to Raleigb and went to tbe Carolina Hotel and procured a room. Harris immediately informed tbe defendant that Miss Roberts was at tbe hotel. Sbe went to tbe hotel witb Mangum and a woman and went to tbe room of deceased. Harris thereafter paid to tbe defendant and sbe accepted $14.00 in cash. Mangum testified that tbe deceased Miss Roberts described tbe defendant to bim and that on Tuesday be saw her get off tbe elevator at tbe hotel as be was getting on, to visit tbe deceased in her room. He testified that when be reached tbe room of tbe deceased sbe said: “it was all over, tbe operation. Sbe said a lady did it” but did not know her name. He bad seen tbe defendant go out. “I did not see Mrs. Layton in the room, but I saw her on tbe elevator.” Tbe State also offered evidence that tbe defendant stated to Harris that sbe bad left an instrument that Miss Roberts could use, but that sbe could not perform tbe operation for tbe reason that tbe deceased was then five months pregnant. Dr. Thomas examined tbe deceased in tbe hospital on 22 July and found that sbe was suffering from an incomplete abortion, resulting in death on 24 July. Tbe physician further testified: “Sbe was desperately sick when sbe came there, and we so advised her. When I was taking her history sbe told me sbe knew sbe was going to die. You know, people talk sometimes when they are sick. Sbe just said: 'I am so sick I am going to die.’ I told her that sbe was very sick, but was not necessarily sick enough to die or something like that.” At this point in tbe testimony tbe court asked tbe physician tbe following questions: “Did sbe appear to you to be in apprehension of impending death?” (A.) “Her temperature was very high and her pulse very rapid.” (Q.) “When sbe made that statement that sbe thought sbe was going to die do you think sbe thought sbe was going to die?” (A.) “Yes.” (Q.) “Did sbe make any statement to you, and, if so, what did sbe say?” (A.) “I asked her bow long sbe bad been sick? . . . (This was on Tuesday), and sbe said on last Friday sbe came to Raleigb and went to tbe Carolina Hotel, and some lady came to her room and inserted a tube into her womb about eleven o’clock, and at three o’clock in tbe morning sbe went to tbe bath room and tbe fetus passed. I made a blood test and *706she was very sick.” The defendant objected to the questions so propounded by the court and to the answers of witness, particularly to the answer containing the purported dying declaration of deceased.

There was evidence that the defendant had refused to perform the operation and that the deceased had stated to the witness Harris that “she had done it herself and the woman would not help her.” The defendant denied that she had anything to do with the abortion or that she had ever seen the deceased or talked with Harris about performing the operation. Several witnesses testified that the character of the defendant was good. The jury convicted the defendant and recommended mercy. The trial judge imposed a sentence of five years in the State’s prison, and from the judgment so pronounced the defendant appealed.

Attorney-General Brum-mitt and Assistant Attorney-General Seawell for the State.

Thomas W. Ruffin and R. B. Templeton for defendant.

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 *707that 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.