{ "id": 8682584, "name": "STATE vs. JAMES SHELTON", "name_abbreviation": "State v. Shelton", "decision_date": "1855-08", "docket_number": "", "first_page": "360", "last_page": "365", "citations": [ { "type": "nominative", "cite": "2 Jones 360" }, { "type": "official", "cite": "47 N.C. 360" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 584, "char_count": 11139, "ocr_confidence": 0.423, "pagerank": { "raw": 3.9322750915824894e-07, "percentile": 0.9030825735400018 }, "sha256": "161f6e2b3c7e7e58cad9eb8d39a762e080332bddf18530c7614d6ca3418748e0", "simhash": "1:302f15e4ecc48c36", "word_count": 2008 }, "last_updated": "2023-07-14T15:13:38.493839+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE vs. JAMES SHELTON." ], "opinions": [ { "text": "PeausoN, J.\nIf the fight was a continuous act, from its commencement at the house, until the fatal blow was struck in the orchard, although the throwing of stones and other offensive acts was not kept up incessantly, but was suspended at times, as the parties saw proper to change their position or seek other weapons, the killing was but manslaughter: because the assault with the axe and maul, and by throwing of stones, was not only a legal provocation on both sides, but was a provocation of a highly exciting character, by which the lives of the parties were mutually put in danger, and each was impelled, by blind fury, to kill his adversary, if he could.\nIf the first fight ended at the stable, so that the matter was over and done with, and there was 6- cooling time\u201d before the parties met in the orchard, and the prisoner then struck the fatal blow, the killing was murder, unless there was some fresh provocation.\nConsidering all the occurrences as constituting but one act, the dying declarations were all properly admitted as evidence, being a full narration of the whole fight; \u25a0 but then, the Judge should have instructed the jury, that in this point of view, the killing was manslaughter only.\nConsidering the occurrences as constituting two separate, and distinct acts, only so much of the dying declarations as related to the second act, ought to have been admitted, and there was error in admitting that part of the declarations which related to the first fight. In this point of view, the Judge ought to have withdrawn from the j ury all the declarations, except that part which related what took place in the orchard when the fatal blow was struck. The better course would have been to require the Solicitor for the State, to set out what he expected to prove the dying declarations were; and as from them it is manifest that the first fight and the rencounter in which the fatal blow was given, were too separate and distinct acts, he should only have allowed that part which related to the last act, to go to the jury.\nAccording to the general rule, no testimony is admissible unless it is subjected to two \u201c tests of truth,\u201d an oath and a cross-examination. A sense of impending death is as strong a guaranty of truth as the solemnity of an oath; but dying declarations cannot be subjected to the other test: there is no opportunity for cross-examination, and there is nothing to meet this objection and answer as an equivalent for the want of cross-.examination : hence, the exception, in respect to dying declarations, rests solely upon the ground of public policy and the principle of necessity. As in many cases, the knowledge of the facts attending the killing, is confined to the party killed and the perpetrator of the crime, there is a public necessity for admitting dying declaration as evidence, \u201c in order to preserve life by bringing manslayers to justice but, as the exception can only be sustained on the ground of necessity, it is restricted to cases of indictment for homicide, and it is further restricted to the act of killing and the circumstances immediately attending the' act and forming- a part of the res gestee. If it can be extended to a separate and distinct act, occurring half an hour before, it will extend to any act done the day before, or a week, month, or year. As soon as the limit fix\u00abd by absolute necessity is passed, the principle upon which the exception is based being exceeded, there is no longer any limit whatever, and dying declarations become admissible, not merely to prove the act of killing, but to make every homicide murder by proof of some old grudge.\nThat the exception is restricted in the manner above stated, is clear from the reason of the thing, and is settled by authority; Barfield v. Britt, (ante 41) 1 Greenleaf, sec. 156, and cases cited. Cowan and Hill\u2019s notes, Phil. on Ev. Pt. 1, 610.\nThe prisoner excepted on other grounds: several of them, we are inclined to think, are well founded, but it is not neces.sary to notice them, as they may be prevented in the next trial.\nPer Oueiam. Judgment reversed and a venire de novo.", "type": "majority", "author": "PeausoN, J." } ], "attorneys": [ "Attorney General and Baxter, for the State.", "JST. W. Woodjm and J. W. Woocljm, for. defendant." ], "corrections": "", "head_matter": "STATE vs. JAMES SHELTON.\nDying declarations must be restricted to tho act of killing, and the circumstances immediately attending the act and forming a part of the res gesten.\nINDICTMENT for MURDEB, tried before bis Honor Judge Saunders, at the Spring Term, 1855, of Buncombe Superior Court.\nThe offense was charged to have been committed on the body of Drury Norton, by the prisoner, and that Til in an Lan-ders and Lewis Shelton were present, aiding and abetting the prisoner in the felonious act. The bill was found in the county of Madison, and the cause removed for trial, on the affidavit of the prisoner, to the county of Buncombe.\nThe declarations of the deceased, after receiving the blow, were offered by the State, and received by the .Court under the following circumstances: The witness by whom it was proposed to prove the declarations, said he saw him the day after receiving the wound, that he appeared to have received a severe blow in the forehead ;'he complained very much \u2014 had a .severe spell: the witness said; he (witness) expressed a hope that he would get well, to which the deceased said, \u201c he must die.\u201d Another witness said he was there the same day spoken of by the other witness \u2014 the day after the transaction: he found the wound in the forehead very severe: he examined it and found the skull fractured, (as he thought) done apparently with a stone : deceased said, \u201c he did not think it possible for him to live after such a wound He (deceased) then spoke to his wife about his boys making a crop, as \u201c he did not expect to be able to assist themhe became delirious that night, and died on the following Sunday. (This was on Thursday.)\nThe first' witness was then permitted to state the declarations of the deceased ; which were as follows: \u201c Deceased said he had been at work in his new ground ; that his father-in-law and Lewis Shelton (one of the accused) had been at work with him: that he had drunk freely in the morning, but that after his day\u2019s work and eating his dinner, he had become sober: that on going home in the evening he found the two prisoners, James Shelton and Landers, there : that some words passed between them : that he ordered them off, as he did not want them to eat any of his supper: that after some further words Landers spit tobacco juice in his eyes, and he threw spirits in his face : that he was about to tell James Shelton he could stay, when he (Shelton) threw him out of the door : He (deceased) drew