
    STATE v. TEACHEY.
    (Filed March 8, 1904).
    YIDEIST CE — H omioide.
    
    In a prosecution for homicide, where defendant’s father testified that defendant was at home at seven o’clock on the night of the shooting, and that he, the father, went to bed early and did not see defendant until the next morning, and deceased was shown to have been shot about nine o’clock that night, testi- ’ mony of a state’s witness that a few days after the shooting the father said, on hearing that the shooting was done at nine o’clock, that he might as well give the ease up, as he could not account for defendant after seven o’clock, was inadmissible, for it was neither contradictory of any statement of defendant’s father nor connected with any fact concerning the shooting.
    INDICTMENT against Dan Teachey, heard by Judge 0. II. Allen and a jury, at August Term, 1903, of the Superior Court of Duplin County.
    From a verdict of guilty of murder in the first degree, and judgment thereon, the defendant appealed.
    
      Robert D. Gilmer, Attorney-General, and Stevens, Beasley & Weeks, for the State.
    
      J. O. Garr and Jno. D. Kerr, for the prisoner.
   Montgomeby, J.

In addition to the statement of witnesses concerning the dying declarations of the deceased, there was strong evidence that the prisoner shot and killed the deceased. His Honor, however, in the course of the trial received a certain piece of evidence, offered by the State, which was so clearly incompetent, and which may have been harmful to the prisoner, that we are on that account compelled to order a new trial.

Robert Teachey, the father of the prisoner, testified for tbe defense that bis son, tbe prisoner, was at bis borne at 7 o’clock on tbe nigbt of tbe shooting, and that be (tbe father) went to bed early and did not see tbe prisoner until next morning. Tbe deceased was .shot about 9 o’clock at nigbt. AY. D. Teachey, a witness for tbe State, was allowed to testify, over tbe prisoner’s objection, that, on Sunday after tbe shooting, be, at tbe bouse of Robert Teachey, was asked by Robert if be (AY. D.) bad beard anybody say at what time tbe shooting took place, and that be answered, “About 9 o’clock,” and that in reply Robert said: “I might as well give tbe case up, as I have no grounds to fight upon. I cannot account for Dan after 7 o’clock.”' Joe Bostick testified that be beard Robert Teachey say that he could not account for Dan after 7 o’clock. At tbe close of bis testimony tbe jury were instructed “That tbe evidence as to what Bob Teachey (who is tbe same as R. Teachey) said was not to be considered, unless they found from tbe evidence of said Teachey that be fixed Dan Teachey at home that nigbt after 7 o’clock, and be (Bob Teachey) was thereby contradicted.” Assuming that this instruction to tbe jury bad reference to the testimony of AY. D. Teachey, as well as to that of Bos-tick, it could not have tbe effect of curing tbe error in tbe admission of tbe testimony of AY. D. Teachey. In no sense could tbe testimony of AY. D. Teachey be considered as contradictory of any statement made by Robert Teachey as to tbe whereabouts of Dan on tbe nigbt of tbe shooting. Tbe despair of tbe father, Robert, in successfully defending bis son against the charge of murder bad no connection with any statement made by tbe father as to tbe time when be saw tbe son last on the nigbt of tbe shooting. It was entirely independent of all reference as to tbe time of tbe shooting, and was but tbe individual opinion of a distressed parent about tbe difficulties surrounding bis son’s condition. It was not Contradictory of any statement made by the witness, and was not connected with any fact concerning the alleged homicide.

New trial.  