
    STATE v. THOMAS DULA.
    To the rule requiring testimony to be subjected to the tests of “ an oath” and “ cross examination” there are exceptions, arising from necessity. One of these consists of declarations, which are part of the res gestee.
    
    This exception embraces only such declarations as give character to an act; therefore, when the deceased was met a few miles from the place where she was murdered, going in the direction of that place, Held that her declarations, in a conversation with the witness, as to where the prisoner was and that she expected to meet him at the place whither she was going, were not admissible against him. . 1
    What facts amount to an agreement to commit a crime between the prisoner and one charged as accessory, so as to render competent the acts and declarations of the alleged accessory, is a question of law, and the decision of the court below upon it is subject to review in the Supreme Court.
    So, whether there is any evidence of a common design. But whether the evidence proves the fact of common design, whether the witnesses are worthy of credit, and in case of conflict, what witnesses should be believed by the Judge, are questions of fact for him to decide, and are not Hable to review.
    
      {State v. George, 7 Ire., 321, and State v. Andrew, ante, p. 205, cited and approved.)
    Murder, tried before Buxton, J., at Fall Term, 1866, of the Superior Court of Iredell.
    The prisoner was indicted as principal, and one Ann Melton as accessory before the fact, in the murder of one Laura Foster, in Wilkes county in May, 1866. The bill was found at Fall Term, 1866, of Wilkes Superior Court, and upon affidavit, removed to Iredell. The prisoner and Ann Melton were arraigned together, but, upon motion of the counsel for the former, there was a severance, and he put upon his trial alone.
    The case, as made out by his Honor, contained a statement of all the evidence, and was quite voluminous. There were several exceptions by the prisoner on account of the admission of improper testimony. The opinion of this court makes it unnecessary to state them all, or to detail the evidence.
    The body of the deceased was found a few weeks after she disappeared near a locality called “ the Bates place,” and was recognized. There were plain indications that the deceased had been murdered; and the testimony relied on to prove the guilt of the prisoner was circumstantial.
    One Betsey Scott testified that she saw the deceased the morning of the day she was missing; “ she was riding her father’s mare, bare-back, with a bundle of clothes in her lap,” &c. It was then proposed to prove by the witness that in a conversation that ensued between her and the deceased, the latter said she was on her way to the Bates place; that the prisoner had returned just before day, was going another way and she expected to meet him at the Bates place. The prisoner objected to the declarations, as not being a part of the res gestee; but the testimony was admitted.
    The other exceptions were principally to the admission of evidence of acts and declarations of Ann Melton. The prisoner contended that such evidence should not go to the jury, unless a common design between him and Ann Melton had first been established. His Honor overruled the exceptions, and the testimony was admitted.
    Verdict of Guilty; Rule for a new trial; Rule discharged; Motion in arrest of judgment; Motion overruled; Judgment of Death, and Appeal.
    
      Attorney General and Boyden, for the State.
    
      Vance, for the prisoner.
   Pearson, C. J.

The case discloses a most horrible murder, and the public interest demands that the perpetrator of the crime should suffer death; but the public interest also demands that the prisoner, even if he be g'uilty, shall not be convicted, unless his guilt can be proved according to the law of the land.

The conversation between Mrs. Scott and the deceased ought not to have been admitted as evidence. At all events, no part of it except that the deceased said she was going to the Bates place. How what the deceased said in regard to the prisoner’s having come just before day, and where he was, and that she expected to meet him, can in any sense be considered a part of the acts of the deceased — being on her father’s mare, bare back, with a bundle of clothes in her lap, and coming from her father’s past A. Scott’s house, when the witness met her in the'road — we are unable to perceive. The law requires all testimony, which is given to the jury, to be subjected to tioo tests of its truth: 1st. It must have the sanction of an oath. 2d. There must be an opportunity of cross examination. Dying declarations form an exception, and another exception is allowed when declarations constitute a part of the act, or res gestas. Acts frequently consist not only of an action or thing being done, but of words showing the nature and quality of the thing. In such cases, when the action or thing being done is offered in evidence, as a matter of course the words which form a part of it must also be received in evidence; as if one seizes another by the arm, saying, I, arrest you under a State’s warrant, these words are just as' much a part of the act done as the action of taking him by the arm.

In this case the conversation between Mrs. Scott and the deceased, although it occurred at the time of the action or thing being done, to wit, her being in the road on her father’s mare, bare back, cannot, in any point of view, be considered a part of the act. It was entirely accidental, and consisted simply of answers to inquiries which the curiosity of Mrs. Scott induced her to make. These answers may have been true, or they may have been false, but they were not verified by “ the tests ” which the law of evidence requires, and it was error to admit them as evidence against the prisoner.

As the case must go back for another trial, we do not feel at liberty to enter into an expression of opinion in regard to the other matters of exception. But we see from the case sent that his Honor fell into the error, for which a venire de novo is awarded at this term in State v. Andrew. That is, without stating distinctly how he decided the facts, preliminary to the admission of the acts and declarations ol Ann Melton in furtherance of a common purpose to murder the deceased, upon the evidence offered to the court to establish these preliminary facts he allows the evidence to go to the jury, and instructs them that if they are not satisfied of the existence of a conspiracy between the prisoner and Ann Melton to efieet the murder of the deceased, in that case they are to give to the acts and declarations oí Ann Melton, which had been admitted as evidence to them no weight, and are not to be influenced by them. What facts amount to such an agreement between the prisoner and Ann Melton, to aid and assist each other in effecting the murder of the deceased, as to make her acts and declarations in furtherance of the common purpose evidence against him, is a question of law, and the decision in the court below may be reviewed in this court; so, what evidence the Judge should allow to be offered to him to establish these facts, is a question of law; so, whether there be any evidence tending to show the existence of such an agreement is a question of law. But whether the evidence, if true, proves these facts, and whether the witnesses giving testimony to the court touching the facts are entitled to credit or not, and, in case of a conflict of testimony, which witness should be believed by the court, are questions of fact to be decided by the Judge, and his decision cannot be reviewed in this court. See State v. George, 7 Ire., 321, and State v. Andrew, decided at this term, ante, p. 205, where the subject is fully explained. The remarks made in that case are ap-. plicable to this, not excepting what is said in reference to-the prolixity of cases made up for this court.

In speaking of the -connection necessary to be found between the prisoner and Ann Melton as preliminary to the admissibility of her acts and declarations, in furtherance of the common purpose, as evidence against him, I have used the word “ agreement ” to aid and assist each other to effect the death, in preference to the word conspiracy; for, although they have the same meaning, yet the latter is apt to lead to a confusion of ideas. If parties are indicted for a conspiracy to murder or do some other unlawful act, in that case the issue joined on the plea of not guilty is the fact of the conspiracy; the endeavor to prove it must, of course, be given to the jury and passed upon by them. Otherwise, where the indictment is for the murder or other act, and the fact of an agreement to aid and assist is only preliminary to the admissibility of the acts and declarations of one against the other.

Per Curiam. Venire de novo.  