
    STATE v. JIM COLLINS.
    (Filed 24 January, 1925.)
    1. Homicide — Murder—Evidence—Fleeing Arrest.
    Upon the question of whether the accused for murder intended to give himself up to the officers of the law but fled from arrest owing to the intimidation of a crowd assembled who were hostile to him, declarations thereof by another, who has not testified, are incompetent as mere hearsay.
    2. Appeal and Error — Objections and Exceptions — Unanswered Questions — Record.
    Exceptions to the exclusion of answers to questions taken by the prisoner upon the trial for a homicide, will not be sustained on appeal when it is not indicated of record what the answers would have been and the materiality and competence of the proposed evidence may not be seen.
    3. Homicide — Murder—Evidence—Threats—Fleeing Arrest.
    Threat's against the prisoner that he claims 'caused him to conceal himself and avoid giving himself up to the authorities of the law, to be competent as evidence in his behalf must be shown to have been known by him at the time he had avoided arrest.
    4. Homicide — Murder — Deliberation and Premeditation — Evidence— Fleeing Arrest.
    Where the prisoner has been convicted of murder in the first degree the exclusion of evidence tending to show the reason of his flight after committing the crime is not error, and has no bearing upon the question of his premeditation and deliberation necessary for a conviction of this degree of the crime.
    5. Homicide — Murder—Evidence—Dying Declarations.
    Upon a trial for murder, the declarations of the deceased are competent for conviction when there is evidence that they were made by- the deceased when he knew he was soon to die, from the effect of the wound inflicted on him by defendant, when he had sufficient mental clearness to understand the purport and effect of his statement, and in fact died within a short time thereafter; and an exception to their admissibility may not be sustained on the ground that they were not complete judging from the other evidence in the case, their credibility being for the jury to determine.
    
      6. Homicide — Murder—Witnesses Recalled — Discretion of Court — Appeal and Error.
    It is within the sound discretion of the trial judge to permit the State on a murder trial, to recall and examine a witness after it had closed its evidence, and not reviewable on appeal in the absence of an abuse of this discretion.
    7. Homicide — Murder—Cooling Time — Evidence—Questions for Jury.
    While ordinarily the question of whether the prisoner had sufficient cooling time from the time his passions had been aroused by the deceased and the time of the hilling, is one of law, it is proper for the court to submit the question to the jury when the evidence upon the subject varies by fixing this length of time from “a short while” to three-quarters of an hour.
    8. Homicide — Murder — Instructions — Evidence—Cooling Time — Appeal and Error.
    When the dying declarations of the deceased are competent evidence, it is not reversible error for the trial judge to omit to charge the jury that they should receive them with due caution in the absence of a special request to that effect.
    9. Instructions — Contentions—Appeal and Error — Objections and Exceptions.
    Exceptions to the statement of the contentions of the parties must be made at the time.
    10. Instructions — Appeal and Error.
    An exception to the charge of the court on a trial for murder that the court had not given the law on the principle of cooling time arising under the evidence in the case, will not be sustained on appeal when the charge construed as a whole sufficiently covers the matter.
    11. Instructions — Evidence—Appeal and Error — Homicide—Murder.
    Under the evidence upon the trial for a homicide in this case: Held, not error for the court to refuse a requested instruction to the effect that the defendant was entitled to the most favorable inference from the evidence. S. v. Brinkley, 183 N. 0., 720.
    CRIMINAL action, tried before Lane, Jand a jury, at September Term, 1924, of Anson.
    Tbe prisoner was charged with the murder of A. 0. Sedberry on 19 July, 1924, and he appealed from the judgment pronounced on conviction for murder in the first degree. At the trial he did not testify or introduce any evidence. The salient features of the State’s evidence are substantially as follows:
    On the day of the homicide the deceased was engaged in scraping the public road leading from White Store to Peachland. He and Baxter McRae were running a road grader which was pulled by a truck, McRae operating the truck and the deceased the grader. They met a car driven by Frank Gulledge, in which were Jack Polk, Henry Watts and Jack Crowder. Tbe prisoner was on tbe running board. During a part of 1924 tbe prisoner bad-worked for tbe deceased, but bad left bim and was employed by "William Gulledge wben tbe homicide occurred. Tbe deceased bad tbe car to stop wben it approached tbe truck and this conversation followed: Sedberry: “Jim, why did you do like you did this morning ?” Collins: “Did what ?” Sedberry: “Send Oscar Gulledge for tbe money.” Collins: “I just sent bim.” Sedberry: “Ain’t you a man of your own?” Collins: “I am.” Sedberry: “Why did you not come and get it ?” Collins: “I just didn’t come.” Sedberry: “I owe you $2.37 and-carried you one night to see tbe doctor, didn’t I?” Collins: “You did.” Sedberry: “I didn’t intend to charge you for that if you bad stayed your time out that you hired to work, but as you did not, I am going to charge you $2.50 for that trip; that leaves you owing me thirteen cents, and I’m going to strike off even with you.” Collins' “I don’t give a d — n what you do with it.” Sedberry (after stepping down from tbe road machine) : “Don’t you cuss me.” Collins: “I didn’t cuss you.” Sedberry: “You cussed at me.” Tbe subsequent conduct of tbe two is described by Baxter McRae: “Sedberry then got bold of Jim, pulled bim off tbe fender of tbe car, bit at bim and slapped bim a time or two after be stepped on tbe ground. He bit bim across tbe bead, and while being bit, Jim .was bolding up bis bands. Sedberry then turned Jim loose and Jim stepped back and opened bis knife and started to bim, and Sedberry picked up a rock and said, ‘Don’t you come on me with that knife.’ Jim then backed off and closed tbe knife. Sedberry then got back on tbe road machine and said, ‘Let’s go,’ and we started down tbe road. This happened just beyond Jack Polk’s bouse. Jim started following us up tbe road, and Jack’s wife called to bim from tbe window and said, ‘Don’t you come up here; go back tbe other way.’ "When we got about fifty yards beyond Jack Polk’s bouse, Jim Collins came on down there again and hollered to me to stop tbe truck. He spent tbe nights at Jack Polk’s, but worked for and boarded with Mr. Gulledge. Wben we bad gone about fifty yards on tbe opposite side of Jack’s bouse, Jim came down near where we were and hollered to me to stop tbe truck. Sedberry said, ‘Go on.’ Then Jim aimed tbe gun at Sedberry and looked up. Just at that time Jack Polk ran up, jerked tbe gun down and it fired in tbe ground about three feet behind tbe scraper. Tbe gun looked like it was aimed at Sedberry’s bead. Jim and Jack went back towards tbe bouse tussling over tbe shotgun. Jack was trying to take tbe gun away from bim and finally did get it. They tussled for about fifty yards over tbe gun going toward Jack’s bouse. We went on down tbe road across tbe swamp with tbe truck and scraper, and wben we bad gotten about 290 yards from where tbe gun was fired I saw Jim Collins coming, and said, ‘Here comes that negro.’ Sedberry looked around, and Collins shot while he was running. He didn’t say a word and shot one time, turned around and went back. He shot with a thirty-two Colt’s automatic pistol. He was running when he shot. It is three hundred and thirty-five yards from where he overtook us to Jack Polk’s house. ,He got within about twenty-five feet of Sedberry before he shot. I saw that he was shot just above the hip. I helped him get on the truck and carried him to White Store. It was. about three hundred and eighty-five yards from where we first met Collins to where he shot Sedberry. It was from a half to three-quarters of an hour from the time of the quarrel in the road until Collins shot Sedberry.”
    Jack Polk testified as to the shooting: “I rode off on the running board and after getting up the road a little way I saw Jim coming out of my house with my gun'going down the road towards Sedberry. I told Mr. Gulledge to look yonder Jim’s got my gun, stop and let me get off, he slowed up, I jumped off and went running back towards where Jim was. I met my wife and she said Hack where are you going?’ I said 'don’t you see Jim- with my gun, I am going to get it from him.’ I overtook him and he had the gun cocked and aimed at Mr. Sedberry. I grabbed the gun and said, What you mean ? Give me my gun. What you mean by taking my gun out of the house? Give me my gun and let that man alone.’ It fired just as I knocked it down. Then me and Jim tussled over it. While we were tussling I told him to give me my gun and asked him didn’t he have good sense, and let the man alone, and after a while I got it loose from him, we' were near the house when I got it. I ran in the house with the gun and went in the back part of the house and saw him near me when I went in the dining room and he come in behind me when I was putting up the gun, and when I looked around he was going around the house on the left side. He was going back toward Sedberry. I 'went out the back door, I didn’t see any pistol, didn’t know he had one and had never seen him with one. My wife was going up the road calling me to come on. I was not going toward the truck. The last I saw of Jim he was going around the house in the direction of the truck. He was running. Tb.e next time I saw him he was up the road toward Mr. William Gulledge’s, he didn’t say anything about shooting Sedberry. I knew he had been shot and didn’t say anything to him. He told me to get his money from Mr. Gulledge and give it to him.”
    The foregoing testimony was corroborated by other witnesses, but under cross-examination they modified or varied their statement as to some of the circumstances. There was also evidence tending to show that the deceased beat the prisoner on the head and caused him to become highly excited; that soon after the fatal shot was fired the prisoner said tbat be bad sbot a man and wanted to give himself up to tbe sheriff; tbat be told William Gulledge tbat be bad sbot tbe deceased and wanted bis money at once; tbat Gulledge told bim to go to Ben White’s and stay there until be could go to tbe store and get some change, but a large crowd soon gathered near by; tbat tbe deceased was a white man, six feet in height, weighing about 215 pounds and tbe prisoner a colored boy about 19 or 20 years of age.
    Dr. Hart testified as follows: “I was called to see A. 0. Sedberry on tbe 19th of July, 1924; found bim lying on tbe porch of Mr. E. E. McRae’s bouse at White Store with a pistol sbot wound in bis back. Tbe bullet entered tbe body about three inches to tbe left of tbe spinal cord and just above tbe hip bone, passing upward and to tbe right— penetrating tbe intestines ten times, cutting tbe liver, severed tbe nerve and arteries, and lodged just under tbe last rib on tbe right side. He was brought to tbe hospital here and tbe bullet removed and intestines sewed up. He suffered intensely and bled profusely. His chance was mighty small, but we operated to give bim tbe benefit of tbe doubt, and be died Sunday morning, 20 July, 1924, about 5:00 o’clock. His death was caused by tbe pistol sbot wound.”
    Other testimony is referred to in tbe opinion.
    
      Attorney-General Mamving and Assistant Attorney-General Nash for the State.
    
    
      H. H. McLendon and H. P. Taylor for defendant.
    
   AdaMs, J.

On bis cross-examination tbe sheriff testified tbat be learned of tbe homicide about noon and went immediately to White Store and thence to tbe home of Henry Collins, tbe prisoner’s brother. He was then asked this question: “Did you receive information from tbe defendant’s brother Henry tbat be was close by and ready to surrender?” Tbe State’s obj'ection was sustained and the prisoner excepted.

There are two grounds upon which tbe ruling may be upheld: (1) Neither tbe form of the question nor tbe record indicates what tbe answer would have been. S. v. Ashburn, 187 N. C., 717, 722; Barbee v. Davis, ibid., 79, 85; Hosiery Co. v. Express Co., 186 N. C., 556; S. v. Jestes, 185 N. C., 735; Snyder v. Asheboro, 182 N. C., 708. (2) Tbe proposed evidence was inadmissible as hearsay. Evidence is termed hearsay when its probative force depends in whole or in part upon tbe competency and credibility of some person other than tbe witness from whom tbe information is sought; -and such evidence, with certain recognized ' exceptions not applicable here, is uniformly held to be obj’ectionable, tbe declarant not having spoken under tbe sanction of an oath and not having submitted to cross-examination. Chandler v. Jones, 173 N. C., 427; S. v. Springs, 184 N. C., 768.

The witness testified further that soon after he arrived at the scene of the homicide he saw probably seventy-five armed men between White Store and Gulledge’s house, and that on Sunday the number increased possibly to a thousand men, many of whom were armed. The prisoner sought to show that on the day of the homicide and again on Sunday threats had been made against him by some of these ’men; and to the exclusion of the evidence he duly excepted.

As suggested above there is nothing in the record from which we may ascertain whether the witness would have given an affirmative or negative answer to the questions propounded. But apart from this, there is no evidence that the prisoner had heard of such threats or that his flight was influenced by them; and if it be granted that the sheriff was followed by four armed men when he went the second time to Henry Collins’s house and that he got possession of a pistol while in the woods near by, we find no evidence that the prisoner was there or knew of the presence either of the officer or the men who followed him. Moreover, he was convicted of murder in the first degree; and as flight is not evidence of premeditation and deliberation the motive impelling flight may not be shown for the purpose of repelling the inference of such premeditation and deliberation. S. v. Foster, 130 N. C., 666, 675; S. v. Westmoreland, 181 N. C., 590, 595. Exceptions 1, 2, and 6 cannot be sustained; and on the same principle exception 5 must be overruled.

Concerning the dying declaration of the deceased, J. C. Sedberry, his brother said: “On Sunday morning, 20 July, just before he died, he told me he was going to die, that he could not last much longer, and he wanted to tell me how this thing occurred, and I told him to go ahead and tell me, but make it brief as he could because of his weakened condition. I was with him from the time I reached Wadesboro until his death. He had been operated on before I got there. I don’t know how long he was under the effects of ether or chloroform and don’t know how much medicine had been given hypodermically. I understood they had to give him injections of some drug, I didn’t know what. I did not see any administered. The nurses were passing back and forth all during the night doing something. He died about fifteen minutes or twenty minutes after his conversation with me. He was conscious up to the last. His mind seemed to be clear, of course he was suffering. He said he was on the grader, and Baxter McRae was driving the truck in front of him, and Jim Collins slipped up behind, and Baxter McRae hollered to him or called his attention to say, 'There comes that negro/ and that he had just started to look around as the negro fired, and as soon as he fired the pistol he turned and ran back the other way and did not say a word, neither one spoke to the other.”

Miss Miller, superintendent of tbe sanatorium, testified: “I was present wben be made tbe statement to bis brother between four and five o’clock Sunday morning. His mental condition was very clear. He said be knew be was not going to live and be wanted to make tbe statement. And be said be wanted to tell bis brother exactly bow it happened, and be said be was on tbe grader and Mr. McRae told, him to look out this man was behind him and be started to turn and was shot.”

Tbe prisoner’s exception to these declarations is based on tbe theory that they are in conflict with tbe testimony of all the eye-witnesses and that tbe deceased at tbe time was either unconscious or inadvertent to tbe circumstances, manifested by bis silence as to bis assault on tbe prisoner.

Tbe rule for tbe admission of dying declarations is thus stated: (1) At tbe time they were made tbe declarant should have been in actual danger of death; (2) be should have bad full apprehension of bis danger;- (3) death should have ensued. S. v. Mills, 91 N. C., 581, 594. Tbe evidence excepted to disclosed all these conditions. In S. v. Williams, 168 N. C., 191, it is said that dying declarations are frequently made under conditions which render it impossible for tbe declarant to state in detail tbe circumstances connected with tbe killing; and in S. v. Brinkley, 183 N. C., 720, evidence of a dying declaration was admitted, although tbe deceased became too weak to recite all tbe circumstances relating to tbe homicide. In tbe absence of a cross-examination such declarations are often incomplete; but after all they are only evidence to be considered, weighed, and passed upon by tbe jury, tbe final arbiter of all issues of fact. Tbe admission of this evidence conformed to tbe rules pointed out in several of our decisions.

After tbe examination of G. F. Hunsucker, tbe State rested its case and tbe prisoner in pursuance of a previous request was permitted to recall tbe sheriff for further cross-examination. At tbe conclusion of bis testimony tbe prosecution asked permission to examine J. F. Tice, who testified as to tbe circumstances under which tbe prisoner was shot and arrested several days afterwards near tbe line between Stanly and Cabarrus. Tbe request was granted and tbe prisoner excepted to tbe examination of Tice on tbe ground that tbe State bad previously closed its case. Whether tbe evidence objected to should be introduced was a matter to be determined in tbe sound discretion of tbe court and in tbe absence of abuse tbe exercise of which discretion is not reviewable. S. v. Davidson, 172 N. C., 944; S. v. King, 84 N. C., 737; S. v. Haynes, 71 N. C., 79; S. v. Rash, 34 N. C., 382.

On cross-examination tbe prisoner asked Tice tbe questions, “Wben you did get up there (where tbe homicide occurred) tbe sheriff told you to stay at White Store and keep the crowd back for him, didn’t he? Didn’t he deputize yon for that purpose Saturday afternoon?” It was proposed to show that the sheriff had deputized the witness to prevent the crowd from going to Henry Collins’s because he had information that the prisoner was ready to give himself up, and that the witness disobeyed the sheriff’s instructions and went in a car with four armed men while the sheriff was there and caused the prisoner to flee.

Upon the principle already stated this evidence was not competent on the question of flight; and if intended as an impeaching question it is not ground for a new trial. Tice was himself a public officer, having occupied the position of constable for eight years. It is evident from his testimony that he was acting in the discharge of official duties and that when he went to Henry Collins’s house he did not know the sheriff was there.

Exceptions 10, 15, and 16 are addressed to the court’s refusal to sustain the prisoner’s motion for nonsuit as to the charge of murder in the first degree and in declining the instruction that there was no evidence of murder in the first degree and that a verdict therefor should not be returned.

The basis of these exceptions is the contention that at the time he shot the deceased the prisoner was urged on by passion aroused by the unprovoked assault of the deceased and that sufficient time had not elapsed for the “passion to subside and reason to reassume her dominion — that is, for premeditation and deliberation.” Under our decisions the question of cooling time is ordinarily one of law and only the existence or nonexistence of the facts controlling its application in a given case is for the jury. S. v. Sizemore, 52 N. C., 206; S. v. Moore, 69 N. C., 267; S. v. Merrick, 171 N. C., 788. The question frequently depends upon the nature of the prosecution and the facts disclosed by the evidence. It has been held, for instance, that an interval of two or three minutes, or the prisoner’s absence of “no time” is not sufficient; but that an hour is more than sufficient, and a half-hour or even fifteen minutes may be sufficient for passion .to subside and reason to resume its sway. S. v. Norris, 2 N. C., 430; S. v. Moore, supra; S. v. Savage, 78 N. C., 520; S. v. Williams, 141 N. C., 827. In S. v. Merrick, supra, the question of cooling time fixed by the witnesses was too indefinite and uncertain for a direct ruling as to manslaughter, and it was referred to the jury for final determination.

In the case before us there was evidence that the time intervening between the first combat and the fatal shot was three-quarters of an hour, a half-hour, and “a little while.” Under these circumstances the question was submitted-to the jury who rejected the prisoner’s contention and found that between the two periods there had been sufficient time for tbe prisoner’s exercise of reason and judgment. If, therefore, there was evidence of murder in the first degree the exceptions should be overruled. That there was such evidence is hardly subject to debate. The testimony tended to show ample time for deliberation and premeditation and the statements said to have been made by the prisoner justified the inference of a fixed design to take the life of the deceased. Mary Polk testified that when the prisoner came towards the house from which he took the gun she warned him to go back and he replied, “Mary, I ain’t going to let no man beat me over the head like that and get off”; and William Gulledge said that after the shooting had occurred the prisoner went to his house and told him, “No d — d man could jerk him around and get off with it.” These and several other circumstances, such as the prisoner’s return to the house for the pistol after the ineffectual discharge of the gun, were admissible on the question of a preconceived purpose; and in applying the evidence the presiding judge was careful and minute in impressing the principle that sufficient cooling time must have passed for rational deliberation and premeditation. As to these exceptions we think the prisoner has no just ground of complaint.

The eleventh exception, which relates to the instruction pertaining to the alleged dying declarations of the deceased, is not tenable. We have held that the evidence as to these declarations was competent; and while the court might properly have told the jury to consider this evidence with due caution, the failure to do so in the absence of a special request will not be held for reversible error. We have repeatedly said that as to subordinate features or particular phases of the evidence proper request should be made for appropriate instructions. S. v. O’Neal, 187 N. C., 22.

Exception twelve refers to the statement of certain contentions to which no objection was made during the trial. Bailey v. Hassell, 184 N. C., 450; S. v. Ashburn, supra.

The thirteenth exception is as to an instruction on the question of premeditation and deliberation, the prisoner insisting that no reference is therein made to cooling time or reasonable doubt. In other parts of the charge, however, the jury was particularly and fully instructed upon each of these questions, and the principle is established that the entire charge of the judge and not isolated and detached paragraphs should be considered in determining whether there is error prejudicial to the appellant. S. v. Wentz, 176 N. C., 745; S. v. Wilson, ibid., 751.

Eefusal to give the following instruction is assigned as ground for the seventeenth exception: “If the acts of the defendant are capable of two inferences, one criminal and the other not, the law requires you to place an innocent construction upon his conduct.” In relation to the circumstances shown at the trial the legal proposition introduced in the prayer is incorrect. An instruction similar in its essential features was disapproved and the reasons therefor assigned in S. v. Brinkley, supra. Exception fourteen obviously requires no discussion and the others are formal.

We have endeavored to give this appeal our careful and deliberate consideration. The evidence reveals circumstances which may reasonably be construed as the basis of the defense set up and relied on by the learned and diligent, counsel who were appointed to represent the prisoner; but there was also abundant evidence to support the contentions of the State, and under comprehensive instructions the testimony was sumitted to and determined by the jury. We find no error. Let this be certified as provided by law.

No error.  