
    STATE v. BOGGAN.
    (Filed December 19, 1903.)
    1. DYING DECLABATIONS — Evidence.
    The facts of this case make the dying declarations of the deceased competent.
    2. HOMICIDE — Evidence—Murder—Manslaughter.
    The evidence in this ease is sufficient to justify the refusal of the trial judge to instruct the jury that there was no evidence of murder in the first degree, or second degree, or manslaughter.
    3. JURY — Improper Conduct — New Trial.
    
    The fact that a jury had an opportunity to see the locality where the homicide is alleged to have been committed and there is no evidence that any remarks were made among the jurors themselves or the officer attending them as to the condition and appearance of the place, is not sufficient to justify the granting of a new trial, the trial judge having declined to set aside therefor a verdict of guilty.
    Montgomery, J., dissenting.
    INDICTMENT against Will Boggan, heard by Judge O. M. Goolce and a jury, at September Term, 1903, of the Superior Court of Anson County. From a verdict of guilty and judgment thereon the defendant appealed.
    
      Robert D. Gilmer, Attorney-General, for the State.
    
      II. H. McLendon, for the defendant.
   Gonnoe, J.

The prisoner was convicted of murder in the first degree and from the judgment of the Court appealed. The facts material to the decision of the exceptions set out in the record and case on appeal are as follows: On the night of February 28, 1903, the deceased met Morgan and Starnes near tbe Klondyke Hotel in tbe town of Wadesboro. They went into and down an alley between tbe hotel and store of one Williams for tbe borse and buggy of tbe deceased. There was testimony on tbe part of tbe State tending to show that as tbe three persons went down tbe alley tbe prisoner was standing up beside a wall and deceased spoke to him in a friendly manner, the prisoner responding: “Hello, you d— son of a b — .” Deceased said “I do not like to take that off of no man,” and made an attempt to turn around. Tbe other two persons with him prevented him from doing so, and tbe three started on down the alley. Prisoner followed them. One of tbe witnesses swore that be saw a pistol in prisoner’s band; that be turned deceased loose and started around tbe comer by tbe store; that be looked back and saw prisoner with pistol in bis band, arm outstretched, presenting it toward deceased, and be said: “I will break it off in you, you d— son of a b — .” That be then saw the pistol fire. Tbe prisoner turned and ran up the alley-way. Witness went to deceased and asked him if be was bit, and be said: “That negro has killed me.” Tbe witness said: “Boggan followed Sullivan, after using tbe words, ten or fifteen feet before be shot. He was about four or five feet from' Sullivan when be shot him.” Tbe witness Starnes further testified: “I looked back and saw the negro following. I turned and told him to go back. He said: ‘I’ll be d— if I do.’ Just about that time Sullivan stepped around me and said: ‘I do not like to take that.’ The negro said: T gave it to you and I’ll be d— if I take it back; before I will I will break it off in you.’ Sullivan pulled off bis right glove and w^ent to put it in bis pocket, and as he did so the negro shot him.” There was other testimony in regard to the identity of tbe prisoner. The prisoner set up an alibi and introduced testimony tending to sustain bis contention that be was at another place at the time of the homicide. The deceased was shot on Saturday nigbt and died the following Tuesday. Dir. Bennett and Dr. Ashe saw him on Sunday morning. “He was then rational and very much composed.” Doctors told him that the wound would very probably prove fatal. They extended some hope to him by means of an operation that might save him. They told him that they were preparing for statement he might make to the magistrate. Prisoner objected to this testimony; objection overruled. No statement by the prisoner was introduced.

Julius Sullivan, a brother of the deceased, was introduced and testified that he saw the deceased about 3:30 o’clock Monday morning. To an enquiry as to his condition deceased said: “I am in a bad fix.” About 9 o’clock that morning deceased sent for witness and said: “Well, I am about to leave you all; I hate to leave my little children.” Witness then asked him if he knew who shot him. He said: “Yes, I know who shot me; Will Boggan shot me. I have been knowing him all my life.” Prisoner duly objected and excepted to the admission of this testimony. Daniel Grawford also testified to similar declarations of deceased made about the middle of Monday afternoon. Before making the statement as to who shot him deceased said: “I am getting weaker. I believe I am going to die.” Witness said he hoped not. Deceased said: “Yes, he thought he was bound to die. The doctors thought he could not possibly get well.” To all of which prisoner duly excepted.

The declarations of the deceased were clearly competent. Every condition upon which dying declarations are made competent were shown to exist. The ruling of his Honor is sustained by a long and uniform current of decisions of this Court. State v. Dixon, 131 N. C., 808.

We have examined the other exceptions to the admissions of testimony. We concur with his Honor in respect to them.

The prisoner requested his Honor to charge the jury: “That upon tbe evidence tbe jury cannot find a verdict of murder in tbe first degree.” Tbis was declined, and prisoner excepted. Iiis Honor could not properly bave given tbe instruction. According to tbe decisions of tbis Court, there was ample evidence, if believed by tbe jury, to show premeditation. Similar instructions were asked, in regard to verdict of murder in tbe second degree and manslaughter, and declined. Tbe ruling upon tbe first prayer disposes of these. His Honor might well bave given tbe instruction as to manslaughter, but of course tbe prisoner cannot complain of bis failure to do so. In no possible point of view could they find tbe prisoner guilty of manslaughter. His Honor’s charge, set out in full, is clear, exhaustive and absolutely fair to tbe prisoner. If there was any error tbe State alone bad a right to complain. The real contest in tbe case centered upon tbe question of tbe identification of tbe prisoner. If tbe testimony of tbe only witnesses to tbe homicide is true, it was an unprovoked, heartless murder. There is no contradictory evidence in respect to the way in which tbe deceased was killed.

We bave examined the exception to tbe reply made by bis Honor to the question propounded by tbe jury after an hour’s deliberation, and find no error therein.

Tbe last exception-urged by tbe prisoner’s able and faithful counsel relates to tbe conduct of the jury. In respect thereto his Honor finds the following facts: “The jury, pending tbe trial, were quartered in the Klondyke Hotel by tbe officer and kept together there a.t night and when not attending upon tbe sessions of tbe Court; that tbe alley in which the shooting occurred was right on one side of the hotel, and was the nearest way from tbe hotel to the privy, and that on two occasions tbe jury were carried by the officer through tbe alley to reach tbe privy for the calls of nature. The first-time was on tbe night after the jury was empaneled and before any evidence was introduced. Tbe next time was on yesterday, in tbe day-time, pending tbe argument. Tbe Court finds that tbe jury did not, nor did any of them, at any other time visit or go through, the alley, and that there were not any remarks made by any one of tbe jury, nor by the officer attending them, as to tbe condition or appearance of tbe alley, and that the jury could see and did see tbe alley from time to time as they passed along by it going to and returning from tbe sessions of tbe Court, but no remarks were made by them or any of them as to tbe conditions of tbe alley or appearances therein. That tbe jury from tbe hotel windows could see and did see tbe alley and street along which tbe accused was alleged to have gone after tbe shooting. Tbe Court further finds that tbe jury could and did see tbe electric light and could and did see to what extent they lighted up tbe alley and tbe streets and points at which it was testified tbe accused was on tbe night of tbe killing, but there was no mention of any of these conditions, nor remarks made by the members of the jury to each other, nor to any one else, nor by the officer, nor any discussion by them of any of these conditions or the appearance of the place of the shooting nor any of tbe environments.”

The prisoner, upon these findings of fact, moved the Court to set aside the verdict. Motion denied. Prisoner excepted.

In respect to motions to set aisde the verdicts of tbe jury for misconduct, the rule which controls this Court is thus stated by Pearson, C. J., in State v. Tilghman, 33 N. C., 513 (p. 553) : “If tbe circumstances are such as merely to put suspicion on tbe verdict, by showing not that there was but that there might have been an undue influence brought to bear on tbe jury because there was opportunity and a chance for it, it is a matter within the discretion of the presiding Judge. But if tbe fact be that undue influence was brought to bear on tbe jury, as if they were fed at tbe charge of tbe prosecutor or prisoner, or if they be solicited and devised bow their verdict should be, or if they have other evidence than that which was offered, in all such cases there has been in contemplation of law no trial, and this Court, as a matter of law, will direct a trial to be had.”

This Court held in State v. Crane, 110 N. C., 530: “When it appears only that there was an opportunity whereby to influence the jury, but not that the jury was influenced, merely opportunity and chance for it, a new trial is in the discretion of the presiding Judge.” State v. Miller, 18 N. C., 500.

In State v. Gould, 90 N. C., 658, a capital felony, Mr. Justice Ashe says: “And even if the circumstances had been such (which was not the case here) as to show that there was an opportunity and chance for exerting an influence upon them, it would have been matter of discretion with the presiding Judge whether he would have granted a new trial.” In this case his Honor, while properly declining to hear an affidavit from one of the jurors for the purpose of impeaching the verdict, states that he examined each of the jurors orally in the presence of the prisoner and his counsel, and the record shows that the jury was polled. The presumption is, in favor of the integrity of the jury and their verdict, that they tried the case upon the law and evidence. If it is sought to impeach the verdict, the burden is upon the prisoner to show either that they were improperly influenced or that their conduct was such that as a matter of law there had been “no trial.” We construe the findings and action of his Honor to mean that the jury were not influenced in arriving at their verdict by what they saw in regard to the alley and its surroundings. We do not entertain a doubt but that the learned, just and fearless Judge who heard the case and passed upon the motion would have promptly set the verdict aside, regardless of all other considerations than his sense of duty, if he bad even doubted its integrity. We should not hesitate to declare the law, as contended by the prisoner, regardless of this consideration, if we-so found it to be. Formerly juries were selected from the vicinage, because of their supposed familiarity with the parties, witnesses and surroundings. It would be impracticable to shut a jury up in a room without light, air or exercise during a long trial, as in this case eight days, to prevent the possibility of their seeing, in passing to and from the court-house or attending a call of nature, something which might affect their minds. Many suggestions readily occur to the mind of conditions and circumstances which might affect the minds of jurors which it would be impracticable to make the basis for setting their verdicts aside. The law and its administration are for the practical affairs of life. While it seeks to protect the innocent and surround the accused in the day of his trial with all of the safeguards which experience, humanity and justice demand, it seeks also to deal with men and things in a practical way.

We have given the prisoner’s cause a careful, anxious consideration. A jury of his country has found him guilty of an unprovoked murder of a citizen of the State. We find no error in the action of the Court. He has been tried according to the “law of the land.” The judgment must be

Affirmed.

MONTGOMERY, J.,

dissenting. I dissent from that part of the opinion of the Court in which it is held that his Honor committed no error in refusing to grant the prisoner a new trial on the ground that the jury were on several occasions allowed to visit the locality where the homicide occurred. A most material question of the trial was the identification of the prisoner. Without the aid of the dying declarations of the deceased the jury would have had difficulty in making that identification. The homicide occurred at night in an alley of the town of Wadesboro. Some of the witnesses testified that the light in the alley from an electric light was insufficient to disclose the identity of the prisoner; others said that the light was sufficient for that purpose. The jury were allowed, without an order of the Court and without the knowledge of the prisoner, to observe many times the effect of the light upon the point where the homicide occurred.

I am not seeking to disturb the rule, so often laid down by this Court, that it is not sufficient to set aside a verdict -that a juror might have been influenced by separation from the others of the jury, or by communications held with others outside, but that there must-be evidence that the juror was influenced in his verdict by such conduct. But I do intend to enter my dissent against the conviction of any person of a capital felony in a case where evidence other than that offered on trial in an open court has been received by the jury, as was done in this case.

In State v. Tilghman 33 N. C., at p. 553, Pearson,, J., said for the Court: “We take this plain proposition: If the circumstances are such as merely puts suspicion on the verdict by showing not that there was but that there might have been undue influence brought to bear on the jury because there was opportunity and a chance for it, it is a matter within the discretion of the presiding Judge. But if the fact be that undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor or the prisoner, or if they be solicited and advised how their verdict should be, or if they have other evidence than that which was offered on the trial (italics mine), in all such cases there has, in contemplation of law, been no trial; and this Court, as a matter of law, will direct a trial to be had, whether the former proceeding purports to have acquitted or convicted the prisoner.”

It matters not what you may call the observations of the jurors of tbe place where the homicide was committed, or for whatever purpose the jury visited that locality, the fact is the effect of those lights upon the points in that alley, which were made important by the testimony, was evidence, and it was, in the nature of things, bound to have influenced the jury in fixing the identification of the prisoner. No person can say that the lights which the jurors saw, on the nights when they were in or near the alley, were the same lights which were there the night of the homicide. And it will not do to say that the prisoner could have shown that the lights were not the same. The answer to that is that he did not know the jurors had been there making observations. That information came after the trial was over.  