
    STATE v. WALTER BETHEA.
    (Filed 12 September, 1923.)
    1. Evidence — Declarations of Witness — Corroboration.
    Where the credibility of tbe testimony of a witness is impugned on a trial, either by proof of his bad character or his contradictory statements, or by contradictory testimony, or by cross-examination tending to impeach his veracity or memory, or by his relation to the cause or the party for whom he testified, it is competent to corroborate and support his credibility by evidence tending to restore confidence in his veracity and the truthfulness of his testimony; and such corroborating evidence may include previous statements, whether near or remote, made either pending the controversy or ante Utem motam.
    
    
      2. Same — Witnesses—Relationship—Res Gestas.
    Where the mother has testified in behalf of her son, on trial for murder, that the deceased, on the occasion, had followed her son into her home, cursing, and that she saw on him what looked like the handle of a gun, etc.; that she was in an adjoining room when the prisoner shot the deceased; that she told her husband at the time that the deceased was after the prisoner with a gun: Held,, the relationship subjected the mother’s testimony to suspicion, if not to discredit, making competent the admission of her evidence of her declarations made to her husband at the time; and upon the admission of this evidence, the testimony of others to like effect was also admissible, and its rejection was reversible error, to the prisoner’s prejudice: Hold, further, it was competent as pars rei gesta}, being spontaneous arid springing out of the occurrence, and relating to the contemporaneous acts and language of the deceased.
    CeimiNal action tried before Kerr, J., and a jury, at May Term, 1923, of Wilson.
    The prisoner was convicted of murder in the first degree, and he appealed from the judgment pronouncing sentence of death.
    
      Attorney-General Manning and Assistant Attorney-General Frank Nash for the State.
    
    
      Branes <& Mintz and 0. P. Dickinson for the 'prisoner.
    
   Adams, J.

'The homicide occurred on Saturday night, 25 May, 1923. About seventy-five people had come together at the home of Ratty Bethea, father of the prisoner, to attend a festival projected for the benefit of a church. They were entertained, it is said, with music and dancing and “barbecue and liquor.” The house had two rooms with a porch in front. There was evidence tending to show that Peter Fields, the deceased, had gone from the yard into the porch; that some one “cursed out there,” whereupon the prisoner’s mother called to him to come from the porch into the house; that the deceased followed and the two went into one of the adjoining rooms; that soon afterwards the prisoner, having a pistol in his right hand, seized the deceased and pulled him into the other room and shot him. There was also • evidence of self-defense. The time intervening between the .conversation or “cursing” on the porch and the death of the deceased does not definitely appear in the evidence.

The following is a synopsis of the testimony of Mary Bethea, mother of the prisoner, who testified in his behalf: “That the party was held at her house that night for- the benefit of the church; that she went out of her room where they were sitting to see if there was any fire in there and heard some one curse on the porch’out there and called to the defendant, who was standing on the porch, and said, 'What is the matter out there?’ and defendant said, 'Nothing much,’ and went on in the bouse; that in a few seconds tbe deceased came in, cursing; that there was another fellow with him but did not know him; that deceased ran his hand in his pocket and was cursing and that she saw the handle of what looked like a gun. That she did not see the deceased when the defendant shot him as she was in the adjoining room where her husband was; that deceased was cursing defendant outdoors; that she heard him; that he came into the house soon after the defendant came in; that she went to her husband and told him that the deceased was after the defendant with a gun; that she made a statement to her husband."

The prosecution offered to prove by the witness that she told her husband, “The deceased was after the defendant, was cursing him and was going to kill him and had his hand in his pocket, and that she saw a pistol in his hand.” The question is whether his Honor’s exclusion of this statement deprived the prisoner of evidence to which he was justly entitled.

This Court has often held that whenever a witness has given evidence in a trial and his credibility is impugned, whether by proof of bad character or by his contradictory statements or by testimony contradicting his or by cross-examination tending to impeach his veracity or memory or by his relationship to the cause or to the party for whom he testified, it is permissible to corroborate and support his credibility by evidence tending to restore confidence in his veracity and in the truthfulness of his testimony. Such corroborating evidence may include previous statements, whether near or remote and whether made pending the controversy or ante litem mortam. Johnson v. Patterson, 9 N. C., 183; S. v. George, 30 N. C., 324; Hoke v. Fleming, 32 N. C., 263; March v. Harrell, 46 N. C., 329; Jones v. Jones, 80 N. C., 247; Roberts v. Roberts, 82 N. C., 30; Davis v. Council, 92 N. C., 726; S. v. Brabham, 108 N. C., 793; S. v. Exum, 138 N. C., 600; Cuthbertson v. Austin, 152 N. C., 336; Bowman v. Blankenship, 165 N. C., 519; Belk v. Belk, 175 N. C., 69; S. v. Krout, 183 N. C., 804.

In 8. v. Brabham, supra, Shepherd, J., said: “Whatever may be the ruling in other States upon the subject, it is well settled in North Carolina that such testimony as Baker’s is admissible for the purpose of corroborating a witness who has been impeached or stands in such a relationship to the parties or the action as to subject his testimony to suspicion or discredit.”

Judged by the principle enounced in these cases, his Honor’s exclusion of the proposed evidence was erroneous.. The relation existing between the witness and the prisoner — that of mother and son — invited and justified the jury’s scrutiny of her testimony and subjected her recital of the occurrence to suspicion if not discredit; and as the rejected evidence would have tended to support her claim to veracity, it was competent for tbe purpose of corroboration. If tbis evidence bad been admitted, tbe testimony of Marshall McDonald and others to tbe effect that they beard tbe witness make tbe alleged statement would likewise have been competent in support of her credibility.

Furthermore,, tbe excluded statement was competent as pars rei gestee. If accepted as true, it was tbe spontaneous and instinctive declaration of tbe witness springing out of tbe transaction and relating to tbe contemporaneous acts and language. of tbe deceased. Tbe fact that tbe shots were fired in one room and tbe statement was made in tbe room adjoining is immaterial. “Tbe question is,” says "Wharton, “Is tbe evidence offered that of tbe event speaking through participants, or that of observers speaking about tbe event? In tbe first case, what was thus said can be introduced without calling those who said it; in tbe second case, they must be called. Nor are there any limits of time within which tbe res gestee can be arbitrarily confined. They vary in fact with each particular case. . . . Declaration claimed to be part of tbe res gestee may precede, accompany, or follow tbe transaction to which they relate. It is only when they accompany tbe transaction so as to be wrought up in it, and to emanate from it, that they can be rightfully regarded as excepted from tbe rule that excludes hearsay. . . . Tbe distinguishing feature of declarations of tbis class is that they should be tbe necessary incidents of tbe litigated act; necessary in tbis sense, that they are part of tbe immediate concomitants or conditions of such act, and are not produced by tbe calculated policy of tbe actors. In other words, they must stand in immediate causal relation to tbe act, and become part either of the action immediately prodiicing it or of tbe action which it immediately produces. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in tbis way evidence of tbe character of tbe act.” Criminal Evidence, secs. 262, 263.

In S. v. Spivey, 151 N. C., 680, Mdrming, J., in a learned discussion of tbe question, reached tbis conclusion: “Following tbe rule clearly established by these authorities, a. statement made as tbe 'outpouring of tbe mind’ of one of tbe actors in tbe tragedy is competent as pars rei gestee. We conceive there is, and ought to be, a distinction made between tbe statements of one of tbe parties to tbe tragedy and a bystander or non-participant. In the latter case, where tbe evidence proposed is the statement of a bystander or non-participant, whose mind is unmoved by tbe terrible emotions that overflow and express themselves in words uttered without design or thought or preparation, it must appear, to be admissible, that such statement was made while tbe thing was being done, tbe transaction was occurring; they ought to be strictly contemporaneous. S. v. McCourry, 128 N. C., 598; Seawell v. R. R., 133 N. C., 515; Harrill v. R. R., 132 N. C., 655; Bumgardner v. R. R., 132 N. C., 442; Means v. R. R., 124 N. C., 578; S. v. Hinson, 150 N. C., 827.”

Here tbe statement was made “while tbe transaction was occurring.” McKelvey on Ev., 344; Underbill on Or. Ev., secs. 96, 97; McClain’s Or. Law, sec. 411 et seq.; S. v. Carraway, 181 N. C., 561.

For error in tbe exclusion of evidence tbe prisoner is entitled to a New trial.  