
    STATE v. A. MARTIN MITCHELL.
    (Filed 11 December, 1935.)
    1. Criminal Law L e—
    Where a new trial is awarded defendant for error in the exclusion of evidence, other exceptions, relating to other rulings upon the evidence and the charge of the court need not be considered.
    2. Homicide G c — Held: Proper predicate was laid for admission of testimony of dying declarations.
    Where it appears that deceased, a few hours before his death, made the dying declarations sought to be admitted in evidence by defendant, that at the time of making the declarations deceased was in imminent danger of death as the result of five gunshot wounds, that he was in a very weakened condition and stated to one witness that he felt he was “fading out” is held sufficient basis for the admission of his dying declarations in evidence, it not being required that deceased should actually express his apprehension of imminent death, but only that it satisfactorily appear from the relevant facts and circumstances that he did apprehend the danger of imminent death.
    3. Same — Dying declarations held material to the issue and were improperly excluded over defendant’s objection.
    The evidence disclosed that deceased and defendant, a white man, were well acquainted. Defendant offered testimony of dying declarations of deceased, after laying proper predicate for their admission in evidence, to the effect that deceased recognized his assailant as a white man and recognized his dress and build, but did not have any idea who his assailant was. JHeld: Testimony of the dying declarations was material to the issue as tending to show that the assailant was someone other than defendant, and its exclusion constitutes reversible error.
    Devin, J., took no part in the consideration or decision of this case.
    Appeal by the defendant from Williams, J., at the June Special Term,. 1935, of Wake.
    New trial.
    On Saturday night, 20 April, 1935, about 10 o’clock, Ross O. Teague, manager of the Raleigh Laundry, while preparing for deposit the money which had been collected by the drivers during the week, was assaulted and robbed by an unidentified person in the laundry at 411 South East Street in Raleigh. In the assault Teague suffered five gunshot wounds, inflicted by .32 calibre bullets, as a result of which he died in Rex Hospital about 8 :15 o’clock the following morning. Subsequently, the defendant was arrested, charged with the murder of Teague, and upon his trial set up as a defense, inter alia, an alibi.
    Prom a sentence of death, based upon a verdict of guilty of murder in the first degree, the defendant appealed, assigning errors.
    
      Attorney-General Seawell and Assistant Attorney-General Aiken for the State.
    
    
      Ghas. U. Harris and J ones ■& Brassfield for defendant, appellant.
    
   Schenck, J.

The appellant makes many assignments of error, both to the rulings upon the evidence and to the charge of the court, but under the view we take of the case it becomes necessary to discuss but one group of these assignments, since we hold that they entitle the defendant to a new trial.

There was evidence tending to show that the deceased knew well the defendant, that they had often met and conversed, and that the defendant for many months worked in a filling station close by the laundry of the deceased, and that they had each often been in the place of business of the other.

The State’s witness, Dr. P. Y. Greene, testified that he saw the deceased immediately after he was brought to the hospital a short time after he was shot about 10:20 o’clock p.m., on 20 April, 1935, and that he was conscious and able to talk, but was rapidly going into “what we term shock,” and that his body was becoming cold and his pulse rapid. On cross-examination, Dr. Greene was asked: “You say he made a statement to you?” and upon objection by the State the court refused to permit an answer, to which refusal the defendant reserved an exception. In the absence of the jury the witness answered the foregoing question as follows: “Officer Bennett asked me if I thought the man was likely to die, and I replied, ‘Yes,’ and lie asked me if I would ask if be bad any idea wbo sbot bim, and I asked Mr. Teague in tbe presence of tbe officer, and be said be did not know, and I asked bim if it was a white man or a colored man, and be said it was a white man. ... I asked bim if be knew wbo it was, and be said be bad no idea.”

Another State’s witness, Bruce Poole, captain of city detectives, on cross-examination, was asked tbe following question: “Did Mr. Teague at that time make a statement as to tbe identity of tbe man wbo sbot bim?” and upon objection by tbe State tbe court refused to permit an answer, to which refusal tbe defendant reserved an exception. In tbe absence of tbe jury tbe witness answered tbe question as follows: “I asked Mr. Teague wbo sbot bim and be told me be didn’t feel like talking — that be felt like be was fading out, and I asked bim would be answer a question, and be said be would, and I asked bim if it was a white man or a colored man, and be said, ‘A white man,’ and I asked bim bow be was dressed, and be said, ‘About like you,’ and I said, ‘What size was be ?’ and be said, ‘About like you,’ and be looked kinder like be was fading like and I waited and thought I would talk to bim some more when be got to feeling better and thought I would wait around, and I stayed until five o’clock in tbe morning to try to get a statement from bim, and that is all, I. ever got.”

“In Greenleaf Ev., sec. 158 (16 Ed.), it is said that while it is essential that tbe deceased was under tbe sense of impending death, it is not necessary that be should so state at tbe time. It is enough, if it satisfactorily appears, in any mode, that tbe declarations were made under that sanction; whether it be directly proved by tbe express language of tbe declarant or be inferred from bis evident danger, or tbe opinion of tbe medical or other attendants, stated to bim, or from bis conduct or tbe circumstances in tbe ease, all of which are resorted to in- order to ascertain tbe state of tbe declarant’s mind.” S. v. Watkins, 159 N. C., 480 (484). “Tbe rule for tbe admission of such testimony is thus laid down in Taylor on Evidence, sec. 648: 1. At tbe time they (tbe dying declarations) were made, tbe declarant should have been in actual danger of death, (2) that be should have a full apprehension of bis danger, and (3) that death should have ensued.” S. v. Mills, 91 N. C., 581 (594).

“Dying declarations are admissible on a trial for murder as to tbe fact of tbe homicide, and tbe person by whom it was committed in favor of tbe defendant as well as against bim.” S. v. Blackwell, 193 N. C., 313; Mattox v. U. S., 146 U. S., 140, 36 Law Ed., 917; Wigmore on Evidence (2d Ed.), Vol. 3, par. 1452, p. 187.

We are of tbe opinion that tbe testimony of tbe witness Greene and of tbe witness Poole elicited by tbe answers to tbe questions to which objections were sustained and exceptions reserved, was competent under the authorities cited, and we are further of the opinion that such testimony was material to the issue, since it appears that the defendant was well known to the deceased and that the deceased had opportunity to and did see his assailant and recognized that he was a white man, and recognized his dress and build, but did not know him or have any idea who his assailant was. This evidence was material as tending to show that the assailant was someone else than the' defendant, and we hold that its exclusion was prejudicial error, and entitles the defendant to a new trial; and it is so ordered.

New trial.

Devin, J., took no part in the consideration or decision of this case.  