State v. Penn
State v. Penn
Opinion of the Court
In addressing defendant’s first assignment of error, we look first at G.S. 8-51.1 “Dying declarations” which provides:
“The dying declarations of a deceased person regarding the cause or circumstances of his death shall be admissible in evidence in all civil and criminal trials and other proceedings before courts, administrative agencies and other tribunals to the same extent and for the same purposes that they might have been admissible had the deceased survived and been sworn as a witness in the proceedings, subject to proof that:
(1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery;
(2) Such declaration was voluntarily made.”
Before the court allowed the witnesses to testify as to what Johnson told them while he was in the hospital, testimony was heard on voir dire from Dr. Jarman, Officer McFadden, Clyde Thomas, and James Albert Johnson. Whether a dying declaration is admissible is a question for the trial court, and his ruling is reviewable on appeal only with respect to whether there was sufficient competent evidence tending to show facts essential to support his ruling. State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976).
Dr. Jarman testified that as to the abdominal wound “the bullet passed into the abdominal cavity, going a little bit backwards, and in its course severed the left femoral vein, which
When Officer McFadden talked with Johnson on 28 February, Johnson was in the intensive care unit and could not talk because there were tubes “down his mouth” running down his throat. He understood what Officer McFadden asked him and shook his head affirmatively in answer to questions as to whether defendant had shot him.
Clyde Thomas testified that on 28 February he visited Johnson and that Johnson mumbled that defendant had shot him and that he wanted to see the pastor of his church because he
In State v. Cousin, 291 N.C. 413, 230 S.E. 2d 518 (1976), the Court quoted what was said in State v. Bowden, supra, as follows:
“The admissibility of a declaration as a dying declaration is a question to be determined by the trial judge, and when the judge admits the declaration, his ruling is reviewable only to determine whether there is evidence tending to show facts essential to support it. [Citation omitted.] Under the new statute, the declaration must have been voluntary and made when the declarant was conscious of approaching death and without hope for recovery. It is the requirement that the declarant be aware of his impending death that has most often concerned the courts under the case law and now concerns us under the statute. We note, without deciding, that the words, ‘no hope of recovery’ in the statute may make the statutory exception to the hearsay rule more restrictive than existing case law. However, we believe that on the facts of this case, the declarant Larry Lovett must have believed that there was no hope for recovery. It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declarant realized death was near, this requirement of the law is satisfied. [Citation omitted.]” State v. Cousin, 291 N.C. at 419-420, 230 S.E. 2d at 522.
A case with striking similarities to the one sub judice is State v. Stevens, 295 N.C. 21, 243 S.E. 2d 771 (1978). There the Court, speaking through Chief Justice Sharp, referring to the Court’s statement in Bowden and Cousin that the words “no hope of recovery” contained in G.S. 8-51.1 might have the result of imposing more restrictions on the statutory exception to the hearsay rule than the existing case law, said:
“We have now concluded that the statutory prerequisites that the deceased must have been ‘conscious of approaching death and believed that there was no hope of recovery’ do not change our case-law requirements that in order to be ad*487 missible the declarations of a decedent must have been ‘in present anticipation of death.’ ” (Citations omitted.)
The Court further said that:
“|I]t is enough if he ‘believed he was going to die.’ State v. Tate, 161 N.C. 280, 282, 76 S.E. 713, 714 (1912). Accord, State v. Bright, 215 N.C. 537, 2 S.E. 2d 541 (1939); State v. Boggan, 133 N.C. 761, 763, 76 S.E. 111, 114 (1903). Obviously, if one believes he is going to die, he believes there is ‘no hope of recovery.’ ” Id. at 29.
We are of the opinion that the evidence tends to show facts essential to support the court’s ruling, i.e. that at the time Johnson identified defendant as the person who shot him, he “was conscious of approaching death and believed there was no hope of recovery.” No question is raised with respect to voluntariness. We note parenthetically that without objection two eye witnesses had already made positive identification of defendant as the assailant. This assignment of error is overruled.
By defendant’s only other assignment of error, the instructions to the jury as to self-defense are challenged. Defendant contends that the instruction as given required the State to prove that defendant did not use more force than reasonably appeared to be necessary rather than that the defendant did use more force than reasonably appeared necessary, thus placing a lesser standard on the State which omitted the element of apparent necessity from the instruction on self-defense. The court clearly, thoroughly, and accurately instructed the jury on the law relating to self-defense and clearly charged the jury the burden was on the State to prove that defendant did not act in self-defense. Each element of self-defense was concisely given and the court emphasized that the circumstances, including the amount of force, should be considered as they appeared to the defendant at the time. We think the jury clearly understood that they should find the defendant not guillty if, under the circumstances as they existed at the time of the killing, the State had failed to satisfy them beyond a reasonable doubt that defendant did not have a reasonable belief that he was about to suffer death or serious bodily harm at the hands of Johnson, or that defendant used more force than reasonably appeared to him to be necessary, or that defendant was the aggressor.
*488 “If the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for reversal. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966). Furthermore, insubstantial technical errors which could not have affected the result will not be held prejudicial. State v. Norris, 242 N.C. 47, 86 S.E. 2d 916 (1955).” State v. McWilliams, 277 N.C. 680, 685, 178 S.E. 2d 476, 479 (1970).
We cannot perceive that the error complained of could have affected the result here, particularly when the charge as a whole so clearly gave the jury the law of self-defense. This assignment of error is also overruled.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.