#### STATE *vs.*JAMES SHELTON.

Dying declarations must be restricted to tho act of killing, and the circumstances immediately attending the act and forming a part of the *res gesten.*

INDICTMENT for MURDEB, tried before bis Honor Judge Saunders, at the Spring Term, 1855, of Buncombe Superior Court.

The offense was charged to have been committed on the body of Drury Norton, by the prisoner, and that Til in an Lan-ders and Lewis Shelton were present, aiding and abetting the prisoner in the felonious act. The bill was found in the county of Madison, and the cause removed for trial, on the affidavit of the prisoner, to the county of Buncombe.

The declarations of the deceased, after receiving the blow, were offered by the State, and received by the .Court under the following circumstances: The witness by whom it was proposed to prove the declarations, said he saw him the day after receiving the wound, that he appeared to have received a severe blow in the forehead ;'he complained very much — had a .severe spell: the witness said; he (witness) expressed a hope that he would get well, to which the deceased said, “ he must die.” Another witness said he was there the same day spoken of by the other witness — the day after the transaction: he found the wound in the forehead very severe: he examined it and found the skull fractured, (as he thought) done apparently with a stone : deceased said, “ he did not think it possible for him to live after such a wound He (deceased) then spoke to his wife about his boys making a crop, as “ he did not expect to be able to assist themhe became delirious that night, and died on the following Sunday. (This was on Thursday.)

The first' witness was then permitted to state the declarations of the deceased ; which were as follows: *“*Deceased said he had been at work in his new ground ; that his father-in-law and Lewis Shelton (one of the accused) had been at work with him: that he had drunk freely in the morning, but that after his day’s work and eating his dinner, he had become sober: that on going home in the evening he found the two *361prisoners, James Shelton and Landers, there : that some words passed between them : that he ordered them off, as he did not want them to eat any of his supper: that after some further words Landers spit tobacco juice in his eyes, and he threw spirits in his face : that he was about to tell James Shelton he could stay, when he (Shelton) threw him out of the door : He (deceased) drew<a maul, Shelton jumped over the fence and drew his axe: He (deceased) went into^ the house; Shelton struck at him with the axe as he jumped in at the window but hit the facing: that after this, they threw stones at each other. Deceased saw James throw stones, but did not see either Lan-ders or Lewis Shelton throw, but heard stones .as if thrown by others : that he threatened to go and get a warrant, and went to his stable to get a horse, when he was driven off by their throwing stones : that he then went to the; house of one Gunter,, half mile off — got into the house and tried to find his gun, but did not: that he asked Gunter to lend it to him, and go home with him, but he refused : that he then set off to go home; did not think it safe to go back the way he came, and went round through the orchard: that he trod on a stick, which broke and made a noise, and shortly afterwards received the blow : did not know by whom it was given, and remembered nothing further until after he got-home.”

*Qv,nter*testified to Norton’s coming to his house and about the gun, and his going off: that he tracked him next morning to the orchard; saw signs of blood there: lie also found the knife of the deceased, shut: in the ploughed ground, about fifty yards off, he saw signs of two or three persons making towards where the blood was, and where they had stopped. He saw signs of stones about the house. This witness said further, that Norton was at his house about a quarter of an hour, and that the distance from his house to where the blood was found, was more than half a mile.

*Lewis*Shelton, was then introduced as a witness for the prisoner, (a verdict having been taken in his favor by direction of the Court:) he testified that he was the brother of James, and of the wife of the deceased : that he had been working *362that day with the deceased, and on getting to the house saw the two prisoners there. The deceased seemed to be in a bad humor — threw spirits in Landers’ face and cursed and damned him : did not see Landers do any thing. Deceased ordered James to leave his house before supper and put his hand on him, when James pushed him out of the porch: they got a maul and an axe : deceased had his knife, and threw a stone at James. Here, the witness said he became alarmed, and got out of the way: saw deceased throwing stones, but did not see James throw any : heard the sound of stones : Landers’ hand was disabled, and he did not see lrim throw any. Deceased then went off, and said he was going after a *redjaehet;*after this they set off to go home, and went more than a hundred yards, when they -stopped. Landers proposed to go back and get some more liquor, as he didn’t think Drnry would hurt them ; James objected, and started home :• his father and sister came along the path with a light; he heard them speak to Norton, who had thrown stones at them; Norton came running past them: he, witness, then got behind a tree ; Norton ran on after James with his'hand up, but witness did not see what was in it. After this he heard the sound of a blow: James hallooed that he had knocked deceased down, and for him to go and tell his wife; he did so, and they found him crawling along near the place in. the orchard, where the blood was found : James and Landers then went off1.

*The father*vas then examined, and he stated the occurrences at the house, nearly as stated by the last witness; that on going-with his daughter to find out what had become of the parties, the deceased threw stones at them : witness spoke to him when he went off after James. Witness returned to the house, and then heard the cry as to what had occurred.

The State introduced a witness to discredit Lewis Shelton, by showing that shortly after the homicide, he-had -given a different account of the circumstances.

The counsel, for the prisoner, objected to the declarations of Norton, the deceased, as to what occurred in the first rencoun-ter : and these declarations having been stated, they asked *363his Honor to withdraw that much of them from the jury ; but the Court refused, and the defendant’s counsel excepted.

The charge of his Honor to the jury, and the various exceptions thereto, are omitted as being unnecessary, the opinion of this Court proceeding entirely on the exception above stated.

The prisoner, James, having been found guilty of murder, and the prisoner, Landers, of manslaughter, and judgment having been pronounced on both, the former, appealed.

*Attorney General*and *Baxter,*for the State.

*JST. W. Woodjm*and *J. W. Woocljm,*for. defendant.

PeausoN, J.

If the fight was a continuous act, from its commencement at the house, until the fatal blow was struck in the orchard, although the throwing of stones and other offensive acts was not kept up incessantly, but was suspended at times, as the parties saw proper to change their position or seek other weapons, the killing was but manslaughter: because the assault with the axe and maul, and by throwing of stones, was not only a legal provocation on both sides, but was a provocation of a highly exciting character, by which the lives of the parties were mutually put in danger, and each was impelled, by blind fury, to kill his adversary, if he could.

If the first fight ended at the stable, so that the matter was over and done with, and there was 6- cooling time” before the parties met in the orchard, and the prisoner then struck the fatal blow, the killing was murder, unless there was some fresh provocation.

Considering all the occurrences as constituting but one act, the dying declarations were all properly admitted as evidence, being a full narration of the whole fight; ■ but then, the Judge should have instructed the jury, that in this point of view, the killing was manslaughter only.

Considering the occurrences as constituting two separate, and distinct acts, only so much of the dying declarations as related to the second act, ought to have been admitted, and there was error in admitting that part of the declarations which *364related to the first fight. In this point of view, the Judge ought to have withdrawn from the j ury all the declarations, except that part which related what took place in the orchard when the fatal blow was struck. The better course would have been to require the Solicitor for the State, to set out what he expected to prove the dying declarations were; and as from them it is manifest that the first fight and the rencounter in which the fatal blow was given, were too separate and distinct acts, he should only have allowed that part which related to the last act, to go to the jury.

According to the general rule, no testimony is admissible unless it is subjected to two “ tests of truth,” an oath and a cross-examination. A sense of impending death is as strong a guaranty of truth as the solemnity of an oath; but dying declarations cannot be subjected to the other test: there is no opportunity for cross-examination, and there is nothing to meet this objection and answer as an equivalent for the want of cross-.examination : hence, the exception, in respect to dying declarations, rests solely upon the ground of public policy and the principle of necessity. As in many cases, the knowledge of the facts attending the killing, is confined to the party killed and the perpetrator of the crime, there is a public necessity for admitting dying declaration as evidence, “ in order to preserve life by bringing manslayers to justice but, as the exception can only be sustained on the ground of necessity, it is restricted to cases of indictment for homicide, and it is further restricted to the act of killing and the circumstances immediately attending the' act and forming- a part of the *res gestee.*If it can be extended to a separate and distinct act, occurring half an hour before, it will extend to any act done the day before, or a week, month, or year. As soon as the limit fix«d by absolute necessity is passed, the principle upon which the exception is based being exceeded, there is no longer any limit whatever, and dying declarations become admissible, not merely to prove the act of killing, but to make every homicide murder by proof of some old grudge.

That the exception is restricted in the manner above stated, *365is clear from the reason of the thing, and is settled by authority; *Barfield*v. *Britt,*(ante 41) 1 Greenleaf, sec. 156, and cases cited. Cowan and Hill’s notes, Phil. on Ev. Pt. 1, 610.

The prisoner excepted on other grounds: several of them, we are inclined to think, are well founded, but it is not neces.sary to notice them, as they may be prevented in the next trial.

Per Oueiam. Judgment reversed and a *venire de novo.*