dissenting: Being convinced, after a careful examination of the record, that material errors were committed at the trial, which prejudiced defendant, I cannot concur in the disposition of this ease. I will advert to only two or three rulings which I regard as erroneous.
It was important to the defendant that he confirm the testimony of the witness S. C. Eoss, and he was entitled, for this purpose, to the entire examination of the same witness taken before the coroner, or at least to so much of it as tended to corroborate him. I cannot adopt the view of the Court in-regard to this testimony. In several material respects there was substantial agreement between said examination and the witness’s testimony before the court. This can easily be shown by a simple comparison of the two examinations; but my purpose is not to enter upon a minute consideration of the case, except as to one of the questions pre*200sented. As to the others, I merely state the grounds of my dissent without discussion. I cannot agree that the general trend of the testimony taken by the coroner, which the court excluded, was against defendant, and that its rejection, therefore, became harmless.
There was error, in my opinion, in permitting the witness "W. S. Brady to testify that the defendant was drinking a few hours before the homicide was committed, and drew a gun on him, or pointed it at him. The solicitor stated that this testimony “was offered to show that the defendant was in such a drunken condition that he was liable to draw a gun on anybody and shoot them.” The prisoner objected to the testimony, and excepted when his objection was overruled, and the testimony was admitted by the court. The witness Brady then testified, substantially, that an hour or more before the deceased was killed he stopped at the prisoner’s store to leave a milk can, and when he returned for the milk can, and after some conversation with him, the prisoner asked witness to take a drink, and referred to a Mr. Myers, and he cursed a little. "Witness then went to pick up the lines which his mule had jerked from his hands while he was talking to the prisoner, and as he was doing so the prisoner said, “Look out! Brady,” and aimed his shotgun at him, and Mr. Hooker jerked prisoner back into the store. "With reference to this testimony the court said, at the time the prisoner objected to the answer of the witness: “The court admits the evidence only, and it can be considered by the jury only, for the purpose, ‘as bearing upon the condition of the defendant at that time, the witness having testified that the defendant was under the influence of intoxicating liquors.’ This evidence is admitted only in corroboration of and bearing upon his testimony as to the condition of the defendant at that time, and the jury are so instructed.” The witness had stated that, at the time he saw the prisoner, when he returned for the milk can, “he was under the influence of whiskey,” at about 4:30 in the afternoon of II May. The only bearing of this evidence upon the case would be to show, as the solicitor frankly admitted, that the prisoner, being under the influence of liquor, was “liable to use a gun,” from which it might be inferred by the jury that he did use a gun and killed the deceased without sufficient legal excuse. For this purpose it was, to my mind, clearly incompetent and greatly prejudicial to the prisoner, as he introduced strong evidence to prove that he acted strictly in self-defense and under much provocation from the deceased on the prisoner’s own premises and in the presence of his wife, who tried to induce him, in an entirely proper manner, to' leave and avoid any further quarreling between him and her husband. "Whether the prisoner’s evidence was true or not, his wife told a very consistent and natural story of the altercation between Dillard Hooker and her husband, but it may have been discarded by the jury for the *201reason tbat Brady testified tbat be was drinking an liour or so before tbe killing took place at tbe borne of tbe prisoner, and therefore was “liable to use a gun.” Where evidence is conflicting and tbe question of guilt becomes a close one, tbe slightest circumstance may turn tbe scales against tbe prisoner. Tbe court admitted tbe evidence to corroborate tbe previous statement, of tbe witness W. S. Brady, tbat tbe prisoner was drinking at 4:30 o’clock tbe same afternoon. In other words, bis evidence as to what occurred at tbe store, including tbe handling of tbe gun, was allowed to be considered by tbe jury as tending to show tbat be was drunk. Well, suppose be was; bow does tbe fact affect tbe question of bis guilt, unless it is used for tbe purpose of asking tbe jury to infer tbat, being under tbe influence of liquor, be was apt to use a gun after-wards and kill tbe deceased, without just cause? It was not necessary in order to prove merely tbat be killed tbe deceased, for tbat fact was not only testified to by all tbe witnesses, but admitted. It could only have tbe effect of proving, beyond tbat fact, tbat tbe killing was apt to be unjustifiable, and especially is this so in view of what was said by tbe solicitor at tbe time be offered tbe testimony as to bis purpose in doing so, tbe influence of which remark upon tbe jury was not explicitly or sufficiently removed by tbe court, in what it afterwards said, and after tbe answer of tbe witness bad been given. We cannot be too careful to guard tbe rights of tbe prisoner under such circumstances, and especially where there is decided testimony as to bis innocence, tbat is, tbat tbe act of killing was excusable in law, as done in self-defense. In tbe absence of a full and proper caution, tbe jury might well have concluded, from tbe remark of tbe solicitor, even when considered with tbe statement of tbe court restricting, to some extent, tbe use of tbe testimony, tbat tbe evidence bad tbe tendency of showing tbat tbe prisoner used bis gun at tbe bouse and killed the deceased without sufficient cause. Such a remark as tbat, coming from tbe solicitor, must have made a deep impression upon tbe jury, not only because it emanated from him as tbe prosecuting officer, but because be was right when be thought and said tbat tbe testimony could only have tbe bearing indicated by him. Conceding tbe soundness of tbe principle, tbat evidence of intoxication, at tbe time of tbe homicide, may be competent and relevant under certain circumstances, tbe manner in which tbe testimony admitted in this case was introduced, without properly safeguarding tbe prisoner’s rights in respect to it, was calculated to divert tbe minds of tbe jurors from tbe true issue to irrelevant matters, and, therefore, to prejudice tbe prisoner. I do not think tbat tbe caution of tbe judge was sufficient in this respect.
There was testimony' of defendant’s wife as to bis condition just before deceased came to bis bouse, which should have been admitted, especially in view of tbe evidence of tbe State as to bis condition at tbe time of tbe *202homicide and before that time. For these reasons, and others that might be added, I must withhold my assent to the conclusion of the Court.
I am not prepared to say that the dying declaration was admissible. If a man states that another man has shot him “for nothing,” or “without cause,” it is equivalent to- a charge that he murdered him, and is an expression of an opinion as to the degree of the homicide, for a shooting “for nothing” or “without cause” is murder. But I do not place my dissent upon this ground, though I think the principle is well settled that the dying declaration must be confined to facts connected directly with the homicide, and that opinions or conclusions are incompetent and prejudicial.
This Court said in S. v. Jefferson, 125 N. C., 712: “The general rule is that testimony, before it is received in evidence, shall be on the oath of the witness and subject to the right of cross-examination. The nearness and certainty of death are just as strong an incentive to the telling of the truth as the solemnity of an oath, but you cannot subject the deceased and what he said as a dying declaration to the test of cross-examination. The exception to the general rule of evidence, therefore, in regard to dying declarations rests upon the grounds of public policy and the necessity, of the thing. And as the exception can only be sustained on the grounds above mentioned,-such evidence is restricted by the law to the act of killing and those facts and circumstances directly attending the act and forming a part of the res gestee,” citing S. v. Shelton, 47 N. C., 360. And Underhill on Or. Evidence, secs. 108 and 109, thus states the rule: “The declarations should not contain matter which would be excluded if the declarant were a witness. He is beyond the reach of cross-examination to ascertain the grounds upon which his opinion may be based, and other reasons may exist which would exclude his opinion if he were a living witness. Opinions in dying declarations are inadmissible. It is indispensable that the dying declaration should consist solely of facts, and not of conclusions, mental impressions, or opinions. Thus, a statement that the deceased thought or believed the accused had shot him, or that he expected the accused would try to kill him, is inadmissible where the deceased did not see his assailant, but based his declaration wholly upon threats which had been made by the accused. But opinions in dying declarations are admissible whenever they would be received if the declarant himself were a witness. . . . The declaration is admissible only so far as it points directly to the facts constituting the res gestae of the homicide; that is' to say, to the act of killing and to the circumstances immediately attendant.”
And the same phraseology is substantially used in 3 Rice on Evidence, p. 536 : “Matters of mere opinion are inadmissible. Where the declarant merely states his opinion as to the cause of an injury, and such statement would not be received were the declarant sworn as a witness,, *203it is equally inadmissible as a declaration in articulo mortis. In such, cases the familiar rule obtains the ascendancy, that the witness must testify to facts and not emit mere opinion,” citing Binns v. State, 46 Ind., 311; Wroe v. State, 20 Ohio St., 460; Whitley v. State, 38 Ga., 50. And again at p. 537: “Declarations of the deceased, made when in extremis, which are not statements of fact which a living witness would have been permitted to testify to, but are merely expressions of belief and suspicions, are not competent evidence,” citing People v. Shaw, 63 N. Y., 36. Referring to the dissenting opinion of Mr. Justice Zollars, in Boyle v. State, 105 Ind., 469 (55 Am. Rep., 218), Mr. Rice says, at pp. 537, 538: “Much of the foregoing discussion is embodied in the dissenting opinion of Mr. Justice Zollars of the Indiana Supreme Court of judicature in the case of Boyle v. State, 105 Ind., 469, 55 Am. Rep., 218, decided in 1885. It is seldom, indeed, that any opinion is so critical in its analysis, so exhaustive in its citations, or so logical in its conclusions. Any discussion of this subject which omits a careful consideration of this case must be regarded as grossly imperfect. The principal opinion was- delivered by Mr. Justice Elliott. It is-a very ingenious argument in favor of the prevailing view. But while perfectly aware that my function as a text-writer will not tolerate the least attempt to make a law, I submit the dissenting opinion of this exceedingly able Court contains the statement of the better view, both upon principle and authority.” He further says, at p. 536, that decisions may be found which apparently support the contention that dying declarations are admissible which were not clearly restricted to a statement of the vital facts immediately connected with the homicide, for the purpose of proving the corpus delicti, but which seemed also to contain an expression of opinion upon the facts; but he examines some of the cases and shows that they were dependent upon peculiar facts not directly involving the question, and were really admitted only to prove the corpus delicti; and in this connection he states that one feature of this peculiar grade of evidence must be clearly outlined. The nisi prius courts upon which ordinarily devolve, in the first instance, the trial of those eases which present questions as to the admission of dying declarations, are frequently misled, by the conflict in adjudication, and the plausibility of argument, into the admission of evidence that represents a conclusion or opinion of the declarant. And in Shaw v. People, 3 Hun., 372, it was said to be even more important to exclude an opinion, declared in articulo mortis, than in an ordinary case, where the witness may be subjected to a cross-examination and other tests to appraise the value of his opinion.
As I have already said, it is not necessary that my nonconcurrence with the Court should be based upon the incompetency of the dying declaration.