108 Mass. 296 | Mass. | 1871
The defendants moved to quash the indictment, because it did not set forth which of the parties struck the blow, or what acts each did to make them principals, or which of them had the knife. The allegation in the indictment is, that the three defendants killed the deceased by striking and stabbing him upon the belly with a knife. At the trial, the district attorney did not claim that there was evidence that Reynolds used a knife, or that he encouraged, or knew of the use of a knife by any other person. Thereupon the .other defendants asked the court to rule that there was a variance between the allegation and the evidence. This was properly overruled, as was also the motion to quash the indictment. It was proper to allege the use of the knife by all whom the grand jury found to be present aiding and abetting the person who had it; for his act was the act of all. Commonwealth v. Lucas, 2 Allen, 170. Commonwealth v. Chapman, 11 Cush. 422. If upon the trial no sufficient evidence could be found against Reynolds, it was proper for the prosecuting officer to proceed against the others, and there would be no variance between the allegation and the proof if one or both of them should be proved guilty.
But the evidence of Cooney’s remark, made during the affray, ought to have been excluded, if distinctly objected to. He was not connected with the parties, and could say nothing to bind them. Even if they heard his remark, it does not appear that they were reasonably called upon to answer it. To admit it for
The statements of Carlton, the deceased, were admitted as dying declarations; the judge first finding as a fact that he believed his end was near, and that his chance for life was very-slight. And he ruled that, if Carlton believed his end was near at hand, his declarations were admissible, although he might think there was a slight chance of life. The evidence as reported seems to sustain the judge’s finding as to the facts; and we have only to consider the correctness of his ruling upon the question of law. The admissibility of such declarations does not depend upon any particular forms of expression, for these will vary indefinitely ; but it depends upon the view which the deceased took of his own case when in imminent danger of death. What he said, and what his physician or friend said to him, may be evidence tending to show what his view was, as well as his actual condition. If he believed he was in & dying state, his declarations are admissible, although he lived as many as seventeen days after making them. Commonwealth v. Cooper, 5 Allen, 495. They are admitted on the ground that the solemnity of impending death is equivalent to the solemnity of an oath in restraining one from falsehood.
But the rule is stated in 1 Greenl. Ev. § 158, that, if he had any expectation or hope of recovery, however slight it may have been, and though death ensued in an hour afterwards, the declarations are inadmissible. The same rule is stated in other text books. 1 Taylor on Ev. (5th ed.) § 648. Rosc. Crim. Ev. (7th ed.) 32. The English cases are cited, and they sustain the rule. It has often been sustained in this country. State v. Center, 35 Verm. 378. People v. Knickerbocker, 1 Parker C. C. 302. Starkey v. People, 17 Ill. 17. Smith v. State, 9 Humph. 9. Brown v. State, 32 Miss. 433. Moore v. State, 12 Alab. 764. We think
We cannot regard the ruling of the judge as final, and not subject to exceptions. It was a ruling in matter of law ; and the life of a defendant may be involved in a ruling on this point. In many of the cases reported, the court have discussed the evidence on which the question turned.
As there must be a new trial, it is not necessary to discuss the objections which are made to the remarks of the judge in charging the jury on the subject of self-defence, since the question is not likely to be of any practical importance.
Exceptions sustained.
