26 N.J.L. 601 | N.J. | 1857
Lead Opinion
The case comes before us by a writ of error to die Supreme Court. It appears that the plaintiff in error was indicted in September last, at a Court of Oyer and Terminer and General Jail Delivery, in the county of Monmouth, for (he murder of Albert S. Moses, on the first day of August, 1857, at “the Sea View House,” in the township of Middletown, in said county; was tried by a jury and convicted of murder in the first degree, and sentenced to bo executed on the eighth day of January next.
After the rendition of the judgment a writ of error was allowed by the Chancellor, to remove the proceedings into the Supreme Court, which was returned, with the record, on the 12th day of November last. Bills of exceptions, sealed at the trial, also were returned with the writ.
That court, finding no error in the record or proceedings, on the twenty-first, day of November, affirmed the judgment in all tilings.
Upon an application in behalf of Donnelly, the Chancellor granted a second writ of error to remove the record and proceedings had before the Supreme Court into this court, of-the last resorti The writ lias been returned, together with the record of the judgment and the proceedings of the Supreme Court, and of the Court of Oyer and Terminer, at which the conviction was had.
On the return of the writ the counsel of the prisoner obtained a certiorari, by which an order, made by the Supreme Court, denying an application for the writ of habeas corpus to remove the prisoner before that court, has been brought before us.
The plaintiff, by his counsel, has assigned various errors, alleged to have occurred in the Court of Oyer and Terminer, and also in the Supreme Court. On application of the attorney-general, before joining in error, this court ordered the 4th and 5th assignments of error to be stricken out. The practice is sanctioned by the court in
The first and most material inquiry is, whether upon a writ of error sued out by a person convicted of a felony, his personal presence in the appellate court is necessary to give •jurisdiction, or rather, the ability to examine the record of the inferior tribunal.
The argument of the plaintiff’s counsel was drawn entirely, from the ancient practice and precedents in England, whereby it appears that the prisoner always assigned his errors in person. In the English courts, a person indicted for a felony could not at common law appear by attorney or by counsel. His presence was required in the court of trial, and also in the appellate courts, in every stage of the proceedings. Upon 'the return of his writ of error it was necessary for him to follow the record, and at the proper time and place, to assign in person the errors of which he complained. The appellate court could not proceed to review the record of the court below until the issues of error were made up; and unless the plaintiff’ was before them he would lose the whole benefit of his
In these United States a different system prevails in criminal proceedings. By the constitution of the federal government and the constitutions of the several states, in all criminal prosecutions, the accused shall have the assistance of counsel in his defence. In the “ act regulating proceedings and trials in criminal cases,” in this state, the court before whom a person shall be tried upon an indictment is required to assign to such person, if not of ability to procure the same, such counsel as be or she may desire, to whom such counsel shall have free access at all seasonable hours. No authority in this country has been cited showing that a plaintiff in error, under sentence of the court of trial, has been removed into an appellate court by habeas corpus, or has assigned his errors otherwise than by counsel. The practice of errors being assigned by counsel has been uniform in this state, as far as we have reported cases, and a similar practice prevails in our sister states. There is a statute in New York “that no person indicted for any felony shall be tried, unless he be personally present at the trial ;” but the practice under that act shows that the provision has not been construed to apply to an argument on writ of error before an appellate court, which deals only with the law of a case. But if the presence of a prisoner in court, so that he may assign errors in person, be not necessary under our practice, yet it is said that the judgment of the Supreme Court upon the errors assigned could not legally be pronounced in his absence.
This insistment involves the nature and effect of the judgment of an appellate court. If the writ of error per
The other reasons urged before the Supreme Court for tin allowance of the writ were addressed to their discretion; and their disposition of those reasons is not a subject for review in this court. We are of opinion that the seventh and eighth errors have not been well taken.
This result brings us to an examination of the errors alleged to have been committed in the court of trial.
The first, second, and third assignments of errors are founded upon the bills of exceptions sealed in the Court of Oyer and Terminer.
The first bill was prayed because the court would not permit, the counsel for the defendant, upon the cross-examination of a witness, to inquire into a matter not examined into by the prosecution. The objection was raised as to the time of introducing the evidence, and not against the facts sought to be established. The ruling of the court was proper. No injury was done to the defendant,
The third exception, also, rests upon the time when the question objected to was put to the witness. After the counsel for the prisoner had cross-examined the witness, the prosecution asked' him “ where Donnelly was standing on the piazza when he was talking to him?” The'counsel for the defence insisted that the inquiry could only have been made upon the first examination of the witness. The court correctly ruled that the question should be answered. In the admission of testimony much, as to the order of time, must be left to the sound discretion of the presiding judge, and. his decision in such matters is not a ground of error.
Mr. Smith, a witness produced by the state, had testified that Moses, after he was stabbed, told him where to look for money, in room 36, where he slept that night; that he had found $91 there, between the two mattresses, in a handkerchief, done up in three different parcels. He then was asked by the prosecution, “ how much money did Moses say there was?” The counsel for the defendant objected to the question. The court overruled the objection, and the second bill of exceptions was sealed upon that decision. The question was legal and important in several aspects. The answer, if correctly made, would tend to show that Moses then retained his faculties, and had distinct impressions of the occurrences which happened immediately preceding his being injured; which fact it was material for the state to establish.
The only motive which the state could impute to the defendant fo.r committing so foul a deed, was the design of regaining money from the possession of the deceased; and it was material, for the purpose of connecting that
This point of the answer was not objected to when made, and it was proof of a testamentary disposition of his effects; which fact is always admissible in showing that the declarant was in immediate apprehension of approaching death. If he had not mentioned the amount of money which he supposed was in the bed, and how much of it belonged to himself, he could not have made an intelligible testamentary disposal of his own portion of it. The fact of making such a disposition of his money was so intermixed with the amount under his own control, that proof of the latter necessarily was involved in the proof of the fact; and the admission of the whole statement did not invade the rule that the particulars of a will are not. receivable in evidence for establishing in the mind of the testator a sense of rapidly approaching death. I am of opinion that the question and answers were properly admitted in evidence by the court. The seventh exception was taken because the court permitted John W, Hound, a witness produced by the state, to answer the following question: “ What did Moses say, in the presence of Donnelly, was the occasion of Donnelly’s doing it ? ” This -witness was one of the first persons who entered Moses’ room after the alarm, and to whom he cried out immediately, “ Oh! I am murdered.” It appears that
The introduction of testimony of this nature, and upon this principle, must very much be eonfided to the discretion of the judge, who lias become familiar with all the antecedents in the conduct of the cause. 3 Cushing 184, Commonwealth v. M’Pike.
The second aspect of the question is of the greater importance to- the prisoner j because, upon the view first taken, it was immaterial whether he was present or not.
The deceased bad previously declared that Donnelly inflicted the blow, and it became material for the jury to know whether the declarations or conduct of Donnelly corroborated the iusistment of the deceased. The hill of exceptions does not clearly show when the declaration of Moses was made. If it appeared that it was made in the course of a judicial inquiry, or when circumstances existed which rendered a reply inexpedient or improper, or that fear, doubts of his rights, or a belief that his security would be better promoted by silence than by a response, governed him at the .time, then, the testimony
The answer to the question would derive its value from its disclosing a direct, or an implied admission, by Donnelly, of the truth of the account which Moses then gave of the occurrence, and of the occasion which caused it, and not from the fact of the statement being a. dying declaration of Moses. When a matter is stated in the hearing of one, which injuriously affects his rights, and he understands ir, and assents to it, wholly or in part, by a reply, both are admissible in evidence; the answer, because it is the act of the party, who is presumed to have acted under the force of truth, and the statement as giving point and meaning to the action. So, also, silence, unless it be accounted for by some of the circumstances which have been specified, or by other sufficient reasons, may be taken as a tacit admission of the fact stated ; because a person knowing the truth or falsity of a statement af
Whatever is said to a prisoner on the subject matter of the charge, to which he made no direct reply, is receivable as evidence of an implied acquiescence on his part. 5 Car. & Payne 332. The admissibility of this evidence is all that can be determined on a writ of error. Its effect under the circumstances of the case, was committed to another forum.
The witness, Round, answered that “ Moses said he had won from Donnelly, the previous night, $55; that Donnelly had murdered him to recover the money;” and the witness added that “Donnelly did not reply, to his knowledge.”
• The influence which such testimony should have upon the minds of jurors, as has already been remarked, is a different question from its legal admissibility. All the circumstances of time and occasion should be considered by them, when estimating the value of the implied admission, in rightly determining the question in issue. The' exception to this ruling of the judge has not, in my judgment, been sustained.
The thirteenth exception complains of “the charge of the court, on the subject of giving to the defendant the benefit of any reasonable doubt.”
The following language was employed by the presiding judge: “The que.stion is, did the defendant do it? And this the state is bound to prove to you beyond all reasonable doubt. By reasonable doubt, is not meant absolute certainty. There is no such thing as absolute certainty in human affairs. But the proof must be such as to exclude from your mind all reasonable doubt of the guilt of the accused. * * * * * If, upon a careful review of all the evidence, you ask your own inward conscience, is he the guilty one; and it answers, I doubt if he
The question raised before us is, whether the description of a reasonable doubt, given by the court to the jury, and the test which lie proposed to then), whereby to try the effect which the evidence, taken as a whole, should legally have upon their verdict, was erroneous and prejudicial ti> the defendant. There is scarcely an indictment of any moment tried in our criminal courts where the judge is not required to charge the jury upon the question, what a reasonable doubt is in the eye of the law. Upon a careful search of treatises and reports of trials, I have not found an answer more satisfactory to my mind, than that which was given by (31). Just. Shaw, upon the trial of John C. Webster. He said i! it is a term often used, probably pretty well understood, but not easily defined. It is not a mere possible doubt; because every thing relating to human affairs, and depending on mora! evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burthen of proof is on the prosecution.” “ If upon such proof there be reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. The evidence must establish the truth of the fact to a reasonable and moral ceriainty, a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.”
The jury were told, in the present case, carefully to examine all the evidence, and if it failed to convince them
The fourteenth bill of exceptions was assigned to that part of the charge, in which the degrees of murder, created by our statute, were defined. The court held that to constitute murder in the first degree, it was not necessary that the premeditation and deliberation should be for any specified period before the fatal act; that it is sufficient if they exist the moment before and at the infliction of the mortal blow.
In the case of The People v. Clark, 3 Selden 385, tins Court of Appeals in New York held “that an intention to kill, existing at the instant of striking the fatal blow, is a premeditated design, within the meaning of their statute.”
This question was fairly presented to the vigorous and accurate mind of Ch. Just. Hornblower, in the case of The State v. Spencer, tried in the Hudson Oyer and Terminer in this state. He there ruled that the premeditation, or intent to kill, need not he for even a minute. “'If the jury believe there was a design and determination to kill, distinctly formed in the mind, at any moment before or at the time the pistol was fired, it was a willful, deliberate, and premeditated killing, and therefore murder in the first-degree.” °
The like view of the statute, it is believed, has been given upon several trials for murder, which since have taken place in this state.
In the opinion recently read in this case, in the Supreme Court, by Ch. Just. Green, he has succinctly and accurately stated the law, as we believe it to be, in the following language: “ To constitute murder in the first degree, under this clause of the statute, there must be an intention to take life. No particular length of time need
It is not necessary that the deliberation and premeditation should continue for an hour, or a minute. It is enough that the design to kill be fully conceived and purposely executed.”
I cannot perceive how any view of this statute, which might have been taken by the court of trial, could have injuriously affected this defendant. It is manifest, from the nature and character of the wound, and from ail the circumstances which were in proof, that the perpetrator of the bloody deed could have had no other design than to take the life of his unconscious victim, and that, the homicide was a deliberate, willful and premeditated killing. This consideration and construction which we have given to the statute, will settle its meaning in New Jersey, and he useful in establishing an uniform rule of construction in all our criminal courts.
The fourth exception was taken to a statement made hv Mr. Schenek, that Moses said “ Donnelly bad cut his throat.”
The fifth vitas taken to a statement made by Mr. Smith, that when he first was in the room in the morning, Moses said that “Donnelly had killed him.” And
The sixth was taken to a statement made by Francis Brough, that when he asked Moses what the matter was, he replied, that “ Donnelly had cut his throat.”
None of these statements were made in Donnelly’s presence, and being simply hearsay they are inadmissible, unless they fall within the exception made in favor of dying declarations. Such declarations are received as evidence from necessity for furnishing the testimony, which in certain cases is essential to prevent the manslayer from escaping punishment. When a death wound is inflicted in secret, as was done in this case, no person can be expected to speak to the fact except the victim of the violence. His account of the circumstances of his injury,
But before such statements can be admitted as evidence, it must clearly appear to the court that at the time of his making them, the declarant was under the sense of impending death. For proof of that state of mind and consciousness the court may look to the nature of the injury, the extent of the wound, the condition of the declarant, the notice (if any) given by physicians, to him that certain dissolution will follow from the injury, his own expressions of his sense of his peril, and such other facts and circumstances as naturally would tend to show whether he had an abiding impression of almost immediate dissolution. It is this impression upon the mind, and not the fact of the quick succession of death after the declarations, that makes the testimony admissible before a j«ry-
In such cases the question before the court always is, whether the deceased, at the time of making his statements, was so conscious of his approaching death that the nearness of his end was calculated to lay upon him as strong an obligation to speak the truth as is imposed by an oath in a court of justice.
Francis Brough was an employee in “ the Sea View House,” and went into Moses’ room after he was stabbed. His impression was, that he was the first person who entered after Moses returned from the hall; but from the testimony of other witnesses, it is probable that one or two persons were in there before him, especially Mr.
The question thus preliminarily raised before the court did not affect the weight of the testimony — it simply involved its legal admissibility.
In view of the facts which then were before the judge, I think that he committed no error in receiving the evidence.
After an * extended principal and cross-examination, in which Mr. Smith had related all that he knew of the condition of M'oses, and what had occurred in the room, he was recalled, and he then testified that, when he first entered the room in the morning, Moses put up his hands, called him by name, and said, in succession, that he had been stabbed ; that be had been murdered ; that his throat had been cut. The witness asked him by whom, and for what cause; to which he replied: “Donnelly, your bookkeeper.” The circumstances under which the charge was then made against Donnelly, and the condition of the declarant at the lime of making it, were clearly sufficient to legalize the testimony.
The, remaining exception of this class was taken to a statement made by Mr. Schenck, the proprietor of an adjoining public establishment. He said that he found Mr. Connery, Donnelly, and a number of persons in the room. Mr. Connery was trying to staunch the blood, and Donnelly was standing by the foot of the bed ; that he heard Connery tell Moses that he could live but a short time. The witness went out, and returned with Mr. Strader and Mr. Wilson ; only those three w„ere there in the room with Moses. Mr. Strader asked Moses if he was aware that he could not live but a short time — but a few minutes?
The eighth exception in order was the first one taken after the judge had given his charge to the jury. It appears to me that the objection on which it rests would have been more correctly presented in a request to the court, made at or before the closing of the testimony, to overrule all the dying declarations of the deceased.
The court, however, was asked to charge the jury “ that, if they were satisfied that Moses had no belief in God and in a future state of rewards and punishments, they must disregard his dying declarations.” The objection certainly related to the competency of the testimony, and not to its weight.
Bearing in mind the grounds upon which we have said that dying declarations are admissible, to wit, that the declarant is considered to be in the relation of a witness, it follows that, whatever would disqualify a witness, would make such declarations incompetent testimony.
Persons deficient in understanding, and those who are insensible to the obligations of an oath, from defect of religious sentiment and belief, in which class are included such as have become infamous by being convicted of heinous crimes, are incompetent, to be sworn as witnesses; and whether a person falls within the exclusion or not, is a pure question of law for the court. But it sometimes happens that the party to be affected by testimony does not discover the disqualification until after the oath has been administered to the witness. He does not, however, by omitting to make „an objection in limine, under such circumstances, remove the incompetency; but, when the disqualification be established, he may then ask the court
The judge did not refuse to entertain Use objection when sand in the way it was made. lie instructed the jury that, the law was correetly stated by the counsel for the defence; but he also said that the law presumes that the declarant had such belief, until the contrary be proved ; and that the jury must be satisfied by the evidence that such was the fact. The only point of debate is, whether the presumption of law was rightly stated by the judge.
In 1 Greenl. on Evidence, § 370, the principie is put in clear and intelligible terms. The distinguished writer says,
It should here be observed that defect of religious faith is never presumed. On the contrary, the law presumes that every man brought up in a Christian land, where God is generally acknowledged, does believe in him, and fear him. The charity of its judgment is extended alike to all. The burthen of proof is not on the party adducing the witness to prove that ho is a believer, but it is on the objecting party to prove that he is not.”
In this case the judge did not err by instructing the jury that they must be satisfied by the evidence that Moses was a disbeliever.
The ninth exception in order, it being the second taken after the charge, relates to facts which it was insisted were sufficient to show that Moses5 declarations were not entitled to credit. The judge was requested to tell the jury, “ that the fact of Moses not restoring the money, which he said he had won at gaming, to its rightful owner, is evidence of a depraved heart; also, that the fact of his making no reference to a future state, but smiling in derision when spoken to on the subject (if the jury believe he did so) is evidence of a like character and effect.55 The judge thereupon charged the jury, “ that they would give those facts just such weight as they thought they deserved, in reference to the credit due to the statements of
In directing the jury to determine the weight which should be given to the dying declarations, from a review and considation of the facts which were in evidence prejudicial to the declarant's moral and religious character, the judge fell into no error.
The tenth exception was taken to the response of the court, when asked to charge that if the jury believed that Moses had been wounded two hours-when Mr. Munter, the surgeon, entered his room, the evidence of the defendant's guilt was insufficient. There was nothing in the instructions thereupon given by the court to the jury of which the defendant can complain, as having prejudiced him in maintaining his defence upon the merits.
The sixth, and only remaining assignment of error, alleges that the verdict of the jury is repugnant, inconsistent, and void.
The first four counts in the indictment charge the plaintiff in error with murdering one Albert S. Moses, on the first day of August, 1857. The fifth count charges him with murdering, on the first day of August aforesaid, a certain male person, whose name was to the jurors unknown. The jury found him guilty of the felony and murder charged in ' the first four counts, and not guilty of the felony and murder charged in the fifth count. In the first count, he is charged to have inflicted the mortal wound with a dagger; in the second’count with a dirk made of iron and steel; in the third count with a knife; and in the fourth count with a dirk-knife.
The objection made against the verdict is, that the accused was found guilty of committing one murder in four different ways, each of which caused death ; and that the facts found by .the jury are impossible and irreconcilable with each other.
The Supreme Court, in their opinion delivered by the Chief Justice, correctly disposed of this assignment of
The authorities in support of the law as declared by the Supreme Court, are numerous in England and in this country, but time will not permit me now to cite or to review them in detail. We fully agree in the reasoning of that court, and are of opinion that the verdict is not repugnant nor inconsistent.
Having thus carefully examined all the points which have been presented to, and most ably argued before the court, against the legality of the conviction of James P. Donnelly, and finding in none of them any error upon which, according to the constitution and laws of this stale, the judgment of either of the courts below should be reversed, I am of opinion that the judgment of the Supremo Court must in all things be affirmed.
Dissenting Opinion
(dissenting.) I concur entirely in the opinion which lias been read, upon all the points except two, the second and seventh exceptions, taken during the progress of the trial. Iu a case of so much importance, and upon the issue of which the life of a fellow being depends, I feel it my duty to give the reasons which- have influenced my judgment in differing from my brethren, who have concurred in all the points in question.
The second exception, taken upon the trial in the Oyer and Terminer, was to the following question, asked by
The grounds upon which it was insisted by the counsel of the state that this evidence was competent to go to the jury, were — first, to show a motive for the homicide; second, as showing the condition of mind of Albert S. Moses after he received the mortal wound; and third, to prove the testamentary disposition of his property, as an evidence that he was under the apprehension of death, so as to render competent his dying declarations in respect to
That the evidence was material to the issue, and had a tendency to reveal the motive which actuated the defendant to the commission of the deed, cannot be controverted. But I cannot see how it is, because such was its tendency and materiality, that the declarations of Moses were, for those reasons, competent to prove the facts.
The objection to the evidence was not on account of its irrelevancy to the issue, or because it was not competent to prove the motive which induced Donnelly to commit the crime, bnt. the objection was as to the mode of proof — to the declarations of Moses as competent evidence to establish the facts, which, it was insisted, tended to prove the motive. Undoubtedly it was competent to prove the motive. But that does not establish the legality of the evidence by which it was attempted to prove the motive. It leaves the question untouched — were the declarations of Moses competent evidence to go to the jury to prove a fact which tended to establish a motive for the homicide ? Upon what rule of evidence were the declarations of Moses competent for such a purpose? They were not offered, nor can it be pretended that they were admissible as “ dying declarations.” Such declarations are admissible only to show the fact, of the homicide and its concomitant’ circumstances. The principles upon which they are admissible are peculiar to cases of homicide. Such declarations are said (in 1 East P. C. 353) to be admissible from necessity, since it often happens that there is no third person present to be an eye-witness to the fact, and the usual witness in other felonies, viz,, the party injured, himself, is got rid of. But the admissibility of such evidence has been placed on a broader basis. Eyre, C. B-., (in Woodcock’s case, 1 Leach 502), says that the general principle upon which evidence of this kind is admitted is, that it is of declara
But it is unnecessary, for the purpose of a right decision of the two exceptions we are investigating, to examine either into the origin of the rule, or to ascertain accurately the limits within which courts have circumscribed its admissibility. As “dying declarations,” the evidence we are now considering was not offered. As such, its propriety cannot be maintained, unless it can be shown that such evidence may be extended to facts and circumstances not connected with the acts of the homi
“ There was ninety-one dollars in different parcels ; he said sixty-one dollars of it toas his money, and the rest belonged to Mr. Lent; he told me where L would find the money ; he said the money was in his bed, between the mattresses ; he said it was wrapped up in a bundle; he did not specify what it was wrapped in; Moses told me he wanted his sixty-one dollars sent to his mother.” But I need not repeat any more of the evidence given in reply to the question which was objected to. There was much more of it of a like character. Then followed its corroboration by other proof, that the money was found between the mattresses, wrapped up in a bundle, aud in amount corresponding with the statement of Moses. If cannot be pretended that the declarations of a third person, as to these facts, would have been competent evidence to go to the jury, no matter how accurate their corroboration by other proof." Yet the declarations of Moses, standing on precisely the same principle as to their competency, with the single exception of the rule applicable to “dying declarations,” are admitted as competent, on the ground of their being material' to show motive for the homicide. The facts were perfectly competent to be proved. The declarations of Moses to prove them were not competent, upon any rule that ever has been established or recognized in the administration of criminal jurisprudence.
But again, it is insisted that the evidence was competent for the purpose of showing the state of Moses’ mind at the time he made his dying declarations, and to show that the injury he had received had not impaired his memory or judgment. The question, as to the compe.tency of this evidence, was raised upon the examination of the first witness who testified in reference to facts connected with the homicide. There had been no- opportunity, on the part of the defence, to cross-examine. There had
If the question is answered in the affirmative, then it follows that dying declarations are not confined to facts which occurred at the time of the homicide, but that, by them, the state may prove facts establishing a motive for the homicide, which occurred long anterior. It is true they are not admitted on the ground that it is competent to prove the motive by dying declarations. It is not denied but that they are incompetent for any such purpose. But being once admitted on a pretext of showing the strength of mind and unimpaired intellect of the dying man, they may be used for a purpose entirely different, and much more potent against the defendant. A rule of evidence is thus established, by which evidence, otherwise incompetent, is admitted under false pretences. The history of this ease, and the purpose for which the facts, when once admitted, were used, show most satisfactorily the danger and injustice of such a rule. We cannot close our eyes to the fact that the evidence was not originally offered by counsel, or admitted by the court, upon any such ground as is now alleged, and that it was not necessary for any such purpose. It vvas perfectly proper for the prosecution to show the state of Moses’ mind, and how it was affected by the injury he had received, and for this purpose to inquire, perhaps, whether he conversed with intelligence, spoke of his friends and property, and, generally, what were the subjects of his conversation ; but it was not competent for such a purpose, and as in this case, under the mere pretence of introducing evidence tor such purpose, to prove, by Moses’ declarations, facts and cir
There'is one other ground upon which it is contended that the evidence is competent. It is said it proved the testamentary disposition of his property by the deceased, and that such evidence-is competent tó show that he was under apprehension of approaching death, and thus to lay the foundation for the admission of dying declarations. But can it be possible that the evidence was admissible on this ground ? It was pertinent and proper to show the fact that the deceased made a testamentary disposition of his property; but where is the authority, or what plausible reason can be given, to make it competent to give in evidence the details of such, disposition ? .It is competent to show that deceased made a will, because the fact shows, .that he was under the apprehension of approaching death. But who will pretend that it is competent to give that will in evidence, and to read its contents to the jury? How does the amount of property which he disposed of, or the manner of its disposition, or whether it is done intelligibly or otherwise, throw any light upon the point to be elucidated, his apprehension of approaching dissolution f It was.competent for the prosecution to show that the deceased made a testamentary disposition of, his property, but it was not competent to show the particulars of that disposition. I think the Court of Oyer and Terminer erred in the admission of this evidence. I can see no ground upon which its admissibility can be sustained.
As to the seventh exception, the question was asked by the counsel for the state, “ What did Moses say, in the presence of Donnelly, was the occasion of Donnelly’s doing it f” As' is properly remarked, in the opinion of the Supreme Court, the evidence was not offered as a “ dying declaration,” but as a statement made in Donnelly's presence, and not denied. It may be proper to say, however, that the question was not competent in the view of the admis
In order to judge of the competency of the evidence, we must ascertain the situation of the accused at the time the statement was made. It is not the statement by which the accused can be prejudiced, but by his own conduct when the statement was made. Within one hour after the deed was committed, and while Moses was on Ins death-bed, where he expired shortly afterwards, Edward I). Connery assumed to act in the capacity of a magistrate. He, with others, and with the accused, had been administering to the necessities of the thing man. Moses had repeated, over and over, that Donnelly liad given him the mortal wound while he was sleeping in the adjoining room, and Donnelly had repeatedly and earnestly denied the accusation. When the confusion had in a measure subsided, and all had been done for Moses that those present could do, Connery said to the accused, “Ms a physician, and a magistrate, Mr. Donnelly, 1 arrest you /” and, in the language of Connery, “Mr. Donnelly submitted immediately to the arrest.” This arrest was made in the entry, near the room where Moses was dying. Connery then summoned six men as jurymen, and with them and the accused, entered the dying man’s room. Then each of the assumed jurymen were sworn, and then the oath was administered to Moses to testify, as a witness, touching the homicide. At this point of time it was, and under these circumstances, that the state offered the evidence to prove what Moses said was the occasion of Donnelly’s committing the deed. The witness, in reply to the question, went on to state that Moses said he had won from the accused the previous night Sfty-five dollars, and that■ the accused liad murdered him to recover the money. The accused made no reply to these statements.
An intimation has been thrown out, as to some technical difficulty in giving to the accused the benefit of an exception to the evidence, on account of the point of time at which the objection was interposed. In the opinion of the Supreme Court, it is said, “in this case the exception is, not to any rule or action of the court after the answer was given, but to the question itself; and no principle or authority, it is believed, exista, which in the slightest degree impugns the legality of the question.” It is alleged that the question to which exception was taken was competent, and that when, upon the answer to the question, it turned out that the evidence was improper, the court should have been called upon to rule ii out. This suggestion is made upon the assumption that some answer might have been given to the question, which would have been competent evidence for the consideration of the jury. But is it true that any answer could have been made to the question, which ought to have been considered as competent evidence to the prejudice of the accused ? I will take the strongest case for illustration. Suppose, when Moses said that the accused had won from him the previous night, fifty-five dollars, and that he murdered him to recover the money, the accused had assented to the statement, ought an admission made under the circumstances to have been permitted by the court to go to the jury? In my judgment it ought not; and for the reason, that such trifling with the law, such mockery of justice, such profanation in administering oaths to a pretended jury and witness, ought not to have been countenanced in any way by a court of justice, nor have been permitted in the slightest degree to prejudice the accused. The court itself should have vindicated the majesty of the iaw, and should have protected the accused from any prejudice to
It cannot be that the court would have taken the position that the exception was too soon, and that the question itatdf was lawful. By such a course the accused would have been prejudiced by the jury’s hearing the statements, and, although the court might afterwards have ruled them out, an impression would have been made upon the minds of the jury which no charge of the court could ever efface. It does appear to me that, when that question was asked by the prosecution, and was excepted to, that, under the peculiar circumstances of the case, as it then stood before the court, the court should have sustained the exception. I think the counsel took their exception at the right time, and at the time when they ought to have taken it, in order to insure the full benefit of the exception to their client.
The case of Rex v. Appleby and others, 3 Stark. R. 33, 14 E. C. L. R. 152, was an indictment against three of the prisoners for stealing a horse, and against the fourth for having feloniously received the horse, knowing it to have been stolen. On the part of the prosecution it was proposed to prove that, when the prisoners were taken up on the charge and examined before a magistrate, one of them being charged, by the examination of another, with having, jointly with tiie latter, committed the felony in question, the former did not deny that what was so said was true; but Holroyd, J., held that it was not competent for the prosecutor to go into such evidence,
It is with great diffidence in my own judgment that I differ from an opinion which has received the assent of every judge of the Supreme Court. But my convictions of duty compel me, in a case like this, to adhere to the judgment I have formed, after giving to the case the best consideration in my power.
For affrmance — Judges Ogden, Ryerson, Arrowsmith, Risley, Swaim, and Wood.
For reversal — The Chancellor, and Judges Corñelison and Valentine.