M'Pherson v. StateM'Pherson v. State
- Reporters:
- Before:
- Turley
delivered the opinion of the court.
At thе July term 1835 of the circuit court for the county of Carroll, the plaintiff in error was convicted of the crimе of *280murder, and sentenced by the judgment of the court to die, -which judgment this writ of error is prosecuted to reverse.
The first objection to this judgment is, that the bill of indictment is drаwn without any specification as to the degree of murder intended to be charged, and that the verdiсt of the jury is in general terms, that the prisoner is guilty in manner аnd form as charged in the bill of indictment, without specifying that he is guilty of murder in the first or second degree.
This- objectiоn is well taken: The act of 1829, c. 23, § 3, enacts, “that the jury bеfore whom any person indicted for murder shall be tried, shall if they find such person guilty thereof, ascertain in their verdict, whether it be murder in the first or second degree.
The second objection is, to the charge оf the court as to the manner in which the testimony in the case was to be judged by the jury. The bill of exceptiоns shows, that the dying declarations of the individual charged to have been murdered by the prisoner, were сontradictory; sometimes accusing him of having committed the deed, and at other times saying that she did not knоw who had done it. Upon this the court charged the jury, thаt ii they found that the deceased in her dying declarаtions made contradictory statements, that they wеre not to be governed by the rules of evidence in relation to contradictory statements madе by a witness in a court of justice. This charge is clearly erroneous, for there is no reason why the same principle of law should not be applied tо the contradictory statements of persons in extremis and those of a person on examination under oath. The court upon this point should have chаrged the jury, that if they believed that the contradiction in the dying declarations of the deceased, wеre produced by ignorance on her part as to who had committed the offence, and a mеre surmise that it was the prisoner, they ought to be rejеcted and not permitted to have any weight in coming to a conclusion upon which their judgment was to bе based; but that if they believed that the contradictiоns were produced by apprehension and fеars of her husband, or an unwillingness to charge him with the offеnce, and not from ignorance as to his guilt, then the сontradictions might be reconciled, and that portion of her declaration charging the *281prisonеr with the offence ought to be taken into consideration by them, and such weight ought to be given to it as from аll the circumstances in the case they might think it justly entitled.
The judgment will be reversed and the prisoner remanded tо Carroll county for a new trial under these instructions.
Judgment reversed.