evidence of guilty knowledge. We are of opinion that the evidence was left to the jury by the assistant barrister in the way in which it ought to have been, and therefore that his decision on both points ought to be affirmed. [I have to thank Mr. Elrington for the report of the judgment in this case, the court having sat unexpectedly to deliver judgment.-REP.] REG. v. MILLER AND 1853. Receiving- OXFORD CIRCUIT. STAFFORDSHIRE SPRING ASSIZES, 1854. (Before MR. JUSTICE WIGHTMAN.) March 16. REG. v. QUALTER. (a) Evidence-Dying declarations. In order to render dying declarations admissible in evidence, the facts to show that the deceased was conscious of his state must point to the time of the statement, and therefore declarations some days prior to an expression that the deceased "had given up all in this world," were held inadmissible. Where the deceased said he was "a murdered man, and it would have been better if they had killed him on the spot than left him to linger, and that he thought he should never get over it," but he lived several weeks afterwards: Held, that there was a primâ facie case for the admissibility of declarations made at the time of those statements. But where the person to whom the declarations were made, stated that he believed the words "murdered man were not used in their literal sense, and that the deceased did not appear to have any immediate fear of death on his mind: Held, that the case was taken out of the principle on which such declarations are receivable in evidence. JOHN QUALTER was indicted for the murder of Thomas Price, at Wolverhampton, on the 20th of June, 1853. P. M'Mahon, and Staveley Hill for the prosecution. Huddleston (at the request of the judge), for the prisoner. The deceased left his home on the morning of the 19th of June, to attend Walsall market, and soon after midnight of the same day (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law. REG. v. QUALTER. he was found lying outside his own house with his jaw smashed, his head and face bruised and beaten, and his clothes saturated with blood. He lingered until the 8th of August, when he died of the injuries he had received. The principal evidence to connect the prisoner with the murder, consisted in declarations made Dying by the deceased under the circumstances stated by the following 1854. Evidence declarations. witnesses: Margaret Price, the widow of the deceased, said, that about a week before his death, he said to her, in answer to some observation made by her about the perpetrators of the act, "you will hear of them when I am gone;" and soon after made a statement to her. Two days before his death he said, "I have given up all in this world," and desired that a clergyman should be sent for. WIGHTMAN, J., held that the statement being made prior to the expression that he had given up all in this world, was inadmissible. Mr. Smallman, surgeon, who had been called in in the first instance, but had not attended the deceased to his death, said that he was in a very weak state, and life was only sustained by stimulants; the witness considered that the case was hopeless, but did not tell his patient so, on the contrary, he told him to have a good heart. There was nothing in his state to show the witness that he must have felt that he was a dying man; and he did not make any statement as to his hopes of recovery. WIGHTMAN, J., expressed his opinion that this evidence would not assist in making the declarations to the widow admissible. Andrew Brooks, police constable, was then called, and stated as follows:-On the 27th of June I went to the house of the deceased, and found him lying in bed. He spoke about his condition, saying he was a murdered man, and it would have been better if they had killed him on the spot than have left him to linger. He never expressed any hope of recovery. I told him I thought he would get better, to which he replied, "I cannot say; I don't think I shall ever get over it." McMahon now proposed to follow up this examination by asking the witness as to statements made to him by the deceased at this interview. Huddleston objected. The principle on which these statements are admissible is, that they are made under the belief of approaching death. Here the man lived several weeks, and was encouraged by the medical witness to expect his recovery. The expressions, "I am a murdered man," and that it would be better to kill him than let him linger on, were not to be taken literally. In Reg. v. Nicholas, 6 Cox Crim. Cas. 121, it was proved that the deceased, who lived a few hours after the wound was inflicted, made a statement, at the conclusion of which he exclaimed, "Oh! God! I am going fast; I am too far gone to say any more;" but he did not appear to have previously said anything about his condition, and there was no evidence, one way or other, to show that he was REG. V. QUALTER. 1854. aware of it, and it was held that the statement was inadmissible as a dying declaration. In that case Mr. Justice Cresswell, after consulting Mr. Justice Williams, said, "My brother Williams confirms the doubts I had on this subject, that, it being possible that this man did not discover the extent of his weakness till he had made the statement, and it was only after he had made it, he, for the first time, discovered that he was going fast; there is not, con- declarations. sequently, that clear ascertainment of his consciousness of his state, before he made it, to render it admissible in evidence." The general rule is laid down in Russell on Crimes, by Greaves. M'Mahon replied, contending that in this case it was clearly proved that the man was in such a condition that he must have been conscious of his impending dissolution, and that it was not necessary that he should have used any expressions whatever declaring his belief that he could not recover, if his condition was such that he must have felt that he was a dying man: (Woodcock's case, 1 Leach, 503.) WIGHTMAN, J.-The general principle is, that the deceased must be under the apprehension that he will die. In the present case there cannot be any doubt that the deceased was in that state, that if he was aware of it, the evidence would be admissible. Is there reasonable ground, then, to suppose that he was aware of his state? Neither the widow nor the surgeon state anything to show it, but the police officer does not vary in his statement, that the deceased said he was a murdered man. Neither of the authorities cited were exactly in point. In Nicholas's case there was nothing but the bare fact of statement, without any evidence of the actual state of the deceased; here there is something more. On the whole I am disposed to receive the declaration; and, at the same time, I shall reserve the point for the Court of Criminal Appeal, should it become necessary. Huddleston then obtained permission to further cross-examine the witness before he was asked as to the declaration of the deceased. In answer to those questions the witness said, "I did not believe he was going to die then, nor in a day or two. I thought him in such a state that there was no impropriety in asking him questions. The expression, I am a murdered man,' is often used by persons without their meaning that they are going to die immediately, and I thought the words used by him were not used in any other sense." I asked him many questions which I should not have done, if I had seen anything to indicate that he apprehended he was going to die. The questions I put did not distress him, and from the way in which he answered them, I did not think there was any immediate fear of death on his mind, or that he thought he was in danger of his life. WIGHTMAN, J.-I think the case is now without the principle on which such declarations are admissible; for if this statement were receivable, persons merely making statements that they are murdered or dying, would be admissible, although they did not really believe that they were dying. Evidence Dying REG. V. QUALTER. 1854. Evidence Dying declarations. Upon hearing this opinion of the learned judge, the counsel for the prosecution said he should not proceed further with the case, it being impossible to adduce evidence independent of the statements, to warrant a conviction. The prisoner was accordingly acquitted. OXFORD CIRCUIT. STAFFORDSHIRE SPRING ASSIZES, 1854. Stafford, March 20. (Before RUSSELL GURNEY, Esq., Q. C.) Perjury-Evidence-Reference of a cause and all matters in difference Quære, whether the production of the order of reference is sufficient evidence of the authority of the arbitrator, without producing the Nisi Prius record? THE HE defendant was indicted for perjury. The indictment alleged that at the assizes holden at Stafford, in and for the county of Stafford, on Tuesday, the 9th day of March, A. D. 1852, before Sir William Wightman, Knight, one of the justices, &c., and Sir Thomas Joshua Platt, Knight, one of the barons, &c., and others their fellows, &c., assigned to take the assizes in and for the said county of Stafford, a certain cause was pending, wherein one Thomas Ball was plaintiff, and one Joseph Parker and one John Tooth were defendants; and the said cause came on to be tried in due form of law by a jury of the country in that behalf duly sworn and taken between the parties aforesaid, upon which said trial it was ordered by the said court and the said justices, with the consent of the parties, their counsel and attorneys, pursuant to the statutes in that behalf, that the jury should find a verdict for the plaintiff for the damages in the declaration, and forty shillings (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law. costs, subject to the award or certificate, order, arbitrament, final end and determination of Rupert Kettle, Esquire, Barrister-atLaw, to whom the said cause and all other matters in difference between the said parties were thereby referred. The indictment then averred "that the said Rupert Kettle, as arbitrator as aforesaid, then and there proceeded to inquire and arbitrate touching the said cause and the matters then in difference between the said parties, and that at and upon the said inquiry and arbitration the said Thomas Ball appeared as a witness before the said Rupert Kettle, acting as arbitrator as aforesaid, and was then and there duly sworn as a witness to speak the truth, and nothing but the truth, the said Rupert Kettle, arbitrator as aforesaid, having competent authority to administer the said oath in that behalf to the said Thomas Ball;" and "that at and upon the said inquiry and arbitration the following questions became and were material questions, and each of them became and was a material question, whether he the said Thomas Ball had signed a certain paper writing then and there shown to him, and whether he had put a mark to a certain paper writing then and there shown to him, and whether he had ever before seen the said paper writing, and whether he had put a mark to any paper at the office of one Mr. Flint, and whether he had signed anything at the said office, and whether he had been asked to sign anything at the said office, and whether he had seen any paper with a stamp on it, or with a stamp off it, at the said office." The indictment then proceeded to assign the perjury by Thomas Ball, the plaintiff, in the usual way. P. M'Mahon and Cook Evans for the prosecution. Scotland for the defendant. The order of reference was produced by the arbitrator and put in. On the arbitrator being asked as to what questions were in issue between the parties, and whether he could distinguish between the matters in the cause and the other matters in difference, Scotland objected that the Nisi Prius record must be produced to show what were the matters in issue in the action. P. McMahon and Cook Evans, contrà.-Application had been made for the record, but by the Common Law Procedure Act no record was now made up. The award was in favour of the defendants who had the control of the postea. It is proposed to read the original minutes of the associate, upon the authority of Reg. v. Newman, 21 L. J. 74, M. C. Moreover, the order of reference reciting the facts was sufficient evidence under the maxim, "Omnia rite acta præsumuntur." GURNEY, Q.C.—You must prove the allegation that the cause was then pending. Scotland, in reply.-This is not within the maxim cited. This is a proceeding between the Crown and the prisoner, and not between the parties to the record, or the parties named in the award. The recital in the order of reference is not evidence, therefore, on this indictment. In Newman's case there was no allegation of any REG. W. BALL. 1854. |