(Indictment, Appeal, and Evidence). up and down: and that she was afterwards delivered at the Ch. V. § 124. prisoner's house. The deceased also declared during her Evidence. Declarations of illness, that after her delivery the prisoner gave her the child the deceased. to take home; and bid her go to bed that night and sleep, and get up in the morning and go about her business, and nobody would know any thing of the matter; but that appearing very ill the next day at a relation's house, they had ordered her to go home and go to bed, which she did. The child was born alive, but died instantly; and the surgeons, who were examined, proved that it was perfect. There was no doubt but that the deceased had died by the acceleration of the birth of the child: and upon opening her womb it appeared that there were two holes caused by the skewers, one of which was mortified, the other only inflamed; and other symptoms of injury appeared. A short time before her death she was asked whether the account she had from time to time given of the occasion of her death, and the prisoner's treatment of her were true; and she declared it was. It was objected that the above evidence of the deceased's declarations ought not to be admitted, as she herself was particeps criminis, and likewise as it appeared at the time of her declarations she was better, or thought herself so. But Nares, J. was of opinion, that however this objection might hold with respect to the second count, in which the prisoner was charged as an accessary with the deceased, yet the deceased was not willingly or knowingly an accessary to her own death; and therefore it was like the common case of any other murder. And as to the objection that she once thought herself better, and tried to get up, yet the same declarations she then made had been made repeatedly before to persons whom in confidence she told that she never should survive, when she first took to her bed; and she had repeated the same declarations the day before she died, and within a few hours of her death. And as to the fact itself, he was clearly of opinion it was murder, on the authority of Lord Hale. (1 Hale, 429.) The jury found the prisoner guilty on the first count, charging her as a principal in the murder, and execution being respited to take the opinion of the judges on the whole case, they all met to consider of it: and were unanimously of opi- First day of nion that these declarations of the deceased were legal evi Mich. term 1781, at Serdence: jeant's Inn. Ch. V. § 124. Evidence. the deceased. (Indictment, Appeal, and Evidence). dence: for though at one time the deceased thought herself better, yet the declarations before and after and home to her Declarations of death were uniform and to the same effect. And as to her being particeps criminis, they answered, that if two persons be guilty of murder, and one be indicted and the other not the party not indicted is a witness for the crown. And though the practice be not to convict on such proof uncorroborated, yet the evidence is admissible; and here it was supported by the proof of the prisoner tossing the deceased in her arms in MS. Buller, J. the manner stated. Most of the judges indeed held that the declarations of the deceased were alone sufficient evidence to convict the prisoner; for they were not to be considered in the light of evidence coming from a particeps criminis; as she considered herself to be dying at the time, and had no view or interest to serve in excusing herself, or fixing the charge unjustly on others. But others of the judges thought that her declarations were to be so considered; and therefore required the aid of the confirmatory evidence. MS. Buller, J. Vide general title Evidence, Depositions, and 2 Leach, 512. S. C. R. v. Radburne, In the case of Henrietta Radburne, who was indicted for alias Gibbons, petit treason in murdering her mistress Hannah Morgan, O. B. July 1787, cor. Wilson, J. the deposition of the latter before her death before a magistrate, by whom it was authenticated in the presence of the prisoner, was read in evidence, though made by her when under no apprehension of danger: but this was evidence by force of the statutes of Ph. & Mary (a): and the prisoner was convicted of the murder and accquitted of the petit treason; which was afterwards approved of by all the judges. And it was observed by many of them, that the statutes of Philip and Mary do not extend to treason. Woodcock's edit. 563. In Woodcock's case it was considered, that such an exacase, O. B. 1789, cor. Lord C. B. mination taken before a magistrate who attended for the Eyre, Ashhurst, purpose at the place where the deceased was then lying after J. and Adair the mortal wound received, and without hopes of recovery, not Serjt. Recorder, Leach, 397.new being taken in the presence of the prisoner in the manner described by the acts (a), could not be received in evidence, quà examinations, after her death: but they were received as authentic declarations of the deceased in extremis, there being then no probability of her recovery, though she herself expressed no sense of her danger, but lay quietly resigned Trowter's case, and submitting to her fate. In Trowter's case the court Vide Dingler's case, ib. 638. B. R. E. 8 G. 1. 10 Vin. Abr. 118. (a) 1 & 2 Ph. & M. c. 13. and 2 & 3 Ph. & M. c. 10. would (Indictment, Appeal, and Evidence). would not admit parol evidence of the declarations of the Ch. V. § 124. deceased which had been reduced into writing. case, Carmar 1790, MS. Bul J. der to receive or Evidence. Declarations of On the prosecution of Thomas John for the murder of the deceased. Rachael his wife, it was proved by the confession of the prisoner himself in conversation with others before his wife's Thomas John's death, that in September 1789, upon a quarrel between then Sp. Sess. them, he had laid hold of his wife, and they had fallen down, ler, J. he uppermost, and he had given her several violent kicks and Whether or not the declarations blows, so that according to his own words, he knew she neof the deceased ver would raise her hand against him again. It was also were made under proved that she died in the same month; that she was taken an apprehension of danger must ill on a Friday, took to her bed the next day, and died on be determined by the Sunday sevennight following, being confined to her bed the judge, in orby her illness, which was severe, the whole time. But it reject the evidid not appear that she had expressed any apprehension of dence, and not by the jury after the danger, though she retained her senses till the day before her evidence is redeath. Three witnesses deposed to conversations during her ceived. The apprehension of illness, at which the husband was present, in which she at- danger may ap tributed her situation to his ill treatment; and the conduct pear either from the express deand answers of the husband were given in evidence, although claration of the it was objected on his behalf that what was said by the wife deceased at the even in the presence of the husband, and to which he re-inferred from the turned answers tending to charge himself, ought not to have state of the been received. Evidence was also given of her declarations or other circumin the prisoner's absence, after she was confined to her bed, stances indicating all of which tended to shew the circumstances of violence he had committed upon her. It was objected, that the declarations of the wife in the absence of the prisoner ought not to have been admitted in evidence, as it was not proved that she considered herself at the time as a dying person; the evidence not being express on that head: but that if the evidence were admissible, it ought to have been left to the jury to consider whether the wife were at the time conscious of approaching death. Objection was also made, that these being declarations of a wife against her husband were not on that account evidence. The court was of opinion, that the reason of the rule that a wife shall not be admitted to give evidence against her husband did not apply to this case. ide general And upon the other point, that the evidence of the state of title Witness. the wife's health, at the time the declarations were made, was sufficient time, or may be wound or illness the same. (Indictment, Appeal, and Evidence). Ch. V. 124. sufficient to shew that she was actually dying; and that it Evidence. was to be inferred from it, that she was conscious of her situ Declarations of ation: and no particular direction was given to the jury on the deceased. Henry Welbourn's case, Lincoln Sum. Ass. 1792, cor. MS. Buller, J. case; and fur ther, clarations were in evidence. the subject. The jury having found the prisoner guilty, these points were referred to the judges; who at a confer ence in Easter term 1790 all agreed that it ought not to be left to the jury to say, whether the deceased thought she was dying or not; for that must be decided by the judge before he receives the evidence. And if a dying person either declare that he knows his danger, or it is reasonably to be inferred from the wound or state of illness that he was sensible of his danger, the declarations are good evidence. But as to the declarations themselves in this case, all the judges, ex cept two, thought that there was no foundation for supposing that the deceased considered herself in any danger at all. Upon the prosecution of Henry Welbourn for the murder of Elizabeth Page by poison, a witness deposed that the deceased and the prisoner lived with her as her servants; that perceiving the deceased alter and appear very ill, she taxed her with being with child, which she owned, and the next effect as the last day continuing very ill she confessed she had taken something; at which time the witness believed that the deceased If the deceased was sensible of her situation and danger, though she did not thought she should recover at say so. But when the apothecary came to see her the same the time the de- evening she said that she was very bad, and did not know if made they ought she should get the better of it. The apothecary himself not to be received deposed that when he first saw the deceased she was then apparently dying; but he believed that she was not sensible of her danger; that after he had been with her some time he made her sensible of her danger, in order that he might get from her what she had done. her something to ease her pain. know what she had done; and that she would not live 24 hours unless proper relief were afforded. (She did not in fact live above an hour afterwards.) The witness had no other reason for thinking that she knew her danger from any thing that she said, except that on his telling her of her. danger she told him what was the cause, which she had be fore refused to do. She then described to him the symptoms of pain which she had felt, and again repeated that she She desired him to give He told her he must first (Indictment, Appeal, and Evidence). wished he would give her something to compose her. The Ch. V. § 124. witness then again urged the necessity of knowing the cause Evidence Declarations of of those symptoms, and she told him with reluctance, that the deceased, she had been three or four months gone with child, and that during the last fortnight she had been constantly prevailed upon to take bitter apple in order to procure an abortion; but that not producing the desired effect, the person had prevailed on her to take a white powder, (which was the day before she was taken ill,) and that the symptoms came on in about three or four hours after. The witness then urged her to say by whom she had been prevailed upon, when with increased reluctance and hesitation she told him it was by her fellow-servant Welbourn; and that he had prevailed upon her by assuring her that there was no crime in procur ing an abortion whilst the child was so young. At this moment she was free from pain, and the witness thought that a mortification had taken place. From the deceased's de scription of the white powder, and from the inspection of the body afterwards, the witness believed it to be arsenic. On his cross examination he said that at the time she made this declaration he believed that she thought she was getting Vide post. 360. well from the being so free from pain. It appeared from other witnesses that on the day when the deceased had said that she had taken the white powder, the prisoner and she were observed in discourse together; and he was shaking a bottle of something: and he had before applied for some bitter apple, which the witness had refused to get him. It was left to the jury to consider, whether from the whole of the evidence they were satisfied that the deceased at the time she made the declarations was satisfied of the danger of her situation? and whether they thought those declarations true? and that her death was owing to poison administered by the prisoner? in which case they should find him guilty. The jury accordingly found him guilty. But a doubt afterwards occurring to the learned judge, whether, though in the first part of the apothecary's evidence he swore that he made the deceased sensible of her danger before she made the declaration, yet as he afterwards said that at the time she made the declaration she believed that she was getting better from the pain ceasing, he should not have re jected |