Opinion.

to the evidence, especially if he says he believes he can give the prisoner a fair trial, he is competent; and the court must determine upon the particular circumstances of each case, whether the opinion be decided or substantial, or hypothetical merely. Epes' Case, 5 Gratt. 676; Clore's Case, 8 Id. 606; Wormley's Case, 10 Id. 658: Jackson's Case, 23 Id. 919; Washington's Case, 86 Va. 405; Math. Crim. Dig. (3d ed), 275, et seq.

In Staup v. Commonwealth, 74 Pa. St. 458, the court say: "Where the opinions or impressions of the juror are founded. on rumor and reports, or even newspaper statements, which he feels conscious he can dismiss; where he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, freed from the influence of such opinions or impressions, he ought not to be excluded. If exclusion should follow from such unsettled convictions, it would often be difficult to obtain a jury."

4. The subject of the next exception is the action of the court in impanelling the jury. The bill of exceptions states that after a panel of sixteen persons, free from exception, had been obtained, and the prisoner had stricken therefrom the names of four of the panel, but before the jury were sworn, the attorney for the commonwealth suggested that the clerk had not informed the prisoner as to his right to challenge the whole array, or, for cause shown, to challenge any one or more of the veniremen, &c.; whereupon the court directed, against the objection of the prisoner, that all the veniremen be recalled, including the four whose names had been stricken from the panel by the prisoner, and, after this had been done, proceeded to impanel a jury de novo for the trial of the case, and then proceeded with the trial accordingly.

There was nothing in this action of the court of which the prisoner can justly complain.

5. The next question is as to the admissibility of certain de

Opinion.

clarations of the deceased made after the shooting. The deceased was wounded in the breast with a pistol, shortly before 2 o'clock P. M., on the 25th of July, 1891, and died from the effects of the shot about 2 o'clock the next morning. A witness for the commonwealth, the wife of the deceased, testified that she reached the deceased soon after the shooting, and that he then remarked to her: "Helen, it is a death shot this time." He also spoke of dying, and said he wanted to go to heaven when he died, though he did not say in so many words he believed he was going to die. He seemed to be suffering, she said, and looked like a man in the agonies of death.

The commonwealth thereupon called a witness, Dr. Dingus, who testified that he attended the deceased after the shooting, and remained with him until he died. He also testified that the deceased told him, in answer to his inquiry as to how he came to be shot, that he had a warrant of arrest for one Miles Bates, whom he arrested, when a man, who was with Bates, stepped up to him, and said, "Give up that prisoner and pistol, or I will shoot you," and shot him before he could do anything. The witness did not hear the deceased say anything about dying.

Another witness for the commonwealth-J. A. Hubbard― testified that he saw the deceased soon after 2 o'clock on the day of the shooting, and heard Charles Lawrence ask him who shot him, to whom he answered, "The man they call Talt Hall," and then went on to say that after he had arrested Bates, Hall (the prisoner) came up and told him to give up his pistol or he would shoot his brains out, and that, upon his refusing to do so, the prisoner pushed him back and shot him.

The prisoner objected to the introduction of these declarations as evidence, on the ground that a sufficient foundation. for their introduction had not been laid; but the court admitted them, and he excepted.

We think they were properly admitted. The principle

Opinion.

upon which, in cases of homicide, the dying declarations of the deceased are admitted in evidence, is that they are declarations made in extremity, under a sense of impending death, and, therefore, when every motive to falsehood is silenced. It is not necessary, however, that they should be stated, at the time, to be so made. It is enough if it appears that they were made under that sanction; and, when this is shown, the length of time between the declarations and the death of the declarant is an immaterial matter. 1 Greenl. Ev., sec. 158. Thus, in Tinckler's Case, 1 East. P. C. 354, they were made ten days before death; in Rex v. Mosley, 1 Mood. Cr. Cas. 97, they were made eleven days before death; and in Swisher's Case, 26 Gratt. 963, they were made ten days before death; and in all these cases the declarations were received.

In the last-mentioned case it was said by Judge Christian, speaking for the court, and the authorities uniformly hold, that if the deceased, at the time the declarations were made, was under a sense of impending dissolution, and a consciousness of the awful occasion, the principle is not affected by the fact that death did not ensue until a considerable time thereafter, nor by the fact that on other occasions, when encouraged by others, he may have expressed some slight hope of recovery, unless such expressions, taken together with all the circumstances of the case, show that he had hope of recovery when the declarations were made.

Tried by this test, the declarations in question were admissible. They were made very soon after the deceased had stated to his wife that the wound was a mortal one, or, in his own language, that it was "a death shot," and when death seemed impending; and although she testified that he afterwards somewhat revived, and that she then had hope of his recovery, yet there is nothing to show that he himself had any such hope from the moment he was shot until he died. His statements, then, are clearly admissible as dying decla

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rations; and this being so, it is needless to consider whether they were also admissible on the other ground contended for by the attorney-general, namely, as being a part of the res gesta.

6. After the evidence had been closed, the court, on the motion of the attorney for the commonwealth, gave the jury the following instructions-viz.:

"(1) The court instructs the jury that if they believe from the evidence, to the exclusion of all reasonable doubt, that the prisoner wilfully, deliberately, and premeditatedly shot and killed the deceased, Enos B. Hylton, in this county, then they should find him guilty of murder in the first degree.

"(2) The court further instructs the jury that a mortal wound, given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.

"(3) The court further instructs the jury that to constitute a wilful, deliberate, and premeditated killing it is not necessary that an intention to kill should exist any particular length of time prior to the actual killing; it is only necessary that such intention should come into existence for the first time at the time of such killing, or any time previously.

"(4) The court further instructs the jury that, on a charge of murder, malice is presumed from the fact of killing, and when the killing is proved, and is unaccompanied with circumstances of palliation, the burden of disproving malice is thrown upon the accused."

These instructions are so obviously correct, and in literal conformity with numerous decisions of the old general court and of this court, that no other comment upon the prisoner's exception to the action of the trial court in giving them is necessary. Hill's Case, 2 Gratt. 594; Honesty's Case, 81 Va. 283.

Opinion.

7. The next question relates to the refusal of the court to instruct the jury, at the instance of the prisoner, that if they should believe from the evidence that the prisoner killed the deceased in a scuffle, they could not find him guilty of murder in the first degree, unless they should also believe from the evidence that he provoked or brought on the scuffle in order to have a pretext to take the life of the deceased, or to do him some great bodily harm.

With regard to this instruction, it is enough to say that it was not relevant to the evidence, and, if given, would have been calculated to mislead the jury. The evidence did not even tend to show that the fatal shot was fired in a scuffle. The prisoner himself testified that he did not lay hands on the deceased at all; and none of the commonwealth's witnesses testified that they saw the parties in a scuffle before the shot was fired, though several testified they saw a scuffle after they heard the report of the pistol.

The prisoner also moved the court to instruct the jury that, before they could convict, the evidence of guilt must be so strong as to exclude every reasonable hypothesis of his innocence; and, further, that "mere suspicion, however strong, is not sufficient; the law requires proof to the exclusion of reasonable doubt."

every

These instructions undoubtedly propound the law correctly, but we do not think the refusal to give them was error for which the judgment must be reversed. As we have seen, the court had already instructed the jury, in unmistakable terms, that they could not find the prisoner guilty of murder in the first degree, unless they should believe from the evidence, to the exclusion of all reasonable doubt, that he killed the deceased wilfully, deliberately, and premeditatedly. And with this instruction to guide them in their deliberations, they found a verdict of murder in the first degree.

Now, if they had found a verdict of murder in the second