DYING DECLARATIONS-WHEN ADMISSIBLE.

473

considered as standing in the same situation as if they were sworn, the danger of impending death being equivalent to the sanction of an oath. It follows, therefore, that where the declarant, if living, would have been incompetent to testify by reason of infidelity, imbecility of mind, or tender age, his dying declarations are inadmissible (p). On the other hand, as the testimony of an accomplice is admissible against his fellows, the dying declarations of a felo de se are admissible against one indicted for assisting the deceased in his self-murder (q).

§ 503. It is essential to the admissibility of these declarations, first, that at the time when they were made the declarant should have been in actual danger of death; secondly, that he should then have had a full apprehension of his danger; and, lastly, that death should have ensued (r). All these facts, therefore, must be proved to the satisfaction of the judge before the evidence will be received (s). It is not, however, necessary that the declarant should have stated that he was speaking under a sense of impending death, provided it satisfactorily appears, in any mode, that the declarations were really made under that sanction; as for instance, if the fact can be reasonably inferred from the evident danger of the declarant, or from the opinions of the medical or other attendants stated to him, or from his conduct, such as settling his affairs, taking leave of his relations and friends, giving directions respecting his funeral, receiving extreme unction, or the like. In short, all the circumstances of the case may be resorted to, in order to ascertain the state of the declarant's mind (t). The length of

(p) R. v. Pike, 3 C. & P. 598; R. v. Drummond, 1 Lea. C. C. 338. In this last case the declaration of an attainted convict was rejected. This would no longer be a ground of objection. 6 & 7 Vict. c. 85, § 1.

(2) R. v. Tinckler, 1 East, P. C. 354.

(r) Sussex Peerage case, 11 Cl. & Fin. 108, 112, per Lord Denman, who laid down the law as follows:-" With regard to declarations made by persons in extremis, supposing all necessary matters concurred, such as actual danger, death following it, and a full apprehension, at the time, of the danger and of death, such declarations can be received in evidence; but all these things must concur, to render such declarations admissible. Such evidence, however, ought to be received with caution, because it is subject to no cross-examination." (s) Ante, § 21.

(t) R. v. Woodcock, 1 Lea. C. C. 503; R. v. John, 1 East, P. C. 357, 358; R. v. Bonner, 6 C. & P. 386; R. v. Van Butchell, id. 631; R. v. Mosley, 1 Moo.

474

BELIEF OF IMPENDING DEATH NECESSARY.

time which elapsed between the declaration and the death of the declarant furnishes no rule for the admission or rejection of the testimony; though, in the absence of better evidence, it may serve as one of the exponents of the deceased's belief, that his dissolution was or was not impending. It is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, which renders the testimony admissible (†). Therefore if it appear that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued within an hour afterwards, the declaration will be inadmissible (u). On the other hand, belief that he will not recover is not in itself sufficient, unless there be also the prospect of "almost immediate dissolution" (a).

§ 504. It is worthy of remark that in Scotland it is immaterial, except as regards the weight of the evidence, whether or not the declaration be made under the impression of impending death; but where a party has received a mortal wound, an account of the matter given by him at any time subsequent to the inquiry will be admissible in the event of his death, provided it were made seriously and deliberately, and whilst the deceased appeared to be aware of what he was doing, and in the possession of his faculties (y).

C. C. 97; R. v. Spilsbury, 7 C. & P. 187, per Coleridge, J.; R. v. Minton, 1 M'Nally, Ev. 386; R. v. Scallan, Craw. & Dix, Abr. Cas. 340.

(t) In R. v. Woodcock, 1 Lea. C. C. 500, the declarations were made two days before death; in R. v. Bonner, 6 C. & P. 386, three days; in R. v. Tinckler, 1 East, P. C. 354, ten days; and in R. v. Mosley, 1 Moo. C. C. 97, eleven days; yet they were all received. In this last instance it appeared that the surgeon did not think the case hopeless, and told the patient so: but that the patient thought otherwise. See R. v. Howell, 1 C. & Kir. 689; 1 Den. C. C. 1, S.C.

(u) R. v. Welborn, 1 East, P. C. 358; R. v. Christie, 2 Russ. C. & M. 754; R. v. Hayward, 6 C. & P. 157, 160; R. v. Crockett, 4 id. 544; R. v. Fagent, 7 id. 238; R. v. Megson, 9 id. 418. Where the words were, "I have no hope of recovering, unless it be the will of God," R. v. Murphy, Ir. Cir. Rep. 38, per Richards, B.; "I think myself in great danger," R. v. Errington, 2 Lew. C. C. 148, Held insufficient. See R. v. Howell, 1 C. & Kir. 689; 1 Den. C. C. 1, S.C.

(x) Per Hullock, B., in R. v. Van Butchell, 3 C. & P. 629, 631. See acc. R. v. Bonner, 6 C. & P. 386; R. v. Perkins, 9 C. & P. 395; 2 Moo. C. C. 135, S. C.; Com. v. King, 2 Virg. Cas. 78; Com. v. Gibson, id. 111; Com. v. Vass, 3 Leigh, R. 786; The State v. Poll, 1 Hawks, 442.

(y) Alison's Prac. Cr. Law, 510—512, 604–607; 2 Hume on Crimes, 391–393.

WHAT DYING DECLARATIONS ADMISSIBLE.

475

§ 505. The declarations of the deceased are admissible only to those things to which he would have been competent to testify, if sworn in the cause. They must therefore in general speak to facts only, and not to mere matters of opinion (z); and must be confined to what is relevant to the issue. But it is not necessary that the examination of the deceased should be conducted after the manner of interrogating a witness in the cause, though any departure from this mode may effect the credibility of the declarations. There fore, in general, it is no objection to their admissibility, that they were made in answer to leading questions, or obtained by earnest solicitation (a). But where a statement, ready written, was brought by the father of the deceased to a magistrate, who accordingly went to the deceased and interrogated her as to its accuracy, paragraph by paragraph, it was rejected in Ireland by Mr. Justice Crampton, who observed that "in the state of languor in which dying persons usually are, their assent could easily be got to statements which they never intended to make, if they were but ingeniously interwoven by an artful person with statements which were actually true;" and his Lordship added, "the magistrate should not have trusted to the relation of a third person, but should have taken down the deceased's declaration from her own lips, or at least have had it taken down in his presence" (b). When the declarations have been properly made, the right to offer them in evidence is not restricted to the side of the prosecutor; they are equally admissible in favour of the party charged with causing the death (c).

§ 506. Whatever the declaration may be, it must be complete in itself; for if the dying man appears to have intended to qualify it by other statements, which he is prevented by any cause from making, it will not be received (d). Again, it has been held, that if the statement were committed to writing at the time it was made, this writing must be produced, or its non-production accounted for; and that neither a copy, nor parol evidence of the

(2) R. v. Sellers, Car. Cr. L. 233.

(a) R. v. Fagent, 7 C. & P. 238; R. v. Reason, 1 Stra. 499; 16 How. St. Tr. 1, 24 et seq., S. C.; Com. v. Vass, 3 Leigh, R. 786.

(b) R. v. Fitzgerald, Ir. Cir. Rep. 168, 169.

(c) R. v. Scaife, 1 M. & Rob. 551; 2 Lew. C. C. 150, S. C. The same law prevails in Scotland, 2 Hume on Crimes, 393. (d) 3 Leigh, R. 797.

476

VALUE OF DYING DECLARATIONS.

declaration can be admitted in the first instance to supply the omission (e). But where three declarations had been made at different times on the same day, one of which was made under oath to a magistrate, and reduced to writing, but the other two were not, it was held that the latter might be proved by parol, though the written statement was not produced (ƒ). If the deposition of the deceased has been taken under any of the statutes on that subject, and is inadmissible, as such, for want of compliance with some of the legal formalities, it seems it may still be treated as a dying declaration, if made in extremis (g).

§ 507. Though these declarations, when deliberately made under a solemn and religious sense of impending dissolution, and concerning circumstances wherein the deceased was not likely to have been mistaken, are entitled to great weight, if precisely identified; yet it is always to be recollected that the accused has not the power of cross-examination,-a power quite as essential to the eliciting of all the truth as the obligation of an oath can be ;—and that where the witness has not a deep sense of accountability to his Maker, and an enlightened conscience, the passion of anger, and feelings of revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the truth and accuracy of his statements, and give a colour to the transaction, which, had further investigation been attainable, might have been proved to be incorrect. Moreover, the particulars of the violence to which the deceased has spoken, are likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed, and leading both to mistakes as to the identity of persons, and to the omission of facts essentially important to the completeness and truth of the narrative (h).

(e) R. v. Gay, 7 C. & P. 230, per Coleridge, J.; R. v. Reason, 16 How. St. Tr. 1, 24, et seq.; 1 Str. 499, S. C. But see ante, § 305.

(ƒ) R. v. Reason, 16 How. St. Tr. 1, 24, et seq.; 1 Str. 499, S. C., Platt, C. J., dubit. See R. v. Scallan, Craw. & Dix, Abr. Cas. 340.

(g) R. v. Woodcock, 1 Lea. C. C. 502; R. v. Callaghan, McNally's Ev. 385. (h) Jackson v. Kniffen, 2 Johns. 35, 36, per Livingston, J.; R. v. Ashton, 2 Lew. C. C. 147, per Alderson, B. See also Mr. Evans's observations on the great caution to be observed in the use of this kind of evidence, in 2 Poth. Obl. 255 (293); 2 St. Ev. 367, and 1 Ph. Ev. 292.

ADMISSIONS AND CONFESSIONS SUBSTITUTES FOR PROof. 477

CHAPTER XIV.

OF ADMISSIONS.

§ 508. UNDER the head of exceptions to the rule rejecting hearsay evidence, it has been usual to treat of admissions and confessions; considering them as declarations against interest, and therefore as probably true. But in regard to many admissions, and especially those implied from conduct and assumed character, it cannot be supposed that the party, at the time of the principal declaration or act done, believed himself to be speaking or acting against his own interest; but often the contrary. Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof (a); either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions, or on grounds of public policy and convenience, as in the case of those implied from assumed character, acquiescence, or conduct. It is in this light that confessions and admissions are regarded by the Roman law, as is stated by Mascardus. Illud igitur in primis, ut hinc potissimum exordiar, non est ignorandum, quod etsi confessioni inter probationum species locum in præsentia tribuerimus; cuncti tamen fere Dd. unanimes sunt arbitrati, ipsam potius esse ab onere probandi relevationem, quam proprie probationem (b). Many admissions,

(a) As to when the admissions of a party with respect to written instruments, may be substituted for the ordinary proof of such instruments by their production, see ante, §§ 302–304.

(b) Mascard. de Prob. vol. i. quæst. 7, n. 1, 10, 11; Menochius de Præsump. lib. 1, quæst. 61, n. 6; Alciatus de Præsump. pars. 2, n. 4. The Roman law distinguishes with great clearness and precision, between confessions extra judicium, and confessions in judicio; treating the former as of very little and often of no weight, unless corroborated, and the latter as generally, if not always, conclusive, even to the overthrow of the præsumptio juris et de jure; thus constituting an exception to the conclusiveness of this class of presumptions. But to give a confession this effect, certain things are essential, which Mascardus cites, out of Tancred:

"Major, sponte, sciens, contra se, ubi jus fit;

Nec natura, favor, lis, jusve repugnet, et hostis." Mascard. ub. supr. n. 15, Vid. Dig. lib. 42, tit. 2, de confessis. Cod. lib. 7, tit 59; Van Leeuwen's Comm., book v. ch. 21.