ance such as it is difficult to describe-an appearance of distress; but he said nothing, that I can remember, expressing either assent or dissent. My father did say to the deceased, 'You may recover, though in all probability you will not.""

The account given by Charles Palk Collins was as follows:-"I was present on the evening of the 28th. I said to the deceased, after feeling his pulse and examining the wound, 'My little man, you appear to me to be much more sensible than, from the nature of the accident you have received, I should have expected. It is impossible for me to say whether you may survive the injury or not; I think it more than probable that you will not, and that you may be dead before morning.' I then asked him if he was aware of the nature of an oath. He made no reply. I then said, 'If you don't tell the truth, and how this accident occurred, where do you expect to go?' He then said, 'to hell.' 'If do speak the truth, I suppose you expect to go to heaven.' He made no reply. I then told him, 'I put these questions to you that, in case of your death, the truth of the accident may be ascertained;' or words to that effect. I don't think he made any reply. He expressed no opinion as to his state. After that he made a statement, which I took down in writing."

you

On cross-examination the witness said, "I said you may recover; it is impossible for me to say, but I don't think it likely that you will be alive by the morning."

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*This witness said further, that the child арpeared at the time in a very debilitated state from the injury, but that he appeared to be a very quick, intelligent child. The witness had known the child before the accident.

Under these circumstances, the learned Judge thought it advisable to receive the statements of the deceased in evidence, and the prisoner was found guilty of manslaughter, and sentenced to a term of imprisonment.

The learned Judge requested the opinion of the Judges, and he referred to the following cases on the point:- Bonner's case, 6 Car. & P. 386; Woodcock's case, 1 Leach, 503; John's case, 1 East's P. C. 357, 1 Leach, 504, S. C.; Welbourne's case, 1 Leach, 503 (n.), 1 East's P. C. 358; Christie's case, Car. Sup. C. L. 202; Mosley's case, 1 Moo. C. C. 97; Pike's case, 3 Car. & P. 598; Van Butchell's case, 3 Car. & P. 631; Craven's case, Lewin C. C. 77; Simpson's case, Lewin C. C. 78; Mosley's case, Id. 79; Smith's case, Id. 81. This case was argued before all the Judges, except GURNEY, B., and MAULE, J., in Easter term, 1840. BERE for the prisoner.

There is some little difference in the evidence given by the two witnesses as to what passed, but in both it appears as a fact, that nothing was said by the deceased from which the state of his mind can be collected. It would therefore require very strong evidence to show that he must have believed himself in a dying state. This species of evidence is an anomaly, and, contrary

to our rules of evidence, it deprives a prisoner of one of the great safeguards of truth, namely, the power of cross-examination. The strongest proof is therefore requisite, not merely to show an apprehension of danger, but a perfect belief in the party's mind of approaching death. It is not enough that the party believes he shall not recover.

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R. v. Spilsbury, 7 Car. & P. 190. In R. v. Van Butchell, 3 C. & P. 629, it was held that the impression must be of almost immediate dissolution; a belief that the party will ultimately not recover is not enough. R. v. Welborn, 1 East's P. C. 358, 2 Russel, 683. In R. v. Christie, Car. Crim. Law, p. 232, where the party was told it was just possible he might recover, ABBOTT, C. J., and PARK, J., held the declaration inadmissible; that it did not appear the deceased thought himself at the point of death, the surgeon's answer being such as to leave a hope. In R. v. Mosley, 1 Moody's C. R. 97, though the deceased did not die till some days after the declaration, yet there was the strongest evidence of the state of mind of the deceased, and that he believed himself, from the time of the injury, in a dying state. But in R. v. Crockett, 4 Car. & P. 544, the declarations were refused, though the surgeon told the deceased there was no chance for her recovery, because the party herself used an expression showing hope. In R. v. Hayward, 6 C. & P. 160, TINDAL, C. J., says, "Any hope of recovery, however slight, existing in the mind of the deceased, would undoubtedly render the declarations

inadmissible." The same principle is decided in R. v. Fagent, 7 C. & P. 238. Here there is nothing at all said by the deceased: does what the surgeons said to him necessarily lead to a conviction in his mind of approaching death? Unless it does, the declarations are not admissible.

There is a further objection in this case; are the apprehensions of death in a child enough to render his declarations admissible? There is novelty in this question. Generally speaking, when a child *is pro

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duced as a witness, evidence is required to show him aware of the nature of an oath. Is what he says here (considering the difference in the accounts as to this also, of the two witnesses), enough to have admitted him, supposing him to have been produced to be sworn? There may be an analogy between this and the age at which children are supposed by the law to be capable of committing crime. Blackstone lays down the law, that from seven to fourteen years of age a child is supposed to be incapax, but that the presumption may be rebutted; under seven it cannot.

ALDERSON, B. It certainly is not law that a child under seven cannot be examined as a witness. If he shows sufficient capacity on examination, a Judge would allow him to be sworn.

In R. v. Pike, 3 Car. & P. 599, the declarations of a child were rejected, though made under the impression that she was dying, because there was nothing to show any idea of a future state in the child's mind.

In R. v. Travers, Strange, 700, a child six years old was refused to be sworn as a witness, as not being of sufficient understanding; and a case is mentioned by RAYMOND, C. J., of a child between six and seven having been refused at the Old Bailey on the same ground.

In R. v. Owen, 4 Car. & P. 237, it was left to the Jury to say whether a prisoner eleven years of age knew she was doing wrong when she took the coals with stealing which she was charged. In this case it is submitted that the two things necessary to the reception of this evidence are not made out, namely, the belief of approaching death and full knowledge of the awful consequences of falsehood.

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The Judges were unanimously of opinion that the *statements were receivable if made under the apprehension and expectation of immediate death, and they all (except BOSANQUET, J., PATTESON, J., and COLERIDGE, J.), thought they were so made, and receivable, and the conviction was affirmed.

To make dying declarations competent testimony, the person making them must be conscious of the peril of his situation, and believe his death impending. This need not be stated by him, but it must be fairly inferable from his language and his condition. Nelson v. The State, 7 Humphrey, 542. Evidence of dying declarations should not be admitted against a prisoner unless they were made under the consciousness of almost immediate dissolution. Smith v. The State, 9 Humph. 9; Logan v. The State, Ibid. 24. But it has been held in other cases that it is not necessary that the party should be apprehensive of immediate dissolution, but that it is impending and certain. Dunn v. The State, 2 Pike, 229; M'Daniel v. The State, 8 Smedes & Marshall, 401.