trial, it was read in evidence. It also appeared, from the evidence of the surgeons, that she died in about eight-and-forty hours after the examination had been taken, and that it was impossible from the first moment that she could live long; but that although she retained her senses to the last moment, and repeated the circumstances of the ill usage she had received, she never expressed any apprehension, or seemed sensible of her approaching dissolution. The evidence, independent of the information or declarations of the deceased, was of a very pressing and urgent nature against the pri soner. UNDER these circumstances a question arose with THE COURT, Whether the evidence which had been obtained from the deceased could legally be left with the Jury? The learned Judge therefore stated the case to them, independent of that evidence; and then stated his opinion of the admissibility of the examination to the following effect: 1789. WOODCOCK'S CASE. EYRE, Chief Baron.-If I were satisfied that the case was quite full without the circumstances which the deceased has disclosed, I should willingly omit to state them as evidence against the prisoner, because there is some difficulty as to the legality of their admission. Great as a crime of this nature must always appear to be, yet the inquiry into it must proceed upon the rules of evidence. The most common and ordinary species of legal evidence consists in the depositions of witnesses taken on oath before the Jury, in the face of the Court, in the presence of the prisoner, and received under all the advantages which examination and cross-examination can give. But beyond this kind of evidence there are also two other species which are admitted by law: The one is the dying declaration of a person who has received a fatal blow (a); the other is the examination of a prisoner, and the 1 Hale, 585. depositions of the witnesses who may be produced against him, taken officially before a Justice of the Peace, by virtue of a particular Act of Parliament, which authorizes Magis (a) Rex v. Ely, at Old Bailey, 1720, before L. C. J. King. 12 Viner's Abr. 118. 1789. WOODCOCK'S CASE. trates to take such examinations, and directs that they shall be returned to the Court of Gaol Delivery. This last species of deposition, if the deponent should die between the time of examination and the trial of the prisoner, may be substituted in the room of that viva voce testimony which the deponent, if living, could alone have given, and is admitted 2Strange, 925. of necessity as evidence of the fact. In the present case a doubt has arisen with the Court, to which doubt I entirely subscribe, Whether the examination of the deceased, taken in writing at the poor-house by Mr. Read, the Magistrate, is an examination of the nature I have last described? It was not taken, as the statute directs, in a case where the prisoner was brought before him in custody; the prisoner therefore had no opportunity of contradicting the facts it contains. It was not in the discharge of that part of Mr. Read's duty by which he is, on hearing the witnesses, to bail or commit the prisoner; but it was a voluntary and extrajudicial act, performed at the request of the Overseer; and although it was a very proper and prudent act, yet being voluntary, and under circumstances where the Justice was not authorized to administer an oath, it cannot be admitted before a Jury as evidence; for no evidence can be legal unless See the Case it be given upon oath, judicially taken. But although we must strip this examination of the sanction to which it would have been entitled, if it had been taken pursuant to the directions of the Legislature, yet still it is the declaration of, 1 Strange, 499. the deceased, signed by herself, and it may be classed with 6 State Trials, 195, 202; and all those other confirmatory declarations which she made Bambridge's after she had received the mortal wounds, and before she Case, 9 vol. of Harg. State died. Now the general principle on which this species of Trials, 161. evidence is admitted is, that they are declarations made in See Johnson's extremity, when the party is at the point of death, and when Shakspeare, KING JOHN, every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath admi1 vol. p. 280. nistered in a Court of Justice. But a difficulty also arises of Rex v. Rea son and Tranter for the murder of Mr. Lutterell, Act the 5th, Scene the 6th, line 27, and Loffit's Edition of Gilb. Evidence, with respect to these declarations; for it has not appeared, and it seems impossible to find out, whether the deceased herself apprehended that she was in such a state (a) of mortality. as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. The several witnesses could give no satisfactory information as to the sentiments of her mind upon this subject. The surgeonsaid, that she did not seem to be at all sensible of the danger of her situation, dreadful as it appeared to all around her; but lay, submitting quietly to her fate, without explaining. whether she thought herself likely to live or die. Upon the whole of this difficulty, however, my judgment is, that inasmuch as she was mortally wounded, and was in a condition which rendered almost immediate death, inevitable; as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation; her declarations, made under these circumstances,, ought to be considered by (a) In the case of Henry Welbourn, who was indicted at Lincoln Summer Assize 1792, for poisoning Elizabeth Page, his fellow-servant, she declared that she was with child by him, and by his persuasion and procurement had been taking bitter apple, and a white powder, which was found to be arsenic, for the purpose of producing abortion. She had recently been in great pain, and was extremely ill, apparently dying, and seemed to be sensible of her situation and danger, though she did not say so, but at the time she made the declaration she was free from pain, a mortification, in the opinion of the apothecary, having taken place, and from being so free from pain he believed that she thought she was getting well. She died, however, in an hour afterwards. The declaration was received, and the prisoner was found guilty; but the case was referred to the Judges on the question, that although 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, the evidence ought not to have been rejected: and a majority of the Judges were of opinion that it did not sufficiently appear that the deceased knew or thought she was in a dying state when she made the declaration; on the contrary, she had reason to think that if she told what was the matter with her she might have relief and recover. 1 East, C. L. 359, 360, 1789: WOODCOCK'S CASE. 1789. WOODCOCK'S CASE. a Jury as being made under the impression of her approaching dissolution; for, resigned as she appeared to be, she must have felt the hand of death, and must have considered her self as a dying woman. She continued to repeat, rationally and uniformly, the facts which she had disclosed from the moment her senses returned, until her tongue was no longer capable of performing its office. Declarations so made are certainly entitled to credit; they ought therefore to be received in evidence: but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case. His Lordship then left it with the Jury to consider, whether the deceased was not in fact under the apprehension of death, though she did not seem to expect immediate dissolution; and said, that if they were of opinion that she was, then the declarations were admissible; but that if they were of a contrary opinion, they were not admissible (a). The prisoner was convicted, and executed on Monday, 19th January 1789. (a) The came point occurred in Dingler's Case at Old Bailey September Session, 1791; and by Mr. Justice GOULD was decided accordingly upon the authority of this case. See post. In the case of Thomas Johns, who was tried at the Carmarthen Spring Session 1790, for the murder of Rachael his wife, the declarations of the wife, made between the time of the mortal blow and the death, were received in evidence, although it did not appear that she had expressed any apprehension of danger. It was objected that these declarations were not admissible, 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 she was at the time conscious of approaching death. But the Court was of opinion that the evidence of the state of her health at the time the declaration was made was sufficient to shew that she was actually dying, and that it was to be inferred from it that she was conscious of her situation; and gave no particular direction on the subject to the Jury, who found the prisoner guilty. But the case was saved, and in Easter Term, 1790, all the Judges 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 1789. sensible of his danger, the declarations are good evidence. 1 East's Crown CASE. 360. 1788. THE KING against young anD OTHERS. CASE CCXXXII. an offence AT the Sessions at Bristol in the year 1788, four men, of To constitute the names of Young, Randal, Mullins, and Osmer, were within the tried on an indictment on the statute of 30 Geo. II. c. 24 (a). 30 Geo. II. c. 24. money or goods must be obtained by with an in made by one, may be all'in THE indictment consisted of four counts. The first count afalsepretence, stated, That the defendants did, by false colours and pre- tention to detences, falsely pretend to one Thomas, that Young had made fraud; but the pretence may a bet of Five Hundred Guineas with a Colonel in the Army, relate to a fur then at Bath, that one Lewis would, on the next day, run, ture transaction; and if on the high road, leading from Gloucester to Bristol, ten miles in an hour, and that Young and Mullins went each two in the presence of and in conhundred guineas in the bet, and Randal the other hundred cert with guineas; and that under colour and pretence of having made others, they the said bet, they obtained from Thomas the sum of Twenty Guineas, as a part of such pretended bet, with intent to cheat and defraud him thereof, whereas in truth and in fact no such bet had been made, against the form of the statute. Rep. 98. The second count stated, that the defendants did pretend to S. C. 2 East, Thomas, that Young had made the bet with Osmer. The third and fourth counts stated generally, that the defendants had obtained Twenty Guineas from Thomas by false pretences, without stating what those false pretences were. THE defendants were found guilty, and sentenced, under the statute of 30 Geo. II. c. 24. to be transported for seven years; but they removed the indictment by writ of error into the Court of King's Bench, and assigned for error, that the offence, as described in all the counts of the indictment, was (a) See 52 Geo. III. c. 64. by which this statute is extended. cluded jointly in the same indictment. S. C. 3 Term. 828, 833. |