CHAPTER XI.

ON EVIDENCE OF DYING DECLARATIONS.

THE principle that evidence is inadmissible, unless given on oath, and when the party who is to be affected by it can have the benefit of cross examination, is limited by another exception in cases of homicide, where the deceased, under the impression of immediate or impending dissolution, has made a statement concerning the person of the assailant, and the circumstances of the attack. It is presumed that the sense of approaching death in the declarant is calculated to produce in him a sentiment of responsibility, equal to that which a religious and conscientious man feels when required to make a statement on oath; and that the obligation to utter nothing but the strict truth is even greater, inasmuch as he knows the hour to be at hand when he must render an account of all his words and acts to the Supreme Being. Accordingly, where either the sense and conviction of approaching death is deficient or uncertain; or where

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appears that the declarant had no sufficient belief in a future state, and his religious responsibility for his actions in this life; his dying declarations will not be received. But, even when they are received, their value and credibility will vary infinitely, according to circumstances. In all cases a strong objection to their full credibility arises from the fact, that they are usually given in evidence against one who has had no opportunity of cross-examining the declarant, and thus of refuting out of his own mouth the errors, omissions, contradictions, and possibly wilful misstatements which the latter may

have committed. It often happens, also, that the declaration is made on great pressure when the declarant is suffering from physical exhaustion or mental alienation; and when he is partially, or even wholly unconscious of the full purport of his declaration. These considerations, combined with the strong objection of the English law to condemn any man on the testimony of an absent, or even a deceased witness, induce courts to regard this species of evidence with great watchfulness and suspicion. The judge, therefore, whose duty it is to inquire into the circumstances under which the declaration has been made, as a condition precedent to its admission, will generally exclude it, if there appears to be any reasonable doubt as to the veracity, sanity, consciousness, or sense of religious responsibility and impending dissolution in the mind of the declarant at the time of the statement. Subject to these remarks it is held to be a rule that—

XXXIX. In murder, or homicide, the declarations of the deceased, concerning the cause and circumstances of his mortal wound, if made with a full consciousness of approaching death and religious responsibility, are admissible in evidence, for or against a prisoner who is charged with the crime.

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In Reg. v. Woodcock, Eyre, C. J., said: "The general principle on which this species of evidence is admitted, is that they are declarations made in extremity, when the party is at the point of death, and when 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

11 Leach C. C. 502.

the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice." In this case, it was held that a statement made by the deceased to a magistrate, who administered an oath to her extra-judicially, could not be received; but that a statement made by her when her dissolution was fast approaching, and when she must have known the fact, although she said nothing that indicated such a knowledge, was receivable. In this case the judge left it to the jury to say whether the statement was made under the apprehension of death; but the modern practice is for the judge himself to decide this question. It will be observed that, in this case, although the statement was inadmissible as a statement on oath, in a situation where an oath was improperly administered; there was no objection to it on the ground that the statement was made in answer to a formal and solemn inquiry. Accordingly, it is not held to be necessary that the statement should be voluntary or spontaneous; and answers, in articulo, to questions put by a surgeon, for the purpose of ascertaining whether he ought to call in a magistrate, have been received.1

It is stated by Lord Denman,2-that "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 declaration admissible." To these three conditions, a fourth must be added, viz., religious sentiment.3

1. The declaration must be made when the declarant is in actual danger.

This proposition is commonly stated more broadly, that the declaration must be made in extremis or in

1 R. v. Fagent, 7 C. & P. 238.

2 11 Cl. & Fin. 112.

3 R. v. Pike, 3 C. & P. 598.

articulo mortis: but there appears to be no definite limitation of the time, before death, within which the declaration must be made; and recent cases support the doctrine, that declarations made under apprehension of death, if otherwise admissible, will not be rejected because a considerable time elapses between the declaration and the death. Thus, in R. v. Mosley,2 the declarations were held by all the judges to have been rightly received, although the deceased did not die until eleven days after making them, and although the surgeon held out slight hopes of recovery to him until a few hours before his death. Here, however, the deceased had frequently expressed a belief, prior to the statement, that he should never get better.

2. It appears also that the doctrine laid down by Hullock, B., that "the declarations," are admitted only if "they are made under an impression of almost immediate dissolution," is by no means literally correct. It is true, as stated by Tindal, C. J., in R. v. Hayward,3 that "any hope of recovery, however slight, existing in the hand of the deceased at the time of the declarations made, will undoubtedly render the evidence of such declarations inadmissible ;" and accordingly it has been held lately, that in the absence of expressions or conduct to show that the deceased was under the impression of approaching death, his statements are inadmissible. In this case the deceased had said, he was "a murdered man, and it would have been better if they had killed him on the spot, than left him to linger: and that he thought he should never get over it;" but he lived several weeks afterwards. The learned judge at first held a statement made at the time of this remark to be admissible; but afterwards rejected it, on its appearing on cross-examination, that the deceased had not used the phrase, "murdered man,"

1 R. v. Van Butchell, 3 C. & P. 631. Per Hullock, B.

21 Moo. C. C. 97.

3 6 C. & P. 157.

4 Wightman, J., R. v. Qualter, 6 Cox Crim. Cas. 157.

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in its literal sense, and that he did not really believe at the time that he was dying. The learned judge said: "The general principle is, that the deceased must be under the apprehension that he will die;" but the question, whether the impression in the mind of the deceased must amount to an apprehension of immediate death, was not touched. But in a very recent case, the same learned judge has stated his opinion more broadly. In that case it appeared that at the time of the statement the deceased was under the full impression that she would die, but there was no evidence to show that the impression amounted to an expectation of immediate dissolution; and it was contended for the prisoner, that as the statements had not been made under an impression of immediate death, i. e. not in articulo mortis, they were inadmissible. But the learned judge said: "It is not necessary that the person making the declaration should believe himself to be in danger of immediate death, if he believes that he will not recover from the disorder under which he is labouring. Reg. v. Van Butchell is an exceptional case. The deceased was of opinion throughout, that she would die; and I receive her statement." The learned judge, in the same case also, received evidence of a subsequent declaration, made by the deceased after she had recently said that "she was better;" but no other evidence had been offered to show that her previous impression, of death ensuing before long, had been altered.

Where the prisoner was indicted for poisoning J. K., and it appeared that J. K. had eaten some cake and died; soon after which, the servant who had made the cake, ate some, and died also; it was held by Collins, J., after consulting Parke, B., that the dying declarations of the servant were evidence against the prisoner, because the two consecutive deaths formed one transaction.2

1 R. v. Harvey, MS. and 23 L. T. 258.

2 R. v. Baker, 2 M. & R. 53.