State v. Nash

7 Iowa 347

• Court: Supreme Court of Iowa
• Decided: December 14, 1858
• Status: Published

Opinion

Stockton, J.

I. There was no error in the refusal of the court to quash the indictment. ’ The act of assembly authorized and directed a special term of the district court of Lee county, to be held at Keokuk, “ for the trial of criminals, and for that purpose alone.” Session acts, 1858, chap. 134, 259.

The point made by the defendants is, that by the terms of this act, no authority was given to the district court, at said special term, to summon a grand jury for the finding of indictments against persons charged with crime; and that its powers were confined to the trial, simply of criminals already indicted, or whose cases might otherwise come before it. It may be conceded that the purposes for which the special term was authorized, as well as the powers of tlie court when convened, are to be determined from the language and meaning of the act of assembly referred to, without, at the same time, conceding the conclusions sought to be drawn from it by the defendants.

Without inquiring into the reasons, or motives, which may have induced the legislature to pass the act directing the holding of the special term at Keokuk, we are clear that the intention of that body was, that the term should be held for the transaction of criminal business, in contradistinction to a term for the transaction of civil and chancery business. It is true, that the language used would bear a different construction, by giving to the word “trial,” the more narrow and restricted meaning in which it is sometimes used to express the investigation and decision of facts only. This is not, however, the more natural and obvious sense in which it is used in this instance. In'its more general and enlarged sense, the word is used to signify all that is to be done in a cause, from its inception to its termination, or until final judgment is pronounced. In this sense, the word includes, as well the finding of the indictment against a criminal, as the proceedings of the court had after the issue has been determined, and a verdict of the jury rendered. If we confine its meaning to the limits sought to be fixed for it by the counsel for defendants, then the business of the district court, at the special term, would have been limited to the decision of issues in fact, in criminal cases, and it would have had as little power to pronounce judgment after verdict, as to summon a grand jury for the finding of indictments.

In further illustration of the views of the court, it may be remarked, that by the Code, section 1569, a special term of the district court may be ordered in any county, at any. regular term of the court in that county; and the court ordering such special term, shall direct whether or not a grand jury shall be summoned. We cannot conclude that any such difference was contemplated between the powers of the district court, at the special term directed to be held , by the act of assembly, and at which the defendants were tried, and a special term ordered as provided by section 1569, as that a grand jury would be lawful and regular at the one, and not at the other also. The authority by which they are called, is the same, and it is but fair to assume that, so far as relates to summoning a grand jury, the powers of each are the same. The special term was not one authorized to be called for the trial of those criminals only who might consent to be tried. "When the legislature gave the power to try, it gave every other power necessary and proper for the accomplishment of the object proposed. It did not stipulate for the consent of the persons to be tried.

In United States v. Hill & Co., 1 Brockenbrough, 156, on a motion to quash a presentment made by a grand jury, it was urged that no act of congress directs grand juries, or defines their powers; and the question was asked, by what authority are they summoned, and whence do they derive their powers? “The answer is, (says Marshall, C. J.), that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary and indispensable ? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential. Grand juries are accessories to the criminal jurisdiction of a court, and they have power to act, and are bound to act, so far as they can aid that jurisdiction. Thus far the power is implied, and is as legitimate as if expressly given.”

II. The defendants next filed their petition for a change of venue, setting forth that such excitement and prejudice against them existed in Lee county, that they could not receive a fair and impartial trial. They filed also, as required by the statute, the affidavit of three disinterested persons, citizens of Lee county, who made oath that the facts stated in the defendants’ petition, were true, and that to their knowledge, the prejudice against the defendants was very great in that part of Lee county, from which the jurors would be taken; that their lives had repeatedly been threatened; and that they believed a fair trial could not be had in the city of Keokuk, in Lee county.

The court determined to hear additional testimony, in relation to the alleged state of public feeling and prejudice against the defendants. There was, accordingly, filed on the part of the defense, the affidavit of W. H. Leech, the sheriff of Lee county, to the effect that on three several occasions, when, with his assistants, he was taking the defendants from the jail to the office of the justice, before whom they were examined, the streets through which they were expected to pass were crowded with people; and, thinking that prudence required that he should not conduct the defendants through the said crowd, he took them to the office of said justice, through a back street, or alley. The affidavit of S. J. N. Smith was also filed, who deposed that since the shooting of Harrison, he had heard several persons in Keokuk, say, that they would each be one of a crowd to hang defendants on a tree ; that he had heard other persons say that they should be hung; and that he believes that, on account of the excitement and prejudice against defendants in Lee county, a fair and impartial trial could not be had. Fifteen other persons make oath that, as they verily believe, such prejudice and excitement exist against defendants, in said county of Lee, that they could not have a fair and impartial trial.

In addition to these affidavits, the attorneys employed in the defence, six in number, make oath that they are fa. miliar with the state of public feeling in the city of Keokuk, and the region of country from which the trial jury must be taken; that they are convinced that, under the state of prejudice and excitement against defendants, no fair trial could be had; that to require them to be tried at Keokuk, at the said special term in June, would be a practical denial of a fair trial; that their conviction that justice and a fair administration of the law required a change of venue, had overcome their reluctance as attorneys to make affidavits; and "that they had been abused by influential citizens for appearing as counsel for defendants, and had been told it was a shame that they should lower themselves so much as to defend them. They further state that they believe that five hundred men in Keokuk and vicinitypartake of this great feeling against defendants.

On the part of the state, counter affidavits from some twenty-one persons were filed. IT. W. Sample and nine others, state that they have reason to know and believe that there was no such excitement and prejudice in the community as would, in the least, interfere or prevent the defendants from having a fair and impartial trial, at the hands of a jury in the city of Keokuk. To the same purport is the affidavit of G. B. Smith, and others. The affidavit of G. W. Saunders, and others, states that they discovered nothing like undue excitement towards the defendants, or either of them, and have heard nothing that would tend to convince them that they could not have a fair and impartial trial. The state filed also the affidavit of H. R. Reeder, the justice of the peace before whom the defendants were examined, who states that he believes that, at the time of said application, there was no such excitement or prejudice in the community against the defendants, as, in anywise, to prevent them from having a fair and impartial trial in the city of Keokuk.

The district court overruled the motion for a change of venue; and this is the second error assigned by the defendants.

The act of January 29th, 1857, (session acts, ch. 227, 389), provides no change of venue shall be granted on the ground of alleged excitement and prejudice of the people, unless the facts constituting the ground of the application are sworn to by three disinterested persons, in addition to the applicant. It is further provided that the court, in its discretion, may hear additional testimony from the parties, by affidavit and otherwise, and being fully7 advised, shall decide the application according to the very right of the matter. If the application is overruled, and the defendant demand it, the court shall grant a bill of exceptions, embracing all the evidence produced before the court on the hearing of the application.

i „ Previous to the passage of this act, the facility with which changes of venue were obtained, had become the crying reproach of our system of criminal procedure. Such were the flimsy pretexts on which they were sought, and the light and insufficient grounds on which they were awarded, that the public sentiment of the state had settled down in the conviction, that persons charged with crime resorted to the expedient of a change of venue, in order to get out of the reach of prosecutor and witnesses against them, and thus avoid a just responsibility for their acts, and for the purpose of avoiding, rather than seeking, a fair trial. To remedy this evil, and to prevent the delay and hindrance of justice, the legislature wisely,'as we think, have required that three disinterested persons shall make oath to the facts constituting the grounds of the defendant’s application for a change of venue.

The question for the decision of the district court, in this instance, was, whether a case had been made out, authorizing the court to grant to the defendants a change of venue ; or, in other words, whether from the affidavits filed, the court might well have concluded that such excitement and prejudice against the defendants existed in the minds of the people of Lee county, as to render it probable that they could not have a fair and impartial trial in that county.

We can come to no other conclusion, than that the application of the defendants for a change of venue was made in good faith. Taking the affidavit of the defendants, and that of the three persons required by the statute, in addition, we think the district court should have found ample reasons for awarding the change of venue. A prima facie case was certainly made out, going to show, that if defendants were tried at the special term of the district court in June, the strong probabilities were, that, owing to the pr§judice and excitement against them in Lee county, and particularly in Keokuk, and the townships from which, the trial jury was summoned, they would not have received a fair and impartial trial.

Was this aspect of the case changed by the affidavits subsequently’- filed ? . In the very nature of things, the affidavits filed on the part of the state, and the testimony furnished by them, of the state of feeling against the defendants, must be of a negative character. However respectable-the affiants, and however well informed they might be, it was hardly to be expected that their means of knowledge should be such as to establish a negative, in opposition .to the sworn affirmative testimony of an- equal number of men, for aught we can know, quite as respectable, and with equal means of knowledge. They may depose with perfect propriety, and in the utmost good faith, that they believe that no such feeling exists in the community as to prevent an, impartial trial. Still, that excitement and prejudice against the defendants may have existed, without being known to them, which would have prevented such impartial trial.

There is nothing in the counter affidavit, filed by the state, tending to impeach, in any degree,, the good faith of the application, on the part of the defendants, or .to render less probable the facts alleged as the reason why the change of venue should have been granted. Giving due weight to these affidavits, and to the facts stated by the affiants as the basis of the belief entertained by them, we are still of the.opinion that-the defendants were.entitled to a change of venue. . •

Harrison is shown to have died from the effects of his wound, on the 13th of April. The application for a change of venue was made to the district court, on the 28th of May succeeding? • At the time of the commission of the offense, it is conclusively, shown, t.h.at great excitenjepf. uxisted amongst the people of Keokuk, on account of the murder. Great interest was taken to secure the discovery and arrest of the perpetrators of the crime. When the defendants were taken into custody, this excitement' was increased by the many rumors put- afloat as to the evidence that could be produced against them. "When brought before the justice of the peace for'examination, great" crowds of persons followed them, and filled the court-room, manifesting much feeling and excitement. And so many threats were made, and such a determination exhibited to hang;the prisoners, that their attorneys, fearing an outbreak of violent feeling, induced them to waive'an examination before the justice oh the charge against"them. ■ This was the' state of feeling against the defendants, only a few weeks before the .cause was called on for trial. The feeling may not have extended to all the community, and we suppose it did not. A majority, even, may have been'anxious that defén'dants-should have a fair' and impartial- trial'. The excitement may, in, a great measure, have passed away before ‘ the day of trial. Extremes of passion are' often as sudden in their subsidence as in their origin. But the very fact that such excitement has'existed, and has manifested itself in such a manner, admonishes us that only the same occasion was required^ to produce a renewal of the same exhibition of heeling.

The right to a' speedy and public trial'by an'impartial jiiry, is guaranteed by the constitution 'of the state, to all persons accused of crime. ' It becomes us ' not to place a light estimate upon a right secured to us -by such high' authority. It is important to maintain the usefulness of our whole judicial system, that no Suspicion of influence from popular- excitement;' in ' the administration-' of the law, should be allowed to.impair the public confidence in the fairhess and impartiality of judicial-proceedings. An excited state of public feeling and opinion, is always the most unfavorable for the investigation of truth. Not only should the mind of the juror be wholly without bias: and prejudice — it-should not only be free from all : undue: feeling and 'excitement in', .itself — but" it:. should’ be, as- far as possible, removed from the influence' of prejudice and feeling,, and excitement in others.- A’circumstance of small-importance in itself, may often, in the midst of a community 'stirred by passion and excitement, serve to turn the scales of justice.

It is a difficult matter for a court, in all cases, to draw the true line of distinction, and to say when there is, and when there is not, such a state of popular feeling and prejudice as to prevent a fair and impartial trial. Every case must be judged by its own circumstances. It might not be impossible, under almost any state of excitement, to select an unbiased jury, who would so far regard their duty and their oaths, as to desire to return only such a verdict as should be authorized by the law and the evidence. There is, however, to be guarded against, a feeling and prejudice not only within, but without the jury box; and a jury, however right their intentions, are not always proof against the sympathies of the crowd. The influence of popular excitement and prejudice is too strong for the strongest resolution.

In the ..determination of the question, we give great weight to the sworn statement of the attorneys for the defense — more, perhaps, than was given to it by the district court. The gentlemen who felt themselves impelled by a sense of justice to their clients, and by the influences surrounding their cause, to come forward and make affidavit that, in their belief, justice and a fair administration of the law, required a change of venue, are not unknown to this court, as they'were not, we must assume, to the court below. They must be presumed to have been possessed of all the facts bearing on the question of the importance and ■■.necessity of a .change of venue to the accused; and our knowledge of these gentlemen, forbids us for a moment to suppose, that, in order to obtain the desired change of venue, they would forfeit their honor and professional reputation — and much less, that they would stain their conscience by making oath to facts, 'that they did not both know and believe-to be true.

Upon a careful examination of the evidence before the district court, on which the application for a change of venue was decided, we think there was error in the refusal of the motion.

III. Upon the overruling of the motion for a change of venue, the defendants moved the court for a continuance of the cause until the next term. The motion was overruled ; and this is the third error assigned. We think the motion for a continuance, should hare been granted. Aside from the excited state of the public mind, by reason of which, .the defendants make oath, they believe they could not obtain a fair and impartial trial at said special term, it is shown that since their arrest and imprisonment, and particularly since the finding of the indictment against them, they had had no. time to take testimony which they were advised was material for their defense.

It is shown that defendants were comparative strangers in Keokuk — one of them having resided there about six months, and the other something less than a year. They asked a continuance to enable them to take testimony in Illinois and New York, to prove that, before their coming to Keokuk, their general character for integrity and uprightness had been unexceptionable. "We think this testimony was allowable, and a continuance should have been granted, to enable defendants to obtain it. In trials for felony, and in some instances for misdemeanors, the prisoner is always allowed to call witnesses to his general character; and in every case of doubt, proof of good character will be entitled to great weight. It is a circumstance always to be submitted to the consideration of the jury, together with the other facts of the case. Roscoe’s Grim. Ev., 72.

IV.- The defendants demanded to ■ be tried separately, and moved the court that the defendant, Redout, be first tried. The motion was based on the affidavit of the defendants, that they believed that no such case would be made out against said Redout, as would leave any doubt of his innocence of the charge; and if acquitted, he would be an important witness for defendant, Nash, to establish his innocence. The prosecuting attorney insisted that, in his opinion, the public interest required that the defendant, Nash, should be tried first, and refused to consent that Eedout should be first tried. The court directed that defendants be tried separately, but overruled the motion that Eedont be tried first.

We think there was no error in this ruling of the court; Where it is made to appear to the court, from the statement of the prosecuting attorney, that the interests of the public require, that a particular one, of the two defendants demanding separate trials,- should be first tried, we think that, as the representative of the state, he has the right to choose which shall first be tried; and, in such circumstances, the refusal of the court to grant the request of the defendants, cannot be assigned for error. Commonwealth v. Marsh, 10 Pick., 57; The People v. Bill, 10 Johns., 95; The State v. Calvin, R. M. Charlton, 151.

Thus far, the proceedings in - the district- court were against the defendants jointly. ' They were tried separately, and each convicted of murder in.the first degree. Por the error of the court in refusing the change of venue, and in overruling the motion for a continuance, the: judgment; in each case, will be reversed, and .the cause remanded for a new trial as to each defendant; '

It will not follow, however, that either of. the defendants* when the cause is called for trial anew in the district court, upon the affidavits heretofore filed by them, will be entitled to a change of venue to some - other county.- The prejudice and excitement against the accused, in the minds of the people, may have passed away, and the cause allegéd-for - such "change of venúé, may then no longer exist. The defendants may not still desire a change of venue:; if they do, they must renew their application for it, and -show that-such a state'of things exists at the time, as still to' call for a change- of- venue. ■ And so with regard to the continuance. It cannot, when the cause is again in the district court, be ordered on the affidavits heretofore filed. ■

Y. Other questions, important in the future determination of the cause, were decided by the district court, and have been discussed in this court — and we now proceed to consider them. The defendants were tried separately; but as the questions raised on the separate trials, are very nearly identical, they will be considered in the same opinion. We first consider those questions so far as they refer to the case of the defendant, Nash.

The fourth assignment of error, is upon the ruling of the court admitting certain declarations of Harrison, made in the presence of the accused, to be given in evidence to prove that Nash was the person who shot him. It is proved that Harrison was shot about ten o’clock at night, on Friday, the 2d of April, 1858. Nash and Redout were arrested soon afterwards.

The prosecution having given evidence as to the state of mind and physical condition of Harrison at the time, proposed to prove by L. W. Huston, that the defendant, Nash, was taken by him, as a public officer,"into the presence of Harrison, on Sunday night, about forty-eight hours after the injury was inflicted ; and to prove further the statement of the deceased on that occasion, that the defendant was the person who shot him. This evidence was objected to by the defendant; the objection was overruled by the coui’t, and the evidence permitted to go to the jury.

The state next introduced W. H. Leech, and proposed to prove by him, that on Saturday evening, April 10th, between five and six o’clock, P. M., the deceased made certain statements tending to identify Nash as the person who shot him; Nash then being present before him. Objection was made to this testimony by the defendant. The objection was overruled, and the evidence allowed to go to the jury.

The witness, Leech, then testified, that on the day mentioned, he took the defendant, Nash, before Harrison, and told him it was very important to the accused, that he should be positive, and asked him if he could recognize the man who shot him, if he was in the room. He said he thought be could.' Several persons were then placed in 'front of him, among them the witness and Nash. Harrison looked at Nash very steadily for some minutes, and then said, pointing to him: “ He is the man that shot me.” - The witness then asked him, if he had any doubts, •repeating to him its importance to the accused; and asked him if he was certain Nash was the man. He said there. was no doubt; but suggested to the witness to take Nash and put on him a black cloak. This was done; the room was darkened, and a candle lighted, and Nash was brought before him again. He took the candle in his hand, and directed the position in which Nash should be placed, and the adjustment of the cap upon his head. When this was done, he said, pointing his finger to Nash: “ I recollect you now, distinctly; you look now just as you did the night you shot me.” Nash said — “ you are mistaken, sir.” Harrison replied: “ I am not mistaken — you know it, and you know that I know it. It was a mean, dirty, shabby trick. I know you to be the man. I would be the last man to accuse you, or any other man, under such circumstances.” He then proposed that the accused should stand erect; and directed him to go through the motion, as if he was going to shoot him then. Nash did so, and repeated the motion, until the deceased expressed himself satisfied.

. The testimony of these witnesses relates to occurrences and declarations of the deceased, at a time when Nash was present. All that was said or done in Nash’s presence, was proper to go to the jury, for the purpose of introducing and explaining the conduct of Nash ; and this, irro.spective of the fact that the deceased was then under the apprehension of death. 1 Starkie’s Ev., 64; 1 Greenl. Ev., sec. 156.

The effect to be given to the declarations of Harrison, made at the time, and whether the same were competent to prove the fact of the commision of the offense by the accused, is a different question, and will be considered by us in connection with the testimony offered to be given as the dying declarations of the deceased, as detailed by the witness, Day.

The prosecution offered to prove, by Benjamin G. Day,, that Harrison, on the Saturday morning before the Tuesday on which he died, made certain declarations, which were offered to be given in evidence as his dying declarations, in order to connect the defendant, Nash, with the shooting, from the effects of which he died. This testimony was objected to, as was that of the witnesses, Huston and Leech, but the objections were overruled, and the evidence was suffered to be given to the jury..

The first point made by defendant is, that the admission of the evidence of the dying declarations of Harrison, violates that provision of the constitution, which declares that “in all criminal prosecutions, the accused shall have the right to be confronted with the witnesses against him.” Constitution of U. S., amendments, article 6; Constitution of Iowa, article 1, section 10. ¥e think the objection is not well taken. Such evidence is received, as being analagous to the cases in which hearsay evidence is admissible, as being part of the res gestee. Roscoe Crim. Ev., 23; McLean v. The State, 16 Alabama, 672; Nelson v. The State, 7 Humph., 542. The point was. made in Tennessee, where the bill of rights declared that in criminal cases the accused should have “ the right to meet the witness face to face.” It was held, that this provision was not violated by the admission of the dying declarations of one deceased. Anthony v. The State, 1 Meigs, 265. In Mississippi, the bill of rights declares, that “the accused shall be confronted with the witnesses against him.” It was held in that state, that this provision did not abrogate the rule of-the common law, under which, evidence of dying declarations is admitted. Woodsides v. The State, 2 How., 655; Greenleat Ev., sec. 156, note. The same point was ruled in North Carolina, where the bill of rights contained a similar provision. State v. Tilghman, 11 Iredell, 513 And, in Georgia, it was held that the admission of such testimony did not contravene the sixth article of the amendments to the constitution of the United States, which provides, that “ in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Campbell v. The State, 11 Ga., 353.

It is in the second place objected, that no such facts were proved, as the law requires to be first shown, as the ground on which the evidence is to be admitted. The rule is well settled, that dying declarations, to show the fact itself, and the person by whom the mortal injury was inflicted, can only be given in evidence where they are made under a sense of impending death. 1 Greenleaf Ev., sec. 158; Roscoe Crim. Ev., 25; 2 Starkie Ev., 262; 2 Russell on Crimes, 684. It must appear that they were made by the person injured, in the full belief that he should not recover. Dunn v. The State, 2 Pike, 229. He must be conscious of the peril of his situation, and believe that his death is impending. Nelson v. The State, 7 Humph., 542; Montgomery v. The State, 11 Ohio, 424; The State v. Cameron, 2 Chand., (Wisconsin), 172; Hill's Case, 2 Grattan, 594. It must satisfactorily appear, that at the time of making them, the deceased was conscious of his danger, and had given up all hopes of recovery. The People v. Green, 2 Parker Cr., 11. It is not necessary to prove, by expressions of the deceased, that he is apprehensive of immediate death, if it appears that he does not expect to survive the injury. Rex v. Bonner, 6 C. & P., 386; Darm v. The State, 2 Pike, 229. Nor is it necessary that the person be in articulo mortis, if he be under an apprehension of impending death. The State v. Tilghman, 11 Iredell, 513.

We first inquire whether the declarations made by the deceased on Sunday, at the time that Nash was first brought before him, and about forty-eight hours after the infliction of the injury, were properly admitted to go before the jury as evidence, to show that Nash was the person who shot Harrison.

There was evidence to show, that at the time of the injury, Harrison thought he could not recover — that he thought lie was shot through the heart, and would not live but a short time. 'When the physicians were examining the wound, he told them he thought it was of no use. He expressed to the Eev. Mr. Eeffe, his spiritual adviser, his belief that he should not survive. The surgeons, however, on examining his wound, did not think that the ball had entered the cavity of the chest, and so told him. They thought the policy was to remove from his mind the impression that he could not recover. And although Harrison thought the physicians were trying to deceive him, and did not seem to believe them when they attempted to encourage him, yet Doctor Haynes thought they partially succeeded.

On Saturday, the next day after he was shot, Mr. Day heard him say, that at one time he had had some hope ; but that he then thought he should die. Erom this time until the evening of the Sunday when Nash was taken before him, and when the declarations given in evidence were made, it is not distinctly shown what was the state of mind of the deceased, as to his condition. There is nothing, in addition to the evidence referred to above, to show that, on the Sunday evening when the declarations were made, the deceased was not without some hope of recovery. It must, in some manner, be shown, that the impression of impending death existedat the time the declarations were made.

■ The prosecution, we think, had not laid the necessary foundation to entitle the declarations of the deceased, made on Sunday evening, the 4th of April, to be given in evidence to the jury, as his dying declarations. Being made in the presence of Nash, they may be given in evidence to show what he said or did, when -charged' with the crime; or, to show any feeling or passion exhibited by him at the time. But it is not permitted to give the"*'-declarations to the jury as evidence that Nash was the person who shot the deceased, without first showing, that, at the time they were made, Harrison was conscious of the peril of his situation, and believed that his death was impending. As to the declarations of the deceased, made to the witness, Leech, on Saturday, the 19th of April, when Nash was taken before him the second time, we think the court properly admitted them to be given to the jury as his dying declarations.

It is enough, (says Mr. Greenleaf,) if it satisfactorily appears, in any mode, that the declarations were made under a sense of impending death ; it may be proved by the express language of the declarant, or be inferred from his evident danger, or from the opinions of medical, or other attendants, stated to him, or from his conduct, or other circumstances of the case ; all of which are resorted to in order to ascertain the state of the declarant’s mind. 1 Greenleaf Ev., section 158. It is shown, that on the morning of the day when the declarations were made, the medical gentlemen attending upon Harrison held a consultation as to 1ns condition. Dr. Haynes, who had attended him from the first, says, that after this consultation, the deceased was without any hope of recovery. He was a member of the Roman Catholic church. On Friday, the 9th of April, the Rev. Mr. Reffe received his confession, and administered to him the last rites' of his church — extreme unction. On the morning of the 10th, he spoke to Mr. Day concerning his business affairs — of the disposition of his property, and of the provision he wished made for his wife, after his death. He returned his thanks to his friends for their kindness to him in his sickness, and took his final leave of them, and of his wife. These circumstances have been held sufficient to show that the party did not expect to survive the injury, and to authorize his declations to be given in evidence.'

The points made by the defence are, that at the time these declarations were made, the evidence showed that the deceased entertained hopes of recovery; and that it did not show that they were made under an impression of almost immediate dissolution. Reliance is placed upon the fact, that the attending physicians at no time told Harrison that they thought he would die, or that they thought his case was hopeless. Upon his remark to Dr. Marsh,' on the 7 th or 8th of April, that he was “not entirely discouraged, but fearful ” — upon his concurrence of opinion, expressed to Mr. Gray on the 4th or. 5th of April, when told that great hopes were entertained of his recovery — upon the fact that the physicians, until the last two or three days, tried all they could to encourage him to believe that he would recover — and that Dr. Iiaynes says that he thought they partially succeeded, and that three or four days after the injury, they seem to have inspired him with a little hope.

To this, it may be replied, that whatever presumption might be raised from this testimony, if it stood alone,-it cannot overcome the conclusion to be drawn from the other evidence, tending to.show, the impression of mind of deceased as to his condition, on the Saturday before he died, when Nash was brought into his presence by the witness Leech. Of the first importance, in connection with this testimony, we place the fact, that the consultation of the physicians, as to the condition of the deceased, was held on the morning of this day, and that Dr. Haynes states, that from the time of this consultation, the deceased was without hope of recovery.

On the other point made, we remark, as before, that it is not necessary to be shown, that at the time the declarations are made, the deceased was under the apprehension of immediate dissolution, or that he should have been in articulo mortis. It is sufficient, if he believes his death is impending and certain. The length of time that elapsed between the declaration and the death of the declarant, furnishes no rule for the admission or rejection of the evidence. 1 Greenleaf Ev., section 158. Nor will a declaration, which is competent evidence when made, be rendered incompetent by a subsequent revival of strength in the dying person. The State v.. Tilghman, 11 Iredell, 513; Johnson v. The State, 17 Ala., 618.

The only remaining question made concerning the declarations of the deceased, relates to what was stated by him to the witness, Day, on the Saturday morning before his death. As it is shown that at this time, the deceased had made his confession, and received extreme unction from the priest; as the declaration was made at a time when he was regulating his worldly affairs, and providing for his wife after his death; when he had taken leave of her, and of his friends, expressing to them his gratitude for their kindness and attention to him during his sickness, and when he had evidently given up all hopes of recovery, we think the declarations were properly received in evidence.

YI. The sixth assignment of error is to the admission by the court, of the evidence as to the appearance and conduct of Nash, when told by the witness, Kaiser, that the officers were inquiring for him. The witness stated that he called on Nash, the next morning after Harrison was shot, and told him the police officers were inquiring for him. The counsel for the state asked the witness how Nash appeared at the time; to which he replied, he turned white, and then laughed. The admission of this testimony was objected to by the defendant, and the objection overruled.

We think there was no error in permitting the evidence to be given'to the jury. The bodily or mental feelings of an individual, where material to be proved, may be shown by the usual expression of such feelings, made at the time in question, and are to be deemed original evidence. 1 Q-reenl. Ev., section 102.

YII. Certain depositions were taken by the defendant, to impeach the character for truth and veracity of Charles Kaiser, witness for the state. On motion, the court suppressed the answers made by some of the witnesses to the third cross-interrogatory. The suppression of these answers, is the seventh error assigned. The answers, in our opinion, were properly suppressed. They were not responsive to the questions. The witnesses were interrogated as to tlieir means of knowledge of the reputation of Kaiser for truth and veracity ; and instead of speaking to their means of knowledge, they proceed to speak of the character of the associates of Kaiser, and his Own general moral character.

YIII. The eighth assignment of error is in relation to the refusal of the court, to receive the testimony offered through James Nash. As the objection made by defendants, seems to have been abandoned by the counsel in the argument, it is sufficient for us to say, that we think there was no error in the ruling of the court rejecting the testimony offered.

IX. The defendants were allowed to be tried separately. On the trial of Nash, he undertook to introduce Redout as a witness, to prove facts deemed important to his defense. The court refused to permit him to be sworn as a witness, and this is the ninth error assigned. ¥e think there was no error in this ruling of the court. The State v. Mooney, 1 Yerger, 431; The State v. Calvin, 1 Charlton 151; The State v. Smith, 2 Iredell, 402; The People v. Bill, 10 Johns., 95; Campbell v. The Commonwealth, 2 Virginia Cas., 314; The People v. William, 19 Wend., 377.

The statute has provided that where two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular, defendant, there is not sufficient evidence to put him on his defense, an order may be made that he be discharged from the indictment,before the evidence is closed, that he may be a witness for his co-defendant. Code, section 2994. This would leave-little reason to doubt, that it was the intention that one jointly charged with the same offense, should not be a witness for his co-defendant, until he is so discharged.

X. At the request of the state, the court charged the jury, that they were “ to judge dying declarations as they do other evidence,” and that the dying declarations of a person who has been killed, made with regard to the circumstances that caused his death, are to be received with the same degree of- credit as other testimony. Objection is made to this instruction, that the court departed from its functions, by directing the jury as to the weight of the testimony. We do not understand the court as expressing any opinion as to the weight of the testimony. The dying declarations of Hanison having been given in evidence, the jury were to judge of their weight as of all other evidence. McDaniel v. The State, 8 S. & M. 401. The person whose declarations are thus admitted, must be considered as standing in the same situation as if he wTere sworn. 1 Greenleaf 5s Evidence, section 157. His testimony with regard to the circumstances that caused his death, is to be received with the same degree of credit as the testimony of the deceased would have been, had he been examined on oath. Green v. The State, 13 Missouri, 382.

It is not to be understood, however, that the defendant may not enter into particulars of the state of mind of the deceased, at the time the declarations were made, and of his behavior in his -last moments ; or that it may not be shown that the deceased was not of such a character as was likely to be impressed with a religions sense of his approaching dissolution. Roscoe Crim. Ev., 27 28; 1 Philips Ev., 226; 1 Greenl., Ev., sec. 162.

The eighth instruction given by the court, at the request of the state, was as to the admissibility of evidence of the acts and declarations of one of two or more conspirators, t-o establish- a common design to commit an unlawful act, and as to the liability of all for the acts of any one of the company, done in pursuance of the original plan, and with reference to the common object.

It is not shown by the evidence, how this instruction was material or pertinent to the case of Nash. The law, in its application to the subject is, we think, correctly laid down by Mr. Greenleaf: that a foundation must first be. laid, by proof, sufficient in the opinion of the court, to establish prima fade, the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise, being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concocted plan, with reference to the common object is, in contemplation cf the law, the act and declaration of them all. 1 Greenl. Ev., sec. 111; 3 Ib., 92-94; Wharton's Crim. Law, Book 2, ch. 2, sec. 6.

The tenth instruction asked by the state and given by the court was, that “if the whole evidence taken together, produced snch a conviction on the minds of the jury, of the guilt of the prisoner, as they would act upon in a matter of the highest importance to themselves, in a like case, it was their duty to convict.” We think this instruction of the court, was not liable to the objection taken to it by the defendant, and was proper under the circumstances to be given.

We believe that this comprises all the material instructions in the case of Nash, to which our attention has been called.

In the case of Redout, several instructions were given by the court, and several asked by the defendant, were modified and changed by the court; all of which bore on the question of the liability of Redout, for the acts of Nash, in killing Harrison, if he was believed by the jury to have been killed in the perpetration. of a burglary previously concocted and agreed upon between Nash and Redout, .although Redout was not actually present at the time of the killing. Without setting out these instructions in detail, it is sufficient for us to say, that the law on this subject, as we understand it, is correctly laid down by Mr. Greenleaf; and if Redout was actually present, aiding or abetting the deed, or if lie was constructively present, by performing his part in an unlawful and felonious enterprise, expected to result in homicide, such as keeping watch at a distance, to prevent surprise, or the like, and the murder was committed by some other of the party, in the pursuance of the original design, or if he combined with Nash to commit an unlawful act, with the resolution to overcome all opposition by force, and it resulted in the murder of Harrison, he is guilty as1 the principal and immediate offender. 3 Greenl. Ev., 138.

The error assigned upon the overruling of the motion for a new trial, it is not necessary for us to consider at this time, as the judgment of the court as to each of the defendants will be reversed, for the reasons stated, and a new trial awarded in each case.

Judgment reversed.