1869 v. JENKINS. the prisoner on the evening of the 16th of October, and stated that he had induced her to go to the edge of the river Avon, and had THE QUEEN then pushed her in. After describing how she was saved from being drowned, the declaration continued:-" After being so taken out I became insensible, and did not recover till I found myself in bed in this house. Since then I have felt great pain in my chest, bosom, and back. From the shortness of my breath I feel that I am likely to die, and I have made the above statement with the fear of death before me, and with no hope at present of my recovery. Dr. Smart has been to see me twice to-day. "The mark X of Fanny Reeves." The jury found the prisoner guilty. Sentence of death was passed, but execution stayed, that the opinion of this Court might be taken on the admissibility of the declaration. The case was argued before Kelly, C.B., Byles, Lush, and Brett, JJ., and Cleasby, B. Collins (Norris with him), for the prisoner. The declaration of the deceased was not admissible in evidence, as it does not appear that she had absolutely no hope of recovery. The general principle on which declarations of this kind are admitted "is that they are made in extremity when the party is at the point of death, and when every hope of this world is gone": Woodcock's Case. (1) Before a dying declaration is admissible in evidence, the prosecution must prove affirmatively-First, that it was made under fear of impending death: Woodcock's Case. (1) Secondly, that it was made under the expectation of "an almost immediate dissolution:" Rex v. Crockett (2), Rex v. Van Butchell. (3) Thirdly, that it was made when there was no hope of recovery: Reg. v. Dalmas. (4) In Reg. v. Peel (5), Willes, J., says that, before a dying declaration is admissible, "it must be proved that the man was dying, and there must be a settled hopeless expectation of death in the declarant." In Rex v. Hayward (6) Tindal, C. J., says "any hope of recovery, however slight, existing in the mind of the deceased (1) 1 Leach, C. C. 500, 502. (2) 4 C. & P. 544, 545. (4) 1 Cox, C. C. 95. v. JENKINS. 1869 at the time of the declarations made, would undoubtedly render THE QUEEN the evidence of such declarations inadmissible." The evidence must also show clearly that the declarant knew the state he was in: Rex v. Nicholas (1), Reg. v. Megson (2), Rex v. Spilsbury. (3) The law regards the admission of these declarations with great jealousy, as they are wanting in those sanctions which guard evidence in other cases: Greenleaf on Evidence, vol. i. s. 162, p. 233, 9th ed. The declaration in this case did not satisfy the requirements of the law as established by these cases. The clerk wrote down that the declaration was made "with no hope of recovery." These words are in their terms absolute, but the deceased deliberately refused to express herself thus. She said, "No, that is not my meaning. What I wish to say is not that I have no hope, but that I have no hope at present." The deceased thus carefully qualified what would otherwise have been an absolute statement, and in the clearest way shewed that she was not entirely without hope. This declaration, therefore, does not come within the rule which admits dying declarations, and there is consequently no evidence against the prisoner, and the conviction should be quashed. T. W. Saunders (Bailey with him), for the prosecution, It is admitted that to make the declaration in this case evidence it must be shewn that it was made in the fear of impending death, under the immediate expectation of death, and when there was no hope of recovery. The authority of the cases that establish these rules cannot be disputed. The prosecution, however, proved all that was necessary to make the declaration evidence. The declaration was made "with the fear of death before me, and with no hope at present of my recovery." If the words "at present were omitted the case would be clear, but these words do not really alter the meaning of the sentence. The sentiment of hope, or of want of hope, must refer necessarily to the time when the feeling is expressed. "I have no hope," and "I have no hope at present," have the same meaning. Even if some meaning is to be attributed to "at present," its most obvious signification is, that it is not absolutely impossible that the deceased should recover. (1) 6 Cox, C. C. 120. (2) 9 Car. & P. 418. (3) 7 C. & P. 187, 190. While there is life there is hope, and therefore there cannot be absolutely no hope of recovery. The real meaning, however, of the insertion of the words "at present" appears in the case. The clerk asked the deceased, "Have you any present hope of your recovery?" She said, "None." He then wrote down "with no hope of my recovery," and she corrected this, because it was not what she had in fact said, and not because it was not what she wished to say. She, no doubt, saw no difference in meaning between the two sentences. Direct evidence need not be given to shew that the deceased was conscious of approaching dissolution. This may be inferred from all the surrounding circumstances: Reg. v. Brooks. (1) KELLY, C.B. We are all of opinion that the conviction must be quashed. The question, and the only question, is, whether the declaration of the dying woman was admissible in evidence, because it is clear that if the declaration is to be excluded, there was no evidence to go to the jury. This question depends upon what passed between the clerk and the deceased just before and at the time when the statement was made. She was asked if she felt she was in a dangerous state, whether she felt she was likely to die? She said "I think so." She did not express an absolute belief, but an impression, that she was likely to die. There is nothing conclusive in this part of the statement. The clerk then went on to ask her why she thought that she was about to die. She replied, "From the shortness of my breath." The clerk says, "Her breath was extremely short-the answers were disjointed from its shortSome intervals elapsed between her answers." The clerk then said to her, "Is it with the fear of death before you that you make these statements?" and added, "Have you any present hope of your recovery ?" She said, "None." Thereupon he wrote out what he conceived to be the substance of her statement. After detailing the facts of the case, the statement as he wrote it made her say, “I have felt great pain in my chest, bosom, and back. From the shortness of my breath. I feel that I am likely to die, and I have made the above statement with the fear of death before me, and with no hope of my recovery." If the deceased had sub(1) 1 Cox, C. C. 6. ness. 1869 THE QUEEN v. JENKINS. 1869 THE QUEEN v. JENKINS. scribed this declaration, a very difficult question might have arisen. But it appears that after reading over these words to her, and asking her to correct any mistake he might have made, she suggested the words "at present." She said no hope "at present of my recovery. The clerk then interlined the words " at present." The question is, whether this declaration as it now stands was admissible in evidence. The result of the decisions is, that there must be an unqualified belief in the nearness of death, a belief without hope that the declarant is about to die. If we look at reported cases, and at the language of learned judges, we find that one has used the expression "every hope of this world gone" (1); another "settled hopeless expectation of death" (2); another "any hope of recovery, however slight, renders the evidence of such declarations inadmissible." (3) We, as judges, must be perfectly satisfied beyond any reasonable doubt that there was no hope of avoiding death; and it is not unimportant to observe that the burthen of proving the facts that render the declaration admissible is upon the prosecution. If the present case had rested upon the expression, "I have made the above statement with the fear of death before me, and with no hope of my recovery," a difficult question might have been raised. But when these words were read over to the declarant, she desired to put in the important words "at present;" and the statement so amended is" with no hope at present of my recovery." We are now called upon to say what is the effect of these words, taking into consideration all the circumstances under which they were put in. The counsel for the prosecution has argued that the words "at present" do not alter the sense of the statement. We think, however, that they must have been intended to convey some meaning, and we must endeavour to give effect to that meaning. 66 It is possible that when the statement was first read over to the deceased, she may have remembered that what she had been asked was, whether she had " any present hope of recovery," and observing that the word "present" was omitted, that she merely wished to correct the discrepancy between the words as spoken and those (1) Per Eyre, C.B., Woodcock's Case, 1 Leach, C. C. at p. 502. (2) l'er Willes, J., Reg. v. Peel, 2 F. & F. at p. 22. (3) Per Tindal, C.J., Rex v. Hayward, 6 C. & P. at p. 160. 1869 v. JENKINS. written down, without wishing to make any alteration in the meaning of those words. On the other hand, she may have meant to THE QUEEN alter and qualify the statement as first written. She may have wished to express, "All I meant to say was, 'I have not hope at present;"" but not to say that she had absolutely no hope. The case is capable of either of these two constructions, one of which is against and the other in favour of the prisoner; and if we had simply to choose between the two, without anything to guide us as to the real meaning of the deceased, we should resolve the doubt in favour of the prisoner in favorem vitæ. But another mode of solution is presented which calls on us to decide for the prisoner on another ground. The deceased was asked in express terms by the clerk "to correct any mistake that he might have made." She then said, " Put in the words 'at present.' Even if this were not a criminal case, this would be sufficient to shew that the omission of "at present" was a mistake-that she meant "no present hope" as distinguished from "no hope." She therefore intended the words to have some substantial meaning; and if they have any meaning at all, they must qualify the absolute meaning which the declaration must contain in order to render it admissible evidence. The conviction must therefore be quashed. BYLES, J. As I tried the case, I wish to state that I entertain no doubt that the declaration was not admissible. There being no other evilence against the prisoner, I thought it best to admit the declaration, and reserve the point whether it was admissible evidence. Dying declarations ought to be admitted with scrupulous, and I had almost said with superstitious, care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subjected to crossexamination, and is in no peril of prosecution for perjury. There is also great danger of omissions, and of unintentional misrepresentations, both by the declarant and the witness, as this case shews. In order to make a dying declaration admissible, there must be an expectation of impending and almost immediate death, from the causes then operating. The authorities shew that there must be no hope whatever. |