New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1866-05-16
WEDNESDAY MORNING, MAY l6, 1866.


lying. stood beside Mr.. Gruber and told him
came to hear anything he had to say in reference
to his having been wounded. / requested the doc
| tor to take down what Mr. Gruber had to say. Mr..
| Jtuoer went on then to make the statement con-
famed IN the document in court | read the state
ment after it written, and asked him if it was
| correct He said it was. In addition, Iasked him
II he would be able to recognize the parties who
nad wounded him He mentioned the names of
Murphy and Hennessey.
1.-The defense objected to this testimony as to
auTphy and Hennessey as illegal, and after some
discussion the attorney general consented to elicit
| the evidence he sought in another manner
Murphy was present when the paper was read.
mad ordered the officers to bring him in. Irecol-
lect that at the time the physician was present.
and believe, Mr. Wolfe. They weae there be-
fore the document was signed. Others might
nave been there, but if there were do not recol-
lect them. Mr. Gruber raised himself up to sign
the paper, and swore to it with his hand elevated.
Murphy was brought directly before him. He was
askedlf ne recognized Murphy. He answered :
do-that is the man who stabbed me-" l had
nothing from him to signify that hs was in dying
condition, but his physician in the hearing of Cru.
DER, within few feet Of the bed, said addressing
me, that Mr.. Gruber was very bad and not to
worry him. or words to that effect, and my infer
ence, from the manner in which the doctor spoke
was that ne regarded him as in dying condition.
The defense objected to the differences
oil the witness being given as evidenced
Cross-eran1tned--M Gruber did not express to
me or in my hearing belief that he was going to
DE. No minister of the Gospel was there. He
dld not speak OF his business affairs. The physi-
clan was stranger to me, and J did not know his
name When Gruber said Murphy was the man
that's the man. he added, take him awayn-
| don't think Murphy made any reply whatever
he did not in the room am sure | don't know
the officers who had him in charge and could not
recognize them. was at the house but once-at
SIX or hah,past six in the evening. When Murphy
was brought before MIR. Gruber, he was most posi-
tive as to the identity Of the prisoner Mrs
Gruber and young lady were also in the room, /
believe.
Or. Chopin, recalled ~ the proSec,aor-De-
ceased had but one wound.
The attorney general here offered in evidence
the declaration of the deceased, which had been
identified by the witnesses.
Mr.. Castellanos and General Marshall oh.
jected. 1t was not, they argued, dying doclara
ton. It had not the features essential to const-
tute it in law dying declaration. 1t was merely
an affidavit, obviously made for the purpose of
procuring the arrest of the parties named The
paper contained nothing to show a consciousness
that death was impending but on the contrary,
contained in itself evidence that the deceased ex-
pected to survive, in the sentence, Whom
could recognize when I On the witness
stand" Filling the hiatus the sentence
would read, &c Whom l could recognize
when an. on the witness stand.n This showed that
deceased expected to outive the wound and give
evidence against the parties. The testimony that
he had been appraised his wound was mortal or
dangerous, left doubt as to which word was used
and the prisoners were entitled to the benefit of
the doubt, to the belief that the word dangerous
was used Considering his wound as only danger
HOY o% in -,
declaration. There was no proof establishing
the consciousness of certain dissolution. Deceased
had made no speech, no remark or suggestion to
show certainly that he considered himself in
ertrenliS.
Attorney General Heron replied. It was abb
surd, he commended, to argue that putting the de-
caraion of the deceased in writing, or his swear.
ing to it, changed its character or weakened its
force True, dying declaration did not need to
be in writing, to, but its being in writing
or its being sworn to-mere snpererogations-d
not vitiate it, People generally were not informed
as gentlemen of the bar were, as to the technical
form of dying declaration, but because they had
done unnecessary things, because they were igno-
rant of the forms of law, was no reason that what
they had done should fall to tie ground As to
the idea preached, that the intention was only to
make sworn complaint, to procure the arrest
of the prisoners, it was very clear that
such could not have been the intention for
if it was, a recorder, magistrate to whom
criminal jurisdiction was assigned would have
been sent for and not civil magistrate, as Judge
lizard was. Again, in regard to the attempt to
wrench from the statement evidence that the de.
ceased expected to recover and to prosecute his
assailants, nothing could be more repugnant to
reason. The misspelling of word accident
ally or from ignorance, was the basis of this
argument As interpreted by the defense,
it was necessary to inteFpolate word to
make sense. 1t was necessary to say
"whom l could recognize when an.
on the witness stand" The word f"a,la y had
to be interpolated to sustain the reading of the
defense. But how much better did it accord with
all the circumstances, with all the facts of the
case and with the grammatical construction of the
sentence to take it that the word which appeared as
" when" was mis-spelling of were - that the
sentence wasintrodueed to add force and selemnity
to the averment, by saying, whom l could recog-
nize were on the witness stand" As interpreted
by the defense, it was neither grammar nor sense
without their interpolation. His Interpretation re-
quired no interpolation, nothing more than the
correction of a mis-spelling.
What better proof could be adduced than had
been to show this document was dying declara-
ton? He had been wounded but a few hours be-
fore; he died few hours after, and he had been
told by one physician that there was no hone of
his recovery, and by another that his wound was
mortal or dangerous. The court was not confined
to his own declarations Like any other fact, the
fact Of consciousness of impending dissolution
could be proved in various ways. In the case of
the State VS.. Richard Scott, 18th annual. the
supreme court ruled distinctly that the proof of
such consciousness need not be shown by the de-
clarations of the person in ertrenlis that such
proof was not necessary that the fact could be
proved by other circumstances, and a communica
ton by the physician was specifically mentioned
And Greenleaf on Evidence, vol / section 1853, was
to the same effect, that consciousness of an
preaching death, might be proved in three WAYS
by the express declaration of the party by evi.
dent danger, and by the communication of the phy
sician. The State had two of these elements in
this case. Danger was evident, because the man
died two or three hours after, and his physician
had apprised him that his recovery was hopeless
impossible. But counsel for defense would have
it, because he was not blabbing about his coming
death to all around him, and because he was not
alarming and saddening his wife and children,
therefore he did not expect to die then
Mr.. Field closed the argument for the defense.