The sun. [volume] (New York [N.Y.]) 1833-1916, 1870-04-21


| dered almost immediate death inerftuDe; as
she was thought by every person about
| her 10 be dying, though II difficult
| TO get from her particular explana ions as 10
what she thought Of herself and her situation; her
declarations made under Mese circumstances. ought
TO be considered BY a jury as being made under The
Impression Qfher approaching dissolution for re-
| signed as she appeared TO be, sho must have felt
| The hand Of death, and must have consi Tered
| herself q diving woman. bhe continued to
| repeat nationally aud uniformly, the facts
| which che had disclosed from the moment
| her senses returned until her tongue was no
longer capable OF performing lis once. De
eidrotions 80 nldds are certainly entitled 10 credit:
Mev ought IerSfors 10 DO reoeired Ia eDtdenee! 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 tho case"
Another case, that of THOMAS JOIN, in
dicted for the murder Of his wife, occurred
one year later, In 1890, in which the question
of the admissibility of dying declarations
was submitted TO the Judges of England;
and they held that If dying person either
declare that ho knows his danger, or IL is
reasonably 10 be inferred from the round
or state of illness Mdt no snas sensible Of his
danger, tie declarations are good epidence."
In the case Of The King rs Morley tried
in England in 1926, the declqrations Of the
deceased, made to his nurse after he received
the mortal blow, we're held by the Judges,
unanimously, to be admissible, although he
survived his injuries eleven days, and the
surgeon in attendance swore that he always
held out hopes of recovery to his patient. and
that the deceased never expressed any up.
prehensions Of dying to him.
In the case of The Riag rs. HortNs and
Shirley, tried in 1874 the deceased exelaim-
ed after being shot: II am dying send tor
a doctor" The declarations were admitted.
although II was proved that the deceased
was Catholic, aud that he declined to send
for priest and a Catholic priest test fed:
If a Roman Catholic wishes TO make his
peace with God he usually sends for priest
to receive extreme junction. Except
he be dead to all sense Of religion, person
thinking himself on the point of death would
send for priest" In this case il was argued
that the wounded man could not have ex-
pectod TO die, or he would have sent for
| priest but as we have seen, the Court adj
mitted the evidence.
There is an extreme ruling by Mr.. Justice
ByLEs, in a case in England Regina IS.
| Jtnkihs), in 1869, in which he held: In
order TO make dying declaration admissible,
| there must be an expectation Of impending
and almost immediate death from the causes
| then operating" We call this an extreme
| ruling because
Hope springs eternal in the human brea'ts'
and wounded person may erpect to die, and
| yet not be choVy without hope of recovery.
1t would, perhaps, be difficult to say in any
case that q person was entirely without
nope; it is so natural, even under the most
impending and threatening danger to hope.
Again, it is extreme, for ii ovcrrules the
former doctrine of the Kings Bench, in
which il has been held that it is not neces-
sary that the party should be apprehenslve
Of immediate dissolution.
However, in PERRy's case, there was no
evidence TO show that the apprehensions Of
| dying expressed by HAYES were not of i'm
mediate and certain death and the circum.
stances indicated that they were.
We think the ruling Of Judge BARNARD,
admitting the testimony, was clearly right
There is no Judge on the bench more scru.
| pulously careful in criminal trials, 10 pro-
tcct all the rights of the accused than Judge
| J. +. BARNARD. At the same time he ad.
ministers the law soundly, courageously,
learnedly, without fear and without favor.
The community have come 20 look upon him
rs one of their reliable guardians; and to
lean upon his strong arm, in his high Judi.
cial position, for the protection ofthcir persons
and their property. The same remarks
may he made of his distinguished brother,
the Hon GEORGE g. BARNARD. There is
not IN ADLER magistrate IN the admnistra-
ton Of criminal law in the United States, as
was especially illustrated by his course on
his trail of JONI REAL and the criminal
law, its Intelns cnt, pure, and fearless adj
minstrnton, are Of vital necess ty to the
very existence of civilized society.
As Illustrative of Judge j. +. BARNARD's
conscientious care Of the rights of the nc
cused, we quote the following characteristic.
cally tcrse paragraph from his charge to the
Jury in PERTY's case
Gentlemen, MAJ as wen here say that you arc
not TO give tbs verdict in order that the people may
be uro;cttcl you are not to glyo tlls verdict ia
ordr. thu any person may De terrified because OF
you. verdict, You are u see HAT the evidence
makes out this taking OF life 10 the forbidden intent
at the time lie admin tered the blow; but If you
not satisfied hy die evidence That this intent 10 take
lie Is made out, or that he fired the pistol sho 1t Is
duty to give the prisoner the bouelt ofauy rel.
sonable doubt, and the community must take the
chances against murder in some way other tan by
furnishing mhn against WON the evidence does
not make out complete, clear case OF murder be
yonl all Reasonable doubt"
The sentence o. PERRY was deserved. He
was either innocent or he was guilty of {
crime that deserved at least the punishment
Of imprisonment for life.
Another point in the rulings of Judg,
BAEEADp--ug rather in his charge to thC
jury regard to these dying declarations
was his instruction to the jury: " In deter
mining this question UOH are to take iHfD Ic