
    *Vass v. The Commonwealth.
    July, 1831.
    
      [24 Am. Dec. 695.]
    Evidence — Dying Declarations — When Admissible— Case at Bar. — A person, having received a mortal wound, and being unable, In consequence of the wound, for the greater part of the interval that elapsed before his death, to speak at all, and when able to speak, only able to utter a short word or two, yet retaining his perfect senses and understanding, and being under apprehension of his approaching death, — is asked, Did P. V. strike you first? to which he answered, yes, sir: Did P. V. stab you? to which he also answered, yes, sir: Do you think you are going to die? to which he again answered, yes, sir: and is asked a fourth question, which he is unable to answer, but it does not appear what this fourth question was, or whether it had any relation to the subject, or at what interval after the three first it was put to the dying man — Held, these are such death-bed declarations, being distinct and complete in themselves, asowere competent evidence on the trial of P. V. on an indictment for the homicide.
    Same — Same—Incomplete—Admissibility.—But, if it had appeared, that the declarations were designed by the dying man, to be connected with and qualified by other statements, and with them to form an intire complete narrative, and before the purposed disclosure was fully made, it had been, interrupted, and the narrative left unfinished; such partial declarations would not have been competent evidence.
    Same — Same—In Answer to Leading Questions — Effect. —The objection, that the questions to which the answers of the dying man were given, were leading questions, is not properly applicable in such a case.
    Philip Vass was indicted for the murder of Henry Polly in the circuit court of Halifax, tried, convicted of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary.
    It appeared at the trial, that the deceased was the prisoner’s overseer, and was first seen, after he received the wound of which he died (a stab with a knife), in the prisoner’s house. No competent witness was present when the mortal wound was inflicted ; and, from that time till his death, he was, for much the greater part of the time, unable, in consequence of thfe wound, to speak at all, and when he was able to speak, he could only utter a short word or two at a time. He received the wound Thursday night, and he lived till the Sunday following: many witnesses saw him in the interval, and were present when the questions-hereafter mentioned were put to him and they testified, that he was *in his right mind at the time. And then Henry Edmunds was introduced as a witness for the commonwealth, who-stated, “that on - the Saturday before the death of the deceased, the witness visited him, and put the following questions to him —1. Did Philip Vass [the prisoner] strike-you first? to which the deceased answered,. Yes, sir — 2. Did Philip Vass stab you? to which the deceased also answered, Yes, sir— 3. Do you think you are going to die? to which the deceased again answered, Yes, sir —And the witness put a fourth question, but the deceased was unable to answer it.” The prisoner’s counsel moved the court to instruct the jury to disregard so much of Edmttnds’s testimony, as detailed the above questions and answers. The court being of opinion, that the deceased was conscious of his approaching death at the time the questions were put and the answers given, and that he was in his senses and understood the questions, refused to give the instruction, — but told the jury, that they ought to disregard the testimony altogether, unless they should believe from the evidence in the case, that the deceased understood the questions, and an-i swered them with perfect understanding of them; that, even if .they should so believe, they ought, in weighing the testimony, to-take into consideration the manner in which the questions were put and the answers-obtained, and also. the probability that the questions and answers did not give a full account of the facts in the case; and that the evidence resulting from the questions and answers, was not absolutely inconsistent with a favorable case for the prisoner. To this opinion of the court the prisoner’s counsel filed a bill of exceptions. And now the prisoner presented a petition to this court, praying a writ of error to the judgment.
    Leigh, for the petitioner.
    The questions put by Edmunds to the deceased, were leading questions, and for that cause, if for no other, the evidence of the questions and of the answers to them ought to have been excluded or declared incompetent. That leading questions ought not to be asked on the examination of a witness in chief, is agreed on all hands: such questions, namely, according to Phillip’s definition, “as instruct a witness how to answer on material points,” as distinguished from matters merely Introductory — or, as better defined by Starkie, “questions which suggest to a witness the answer he is to make.” Phil. L. Ev. 221, 2 ; 1 Stark. L. Ev- part II, p. 124, note (u). In the note, Starkie says — “It is not a very easy thing to lay down any precise general rule as to leading questions: on the one hand, it is clear that the mind of the witness must he brought into contact with the subject of inquiry ; and on the other, that he ought not to be prompted to give a particular answer, or to be asked any question to which the answer yes or no would be conclusive.” Certainly, then, the questions put by Edmunds to the dying man, were leading questions : and if Ed-munds’s questions suggested . his answers, •the information thus obtained, was derived from the questions rather than from the answers, and was attributable to Edmunds, not to the dying man. And though there had been no prosecution as yet commenced against the prisoner, and though Edmunds had no personal interest in the case, and probably was not actuated by any improper feeling, yet he put himself in the place, and was performing the part, of a prosecutor, so far as to collect evidence of the prisoner’s guilt, to be used in the prosecution for the offence which he anticipated as certain. Besides, if the manner in which the infor-: mation was drawn from the dying man, was irregular and illegal, it cannot be material by whom the impropriety was committed : the effect is the same — to make the suggestions of the person asking the questions, instead of the dying man’s own declaration of the facts, the evidence of the prisoner’s guilt. If this objection be a valid one — if the evidence was inadmissible, because it; consisted wholly of answers to leading questions which the law will not tolerate — then the only course which could have been taken, was *that which was taken by the prisoner’s counsel, to move the court to instruct the jury to disregard the testimony ; for the evidence came out for the first time at the trial, and contained in itself the foundation of the objection to its competency ; and there was neither any opportunity to have prevented the leading questions from being put and answered, nor any way in which the testimony of them could have been anticipated and suppressed. Buster’s ex’ors v. Wallace, 4 Hen. & Munf. •88, 9 ; Jones v. Lucas, 1 Rand. 268.
    It may be said in answer to this objection to the competency of the evidence, that the situation of the dying man, in consequence of the wound under which he was languishing, was such as to render it impossible to gel any information from him but by propounding leading questions to him : and the court may, perhaps, regard that circumstance as enough to refute any objection to the competency of the evidence, founded on the impropriety of that method of interrogation. But if that consideration be of force to obviate this objection, viewed alone and by itself as a substantive objection to the competency of the evidence, yet the fact that the information could only be obtained from the dying man, by leading questions which the law would generally condemn as improper, will still be very material to be considered in its bearing on the more general and interesting- question, which the case presents — Whether the death-bed declarations proved by Edmunds, were such deathbed declarations as ought to be admitted in evidence ?
    It is true, in general, that declarations of a person who has received a mortal wound, made under apprehension of death, are admissible in a criminal prosecution for the homicide; but the declarations that are so admissible, must be declarations of a person in such a situation, mental and physical, as to be able to give a full and complete account of the transaction, and not only to tell a part of the truth, but the whole truth.
    Whether death-bed declarations are competent evidence or no, depends on the circumstances under which they are *made, and is always a question for the court; per lord Ellenborough, 1 Stark, ca. 521 ; 2 Com. Law Rep. 495, S. C. ; 1 Phil. L. Ev. 15 ; John’s case, 1 East P. C. 357; Welborne’s case, Id. 359. In the case at bar, the court first decided, upon the circumstances, that the evidence was competent, and then referred it to the jury to weigh the same circumstances, and decide for themselves.
    The admission of declarations made under apprehension of death, is an exception to two canons of the law of evidence ; namely, that which rejects all evidence not given under the sanction of a judicial oath, and that which excludes all evidence, where the party against whom it is offered, has had no opportunity to cross-examine the witness. And “the principle of the exception to the general rule, is founded partly on the awful situation of the dying person, which is considered as powerful over his conscience as the obligation of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the necessity of cross-examination.” 1 Phil. L. Ev. 215 ; 1 Stark. L. Ev. Part I., pp. 94, 101 ; Id. Part IV., p. 458. The law regards the apprehension of approaching death as equivalent to the judicial oath, which is an oath to tell the truth and the whole truth, and equally cogent as the most rigid cross-examination to draw from the dying man, a full, fair, impartial relation of facts : therefore, the law dispenses with the oath, and overlooks the want of opportunity for cross-examination. The reason on which this exception is founded, obviously, has no application to a case, in which the dying man was absolutely incapable of relating the circumstances. How can his awful situation be deemed equivalent to the obligation of the judicial oath to tell the truth and the whole truth, when he was unable to tell the whole truth ? How can it be held «an equivalent to an opportunity for cross-examination to elicit a fair, full, impartial relation of all the circumstances, when he was in such a situation, that no cross-examination could have been of any avail ? Shall the judicial oath be dispensed with, *and the want of an opportunity for cross-examination disregarded, in a case in which the dying man, so far from being able to fulfil the obligation of the oath, and to tell the truth, the whole truth, and nothing but the truth, impartially, fully and circumstantially, was unable. if never so much inclined, to tell even a part of the truth, without the aid of leading questions, which, to say the least, supplied the most important parts of his declaration ? If the dying man had been in a state of mental inability to give a full relation of the facts, it cannot be denied, that such mental defect would have been a conclusive reason for excluding the evidence of his declarations, though declarations uttered even in the ravings of delirium may perchance be true : and I can ’see no good reason why a physical inability to g'ive a full account of the transaction, should not have the same effect as mental incapacity would have to exclude a partial account, that may or may not be a just representation of the truth of the case. For, if a state of mental incapacity may render him insensible of the approach of death, the apprehension of which is the equivalent for the sanction of a judicial oath, the physical incapacity renders his sense of approaching death utterly unavailing' to induce a full and impartial disclosure of facts. ■ It will be found, that in all the cases in which dying declarations have been admitted in evidence, the dying man that made them, was, at the time, both mentally and physically capable of telling the whole story, in his own words, without being prompted by leading questions, much more-having the story told for him in questions. See the cases collected 1 East’s P. C. 3S3-360. In Reason & Tranter’s case, 1 Stra. 499, the dying man was capable of giving a full relation of all circumstances, and of undergoing a cross-examination ; and in fact, there was a cross-examination in that case, and the evidence thereby elicited acquitted the prisoners of murder.
    Attorney general, contra.
    The objections that have been made, affect the credit, not the competency, of the evidence ; *and as to the credit that should be given to it, the court gave the jury a caution sufficiently favorable to the prisoner.
    The objection to leading questions lies properly where the quéstions are propounded by a party to the controversy or his attorney, who has an interest to discolour the evidence : Edmunds was not a party ; and he had no personal interest, no motive, to draw from the dying man any thing but the truth ; the law will not regard his proceedings with any jealousy. Leading questions are “such as instruct the witness how to answer” — or “which suggest to the witness the answer he is to make that is, questions that indicate to the witness the answer which is desired by the person who puts them. Now, the questions put by Edmunds did not indicate that he desired, or expected, an affirmative or negative answer : they only indicated that he wished to know the truth whatever that was. Therefore, they were not leading questions. The passage quoted from the note in 1 Stark. L. Ev., Part II., p. 124, note (u), is not sustained by any authority ; and the proposition, in the broad terms there stated, is unfounded in principle or reason. But, if these were leading questions, they were put in that form of necessity : the dying man’s situation was such, that information would no otherwise be obtained from him. Objections to leading questions are founded on the default of the party who propounds them ; and are allowed, because, in general, the evidence may still be obtained by propounding the inquiry in proper form ; but if such an objection be allowed in the present case, the defect of evidence is irremediable. The evidence must be admitted ex necessitate.
    The declarations of the dying man were, in themselves, so far as they went, full and distinct: it does not appear, that he had any thing more to communicate on the subject; it is not stated, that the fourth question put to him by Edmunds, which he was unable to answer, had any relation to it. The declarations prove, that the mortal blow was inflicted by the prisoner: that alone is proof of his guilt: if *there were any circum-1 stances to extenuate the crime, or to excuse or to justify the act, the burden of proving them lay on him. If the evidence is. to be suppressed, because every incident that occurred at the time, was not inquired into and minutely detailed, or because the dying man was incapable, in consequence of the mortal wound, of giving such details ; so broad an objection would go the length of suppressing death-bed declarations in almost every case, since in ■ order to make them evidence at all, the declarant must be in ex-tremis. It was not the fault of the commonwealth, chat the details were not required : it was not the fault of the commonwealth, or of Edmunds, or of the dying man, that he was incapable of giving them,, if they had been required: that was the fault of the prisoner ; the effect of the injury which his hand had inflicted. And to allow him to-object to the evidence on that ground, would be to violate the principle that no one shall be allowed to take advantage from his own wrong.
    
      
       Diying Declarations — Grounds for Admissibility.— The rule of law on the subj ect of the admissibility of dying declarations is now well settled, that to render such declarations admissible in evidence, they must be shown to have been made when the declar-ant was under a sense of impending death, and without any expectation or hope of recovery. Whether so made or not, is a preliminary question to he determined by the court on all the evidence of the case. Bull v. Com., 14 Gratt. 620, citing Vass v. Gom., 3 Leiah 78C: Hill v. Com., 2 Gratt.- 594. To the same effect, the principal case is cited in Swisher v. Com., SB Gratt. 974, and note. See also, foot-note to Bull v. Com., 14 Gratt. 620.
      
    
    
      
       Same — Incomplete Statement. — In Jackson v. Com., 19 Gratt. 668, the principal case is cited to the point that where the declarations were designed to be connected with and qualified by other statements and with them to form a complete narrative, but before the proposed disclosure was fully made was interrupted and the narrative left unfinished, such partial declarations are not admissible evidence.
      See -monographic qote on “Dying Declarations” appended to Jackson v. Com., 19 Gratt. 656; mono-graphic note on “Evidence” appended to Lee v. Tapscott, 2 wash. 276.
    
    
      
       New York edition of 1820.
    
    
      
       Boston edition of 1828.
    
   LOMAX, J.,

delivered the opinion of the court. Th.e question of the competency of testimony may depend upon facts extraneous and collateral to the testimony ; or the matter and manner of the testimony may be such as to render it inadmissible. To make dying declarations receivable as evidence in any case, it has been laid down, that it must appear that the deceased was conscious of his being in a dying state, at the time he made them. This inquiry into the consciousness of the deceased, is collateral to the evidence of the dying declarations themselves, and the judgment to be pronounced upon it, depends upon proofs which may be wholly distinct from and unconnected with the declarations. So, all testimony presupposes the sanity of the witness who deposes, and whenever the question of sanity is raised, for the purpose of excluding the evidence which is offered, it must depend upon collateral proofs. These questions as to the competency or admissibility of testimony, at whatever stage of the trial they may be raised, (though regularly they *ought to precede the introduction of the testimony objected to) are referred to the decision of the judge. “As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is for the court alone to determine, whether a witness is competent, or the evidence admissible. Whether there is any evidence is a question for the judge; whether it is sufficent is for the jury. And whatever antecedent facts are necessary to be ascertained, for the purpose of deciding the question' of competency, as for example, whether a child understands the nature of an oath, or whether the confession of a prisoner was voluntary, or whether declarations, offered in evidence as dying declarations, were made under the immediate apprehension of death ; these, and other facts of the same kind, are to be determined by the court, and not by the jury.” 1 Phil. L. Ev. 13, (edi. 1816); Clayton v. Anthony, 6 Rand. 299; Chaney v. Saunders, 3 Munf. 51. This preliminary adjudication of the court upon the question as to the admissibility of the testimony, in case the evidence be allowed, has decided nothing in regard to its credibility. That peculiar-province still remains for the jury. It is every day’s practice to admit evidence as competent, which the jury have no hesitation in disbelieving-. The court may decide, upon examination of proofs, that a witness is not incompetent for want of reason or understanding : the jury may, notwithstanding, determine within their province, what is the weight of his testimony, and may graduate the credit they will repose in it, from the point of total disbelief to that of the most implicit confidence. If in the judgment pronounced by the court, upon the question of competency. any error be committed, a bill of exceptions, embodying all the facts and circumstances upon which that judgment was given, is the proper mode of presenting the error to an appellate jurisdiction, for review and reversal. If no exception be taken, or if it do not appear what evidence was given to the judge, upon this collateral inquiry in regard to the competency of the evidence, all must be presumed to have been *legal and right. If the jury, in finding a verdict against the prisoner, have committed a mistake, and given undue credit to the testimony, the proper corrective is an application for a new trial, to the court which tried the cause ; and if there be any mode of bringing to the consideration of the appellate court, the error of the court below in overruling the application, it would be by a bill of exceptions, stating all the proofs which were offered to the jury. The bill of exceptions must, in either case, adapt itself to the nature of the error co.mplained of, and shew precisely wherein it was committed. It is upon the former ground alone that this case is brought before us.

If, therefore, in the case now under consideration, the error complained of was, that the judge had admitted testimony of dying declarations which was incompetent, because the deceased, when he made them, was not under the apprehension of impending death, and was not of mental capacity to testify, we must refer to the record to ascertain, whether the matters therein stated shew, that the judge must have erred in admitting this evidence; and, in considering this question, we must view it exclusively as a question of mere competency, wholly distinct and apart from any consideration of the weight it might have been entitled to with the jury. The evidence would not be the less competent, though the court might think the jury would have done right in wholly disregarding it.

In this bill of exceptions, it is expressly stated, that the judge was of opinion, that the deceased was conscious of his approaching death, at the time the questions were put to him, and his answers thereto were given ; and also that he was in his right mind and understood the questions. The evidence, to sustain this opinion in regard to the mental capacity of the deceased, was, (as it is stated in the bill of exceptions) that many witnesses, who saw the deceased in the interval between the time he received the wound and his death, and at the time the questions were put to him, gave evidence, that he was in his right mind. In regard to *the consciousness of the deceased of his impending death, the only direct testimony in the record, bearing upon this point, is the affirmative answer of the deceased to the question which was asked him, “Do you think yott are going to die?” But the consciousness of approaching death may be collected as well from the circumstances of the case (as from the nature of the wound and the state of the body) as from expressions used by the deceased. Woodcock's case, 2 Leach C. C. 563 ; Dingler’s case, Id. 638 ; John’s case, 1 East’s P. C. 357. This court, therefore, has clearly no warrant for pronouncing, that the opinion of the judge, as to the sanity of the deceased, and his consciousness of approaching death, was erroneous, unless it can be contended, that the facts stated in the record, furnish such conclusive proof that the deceased was unsound in his mind, and unconscious of imminent death, that it could not be disproved by other evidence however direct and cogent. What a.re the facts as stated in the record upon this subject ?

It appeared, that the deceased received a stab with a knife on Thursday night ; that from the time he received the wound until his death, which was sometime in the day of Sunday following, for much the greater part of the time (in consequence of the wound) he was unable to speak at all, and when he was able to speak, he could only utter a short word or two at a time ; that the only answers he made to the inquiries that were propounded to him, were the words “yes sir,” responding to three of the questions ; and when a fourth question was put, he was unable to answer it. Whatever inferences the jury would have been warranted in drawing from such circumstances, to throw discredit upon the evidence arising from these answers thus given, this court cannot pronounce, that the condition of the deceased, as exhibited upon these proofs, could not possibly have been consistent with proof of a competent sanity of mind, and of a consciousness of approaching death.

In deciding then, whether, under the circumstances in the bill of exceptions stated, the evidence of the death-bed ^declarations, therein stated, was incompetent evidence and ought not to have been allowed, it must be borne in mind, that in this record, the deceased is adjudged to have been a man sound in his mind, and conscious of standing on the brink of eternity ; and that if this adjudication was erroneous, the bill of exceptions has been so framed as not to bring it into question; and that therefore it is now irreversible.

It was argued by the petitioner’s counsel, that though it is true, in general, that the dying declarations of a person who has received a mortal wound, made under apprehensions of death, are admissible in criminal prosecutions for the homicide; yet, that the dying declarations, which are so admissible, must be dying declarations of a person in a situation to give a full and complete account of the facts of the transaction, — «oí only to tell a part of the truth, but the whole truth. The court can not sustain this principle, in the latitude with which it is applied. If facts be stated, which are obviously designed by the party who states them, to be connected with other facts which he is about to disclose, and to be qualified by them, so that the narrative should form one intirc and complete history of the whole transaction ; and before the purposed disclosure is made, it be interrupted, and the narrative remains unfinished ; such partial declaration would not be admissible in evidence. The declaration which was offered in evidence in Finn’s case, S Rand. 701, may be referred to in illustration of this point. But, if the declaration state facts distinctly, and, as far as the declaration goes, it does not necessarily appear, that the facts thus stated were designed to be connected with some other facts, which may be supposed to form a part of the full and complete account of the transaction, it would be going too far to reject altogether the matter thus disclosed, upon any presumption of law, that the narrator was precluded by his situation (he being sound in his mind) from giving a full and complete account of the transaction, or upon any presumption of fact that the court could form, *that what was disclosed was only a part of the truth, and not the whole truth of the case. It cannot be contended, that the evidence would be rendered incompetent from the circumstance that the deceased was not in a situation to know all the facts. It does not appear in the record, what was the question last propounded to the deceased, nor is there any evidence whatever, of the cause which rendered him unable to answer it. If his situation was such as to disable him, from any other cause, independent of the state of his reason, from giving a full and complete account of the transaction, and from telling the whole truth, not merely a part of the truth, that was a matter for the decision of .the jury, and not of the court. Even if it were true, that a supervening disability had abridged the narrative, which, possibly, under other circumstances, might have been given by the deceased, still the question, whether the matter disclosed amounted to a full and complete account, was a question properly left to that tribunal, in which the law vests the power of deciding upon the credit of witnesses, and which alone can determine, from the circumstances of the case, whether a witness has told the whole truth, as well as a part of the truth, and nothing but the truth. If the court can exercise the power of deciding from the face of the testimony, that a witness of sufficient mental capacity, was not a competent witness, because he was unable or refused to answer some particular inquiry ; and if the court has the power, moreover, of pronouncing, that the disclosures which he has made, must necessarily have fallen short of a full and complete account of the transaction, or of such an account of it as is worthy to be listened to and weighed by the jury ; it would seem to lead to dangerous inroads upon the province of juries. The presumption, that the deceased was not in a situation to give a full and complete account, is derived from Edmunds’s evidence, that he had put a fourth question to the deceased, but he was unable to answer it. The reasonableness and the strength of this presumption depend much upon circumstances. There is nothing in the ^evidence, to shew that the question, last propounded to the deceased, had any relation to the homicide, and that the matter inquired about formed a part of a full and complete account of the transaction ; much less, that the information sought must necessarily have been that which a person, in a situation to give such an account, could not but have been able to tell. Before we can be warranted in drawing the important inference, attempted from Edmunds’s testimony, it would be material to know not only the pertinency of the question to the matter in hand, but also the interval which elapsed between the answer to the third question, and the putting the fourth. If the force of that testimony was susceptible of explanation, and might be varied by other proofs, then, even if this were a question of competency to be decided by the judge, this court can not, as this record is framed, undertake to pronounce, that such explanations and proofs were not submitted to the judge, as the foundation of his decision.

It was, moreover, objected in the argument, that the information obtained from the deceased, was but the answers “Yes, sir,” to questions, which were leading questions. It is laid down in the books, that leading questions, that is, such as instruct a witness how to answer on material points, are not allowed on the examination in chief : for to direct witnesses in their evidence, would only serve to strengthen that bias, which they are generally so much disposed to feel, in favor of the party that calls them. 1 Stark. E. Ev. 123. Still, it will be found, the rule is not of universal application ; for there are cases withdrawn from its influence, where it is allowed by the courts to be necessary to lead the mind of the witness to the subject of inquiry. It has been said, that it is difficult to lay down any precise rules as to leading questions, and how far it may be necessary to particularize, in framing the questions, must depend on the circumstances of each particular case ; 1 Stark. E. Ev. 123, note (u). Wherever this rule is treated of, cases are presupposed, where there is a subject of litigation depending, — • *where the witness, to whom answers are suggested in the forms of the questions, has been summoned by one of the parties to that litigation ; and where the witness is in a situation which exposes him to a suspicion of bias in favor of the party who calls him. But is there to be found in the law, any principle which would warrant the extension of the rule to a case like the present, and would require that the examination of a dying man as to the cause of his death, should conform to a technical strictness? Here was no matter of litigation, civil or criminal, depending : no prosecution so far as appears, had been instituted, or was known to the dying man ; no conceivable connexion between him, who was putting the questions to him, and any interest likely to be subserved by the answers which were sought for ; and no bias to be suspected in the mind of the deceased in favor of any interest on this side of the grave.

The answers to these questions would have been more satisfactory, had they responded more fully the circumstances of the homicide. But this court cannot pronounce that they are inadmissible, because they aré mere monosyllables — “Yes, sir.” The law has no where defined what shall amount to dying declarations, or the form in which they shall be uttered. It might be unsafe that it should do so. Whether the declarations are such as entitle them to be regarded as dying declarations to be offered in evidence, must depend upon the temper of the deceased when he made them, and upon the circumstances under which they were made. So far as the effect of such declarations is to be weighed by the jury, the court, upon this record, has no power to interfere. The jury were cautioned by the judge at the trial, that they ought to disregard the testimony altogether, unless they should believe from the evidence in the case, that the deceased understood the questions put to him, and answered them understanding^ : and even if they should so believe, they ought, in weighing the testimony, to take into consideration the manner in which the questions were put and the answers obtained, and also the probability that *the questions and answers do not give a full account of the facts of the case. If the answers of the •deceased formed, in the consideration of the jury, an essential part of the proofs in the case, then the verdict they have found, after this solemn caution, has pronounced that the deceased did understand the queslions, and answered them underslandingiy, and that the testimony, notwithstanding the circumstances which seemed to impair its credit, was entitled to their belief. There may have been other evidence, satisfactory as to those circumstances, before the jury ; and for aught that appears in the bill of exceptions, the court also, in deciding upon the question of competency, may have been influenced by proofs omitted to be embodied in the case. The objections which have been taken to the form of the questions, and the manner in which they were answered, as well as other objections in behalf of the prisoner, derive their force, for the most part, from a suspicion, unsubdued by the decision of the court (irreversible as has been shewn) that the deceased laboured under a want of mental capacity to testify. If we regard him as a man beyond question of sound reason, and his responses as flowing from a rational and deliberate mind, it seems difficult to distinguish the evidence now under consideration, from that of other dying declarations.

Upon the whole, a large majority of the court is for refusing the writ of error. This , court might have given a very different judgment, had the record been so framed as to bring the errors complained of fully before them. Any mistakes which have been committed by the jury, are not within our cognizance ; and if any errors were committed by the judge upon the matters submitted to him, the bill of exceptions has not been so framed as to bring those matter's within our consideration.

Writ of error denied — Dissentiente, JUDGES FIELD, R. B. TAYLOR and SCOTT.  