
    James McDaniel vs. The State.
    In this state, by virtue of the statute H. & H. 610, § 37, upon every application for a continuance, the party must set forth in his affidavit the facts which he expects to prove by his absent witness or witnesses, in order that the court may judge of the materiality of such facts to the issue or issues in the case ; and this rule applies to criminal as well as civil cases.
    Applications for continuances are addressed to the sound discretion of the court, and the appellate tribunal interferes with extreme reluctance and caution; and will only do so when a palpable error has been committed, without the correction of which, manifest injustice will be wrought.
    Upon the application for a continuance, the court has to consider only the materiality of the facts stated in tHe affidavit and their supposed bearing upon the rights of the party ; and as the court is then not in possession of all the testimony in the cause, its means of judging of the propriety of the application are less satisfactory than at the conclusion of the trial; and therefore, if at the conclusion the court is convinced that the continuance should have been granted, it should allow a new trial; and if it refuse a new trial, the party excepting should embody all the testimony in his bill of exceptions, that the court above may see the bearing of the whole case ; and thus judge of the weight of the application for the continuance.
    The dying declarations of one who has been killed are admissible in testimony against his slayer, notwithstanding the constitutional provision that the accused “ shall be confronted with the witnesses against him ; ” their admissibility is confined to cases of homicide only. .
    It is essential to the admissibility of dying declarations and it is a preliminary point to be proved by the party offering them in evidence, that th'ey were made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that expectation, whether it be directly proved by the express language of the deceased, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct or other circumstances of the case.
    Dying-declarations received in evidence under the following circumstances. On the same day the1 mortal stroke had been given, a witness told the deceased, that he thought his deposition ought to be taken, as in the opinion of the witness he must inevitably die before morning ; the deceased replied he thought so too ; afterwards the deceased exclaimed “O Lord, I shall die soon.” His declarations were reduced to writing, read over to him twice and signed by him. The attending physician on the evening previous had held out to the deceased some hope of recovery ; but told him his chance was bad. The deceased lived some ten days after making the declaration.
    On the trial of a prisoner for murder, where the fact of the killing by the prisoner is clearly proved, it seems that it is inadmissible to show the character of the prisoner for peace or violence ; but if the guilt of the prisoner be doubtful, it seems such testimony is admissible and is not confined to the general character of the prisoner ; rebutting testimony as to character may be introduced by the prosecutor, and the presumption arising from such evidence of general character is, it seems, of little weight.
    On the trial of a prisoner for murder, who was found guilty, the court charged the jury that “ every homicide is presumed to be committed with maljce aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act; ” it was held, that the charge was too broad and unrestricted and omitted the important qualification, unless they appear from the evidence produced against him.
    Where on a trial for murder the fact of killing is proved and no accompanying circumstances, the law presumes the killing was done maliciously and jt will be murder; so if the attending circumstances appear and no express malice be shown, yet if the act of killing were done with a deadly weapon or under circumstances of barbarity and cruelty, the law presumes malice in the perpetrator; and if unopposed these presumptions may amount to full proof of the fact; and it is from these presumptions of law and the whole evidence in the cause, as well for the state as for the accused, that the jury must make up their verdict.
    The statute of Mississippi, in its definition of murder, uses the phrase premeditated design ; these words in legal effect are the same with the words malice aforethought in the common law definition.
    No trespass upon the personal property of another will authorize the killing of a man ; any such killing would be murder if committed with a deadly weapon.
    To constitute the offence of larceny, the goods alleged to have been stolen must have been wrongfully or fraudulently taken and carried away, with the intent to convert them to the taker’s own use and make them his own property ; if there be no such intention it amounts to a trespass only, and not a larceny. If the taking be open and in the presence of the owner or of other persons, it carries with it evidence that it is only trespass.
    To constitute robbery, it is not necessary that the person robbed must have been first in fear of his person or property; if the goods be taken either by violence or by putting the owner in fear, it is sufficient to render the felonious taking a robbery. '
    
      The court instructed the jury that “ a man who takes property claiming it for himself or another, commits no larceny ”; held, that the instruction was inaccurate ; it is not enough to do away with the criminal intent that there should be a mere false claim of property in the article stolen ; but if there be a fair, bona fide claim of property or right in the prisoner, the offence amounts but to a trespass.
    It is a question for the court to determine whether, under the circumstances of their utterance, the dying declarations of one killed are competent testimony ; when admitted it is for the jury to judge of the weight to be attached to them precisely as they judge of all other testimony.
    By the statutes of this state homicide is declared to be justifiable when committed in resisting any attempt to murder tbe person killing, or to commit any felony upon him, or upon or in any dwelling-house in which such person shall be ; it is not therefore justifiable when intentionally committed in resisting a mere trespass or a larceny; though the killing were actually necessary to prevent the trespass or larceny.
    Where the fact of killing by the prisoner is proved in a trial for murder, the rules which regulate the application of circumstantial evidence to cases of homicide where there is not positive proof of the killing, do not apply ; it is not therefore erroneous for the court to refuse to instruct the jury as to the nature and application of those rules ; even though the instructions asked are, as abstract propositions of law, legal and proper.
    It is not error for the court to refuse to give abstract propositions of law that have no relevancy to the case on trial, in instructions to the jury, even though such propositions be correct and legal.
    On the trial of a man for murder the court was asked by the prisoner to instruct the jury, “ that if they believed the deceased had taken the horse of the accused and was riding him off beyond the reach of probable recapture, and that the accused, after having repeatedly hailed him, slew the trespasser, he is not guilty of murder ” ; it was held that the instruction should not have been granted ; if under such circumstances the killing was with a deadly weapon, it would be murder.
    The statutory definition of robbery, in the first degree, to wit, the felonious taking the personal property of another in his presence, or from his person, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person ; does not alter the common law definition of robbery.
    In error from the circuit court of Hinds county; Hon. George Goalter, judge.
    James McDaniel being indicted for the murder of Alexander Frazier, was arraigned for trial in April, 1846, and plead not
    
      He applied by affidavit for a continuance of the cause on the ^.ound of the absence of two witnesses, residents of the county of Hinds, who were absent without his procurement or consent, whose evidence would be material for him, as they would testify to. facts which he could not establish by others.
    It is not deemed necessary to set out these facts; the court below overruled the application, and the prisoner excepted.
    R. O. Edwards, for the prosecution, testified that he was called to see Frazier after he was wounded, some ten or eleven days before his death; and during his conversation with him, he told Frazier his deposition ought to be taken, as in his (Edwards’s) opinion he would inevitably die before morning; the deceased responded that he thought he should die before morning; and afterwards said he thought that he should die soon. He exclaimed “0 Lord ! I shall die soon.” The witness had never seen the deceased before; an'd the subject of his approaching death was not alluded to until the witness introduced the topic. That a paper was then drawn up by one Stephen Holt containing the statements of the deceased as to the transaction in which he received the fatal wound ; which was twice read over in the hearing of Frazier, and sanctioned by him and his signature affixed to'it. Upon this preliminary proof, the court decided that the written statement was admissible in evidence before the jury, .as the “dying declarations” of the deceased. To this paper was affixed the certificate of a magistrate of the oath of the deceased, to the truth of the statements contained in it. The court however told the jury that they were to disregard the certificate and regard the statement only as dying declarations. An exception was taken to the admissibility of the paper. The statement was in these words, viz.:
    “ The State of Mississippi, Hinds county, November 24, 1845.
    “Personally appeared before me, an acting justice of the peace, Alexander Frazier, who, after being duly sworn as the law directs, deposeth and says, that on the 24th of this month to wit, November, A. D. 1845. as he was travelling on the road leading from the town of Raymond, in said county, to Yicksburg, about (he thinks) between the hours of twelve and two o’clock, he met a man of light complexion who said his name was McDaniel, and that he persuaded him to turn back and go with him to his residence, and made him such propositions as induced him to accompany him; the offer by the said McDaniel to the said deponent was to pick out cotton ; the said McDaniel inquired of him the said deponent if he had any money; the said deponent answered him that he had some; he says that they did not proceed far before they left the high road, being informed by the said McDaniel that he would go a nearer route to his residence than the usual one. The said deponent was on foot and said McDaniel was riding, but the said McDaniel dismounted and accompanied him on foot, leading his beast; that he the said deponent travelled in front, and the said McDaniel followed behind him; they did not .proceed far before they reached a creek bottom; they followed that some distance when the said McDaniel drew a pistol and shot him in the back; and he fell to the ground and cried out, and saw said McDaniel mount his horse and ride off in a gallop ; the beast said McDaniel was riding was a small mare pony, with white legs and feet, with a flaxen mane and tail, with a large white in her face; the said mare pony was presented before said deponent and he testified that she is the same; and further this deponent sayeth not.
    his
    ALEXANDER X FRAZIER’S mark.
    “ Sworn to and subscribed before me the above day andsdate.
    M. Johnson, J. P.”
    Edwards then testified that a pony had been shown to the deceased while thus wounded, as recited in his dying declarations, and that he recognized him as stated therein as the pony ridden by McDaniel.
    At this point the bill of exceptions recites as follows, viz. “ A short time after this the following question was propounded to said witness by the district attorney : 1 Do you know what became of McDaniel after the killing?’ This question being answered in the negative, the following was then propounded by the state: ‘ Do you know ‘anything touching the whereabouts of said defendant, and whether he absconded ? ’ This latter question was objected to by defendant’s counsel as leading; the objection was overruled, and the witness answered stating the particulars of a search having been publicly made after'the accused at his own habitation and elsewhere, and of a company having'been despatched in pursuit of him, who arrested him at the house of a near relative in the county of Scott, in this state.”
    Dr. Thompson was the only attending physician or surgeon at the bed-side of the deceased, and he testified that he examined the wound described in the indictment on the day of its infliction, and often afterwards; that he had repeatedly conversed with the deceased as to his prospects of recovery; and prior to the taking down of his “dying declarations” had told him his chance was bad, his recovery very doubtful, but had never held more decided language to him until after those declarations were taken, when he told him his case was desperate.
    Mr, Brooks testified that before the dying declarations were made, he heard Dr. Thompson tell Frazier that he would not recover, to which. Frazier made no reply.
    Holt, the draftsman.of the declarations, testified that before they were"written he informed the deceased that he was “very bad; ” that he hoped he would recover, but he probably would not, and that he desired on that account to take his deposition to be read in the event of his decease.
    The bill of exceptions, which is very imperfectly drawn, does not undertake to set out all or the principal part of the iesti-mony. The residue of the exceptions were in the following words, it being deemed advisable to set them out in full, viz. :
    “ The fact having been proved, by Graham, a witness on the part of the state, (the voluntary confession of the accused being first introduced by consent of the state and the accused) that the pony spoken of as being present at the time when the fatal encounter between deceased and the accused is alleged to have occurred, was and had been for some time before a subject of controversy between McDaniel, who claimed her as owner by reason of purchase from the former owner, a-young lady by the name of Mary A. Stewart, and various persons assuming to act in Miss Stewart’s behalf, she being a minor, and those contending for the pony for her, her relatives; and Graham having likewise proved that Miss Stewart’s father was his brother-in-law, had been dead for some years, and died in the workhouse; and that his daughter had, up to the time of Frazier’s death, resided with one Atwell, a near neighbor of McDaniel’s, being within the distance of a mile or a mile and a half; that Atwell was also a brother-in-law of Miss Stewart’s father, and that the witness had come to Atwell’s on the very day of the homicide, and arrived there about the very time of day when it is supposed to have occurred; the said Graham having stated also that he lived about twenty miles from the scene of combat, and had never been in the neighborhood but once before in his life (but explaining that in this instance he had actually come up on other business, viz. fqr the purpose of inducing a man whom he had once before employed to work for him, to return to service with him,) said Graham having in addition confessed that he after this period succeeded said Atwell in the custody of Miss Stewart the minor, not as a legally appointed, guardian, but on his own motion, as brother-in-law to her. father ; that he actually got possession on the very night of the killing, some hours after the killing was supposed to have occurred, without the consent of McDaniel or of his family, of this very pony, and that he carried off and sold her for thirty-five dollars. Under these circumstances, defendant’s counsel offered the evidence of Mrs. McDaniel, the mother of the accused, to prove that the deceased had been met by witnesses on the morning of the fatal encounter, and had inquired of Mrs. McDaniel for her son, and threatened to have the pony from him or to have blood ; and this evidence having been in fact adduced by the defendant, it was further proposed on his part to prove that Atwell, in whose care the orphan girl was at the time, and from whose hands she passed into that of Graham, had frequently before that time threatened to take said pony from the posses-session of said McDaniel, and that McDaniel had been distinctly and repeatedly advised of the claim and threat; but the court, at the instance of the state, refused to permit the threats or language of Atwell to be introduced as evidence.
    “After the general testimony in the case was closed, defendant’s counsel proposed to examine witnesses in proof of McDaniel’s good character as a peaceable and quiet citizen, for the purpose of rebutting the presumption of murderous intent in the present instance. Their mode of examination was this: they first propounded this interrogatory, “ Do you know the general character of the accused for peace or violence ? ” designing and avowing that if this should be answered in the affirmative, they would then proceed to ask the following question : “ From your knowledge of that gentleman’s character for peace or violence, would you say that you regard him as a man of violent or peaceful character 1 ” But the state objected to this mode of ■ examination, and,the court ruled that the only proper question in the beginning would be, “Do you know the general character of the accused 1 ” leaving out all allusion to peacefulness or violence, and afterwards to ask the question proposed by defendant’s counsel, and required that the defence should commence their examination in this mode, to wit, “Are you acquainted with the general character of the accused 1 ” The de-fence declining to propound the queries in that way, there was no examination at all on the head of character.
    “ When the testimony had on both sides been adduced, the following instructions were given and refused for the state and accused in manner as follows, viz.
    For the state these were given, viz.
    1. Every homicide is presumed to be committed with malice aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act. ,
    2. No trespass upon personal property will authorize the killing a man; any such killing would be murder if committed with a deadly weapon.
    3. To constitute the crime of larceny there must be a felonious taking as well as carrying away ; and it is necessary to larceny that the property should be taken in order to be converted to the defendant’s own use.
    
      4. To constitute robbery the person robbed must have been first in fear of his person or property.
    5. A man who takes property, claiming it for himself or another commits no larceny.
    The following instructions were asked for the accused, viz.
    1. If the jury believe, from the evidence, that the statement of the dying declarations of the deceased was not designed as a dying declaration, and that the same is not satisfactorily proved to have been drawn up at his instancé or subscribed by him Avith a perfect knowledge of its contents, and under a strong sense of his being about to die, or that he was on the verge of immediate dissolution, they are bound to disregard it in making up their verdict.
    This was refused.
    2. If the jury believe, from the evidence in the case, that there is reasonable ground for doubt as to the guilt or innocence of the accused upon any material point in the cause, that is to say upon any point necessary to be made out by the state, they are as much bound to acquit as if the state had failed upon every point.
    This was given.
    3. If the jury believe, from all the evidence in the case, that the deceased did not actually make dying declarations, designing them to operate as such, under a strong sense of impending dissolution, they are bound' to disregard all such evidence.
    This was refused.
    4. If the jury believe, from all the evidence in the case, that McDaniel killed Frazier, whilst the latter was attempting to carry off his pony without his consent with a view of permanently depriving the owner of the same; and for the purpose of preventing a fraudulent scheme of taking and carrying away said pony without his the said owner’s consent, and that the means employed by McDaniel, tvere actually necessary to such prevention, they are bound to acquit.
    This was refused.
    5. If the jury conceive, upon considering all the evidence, that there is one material fact or more of a character inconsistent with the hypothesis of guilt, they are bound to acquit.
    
      This instruction was refused as asked; and modified by the striking out the word hypothesis, and adding after “guilt" the words of accused.
    
    6. 'And this they must do though they find there are circumstances however material produced before them satisfactorily, which do not harmonize with the hypothesis of innocence.
    This instruction was neither given nor refused.
    7. It is lawful to exert such force against a trespasser who comes to take the goods of another as is necessary to make him desist; and if the jury believe from the facts that the deceased had taken the horse of the accused and was riding him off beyond the reach of probable recapture, that the accused after having repeatedly hailed him, slew the trespasser, he is not guilty of murder.
    This instruction was also refused.
    8. If the jury believe from the evidence that at the time of killing Frazier, the prisoner had reasonable ground to apprehend a design on the part of the deceased to commit a felony, or to do the prisoner some great personal injury, and that there was imminent danger of such design being accomplished, they are bound to acquit him.
    “ This instruction was also refused. '
    “ After the jury had retired from the box to consider of their verdict, they returned into court, and announced that they could not agree, and on coming in and thus announcing, the court inquired of them whether they wished to hear any of the testimony; they answered’that they did not, and wished to know whether they could find him guilty of murder, or manslaughter in the first degree? The counsel for the defence all the while objected to this intercourse between court and jury, and to any further instruction from the court to the jury, especially like this, on a point not instructed on before.
    “ But the court declared that it would not give any instructions to the jury, but give to the jury any information on any point of law which they might think pertinent to the case, and proceeded to instruct notwithstanding in these terms, viz. (and reduced the same to writing, the defendant being still present in person.) “ The jury are exclusive judges of what is proven before them and from the testimony before them, it is for them to say, whether or not the defendant is guilty of any offence on this indictment; they can say he is not guilty; or they can say he is not guilty of murder but is guilty of manslaughter, according to the testimony.”
    The jury found the prisoner guilty of murder, the court sentenced him to be hung, and he prosecuted this writ of error.
    The following errors were assigned :
    1. In refusing a continuance of the cause, on affidavit of prisoner, and forcing him to trial, in the .absence of testimony disclosed in said affidavit.
    
      2. In admitting the dying declarations of the deceased, on the preliminary proof adduced.
    3. In permitting the district-attorney to propound to the witness, Edwards, several leading questions, as disclosed in the bill of exceptions.
    4. In excluding the interrogatory propounded by prisoner’s counsel, to Mrs. McDaniel, a witness for the defence, touching the declarations and threats of Atwell.
    
      5. In excluding the investigation of the character of the accused, for peace or violence, in manner and form as defendant’s counsel sought to conduct such examination.
    6. In giving the second, third, fourth and fifth instructions asked for by the state.
    7. In refusing to give the first, third, fourth and seventh instructions asked for by the prisoner’s counsel.
    8. In instructing the jury after their retirement from the bar, and in opposition to the remonstrance of prisoner’s counsel.
    9. In modifying the fifth instruction asked for prisoner’s counsel.
    10. In disregarding the sixth instruction asked by prisoner’s counsel, and neither giving nor refusing the same.
    11. The court erred in passing sentence upon the accused.
    
      A. R. Johnston and H. S. Foote, for plaintiff in error.
    1. The court erred in refusing a continuance of the cause. The accused had used all legal diligence in an effort to procure the attendance of witnesses. The witnesses who were absent were important to the defence. Their testimony, if addu'ced, would have resulted in a mitigation of the offence, if not in an entire acquittal. Reference is made to the affidavit, as also to the remainder of the testimony in the cause, contained in the bill of exceptions.
    2. The paper, called “ dying declarations of the deceased,” ought not to have gone to the jury; because the preliminary proof required, w^.s hot adduced, prior to its introduction; because the magistrate who attested it, and administered the oath to declarant, was not produced; and because the whole mass of testimony relating to that document, shows that it ought not to have been admitted as an instrument of evidence. 1 Greenl. Ev. 186, 188, 189, 190; 1 Phil. Ev. 235; 1 Stark. Ev. 28, 29; notes to 2d Phil. Ev. 606.
    3. The state propounded' leading questions to its own witness, on direct examination. That was error. See the questions. For the principle of law excluding such questions; see 1 Greenl. Ev. 48l; 1 Stark. Ev. 149, and the notes, and cases there referred to.
    4. The testimony of Mrs. McDaniel, touching the declarations and threats of Atwell, was improperly excluded; because a narrative of that matter having been commenced by the state, it ought to have been continued by the accused, so as to bring out the whole transaction.
    5. The charge against the accused was murder! To negative the presuniption of guilt, his counsel proposed to institute inquiries touching his general character “for peace or violence.” This was refused by the court below. That it is error, is abundantly shown by the authorities. 1 Greenl. Ev. 61; 2 Stark. Ev. 314, 315, and the notes, as well as the cases there cited.
    6. The court gave the second, third, fourth and fifth instructions asked for by the state, and thereby committed error in reference to each one of those instructions. To show that the second instruction ought not to have been given, reference is made to the following authorities : 4 Black. Com. 180; 2 Stark. Ev. 524. The third instruction ought to have been rejected, 2 Stark. Ev. 443, 444; 4 Black. Com. note 8, p. 232 ; R. & R. C. C. 307; Burns’s Jus. 24th ed. 209; R. & R. C. C. 18; 2 Russ, on Crimes, 94. The fourth instruction for the state was erroneously given. 2 Russ, on Crimes, 61, and note A, on that page. H. & H. 708. The fifth instruction need only be read to show that it ought to have been refused. A mere claim to the property stolen, set up by a rogue, can never free him from the guilt of larceny. If so, all rogues would escape punishment, as it is an easy mattér to make a false claim.
    7. The court below improperly refused to give the first, third, fourth and seventh instructions asked for by the counsel of the accused. To demonstrate that it ought to have been given, reference is made to 1 Greenl. Ev. 186, 188, 189, 190; 1 Phil. Ev. 235; 1 Stark. Ev. 28, 29; note 1, on p. 191; 1 Greenl. Ev.’ And to show that the third instruction ought to have been given, the authorities last named are again cited. The fourth instruction ought to have been given; 4 Bl. Com. 180 ; 2 Stark. Ev. 523; How. & Hutch. 694. The seventh instruction is a correct legal proposition, and ought to have been given. How. & Hutch. 694.
    8. The court cannot, legally, instruct a jury after their retirement from the bar, and without a request from counsel engaged in the cause. In this case, no person asked for instructions, except a juror, and the prisoner’s counsel solemnly dissented to the procedure. How. & Hutch. Dig. 482, sect. 9; lb. 493.
    9 and 10. Reference to the authority last cited.
    
      E. A. Clarke, on the same side, filed a brief on the admissibility of dying declarations in view of the constitutional provisions in this state.
    Yannerson, on the same side.
    
      John D. Freeman, attorney-general, contra,
    cited 1 Peters’s Dig. 593; 1 Greenl. Ev. 188, 189, 190; Roscoe’s Crim. Ev. 31 — 33; 1 East PI. Crown, 357, 358; 1 Stark. 523; 1 Leach, 503; 6 Car. & Payne, 157, 386; 9 lb. 157; 7 lb. 187; 1 Harrison’s Dig. 1943; 1 Chit. Crim. Law, tit. Dying Declarations, and Phillips’s Ev.; Cowen & Hill’s notes, same point; 4 Chit.; Black. Com. tit. Larceny; Chit. Crim. Law, tit. Larceny; 5 Humph. 383.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an indictment for murder; in the circuit court of Hinds, which resulted in the conviction of the defendant. A great number of errors have been assigned as causes of reversal.' ■ The first is, that there was error in overruling an application for a continuance upon the affidavit filed. Our statute upon this subject lays down a very explicit rule. It provides, that upon every application for a continuance, the party shall- set forth in his affidavit the facts which he expects to prove by his absent witness or witnesses, in order that the court may judge of the materiality of such facts to the issue or issues in the case. H. & H. 610, sect. 37.

The continuance of a cause, is matter resting in the sound discretion of the court, and an appellate tribunal will never-interfere but with extreme reluctance and caution. To justify such interference there must have been a palpable error committed, without the correction of which manifest injustice will be wrought. 5 Humphreys, 568; Bellew v. The State, 2 Rob. Virginia Rep. 849; 10 Leigh, 692; 4 Humph. 202.

When the application for a continuance is made, the judge is supposed to know nothing of the testimony which will be adduced, he can therefore only determine the materiality of the 'facts stated in the affidavit, by the consideration of what might be urged in the defence, if they should be established. His means of judging are less satisfactory at that stage, than at the close of the trial. When a continuance has, in the opinion of counsel, been improperly refused, it is the regular course of practice to move for a new trial, after the verdict has been rendered, when the judge can see more clearly the bearing of the testimony sought to be introduced, and can have an oppor-' tunity of correcting his error, if convinced that he has committed one. If he refuse the new trial, the bill of exceptions, embodying the whole testimony, will furnish this court with the means of forming a correct conclusion. This is safer than merely to bring up the affidavit for a continuance, without all the other testimony in the cause. Whether the continuance was improperly refused in this case, we need not determine, as the judgment will be reversed upon another ground.

The next alleged error, which we shall notice, is the admission of the dying declarations of the deceased. The admission of such declarations in any case is an exception to the general rule of evidence. It is only permitted in cases of homicide, and the exception stands upon the ground of the public necessity of preserving the lives of the community, by bringing man-slayers to justice. 1 Greenl. 193.

It is essential, to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death ; but i't is not necessary that they should be stated at the time to be so made. It is enough, if it satisfactorily appears, in any mode, that they were made under that' sanction, whether it be directly proved, by the express language of the declarant, or be inferred from his evident danger, or the opinions of the 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 declarant’s mind. 1 Greenl. 195. The objection to their admission in this case, is that it does not sufficiently appear, that at the time the dying declarations were made, the deceased was sufficiently impressed with a sense of his impending dissolution. Upon this point the evidence is, first, that of R. O. Edwards, who testified, that on the night when the declarations were made, he told Frazier, the deceased, that he thought his deposition ought to be taken, as, in the opinion of witness, he must inevitably die before morning; — the deceased replied he thought so too. After-wards deceased exclaimed, 0, Lord! I shall die soon! His declarations were reduced to writing, read over to him twice, and signed by him. The attending physician was examined, who stated, that in the preceding evening, he had held out some hopes of recovery to the deceased, but told him his chance was bad. The interview with Edwards was during the following night; the deceased lived some ten days after-wards. It seems to us that every requirement of the law was fully satisfied. The situation of the deceased, the opinions of those around him, his own solemn declarations, all show, that at the time he believed he was on the very threshold of death. In Rex v. Mosley, 1 Moody Cr. Cases, 97, the declarations were made some eleven days before death, at a time when the surgeon did not think the case hopeless, and told the patient so; but the patient thought otherwise, and the declarations were received. 1 Greenl. 195, n.

We cannot yield our assent to the position, that the introduction of such testimony violates the provision of the federal constitution, which secures to the accused the right “to be confronted with the witnesses against him.” Such evidence has been admitted in many of our sister states, and excluded in none, so far as we know. It would be a perversion of its meaning to exclude the proof, when the prisoner himself has been the guilty instrument of preventing the production of the witness, by causing his death. This was expressly decided in Woodsides v. The State, 2 How. 656.

The objection that some of the questions propounded to the witnesses were leading, need not be the subject of remark. That point has already been sufficiently discussed in the case of Toomey.

An objection, is taken to the excluding of an inquiry on the part of the defendant, as to his general character for peace'or violence; the court holding that the inquiry must be directed to the general character, without reference to particular traits. The rule is, that where evidence touching the general character of the party is admitted, it ought manifestly to bear reference to the nature of the charge against him. But this evidence of good character in relation to the particular crime charged, seems to be only admissible in cases where the guilt of the party accused is doubtful. The prosecutor may introduce opposing testimony, and the presumption arising from such evidence of general character, is said to be of little weight. 1 Greenl. 65; 2 Starkie, 214; Roscoe, 89.

We shall now pass to the charges given by the court. The first given at the instance of the state, is in these words: “Every homicide is presumed to be committed, with malice aforethought; and it devolves upon the prisoner to prove the circumstances which excuse the act.” This charge is too broad and unrestricted. It contains only a part of the rule, as usually stated in the books, and omits the important addition, “unless they arise out of the evidence produced against him.” 1 Russ. 338 ; Foster, 255.

Every indictment for murder contains the charge that the prisoner did “ feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.” The fact of killing, and the intent, must both concur to constitute the crime of murder. They are both charged by the state, and if, from the whole evidence in the cause, the jury doubt.either of the fact of killing, or of the malice of the act, the prisoner is entitled to the benefit of such doubt; and to be either acquitted, or Convicted of a crime of less grade than murder, according to the circumstances. The jury must be satisfied that he is guilty of murder, before they pronounce him so. This by no means excludes a resort to presumptions in certain cases. When the fact of killing, with all its attendant circumstances, is clearly proved, and the testimony either shows express malice, or that there was no malice at all, there is no room for presumption.. But in cases where the killing is proved, and no accompanying circumstances appear in the evidence, the law presumes the killing was done maliciously .So , where the killing is proved, and the circumstances attending it are shown, though no express malice may appear from the proof, it may be presumed from some attending fact; as if a deadly weapon were used, the law presumes malice. So, if there be circumstances of barbarity and cruelty, the law presumes malice. These presumptions of law, if unopposed, may amount to full proof of the fact. They stand until the contrary is proved, or until such facts are proved, as are sufficient to raise a contrary and stronger presumption. 1 Stark. Ev. 452; Coffee v. The State, 3 Yerg. 283; Woodsides v. The State, 2 How. 666. From the presumptions of law, and the whole evidence in the cause, as well for the state as for the accused, the jury must make up their verdict. In its definition of murder, our statute, instead of “ malice aforethought,” uses the words premeditated design; in legal effect we regard them as the same. 2 Va. Ca. 88.

The second charge given by the court, is in these words: “ No trespass upon the personal property of another will authorize the killing of a man; any such killing would be murder, if committed with a deadly weapon.” This charge was correct. The kind of weapon used in such cases, determines the intent, and fixes the degree of guilt. If it be a deadly weapon, the killing will be murder. Commonwealth v. Drew, 4 Mass. 396; State v. Tellers, 2 Hals.; Roscoe Cr. Tr. 718 ; 2 Stark. Ev. 524.

The third charge given is likewise free from objection. It corresponds very nearly with the definition of larceny at common law. To constitute the offence, the goods must have been wrongfully or fraudulently taken and carried away, with the intent to convert them to the taker’s own use, and make them his own property. If there be no such intention, it amounts to a trespass only, and not to a felony. If the taking be open, and in the presence of the owner or of other persons, this carries with it evidence that it is only a trespass. Rose. 531, 536. The definition in our statute amounts to the same.

The fourth charge, which purports to give a definition of robbery, is not quite full enough. If the goods be taken either by violence, or by putting the owner in fear, it is sufficient to render the felonious taking a robbery. Rose. 832. To the same effect is our statutory definition.

The fifth charge given on the part of the state, is likewise inaccurate in some degree. It is not enough to do away with the criminal intent, that there should be a mere false claim of property in the article stolen. But if there be a fair, bona fide claim of property or right in the prisoner, the offence amounts but to a trespass. Rose. 537, 829.

The first and third charges asked for by the counsel of the .prisoner, have been already sufficiently elucidated in the remarks as to the admission of the dying declarations of the deceased. It is for the court to determine whether, under the circumstances, they are competent testimony; when admitted, it is for the jury to judge of the weight to be attached to them, precisely as they judge of all other testimony.

The second charge requested on the part of the prisoner, was given, and there is no complaint of it.

The fourth charge requested by the prisoner’s counsel was properly refused. It has been sufficiently explained in what has been said of the second charge upon the part of the state. A mere trespass, or a larceny, will not justify an intentional killing. Our statute declares homicide to be justifiable, when committed in resisting any attempt to murder such person, or to commit any felony upon him or her, or upon, or in any dwelling-house in which such person shall be. H. & H. 694.

The fifth and sixth instructions asked on the part of the prisoner were properly refused. They contained mere abstract propositions, bearing but remotely, if at all, upon the case, and their relevancy is not perceived. They propound a rule laid down by Starkie, in reference to cases dependent entirely upon circumstantial proof; a rule, however, which does not apply to cases in which there is positive proof.

The seventh charge asked for by defendant, was also properly refused. A portion of it consisted only of abstract propositions, having no perceptible connection with the testimony. If there be arty part not liable to this objection, it is that which asks the court to instruct the jury, “ that if they believe the deceased had taken the horse of the accused, and was riding him off beyond the reach of probable recapture, and that the accused, after having repeatedly hailed him, slew the trespasser, he is not guilty of murder.” If, under such circumstances, the killing was with a deadly weapon, we have already seen it would be murder.

We have thus adverted to nearly all the prominent points made in the argument, in order to have the principles settled by which the next trial will be governed.

The judgment is reversed, and cause remanded for another trial.  