
    THE STATE vs. ELIJAH ARNOLD.
    To an exception for tho rejection of evidence, it is a sufficient answer that it was irrelevant.
    Where evidence offered is irrelevant in law, and calculated to msilead or prejudice the minds of the Jury, it would be error in the Court to receive it.
    In the trial of an indictment for murder, when the dying declaration of tiie deceased is, that “ A. B. lias shot me, or has killed me,” the Court must presume, prima facie, that the deceased intended to state a fact, of which be had knowledge, and not merely to express an opinion. The Jury must judge of the weight of this, as of other evidence, by the accompanying circumstances. If he merely meant to express his opinion or suspicion, as an inference from the ether facts, the Jury should disregard it as evidence ill itself.
    "When the defence on an indictment for murder is, that the prisoner was under the age of presumed capacity, the anas of proof lies upon the prisoner. If the age can be ascertained by insj action, (he Court and Jury must'decide:
    On the trial of an indictment for murder, the affidavit of tile deceased, though not taken according ts the Act of 1715, is'competent and proper evidence, as a dying declaration.
    Appeal from the Superior Court of Law of Columbus Comity, at the Fall Term, 1851, his Honor Judge Battle presiding.
    This is an indictment for the murder of Simon Dyson. The prisoner appeared at his trial, in October, 1850,. to be small boy, but his age was not stated. Evidence was given on the part of fhe State, that, within a week or- two before the homicide, the prisoner had several times expressed ill-will towards the deceased, and threatened to kill him. One Alatilda Merritt then deposed : That the prisoner’s father lived three or four hundred yards from the house in which she resided, which was on land belonging to the deceased, and about half a mile from the residence of the' deceased: That, cm the 15th of May,. 1850, the prisoner came to her-house when the sun was about an hour high, in the evening, having his gun with him ; and thab á little before dark', there came up a heavy shower of rain, and the. deceased came in the house to get out of it, saying hé had been out hunting hogs : That the. prisoner refused to come into the house after the deceased entered, although the rain had commenced, but, after solicitations from her, he did come in; and he and the deceased soon got to cross questions, — the latter alleging several charges against the prisoner about his way of life, some of which the prisoner denied, but admitted others. After some time, they appéáréd to be reconciled, and the prisoner laid down on a table, and seemed to be sleeping; but, about 10 o’clock at night, he got up, and, though requésted by her to go to bed and stay-all night, he said he would go home, and took his gun and went out, but soon called from the yard for a light, in order, as he said, to catch a mole he had found. The witness then handed him a light-wood torch at the door', and he took it and appeared to be., searching on the ground ; but, in a few minutes, he put out the torch, and bid them good night, and, as the witness then thought, went home. There was, at the time, a bright fire in the room, and the door opening into the yard was about oné-fourth open, and the deceased was lying on the floor, with his feet toward the opening of the door, and about five feet front it. The witness was theníffetífcÉábn the part of the Stale, whether she and the dece¿^^H^®diately entered into conversation about the prisorSJMra||*íhe counsel for the prisoner objected to the questionnleilg answered ; but the Court permitted her to answer, that they did; and then, on the part of the prisoner, the witness Was required to state the conversation particularly, and she said, the deceased censured the prisoner’s way oflife, and spoke very disparagingly of biha. She farther deposed, that while she and the deceased were engaged in the conversation, the deceased remarked to her, that the prisoner “ was eaves-dropping, and heard what they were sayingand that she replied, that could not be so, for he had gone home; and the deceased said, ‘‘ no, he is not gone and in one or two minutes afterwards, which was about ten minutes after the prisoner had told them good night, a gun was fired, and the deceased shot, and at the moment, the deceased exclaimed, Great God! Elijah Arnold has killed me. Bring me some water, for I am a dead man !” The counsel for the prisoner objected to the admissibility of the deceased’s exclamation, but the objection was overruled. There was further evidence, that the ' shot struck the privy members of the deceased, and ranged upward into the body, cutting the intestines in several places, and a physician, who attended the deceased, gave it as his opinion, that.the shooting caused the death of the deceased, and, from the appearance of the wounds, that the person who fired the gun, could not have been more than ten, and, perhaps, not more than five, steps from the deceas • éd. The deceased lived until night of the next day ; and evidence was given, that he suffered great pain, but was all the while in his right mind., and repeatedly declared to the physician and others, that the prisoner, gud no other person, shot him ; and he, also, made an affidavit, in writing, before two magistrates, that Elijah Arnold shot him. He did not say, on those occasions, that he saw the prisoner shoot,pr that he did not see him, buts|^M stated the fact, that the prisoner, and no other personJiPt him.' The prisoner’s counsel objected to receiving the declarations and •affidavit; but there being satisfactory proof, that the deceased constantly declared, from the time he was shot until he died, that he believed he should die, they were admitted as dying declarations.
    
      The counsel for the prisoner alleged; that he was, appa-parently, under the age of fourteen years, and, thereforef that it was incumbent on the State to prove, that he was over that age, or, if under it, that he had such knowledge of right and wrong, as would render him responsible for the homicide, if he committed the act. The Court held the onus of proof to lie on the prisoner, as to his age. The prisoner was convicted, and from the judgment on the conviction, appealed to this Court.
    
      Attorney General, for the State.
    
      Troy, with whom was McDougall, for the prisoner, submitted the following argument: The only ground upon which dying declarations are admitted, is, that the circumstances under which they were made, are considered as creating an obligation to speak the truth, equal to that imposed by an oath in a Court of justice. 1 Greenl. Ev. sec, 156, Rex v Woodcock, 2 Leach’s Cr. Cas. 556 They are, consequently, inadmissible to prove anything, except what the party, himself, would be competent to prove, and are to be received in relation only to facts, and not to matters of opinion. Greenl. Ev. sec. 159.
    The ground of exception to the declarations in this case is, that they were merely the opinion of the deceased, drawn from the circumstances under which he was killed, and his own previous suspicions. And the more reasonable the deduction — the stronger the circumstances which fix the guilt upon the prisoner, the greater the probability that the declarations were only a matter of inference, and the stronger the reasons why the declarations, themselves, should come clearly within the rule.
    The declarations, and the circumstances under which they were made, in this case, are, to my mind, evidently such as to render them inadmissible* even if the previous! relation of the parties and. the facts connected with the transaction were not sufficient to raise, in the minds of the deceased, a suspicion that the' prisoner was the person who shop him; but, when all the accompanying circumstances are considered, it is evident that the strongest' possible 'suspicion against the prisoner, must have been induced in the minds of the deceased, instantly upon the firing of the gun by which he was killed. And, unless the deceased expressly declares, that, it is a fact to which he is testifying, and not an opinion, I submit that the circumstances are sufficient to exclude the declarations. -But there is no such expression. The declarations are equally as susceptible of the construction that they are the expression of an opinion, honestly and undoubtingly entertained by the deceased, as that they are a statement' of a faqt. And when it. is remembered that the deceased lingered in mortal agony, from one evening until the next, all the time in his right mind, and. every moment expecting dissolution, repeatedly speaking of the circumstances of his death, and having his attention drawn to the fact, that his declarations were to be used as evidence in Court, and that, during all that time, he did not once state whether he saw the prisoner, or what reason he had for declaring that he shot him, the conclusion seems to me to be irresistible, that the deceased did not see the prisoner. And when the time, the position of the parties, the impossibility of the person who fired the gun being seen by the light of the fire, and the great improbability of his being seen by the flash of the gun,- are -taken into consideration, this conclusion is greatly corroborated. And if those declarations are not clearly inadmissible, still there.is a doubt thrown around the real intent “and meaning of the deceased, that renders it extremely unsafeto admit, them ; for, ifadmitted, they amount to plenary proof that the prisoner is guilty of murder.
   Ruffin, C. J.

- The Court is of opinion that neither of the objections to the evidence is valid. As to the first, it is to be observed, that the details of the conversation be; tween the deceased and Merritt, were brought out by tha prisoner — the State proving, only, that they talked about the prisoner. The most that can be said against that is, that it was irrelevant. -The Court is not obliged to waste time and protract trials, by admitting irrelevant evidence, and, to an exception for the rejection of evidence, it is a sufficient answer, that it was irrelevant. But an exception to the admission of evidence, on the ground, of irrele* vancy, is, as a general thing, refuted on its face, since what is immaterial, cannot be supposed to hurt. It is not necessary to say, that á case cannot arise, in which evidence, really irrelevant in point of law, may be calculated to mislead or prejudice the minds of the Jury ; and, in such a case, its reception would be erroneous. But, clearly, proof of the fact, simply, that those persons talked about the prisoner, could have no such effect, and, if erroneous, would be no ground for reversing the judgment. The Court, however, is of opinion, that the whole conversation was proper evidence for the State. There was such a, probability that the prisoner was in the yard, and within hearing, that the Court ought to submit it to the Jury, as being prima facie in his presence, and calculated to call forth vengeance, unless the Jury think, under the circumstances, or from other proof, that the prisoner was riot in hearing; in which case they should be told not to allow any weight to the evidence.

The exclamation of the deceased, at the moment he was shot, was competent on several grounds. One is that above mentioned, that the prisoner was, probably, within hearing. Another is, that it was so immediately connected with the . principal fact of the shooting, as to be material to a proper . comprehension of the fact, and was a part of the res gestae. And a third is, that the wounded man seems to have been and fully convinced that he must speedily die from wound, so as to render this a most impressive dying declaration, because it was uttered before he could have made up an account, not founded on fact, but the result of ill-will or evil surmises against the prisoner.

The next objection is to receiving any part of the declarations of the deceased, as his dying declarations. Sev • eral grounds were taken in the argument. It was, principally, insisted, that they do not purport to state the fact, but only the opinion of the deceased, that the prisoner shot him; and also, that it did- not" appear, from the declarations, or from 'the situation of the parties, at the time, that the deceased had the oppbrtmty of knowing the fact, so as to enable hipa to express more than an opinion on the point. But, undoubtedly, the words do import, that the deceased was professing to state the' very fact. His language is affirmative throughout. “ Elijah Arnold has killed me : He, and no other person has shot me ” And, although the exception states, that the deceased did not, in so many words, say, that he saw the prisoner shoot, yet it sets out further, that the deceased, in his various declarations, always stated the fact, that the prisoner shot him. It must, therefore, be understood, prima facie, if not conclusively, that the deceased intended to affirm as a fact, that the prisoner shot him, and, of course, that he affirmed it upon his knowledge of it. The other branch of the objection, that it did not appear that the deceased could know the fact, and, therefore, that his declarations may have been matter of inference and opinion, seems rather to go to the credit1 to be given by the Jury to the declarations, than to their competency. As they purport in themselves to declare the fact, the Court was bound to submit them to the Jury, although the deceased did not go into the detail of his means of knowledge. If, in passing on their weight, the samp facts \ on which their competency depended with the Court, be j material to their credibility, the Jury must, of necessity, ] take them, as well as others, into their consideration for j that purpose. It might, therefore, have been a proper sub- j ject of observation to the Jury, that, although the deceas-j ed professed to state the fact, he did not expressly say, that he saw the prisoner shoot, nor how he knew the prisoner to be the person. They might have concluded, from the darkness of the night, the relatiw^jjiggifctnns of the door and fire-place, the degree tq^Pii^i^l^Jjojiag^vas open, the previous misunderstandingf^g^een the parljps, and other like things, that the deceased cud or á^0|8lá%ire the fact upon his own knowledge, Ql^&jporr suspicionjiand inference ; and. if the latter, th|y woahfo give no weight to the declarations. is no|^¡reen how the Court could reject an affirma'm=&wkey;d:e;díí?at¡on of a particular fact, upon a suspicion of some defect in the party’s means of knowledge, because he omitted to state them minutely. In this case, indeed, the circumstances, connected with the language of the deceased, are strong to show, that he had the means of knowing the fact, and that he knew what lie affirmed.

The person who fired the gun, must have stood in front of the door and very near it, and the deceased was lying within five feet of the door, with his feet and face towards it, and with a bright fire light thrown on the door, so that, either by the reflection of the light, or by the flash of the gun, the deceased may, and, it would seem, must have seen the person when he fired. Hence, the instantaneous exclamation, that the prisoner had killed him — an assertion which the deceased could not have honestly made, and in his condition -would not have made, touching the matter of fact, if he inferred it merely as matter of conjecture. But a further and decisive answer to the objection is, that it does ndt appear to have been taken on the trial. As the exception is understood, the objection at the trial was, that the declarations were not competent on the ground, that it did not appear they were made under the apprehension of "impending death ; for immediately after stating the objection of the prisoner’s counsel, the exception proceeds to state, as the reason of the Court for overruling it, that the Court was satisfied from the evidence, that the party made them under the belief, that he was dying; from which the inference is, that the objection was founded on that reason alone. Consequently, the facts are not stated with reference to any other point, and the decision here ought not to be on any other. Woodcock’s case, 1 Leach 500, is a direct authority, that the affidavit of the deceased, though not taken according to the act of 1-715, is competent and proper as being in itself a dying declaration.

On the last point the Court is also of opinion, that there was no error. The objection assumed as a fact, that the prisoner appeared to be under fourteen years of age. As there was no proof on the point, it could only be judged of by inspection, and, so far as that goes, it must be taken to have been decided against the prisoner, both by the Court and theory. As the subject of direct proof, the onus was certainly on the prisoner, as the reputed age of every one is peculiarly within his own knowledge, and also the persons by whom it can be directly proved.

PbR Cuiuam. There is no error in' the judgment, and the certificate will issue accordingly.  