
    CHARLES SHAW, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    
      Declarations made in extremis—when not admissible—hearsay evidence—Oowrtof Oy&r and Terminer—constitution of.
    
    Upon the trial of the plaintiff in error, on an indictment charging him with the murder of his wife, witnesses were allowed to testify, against his objection, to declarations of his wife, made in exti’emis, to the effect that he and another person were the cause of her suffering; that she expected that he and this person caused her death. Held, that the declarations were not statements of facts, but were simply the opinions and conjectures of the deceased, and that they were improperly received in evidence.
    The theory of the prosecution was, that the accused had poisoned his wife and three children, in order that he might live with one Sarah Briggs; the theory of the defense was, that the poison was administered by the wife in a fit of jealousy, caused by suspicions of improper intimacy between the accused and Sarah Briggs. The defense offered to prove declarations of the deceased, “ that she had poison and knew how to use it,” and that rather “than Mrs. Briggs should have her children, she would put them all under the sod,” which declarations were excluded by the court. Held, that their exclusion was error. ' ^
    Upon the commencement of the trial the court consisted of the presiding justice, the county judge, and the justices of the peace. After a portion of the evidence had been taken, the court adjourned from Saturday until Monday. On the assembling of the court on Monday, one of the justices was absent, but on the following day he resumed his seat and took part in all the subsequent proceedings. Held, that, as the justice who was absent on Monday did not hear the evidence taken on that day, and as the same was not read over to him, he was not qualified to take part in the proceedings of the court; and that, as the court was therefore improperly organized, a new trial should he granted. (Per Hardin, J.)
    Writ of error to the court of Oyer and Terminer of Washington county, to review the conviction of the'plaintiff' in error of murder. The plaintiff in error, Charles Shaw, was indicted at the February term of the Oyer and Terminer for 1873, for the murder of his wife, Julia Ann Shaw, by poisoning with corrosive sublimate; and Sarah Briggs was jointly indicted with him, as accessory before the fact. At the same term three other indictments were found against the plaintiff in error, as principal, and Sarah Briggs as accessory, for the murder, by poisoning with corrosive sublimate, of Elizabeth Shaw, Marietta Shaw, and Harriet Shaw respectively, who were the children of the plaintiff in error and Julia Ann Shaw. The plaintiff in error was tried at the October term, 1873. It was the theory of the prosecution, on the trial, that the deaths of Julia Ann Shaw and the three children were all caused by corrosive sublimate, mixed in whisky and administered to them by the prisoner at the same time, on the 13th day" of January, 1873, and on various occasions thereafter, during their illness, until his arrest. Elizabeth, Marietta, and Harriet died in January, and Julia Ann, the mother, February 5th, 1873. The alleged motive to the crime was, that the prisoner had become enamored of Sarah Briggs, and desired to be rid of his wife that he might form closer, permanent relations with her. The theory of the defense was, that the sickness and deaths of the mother and children were caused by improper food, innocently taken: sausages in a state of chemical change," eliminating what is described as “sausage poison”—the same food making others also seriously ill; or if the deaths were the results of criminal agencies, that the poison was, in fact, administered by the wife and mother herself, Julia Ann Shaw, in a fit of jealousy, caused by her suspicions of improper intimacy between the prisoner and Sarah Briggs. The prosecution accordingly proved, under the prisoner’s objections and exceptions, the entire transactions, including the acts of the prisoner toward the children, so far as his wife was connected therewith, and the alleged effects produced upon the children as well as the wife, by the potions administered to them, including the post-mortem examinations and chemical analyses of their remains. They also proved acts of intimacy, between the prisoner and Sarah Briggs, declarations and threats of the prisoner made previous to the illness of any of the members of his family, indicative of an intention to part with or to removeiiis wife out of the way, as an obstruction to the gratification of his desires. They also offered in evidence the declarations of the wife as to the cause of her sufferings, made during her illness and after she had abandoned hope of recovery. The prisoner’s counsel objected to the evidence as hearsay, incompetent and inadmissible, and on the ground that no proof had been made to bring them within the rule of dying declarations. The court overruled the objections, and the prisoner excepted. One of the witnesses then testified to the following declarations: “ She said that Charles and the Briggs woman was the cause of all this suffering, the cause of all this. * * * She remarked once that Charles and the Briggs woman knew all about this—something to that effect.” Another witness was permitted ■ to testify, under the same objection and exception, as" follows: “ I talked with Mrs. Shaw only once about the causé of her sickness; she said she expected it . was Charles and Mrs. Briggs.” The prisoner’s counsel offered to prove, in his defense, the declarations. of his wife several days before her illness, while talking in an excited manner about her husband and Sarah Briggs, “ that she (the wife) had poison and knew how to use it; and that rather than Mrs. Briggs should have her children, she. would put them all under the sod; ” and also “ that rather than Mrs. Briggs should be stepmother to her children, she would put them under the sod.” The counsel for the people objected to this evidénce as immaterial, irrelevant, and hearsay. The court sustained the objection and rejected the evidence, to which ruling the prisoner’s counsel excepted. Various other objections were made, and'exceptions taken, during the trial, by the prisoner’s counsel to the reception and exclusion of evidence. The jury found the prisoner guilty of murder in the first degree.
    
      Charles Hughes and D. M. Westfall, for the plaintiff in error.
    
      M. JD. Grover and James Gibson, for the defendants in error.
   CotTNTBTMAN, J. I

The declarations of the deceased, received in evidence, were shown to have been made in extremis, within the rule rendering them admissible as dying declarations. But in two instances they were, nevertheless, erroneously received, for the reason that the declarations were not narratives of facts, but were conclusions or conjectures of the deceased as to the cause of her illness. In one instance the declaration was, that the defendant and Mrs. Briggs were the cause of all her sufferings; and, in the other, in answer to an inquiry of the cause, that she expected it was Charles (referring to the defendant) and Mrs. Briggs. No facts were stated to the witnesses testifying to these declarations, directly or indirectly connecting the defendant with her misfortune, or from which an inference could be drawn by the court or jury concerning his connection with the alleged crime; but the declaration, in one instance, was a bare assertion of her opinion that he was the cause, and in the other a mere expression of her suspicion to the same effect. Neither of these- statements would have been competent evidence if the deceased had been alive and examined as a witness under oath; and they were therefore equally inadmissible as dying declarations. The limitations of the rule allowing the reception of this kind of evidence, should be strictly observed. It is even more important to exclude an opinion, declared in articulo mortis, than in an ordinary case, where the witness may be subjected to a cross-examination. In the latter case, the grounds of the opinion may be ascertained, and, if unfounded or untenable, the error exposed; while, in the former, there is no opportunity or means of testing its accuracy. The bare assertion and reiteration of- an inference or conclusion, which may have been honestly but mistakenly entertained, and may have been-founded on mere suspicion or conjecture, were, in this case, committed to the consideration of the jury as "equivalent to. positive statements of the fact, made on the personal knowledge of the declarant. The evidence was clearly incompetent, arid may have had a material influence on the verdict. It would be exceedingly hazardous, at least, to assume that it did not, or to speculate upon the probable weight attached to it in the deliberations of the jury. It is urged that the defendant is not in a position to avail himself of these errors, as the objections and rulings were made and exceptions taken to the questions, which it is claimed were proper in form, and not to the answers of the witnesses; and it is-insisted that if the answers or any portion of them were improper, it was incumbent on the defendant .to have moved to strike them out, and thus have raised the points as to their incompetency. This criticism, if technically correct, should hardly be entertained in a capital ease ; but it is not well founded in fact. The questions called for the conversations of the deceased “ about the cause of her sickness or condition; ” to which the defendant .objected as “incompetent and inadmissible,” among other grounds; and the answers were directly responsive to the questions. The defendant is therefore entitled to raise the points and review these erroneous rulings.

It was also an error to exclude the declarations or threats of the deceased, made several days prior to the illness of herself and children, that she had poison and knew how to use it; and that rather than Mrs. Briggs should have her children she would put them all under the sod. It is insisted, for the prosecution, that these declarations were no part of the res gestee, and are strictly within the rule excluding hearsay evidence. The case has many remarkable features. It was the theory of the prosecution that the deceased and four of her children were poisoned at one time and in the same manner, three of the children and the mother dying from its effects, while the other child finally recovered. Evidence was therefore given of the acts of the accused toward the children as well as the wife, and the effects produced on alhof them by the potions which were administered, including the postmortem examinations and chemical analyses of their remains. The dying declarations of the wife were received ; some of them, according to the testimony, directly tending to inculpate the accused as the person who administered the poison, and others delivered later to the coroner completely exonerating him from all criminal responsibility. It was also proven that the defendant had repeatedly threatened the life of his wife, prior to her illness, and made other declarations indicative of personal hostility and evil designs ; and as a motive to the crime, evidence was received tending to show the existence of illicit relations between the defendant and Sarah Briggs. On the other hand, upon the assumption that the deaths were the results of criminal agencies, it was the theory of the defense, that all the poison was administered by the wife and mother herself, under the exasperating influences, if not an actual delirium, of jealousy. The issue therefore on this branch of the case was direct and clear, that the poison was administered either by the accused or the deceased, the prosecution endeavoring to prove the former and the defense the latter theory. It is true the defendant also contended that the deaths had ensued from innocent causes, as the reception of deleterious food into the system, which had, in the process of chemical change, generated the poison. But in the event the jury were satisfied that criminal means had been employed, it was equally important and indispensable to the accused to show, if he could, that he was not the criminal. How could he do so more effectually than by proving that the real criminal was the deceased herself? All of the acts and declarations of the accused and the deceased, tending to throw light upon the cause of death, or upon any criminal relations of either of them with the proximate cause, were accordingly proper and original evidence: the acts and declarations of the accused, in favor of the prosecution, to prove his alleged guilt, and the acts and declarations of the deceased, in favor of the defense, to sustain the theory of suicide. The prosecution were properly permitted, in support of their theory, to give in evidence the threats of the accused against the life of the deceased, but it was equally proper and essential to the lights of the accused, that he should have been allowed to prove the threats of the deceased against her own life and the lives of her children. This was the best evidence, in the nature of things, that could be produced. Indeed it was the only evidence, and therefore admissible from necessity. There is no difficulty with this question on principle or the rules of evidence. It is riot necessary to regard these threats as a portion of, or as characterizing the principal transaction, and therefore admissible as a part of the res gestee, although the rule limiting this class of evidence merely to contemporaneous acts and declarations, is properly undergoing material modification. Bnt it "was original-evidence as distinguished from hearsay. The term hearsay, in its legal sense, as defined by the elementary writers, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part, on the veracity and competency of some other person, f The narrative given of a past transaction by the deceased, before she was under apprehension of death, as testified to by a witness who heard it, would clearly fall within the rule as hearsay, because, in determining the material question whether the narrative was true, it would be necessary to consider the credibility of the witness, and the veracity of the declarant. But the declarations of third persons, not under oath, do not always relate to past transactions, and are not therefore necessarily hearsay. Very often the material fact to be ascertained from the evidence simply is, whether the alleged threat or declaration was made, and not whether as a statement or narrative it was really true. In such a case the mere fact whether the declaration was made, depends solely on the credibility of the witness who testifies that he heard it, and such testimony is, therefore, strictly and properly original evidence. Now, it was a material fact, under the issues in this case, whether the deceased had ever threatened to resort to poison for the purpose of self-destruction, or the destruction of her children. It was, if true, an independent fact, of more or less importance, according to the circumstances, although it did not follow that she had actually carried the threat into execution. Her threat to commit suicide (whether in direct terms or by implication would only affect the weight of the evidence), was as competent and material for the defense as were the threats of the accused against her life for the prosecution. The utterance-of the threat is received in evidence as a fact or circumstance indicating an intention on the' part of the person making it to commit the crime; and, if the intention be clearly shown, a probability is thereby created, that, upon a favorable opportunity, it would be carried into effect. But this result, or probability, is wholly a matter of inference for the court or jury, in determining the weight to be given to the fact that the threat was made, in connection with the other evidence in the case. "Until the fact is established, there is no ground for the inference, and the proof of the fact depends exclusively on the amount of credit to be given to the witness. This precise question does not seem heretofore to have been the subject of judicial investigation in this State. The rule, however, above stated, was recognized, arid similar declarations admitted, by a very eminent authority on evidence, from his great learning and experience as a nisiprius magistrate, the late Judge Edmonds, in the case of People v. Knapp. Similar declarations were also held admissible, and the general doctrine considered and approved by the Court of Appeals, in the recent case of People v. Stokes. And in other States, whenever the question has been judicially examined, the same general conclusion has been adopted. For these errors the conviction and judgment must be reversed, and a new trial granted.

Habdin, J.:

Courts of Oyer and Terminer shall be composed of a justice of the Supreme Court, who shall preside, the county judge and the justices of the peace, designated as members of the Court of Sessions, and the presiding justice, and any two of the other officers above mentioned, shall hayq power to hold said court.

TJnder this provision the court was properly organized, when the trial was commenced before a circuit judge, the county judge of Washington county, and the two justices of the peace, designated as justices of the sessions of said "county. Several days were devoted to the taking of evidence, and an adjournment over Sunday had, before a court regularly and properly constituted. When the court reassembled, Justice Stebre was absent, and the court proceeded, composed of one justice of the peace, the county judge and the circuit ■ judge. The evidence taken on Monday, and during the absence of Justice Steers, was taken before a court composed of three of the officers named in the statute, having “ power to hold said court.” If the trial had continued to its close before the court thus constituted, it may be conceded that it would have been regular, and no error could have been predicated upon the absence of Justice Steere. But on Tuesday morning, after his absence from the court on Monday, and without having heard the evidence given during Monday, and without having read the evidence thus given during his absence, and without the evidence being again given, Justice Steere returned to the court-room, resumed his seat upon the bench, joined the court, and took part in its deliberations and all the subsequent part of the trial. Whenever an objection was made by the prisoner’s counsel to evidence, and it became necessary for the court to deliberate upon the proper ruling, Justice Steere took part, it must be assumed, and his voice and vote were as potential in affecting the rights of the prisoner, as well as the interests of the prosecution, as the vote of the other justice of sessions, the county judge or even the circuit judge. The latter three had heard all the evidence given upon the trial, and therefore could intelligently and understandingly pass upon the question involved in the deliberation. Certainly their understanding and intellects were better prepared, by reason of having heard the whole evidence, than was Steere’s who had not heard the evidence taken on Monday, when he was absent from the court-house. His vote and voice upon any question arising upon the trial after his return, may have produced a different result from what they would, had he remained during the whole trial, heard the whole evidence, and given his reflective judgment to it, preparatory to voting and speaking in the deliberations which ensued after his return to the bench which he had, so far as the parts of the trial which took place on Monday, vacated and abandoned ? It is not for us to speculate, in a case where the life of a prisoner is involved, as to the extent of the influence of the vote and voice of one who has not heard the whole evidence. The prisoner is entitled to the full benefit of the understanding and judgment of those who take part in the judicial deliberations which affect his life; he is entitled to all the forms of law, to all the provisions of the Constitution by which his rights are secured. Where life is involved, the law humanely provides that the prisoner stands upon all his rights, and does not and cannot waive them.

The learned counsel for the people insist that no error was committed by reason of the absence during a portion of the trial of Justice Steere. But we cannot say that no injury was done to the rights of the prisoner, for it manifestly appears that it may have done him some injury, It is provided by statute, that no judge shall decide “ or take part in the decision of any question which shall have been argued in the court when he was not present and sitting therein as a judge.” Though the technical language of that section may not apply here, yet the same reasons exist for holding that Steere should not take part in the decisions, necessary to be made, after his return to the trial, as apply under the statute above cited to prevent a judge from deciding when he has not heard the argument. We are referred to Corning v. Slosson, by the learned counsel for the people, where it was held, that three judges might hold a General Term and render a decision, when only two of them had heard the argument of the cause. In that case two constituted a majority of the court, and it was assumed that in the decision they concurred, and that they had conferred with their associate who heard the argument, but did not sit when the decision was handed down, and that the judge who had not heard the argument, and did sit to constitute a quorum when the decision was handed down, took no part in the decision. Here it must be assumed that Justice Steere participated in the trial, which resulted in the prisoner’s conviction and sentence of death; that at one stage of the trial, to wit, when the sentence was pronounced, he was essential to constitute a quorum. It was held in the case in 45 New York (supra), that asking the prisoner what he had to say, why the sentence of the court should not be pronounced, was part of the trial, and that its omission was error, and such a one as called for a reversal and a new trial, and that the court could not say that a regular and legal trial had been had, and under the amendment of 1863 remitted the record for the proper sentence and judgment. Also in People v. Lake it was held to be error in a court of Oyer and Terminer, to permit a physician who did not hear all the evidence relating to the mental condition of the prisoner, to give opinions as to her sanity, founded on the portions of the evidence heard by him. By parity of reasoning it may be said to be erroneous for a member of the court to 'take part in the deliberation, consultation and rulings,- when he has not heard the whole evidence given upon the trial, The participation of Justice Steers in the trial after his absence from the court-house, while the whole of Monday’s evidence was given, was against the provision of the law and Constitution giving a jury trial before a regularly constituted court, the members of which should hear all the evidence and proceedings. It certainly is-against public policy to allow a party to be deprived of his life by a tribunal, of which it can be said, that a portion thereof has not heard the whole evidence and proceedings which result in the sentence of death.

These views as well as those expressed in the elaborate and able opinion of brother Countryman, lead me to vote for a reversal of the conviction.

Bocees, P. J., and Hardin, J., concurred in the opinion delivered by Countryman, J.

Conviction and judgment reversed, and new trial granted. 
      
      1 Greenl. Evidence, §159; Roscoe’s Crim. Evidence, 28, marg.; Wharton’s Crim. Law, § 678.
     
      
       Insurance Company v. Mosley, 8 Wall., 397; Hanover R. R. Co. v. Coyle, 65 Penn., 402; Ransom v. Hoigh, 2 Bingh., 99; Commonwealth v. M’Pike, 3 Cush., 181.
     
      
       1 Greenl. Ev., § 99; 1 Phill. Ev., 185.
     
      
       1 Edmonds’ Select Cases, 177.
     
      
       53 N. Y., 164, 174.
     
      
       State v. Goodrich, 19 Verm., 116; Keever v. The State, 18 Ga., 194, 224-228; Commonwealth v. Wilson, 1 Gray, 337; Campbell v. The People, 16 Ill., 17; Cornelius v. Commonwealth, 15 B. Mon., 539.
     
      
       Vol. 4, N. Y. Stat. (Edms. ed.), 566, sec. 38.
     
      
       People v. McKay, 18 John., 212; Cancemi v. People, 18 N. Y., 128; Arundell’s case, 6 Coke, 14; People v. White, 22 Wend., 167; S. C., 24 id., 520; Safford v. People, 1 Parker Cr. R, 474; Shepherd v. People, 25 N. Y., 406; Blend v. People, 41 id., 606; Messner v. People, 45 id., 1; Stokes v. People, 53 id., 164; Dohring v. People, 2 S. C. R, 458.
     
      
      
         Shorter v. People, 2 Comst., 193; Willis v. People, 5 Parker, 647; People v. Fernandez, 35 N. Y., 49; Fralich v. People, 65 Barb., 48; Stokes v. People, 53 N. Y., 164.
     
      
       2 Revised Statute (Eds. ed.), 284, section 2.
     
      
       16 N. Y., 294.
     
      
       2 Kern., 362.
     
      
       McCann v. People, 3 Park. C. R., 272.
     