
    ALLEGHENY COUNTY,
    March Term, 1799.
    Pennsylvania v. James Stoops.
    
      STOOPS was indicted for the murder of Catharine, his wife.
    Her death was occasioned by burning. Her back, thighs, and legs were severely burnt. She survived it about three weeks.
    Her deposition taken in writing by a magistrate, about five days after the burning, and signed by him, was offered in evidence.
    
      
      Gilb. L. Ev. 133-5. 2 Hawk 607-8.-2 Bac. 286—1 Hale P.C. 48, 301, 660-1—1 Eq. Ca. 225-6. Sir T. Ray.1. 2 Eq.Ca. 396.
    2 Hale 284-5 2 Eq Ca. 417.
    
      Gilb. L. Ev. 133-5.
    1 Str. 500.
    
    1 Comm. 443. Hargr. Co. Lit. 6 b. 1 Str. 633. Bull Ni.Pri. 286-7.
    1 Str. 499.
    
      J. Campbell for the prisoner,
    objected to this testimony,—1. If the wife had been alive, she could not have been admitted for or against her husband. This is a general principle : they are but one person in law. Lord Audley's case is the ground on which all exceptions to this rule have been founded ; and it is now settled, case is not law. If she could not have been a witness, while alive, her deposition cannot be read after her death. For, if a witness be incompetent, when the deposition is taken, competency when it is offered in evidence will not make it admissible. It is true, that, after the death of the wife, one reason for this rule, the maintenance of domestic peace, and mutual confidence, no longer exists : but the rule is general, and controls all other considerations.
    2. This deposition is not signed by the deponent : it is, therefore, imperfect and inadmissible.
    Galbraith, for the state.
    The necessity of the case often requires the admission of interested witnesses, as in larceny, &c. Personal force and secrecy are reasons for admitting the testimony of the wife against the husband. The deposition of a witness, afterwards dying or unable to attend, may be read. A wife is a witness against her husband in an indictment for an assault and battery.
    President. I have been generally impressed with an opinion, that, in cases of secret personal injury, a wife may, on her own testimony, obtain protection against her husband, and be a witness, to procure his punishment. She may obtain surety of the peace from him, on her own oath. The only or chief ground, on which this has been doubted, the maintenance of conjugal peace, exists not after the death of the wife.
    
      The objection, that the deposition is not signed seems to rest on cases of examinations under certain acts of parliament, or of unfinished examinations. But if the declarations of the dying person had not been written, nor sworn to, would they not have been admissible ?
    In the case of the King v. Reason and Franter, the dying declarations of Mr. Luttrel, though not on oath, were given in evidence by a witness who heard them. And it was held, that a paper, on which his declarations on oath were written by the same witness, who was not a magistrate, though not signed by Mr. Luttrel, or by the magistrate who administered the oath, would have been better evidence, than the memory of the witness. In Woodcock's case, the dying declarations of a wife murdered by her husband, taken on oath, and reduced to writing by a magistrate, and signed by him, with her mark made on the paper in approbation of its contents, were admitted in evidence on an indictment of murder against the husband ; and, on this testimony, he was convicted and executed. This case was tried before judges of great learning and talents. Nor does it seem absolutely necessary, for the competency of such evidence, that such declarations should be made under an immediate apprehension of death, though that be one great ground of their competence and credit.
    
      Leach's Ca. 437.
    
      Radburne's case, Leach 399. Woodcock's case, Lead 437.
    
      Gilb.L.of Ev. 137-9.
    
    We will admit the testimony : but the point may be reserved.
    The magistrate who took the deposition proved, that it was drawn up in the words of the deceased. It stated, that on a frivilous offence, after scolding her, Stoops threw her on the fire, that she escaped from him, and got out of doors, that he pursued her, dragged her in again, threw her again on the fire, and held her on the fire, and burnt her so as she then was.
    
      Galbraith then offered to read a confession of James Stoops, written on the same paper, by the same justice.
    
      J. Campbell objected,that this confession was not signed.
    President. I consider this objection as arising out of the particular provisions of the English statutes.-We will admit the testimony : you may have the point reserved if you please.
    The confession was proved by the magistrate, and amounted to this :—That she was abusing him, and he had thrown her on the fire ; that she got up, and run out of the house, and, when she came in again, her cloaths were on fire. He denied that he dragged her back into the house ; and he gave no answer, when asked whether he had thrown her into the fire a second time.
    In all her conversations after the burning, she declared, that her husband threw her into the fire, and charged him with her death. He refused to let a physician be called to her :—One was called. He was examined as a witness ; and said, that, in some places, the skin and muscles were burnt away ; in some places, her flesh was like roasted meat, and, in some places, there were ulcers ; that it appeared impossible that she should survive ; and that the burning caused her death.
    It was proved, that both husband and wife were addicted to drunkenness, were often drunk, and quarrelled and fought with each other ; that she was often the aggressor ; that they were both drunk in the morning of the day on which the burning happened, that they were left alone in the house in that condition, before the burning, and found so, and in very ill humour with each other, after it.
    The prisoner’s counsel urged, that the throwing on the fire might be accidental, or in self-defence ; and the burning be from incapacity in her to rise, or him to raise her ; and that the killing was but homicide per infortunium, or, at most, manslaughter.
    
      Galbraith, for the state,
    admitting that it was not murder in the first degree, earnestly contended that it was murder in the second degree.
   The jury found him guilty of voluntary manslaughter ; and he was sentenced to imprisonment and hard labour for five years.  