
    Anthony vs. The State.
    
      Homicide. — Murder in the first degree. To constitute this offence the killingmust be wilful, and malicious, and deliberate, and premeditated.
    SAME. Same. A killing* not superinduced by passion or provocation, deliberate ¿nd premeditated,'is murder in the first degree, though deliberated and premeditated but a moment.
    Same. Murder in the second degree. Manslaughter. A killing under the influence of passion,' or upon provocation, before the passion had time to subside, would only be murder in the second degree; — or manslaughter, if the provocation was a sufficient and legal one.
    The definition in Dale vs the State, 10 Yerger, 52, recognized.
    EVIDENCE. Bill of Rights. Dying Declarations. The provision of the Bill of Rights declaring the'right of the accused, in criminal cases,— ‘to meet the wit nesses face to face, and have compulsory process for obtaining witnesses in his favor,” is not violated by the admission of dying declarations.
    Same. Same. The principle asserted in the Bill of Rights, and that as to the admissibility of dying declarations, are coeval rules of the common law, The first was inserted in the Bill of Rights, because it had been maintained, with difficulty, against the Crown, by the popular party. The other had never been debated between them, and hence was omitted.
    Same. Same. Rule. If a dying person either declare that he knows his danger, or it is reasonably to be inferred; from the wound or state of illness, that he was sensible of his danger,'the declarations are good evidence.
    The Rule stated, 1 East. P. C., 354, recognized.
    On the 18th of December, 1837, the Grand Jury of Bed-ford county, indicted the defendant for murder, committed on the body of Mary, his wife, by feloniously, wilfully, and of his malice aforethought, shooting her with a pistol, charged with powder and a leaden bullet, on the 16th of December, 1837, thereby giving her a mortal wound, whereof she languished until the 17th of December, and then died.
    A capias having been issued, and the defendant arrested and committed to jail, he was brought to the bar the same day on which he was indicted, and being arraigned, pleaded not guilty, and issue.was thereupon joined, and, by consent, the cause was continued till April Term, 1838, when he was pu't upon his trial.
    Caroline Anthony, the defendant’s daughter, aged eleven years, swore that she and a negro woman had left the house a few minutes before the pistol fired to bury some cabbage; that when she returned her father was standing in the door, and the Ijaby was near him on the floor; that her father directed her to take out the child, which she did, and took it to the kitchen? that in about half a minute, after she got to the kitchen, she heard a pistol fire, and her mother exclaim. She immediately ran back, and her father was standing at the door with his pistol in his hand, and said to her — “I have killed your mother, don’t cry;” that she went into the house, and her father came in and said — “Polly have I hurt you, where did I hit you?” and then went away, and came back after a while with Mrs. Hiles and others. When the witness first went into the house, her mother was lying on the floor near the fire, and she got up, after her father went away, and crawled into the bed by herself. When the witness left the house to bury the cabbage, her mother was engaged in putting bats in a quilt. Her father and mother were then in a good humor, and had been so all that day. When she took the child from the door, her father had no pistols in his hands that she then saw. The pistols were usually kept in a chest-in the same room of the house.
    Mrs. Hiles, who, with her husband, lived about 250 yards from defendant’s, had dined at his house on the day of the killing, and had remained there till about an hour before it.— The defendant and deceased were as friendly and affectionate as could be. The defendant, immediately after the killing, came to her house with two pistols in his hands, and threw them at her feet. She and several others accompanied him back to his house. He was the first to suggest sending for a physician, and urged the messenger to go with speed; and though advised to make his escape, he remained at home during the whole night, and was under no restraint.
    Dr. Barksdale, the physician, stated that about ten or eleven o’clock on the night of the day on which the deceased was shot, he enquired of her, “Whether she was shot accidentally or by design?” The defendant’s counsel objected to his detailing the dying declarations, the witness stating that previous to his enquiry, he had made no communication to her, nor heard any made by any other person, informing her of her approaching dissolution; nor heard her say any thing concerning her consciousness of her approaching dissolution, only that she was suffering great pain, burning heat and great sickness of the- stomach; that the wound was a large pistol shot, and that such a wound, ninety-nine times in a hundred, produces death. He thought she was fast sinking at the time of his inquiry, but she did not die until the next day about 10 or 11 o’clock.
    The defendant’s counsel, upon this statement, objected to the witness’s speaking of the dying declarations; but the court overruled the objection, to which opinion the counsel excepted. The witness then stated, that in reply to his question, the deceased said — “It was done with design, and what she had long expected, but the defendant was not right.”
    Dr. Barksdale further stated that he had known the defendant for many years, and saw no evidences whatever of derangement or insanity on that night, or at any other time. He got to the defendant’s house in this county about dark, or a little after, a few hours after the shooting. The defendant paid no attention to his wife that night, but lay down by the fire. He stated that his attention was directed to the defendant during the night to see what was the condition of his mind, and was satisfied he was not insane.
    Thomas J. Loyd was at the defendant’s all the night after the killing — did not see the defendant wait on his wife until Dr. Barksdale had gone to bed, which was late at night. He lay with defendant at the fire.
    Samuel Sloan saw the defendant going along the road in April 1837, when some young mules having got around his colt, and hemmed it up, the defendant said — “It is a plot made up, and I must have blood, and now is as good a time as any.”
    Something more than twelve months before the trial, the defendant sent for witness, and when he went he found the defendant sitting some distance from the house on a log. He talked strangely, saying that he had made peace with God and God with his soul; that he could not sleep at nights and wanted laudanum; that witness got him some; that, on one occasion the deceased showed witness a vial of laudanum, and said she was afraid the defendant would do himself some injury; he had taken a small portion of one of the vials of the laudanum, which witness got him.
    Dr. A. M. Holt had known defendant for several years;-:— gaw him once two or three years ago, when he was laboring under a slight attack of mania a potu; had all the symptoms of (hat disease as contained in (he hooks; has seen hitn twice since, when he considered him partially imane from the same cause. The last lime was during the summer of 1837.
    Benjamii) Rives lived in a mile of defendant; was well acquainted with him, and never saw him at any time when he thought him deranged. At times, when he was drinking, his habits were like other drinking men’s. He drank by sjireess was always a shrewd, active, money-making man. (See Ray’s Med. juris. § 319 )
    There was other testimony concurring in stating hint to be sane and shrewd, and some stating vaguely that he sometimes behaved strangely.
    There was also testimony showing that he and bis wife had, in the spring of 1337, separated, and she had gone to her father’s, where she had staid till defendant persuaded her to return, and that they had had frequent jars.
    Dillahuntv Judge, holding the court instead of Anderson, Judge, charged the jury. The part of his charge excepted to by the defendant’s counsel was—
    “That to constitute murder in the first degree, it would not be sufficient that the killing was wilful and malicious (ó \ etg. 340.) It must also have been deliberate and premeditated; that, in the absence of passion or provocation, the length of time during which the prisoner deliberated and premeditated was immaterial; that if there was neither passion nor provocation, and the design to kill was formed, it would then make no difference vyhether that design had been deliberated on but one moment, one day or one week: (2) but if the design to kill was formed, under the influence of passion, or upon provocation, and the killing ensued before the passion had time to subside, it would only be murder in the second degree; or manslaughter, if the provocation was a sufficient and legal one, as above explained to the jury.”
    The jury returned a verdict in the following words: — “We find him, the defendant, Alfred Anthony, guilty of itlSfder in the first degree, in manner and form as charged in the indict» ment; but we are of opinion there are mitigating circumstances in his case.”
    December 17.
    The defendant was called upon by the court to know if he had any thing to say why judgment should not be pronounced against him, when his counsel moved that the cause be adjourned till the next day, which was done. On the next day, April 10, 1S38, his counsel moved for a new trial, which was denied, and the defendant being again asked whether he had any thing further to say why judgment of the law should not be pronounced against him, said he had not, whereupon the .court adjudged — “That the defendant should be confined in the jail and penitentiary house for and during his natural life', that he should pay the costs in this case; and that the sheriff of Bedford county he charged with the execution of this sentence forthwith.”
    Long, with whom was James Campbell, for the plaintiff in error,
    said — A reversal of the judgment in this case is asked for on three distinct grounds:
    And thereupon the defendant’s counsel moved the court for an appeal in the nature of a writ of error to the Supreme Court, which was granted; and a bill of exceptions, containing the above facts, among others, was presented, and signed and sealed, and made a part of the record.
    1. The charge of the Circuit Judge, “That in the absence ,of passion or provocation, the length of time which the prisoner deliberated and premeditated, was immaterial,” and that if the “design (to kill) was deliberated on but one moment,” it was the same as if deliberated on “one day or one week,” is erroneous, and particularly calculated to mislead a jury.— The act of 1829 requires that deliberation shall be proved before a killing, however wilful and malicious shall be deemed murder in the first degree, and punished capitally. This, the charge does not, in terms, deny, but erroneously undertakes to instruct the jury what time is necessary for deliberation to transpire in the mind. The word “deliberation,” 'as used in our statute, means just what it does in all other well written productions, and as defined in the dictionary — “the act of balancing in the mind, weighing, considering, hesitating,” &c. It is not a technical word or word of art, and always conveys an ¡jgg tfje very reverse of sudden or instantaneous. Deliberation is a mental process which requires more or less time in its performance, according to the complication of the subject deliberated on, and the activity of the mind engaged in deliberating. In fact, a design may be formed instantly, (or in a “moment”) and it may be formed deliberately; but the latter can only constitute the first degree of murder. This is too obvious to require argument; for if it were otherwise, the absurdity would follow, that an instant and a deliberate design to kill are one and the same thing — and if so, why insist on the word deliberate in the statute?
    This statute must be construed, s trie ti juris, in favor of life and liberty. This court have construed “deliberately” to mean “with cool purpose,” as opposed to a purpose formed in the heat of blood and warmth of feeling. Dale’s Case, 10 Yer. 551. But in that case, the length of time necessary for deliberation to transpire in the mind, was not discussed or considered. There, the intent to kill was expressed by Dale (when cool and unexcited) an indefinite time, from 5 to 20 minutes before the killing, as evidenced by the conversation which passed between him and the deceased. The court, therefore, only say what deliberation is, under the circumstances of that case, but do not so much as hint in what time it can occur. The court were only called upon to decide whether the defendant was actuated by passion, and there being no direct evidence of its existence, they were naturally led to inquire whether there was any provocation, from which passion mi«'ht be inferred. Neither passion or provocation appearing, and from three to twelve hundred “moments” having intervened between the absolute expression of an intention or design to kill, and the shooting, the court refused to say the jury were clearly wrong in finding the defendant guilty of deliberating. Suppose, for the sake of illustration, that the judge had told the jury, in Dale’s case, that deliberation could not transpire in less time than one hour, will any one doubt that such a charge would have been false in point of fact, and erroneous, because a matter of fact which should have been left to the jury altogether? This reasoning is exactly applicable to the present case. The judge told the jury, in substance, as a matter of fact, that deliberation may transpire in the mind in one moment. We contend, in the first place, that he was evidently mistaken in the fact; and, in the second place, that he erred in attempting to charge upon a matter of fact. The Constitution (Art. 6, sec. 9,) declares that judges shall not charge juries upon matters of fact, but may state the evidence and declare the law. What law provides that the human mind can deliberate upon any subject, no matter how intricate, or how sluggish the particular intellect engaged in deliberating, in “one moment, as well as one day or one week?” In order to escape this view of the subject, it may be contended that the charge of the court does not affirmatively state that one moment is long enough to deliberate upon any subject. This may, strictly speaking, be true — the-words are, “if the design (to kill) was deliberated on but one moment,” in the absence of passion or provocation; and, further, that “the length of time in which the prisoner deliberated and premeditated was immaterial,” &c. What could plain men understand from this lauguage, but that if a design was formed without any reflection or deliberation whatever, and then the defendant kept that design “one moment” in his mind before he executed it, he would be guilty of murder in the first degree, because he had “deliberated for one moment,” that being all that is necessary.
    It will be noticed that the charge of the court maintains that one moment’s deliberation must happen after the design is formed, in order to make murder in the first degree, but denies, provided there be neither passion nor provocation, that there need be even so much as one moment’s deliberation in the formation of that design. This is clear; from which it may be inferred, either that the judge considered it “immaterial” how suddenly the design to kill be formed, so that it be not formed in passion, or else that passion alone can prevent a design from being formed with deliberation. Provocation, of course, is only mentioned, because it is likely to excite passion. Did the judge, then, mean to state to the jury, as a matter of fact, that all designs, no matter how hasty and ill-advised, were necessarily formed deliberately, if not formed from the mere impulse of passion? If so, then it is objected, as in the other view of the case, that he mis-stated the fact upon which he improperly attempted to charge the Jury.
    The charge of the judge would have been unexceptionable had it stated to the jury, that if they believed the defendant had only one moment to deliberate in, and that he did, in fact, during that moment, áctüally “balance, weigh, and consider,” or deliberate the subject before he killed, then he would be guilty of murder in the first degree. But this he did not do. On the contrary, he told them it made “no difference whether the design was deliberated upon one moment, one day or one week” — that is, if defendant had consumed so much time as one moment in deliberating, but had not “weighed, balanced and considered” the design; or, in other words, had not completed the process of deliberating, stiil he was guilty of “deliberation,” and therefore of murder in' the first degree. Upon the whole, therefore, the jury were either misled by understanding the judge to' charge them that the process of deliberation could always occur in one moment; that is, that all minds, under all circumstances, can “weigh, consider and balance” all subjects in one moment, — or else, that if deliberation be commenced, but in “one moment,” and before the mind has “weighed, balanced and considered*’ the design, killing takes place, that it is murder in the first degree.
    Whether the verdict of the jury were influenced by this remarkable error in the charge of the circuit judge, it is not necessary to enquire, because impossible to ascertain with any certainty. This court, it is apprehended, will not refuse to correct an error of such magnitude as this is supposed to be, when appealed to for the purpose, because its application to' the particular case in which it is advanced, may not be very manifest. The great duty of this court is to correct errors and establish principles for the government of the country in all future time.
    Unless the foregoing view be mainly correct, it is respectfully submitted whether the distinction in murder contemplated by our statute, is not rendered unmeaning and insensible.— The enlightened and humane distinction in that act, expressed in plain and inartificial language, rejects, as absurd and cruel, the idea of trying all men, however different their temperament, habits, and education, by the same unbending standard. The common law made no allowance for passion unless excited by a certain amount of provocation — or, if you please, considered a certain measure of provocation necessary to excite passion in all minds. This is called a “sufficient legal provocation,” which was the same in all cases — the dull phlegmatic temperament being placed on a level with the sanguine or bilious. Our statute, on the contrary, very wisely discriminates in this respect, and says a killing, even without any legal provocation, shall not amount to the first degree of murder, unless it be premeditated and deliberate.
    2. The circuit court manifestly erred in admitting the dying declarations of the deceased, in the absence’of any proof of their having been made in apprehension of death. The ground upon which the judge admitted these declarations, the' “necessity of the case,” is believed to be novel and erroneous.Roscoe’s Crim. Law 25-6, 7 — and authorities there cited. 1. McNally 386. The opinion of the physician, not expressed to the deceased, could not affect her conscience, or place her under the obligations of an oath. This point is deemed too clear for argument, and is most confidently relied upon for a new trial.
    If it should be insisted that the defendant should not ask a reversal on this ground, because the declarations improperly admitted, supports the other defence, that of insanity, the answer is plain. No witness saw the killing — and the jury might have acquitted the defendant on the ground of accident, but for the deceased saying that he shot her by design; which was the only direct evidence on that point. If the jury had thought the insanity insufficiently proved, it is difficult to perceive how that of accident could have been avoided. The deceased was standing behind a bed-quilt, putting bats into it, when shot. The defendant was within a few feet of her. The' wound was low down on the left side of the abdomen — so' that he must have shot under the bed-quilt. This is inconsistent with a design to kill her: 1. Because a wound inflicted there, was not likely to produce instant death, which a wound in the head or chest would have done; and 2nd, because he could have fired his other pistol when he found she was not dead, and thus have cut off all evidence from her.— This he did not do, but sent for a physician, and made no attempt to escape. The insanity under which the proof shows him to have been laboring the morning before, may have caused him to have been handling his pistols without any sensible reason for so doing. Mania a potu, being a disease primarily of the nerves, and only affecting the brain secondarily, would render an accidental firing of the pistol in his hand, much more likely. Therefore, but for the declarations of deceased, that it was not so, the jury would, most probably, have decided that the shooting took place by accident, and may have convicted exclusively upon this illegal testimony. It is also insisted here, that dying declarations, are, by the Constitution of this State, inadmissable; which says, — ' “The accused shall be confronted by witnesses, face to face,” &c.
    3. But the great point upon which a reversal is asked in this case, is that of insanity. It is true, there is no positive evidence of insanity at I he moment of the killing, if the dying declarations be excluded. But in the great case of Hadfield (Roscoe’s Grim. Ev. 783,) the absurd doctrine of requiring what is nearly impossible, proof of insanity at the very time of killing, is completely exploded. The proof in this case exhibits habitual insanity for several years, and one of the strongest instances of it was manifested lo Hiles the morning before the killing. The disease of mania a potu usually occurs by paroxysms of from one to three days in duration, and results from intemperance most usually. On Thursday, defendant drank excessively; on Friday morning he was sober but insane, being the commencement of the paroxysm; and the paroxysms always increase in length as they occur more frequently. He had been subject to the disease for years, as Dr. Holt proves, and an attack of medium length would not have subsided before Sunday or Monday after the killing. But there are strong circumstances to prove this, aside from the general nature of the disease. Among these may be mentioned the apparent insensibility of defendant after his wife-was shot, and the remarkable fact that he attempted no excuse or defence at any time. It is almost impossible to conceive of a guilty matt remaining in tho presence of the person he had murdered for a day and night, unrestrained, and never once suggesting an excuse for the act. This is madness in the extreme. Ros* coe’s Crim. Ev. 784; 1 Hale’s p. 6, 32; 1 Russ, 8; 5 Mason 2S; American Jurist, vol. 3, page 5; Martin & Yer. 147. But the attention of the court is particularly directed to üat/’s Med. Ju. chap. 24.
    The Attorney General, on behalf of the state,
    as to the supposed error of his Honor in admitting the dying declarations, cited 2 Russell, B. G, § 3, pages G36 to G40, top paging, 3d Am. Ed. It is not left to the jury to say whether the deceased thought she was dying or not. That must be decided by the judge before he receives the evidence. John’s case, 1 East’s P. C. c 5, § 124; note in 2 Russell, loe. cii..; 15 Johnson, 286, Wilson vs. JBoem.
    In reply to the argument that dying declarations are inadmissible upon constitutional grounds, he said, that the right of a party accused of crime to meet the witnesses against him face to face, and the admissibility of dying declarations, for the .reason that the sanction under which they are made is of equal solemnity with that of statements made on 'oath, were principles of the common law of like antiquity and authority; that because the former had been questioned and denied in the relentless state prosecutions engendered in England by party animosity, it was thought by the framers of our constitution to be a rule of fundamental importance, and to be worthy of recognition in that instrument. But it was not to be supposed, that because a particular rule of law had, from adventitious circumstances, become invested with the character of a political principle, theiefore it annulled a correlative rule, introduced by the same authority, common usage, and founded upon reasons equally cogent.
    He said that there was no error in the explanations given by his Honor of what is necessary to constitute murder in the first degree, and cited Mitchell vs. The Stale, 5 Yer-ger, 340.
    Upon the point of the alleged insanity of the plaintiff in error, he referred to the 23d chapter of Ray’s Medical Jurisprudence, to show that the evidence, upon that point, bgd .not been developed, on the trial, with sufficient detail and precision, to be the basis of a decision. Nevertheless, he admitted, that the fact of the insanity was not destitute of probability. He cited Ray’s 24th chapter, and referred to Smollett’s remarks on the case of Earl Ferrers, c 33, § 9, of his History of England.
    December 14.
    He added that the testimony was comparatively unimportant, at any rate. It was not relied upon to prove the killing, but only to prove that it was done by design, a fact which the prosecution need not prove at all; since where there is .a killing, design is presumed, and the want of it is matter of .defence.
   Reese, J,

delivered the opinion of the court.

For the plaintiff in error, it is insisted, 1. That the circuit court erred in refusing to set aside the verdict and grant a new trial, because it is alledged, that the facts proved on the trial are not sufficient to sustain the verdict.

On attentively considering the proof set forth in the bill of exceptions, we are unable to come to the conclusion, that the evidence does not warrant the verdict. On the contrary, we are all of opinion, that the verdict of conviction is well sustained by the evidence; and indeed properly, and almost necessarily, resulted from it. It were a task neither neces? sary ,.nor profitable, to refer to the testimony, for the purpose of maintaining, by commentary and argument, the opinion which we have announced.

2. For the plaintiff in error it is insisted, that the circuit c.ourt erred in that part of the charge which relates to murder in the first degree; the part of the charge excepted to was as .-follows — “That to constitute murder in the first degree, it -would not be sufficient that the killing was wilful and malici,ous. It must also have been deliberate, and premeditated; ..that in the. absence of passion, or provocation, the length of time during which ¡he prisoner deliberated and premeditated wa? immaterial; that if there was neither passion nor provocation, and the design to kill was formed, it would make no .difference whether that design had been deliberated on bi;t .¡one moment, oue day, or one week; but if the design J.0 kill was formed under the influence of passion, or upon provocation, and the killing ensued -before the passion had time to subside, it will only be murder in the second degree, or manslaughter, if the provocation was a sufficient and legal one, as explained to the jury.”

We are all of opinion, that in the charge to the jury above quoted, there.is no error. It is maintained by the opinion of this court, in Dale’s case, 10 Yer. 552, that in cases other than those, the circumstances of which are specified in the statute, to constitute murder in the first degree, “the killing must be done wilfully; that is, of purpose, with intent that the act by which the life of a party is taken should have that effect — and deliberately; that is, with cool purpose,— .and maliciously; that is, .with malice aforethought, — and with premeditation; that is, a design must be formed to kill, before the act, by which the death is produced, is performed.” The opinion of the circuit court we regard as in exact con.formity to the above authority.

3. For the plaintiff it is insisted, that the circuit court ..erred in -permitting the declarations of Mary Anthony, the deceased, made in articulo mortis, to go to the jury, as testimony, and this upon two grounds; first, as being contrary to the bill of rights, which secures compulsory process for witnesses in behalf of defendants in criminal cases, and provides, that they shall be confronted with the witnesses against them; and secondly, because it did not sufficietly appear that Mary Anthony was conscious at the time of such declarations of her danger and of impending death.

Upon the first ground of objection, we are all of opinion, thatlthe bill of rights cannot be construed to prevent declarations properly made in articulo mortis, from being given in .evidence against defendants in cases of homicide. The provision in the bill of rights was intended only to ascertain and perpetuate a principle in favor of the liberty and safety of the citizen, which, although fully acknowledged and acted upon before and at the time of our revolution, had been, yielded to the liberal or popular party in Great Britain after a long contest, and after very strenuous opposition from the crown, from crown lawyers, and if I may so speak, crown statesmen. In this case, as in that of libels and some others,, the object of the bill of rights was not to introduce a new principle, but to keep ground already gained, and to preserve and perpetuate the fruits of a political and judicial' victory,, achieved with difficulty, after a violent and protracted contest. That our view of this question is correct, is made manifest by the fact, that after more than forty years from the adoption of our first constitution, this argument against the admissibility of dying declarations, on the ground of the bill of rights, is for the first time made, so far as we are aware in our courts of justice; and if made elsewhere it does not appear to have received judicial sanction in any state.,i

2. As to the other ground of objection, namely, that there is not sufficient evidence to show that the deceased knew or thought herself to be in imminent danger of death, at the time the declaration was made; a majority of the court are of opinion that it also is not tenable. The general principle deduced from all the cases is stated, 1 East. P.C. 854, to be that “it must appear that the deceased, at the time of making, such declarations, was conscious of his danger; such consciousness being equivalent to the sanction of an oath, and that no man could be disposed, under such circumstances, to belie his conscience, none at least, who had any sense of reli-ligion. But such consciousness need not have been expressed by the deceased. It is enough if it might be collected from circumstances; and the court are to judge of this consciousness previous to this sort of testimony.

The declaration in the case before us was made about twelve hours before the death of the deceased; and the physician to whom it was made, states that the wound was a large pistol shot, entering near the navel, and was such a wound as would ninety-nine times in a hundred produce death; that he thought at the time of the declaration that the deceased was fast sinking, but that he had made no communication to her, nor heard any made by any other person, informing her of her approaching dissolution, nor heard her say any thing concerning her consciousness of her approaching dissolution, only, “that she was suffering great pain, burning heat, and great sickness of the stomach.”

If the dangerous nature and character of the wound, the state and illness of the party, her sinking condition, and her statement of extreme suffering, and of those symptoms which usually precede death, are circumstances from which in any case the consciousness of danger can be collected, they exist in the present case, and would justify the inference of such consciousness. In Woodcock’s case, 1 Leach, 503, Old B. 1789, before C. B. Eyre, Ashhurst, J., and Adair, Serg., Recorder, when a woman, who bad been dreadfully wounded, and who afterwards died of the wounds made a declaration, the question was, whether it was made under the impression that she was dying. The surgeon said that she did not appear to be at all sensible of the danger of her situation, dreadful as it seemed to all around her, but lay quietly submitting to her fate, without explaining whether she thought herself likely to live or die. Eyre, C. B. was of opinion, that inasmuch as she was mortally wounded, and in a condition that rendered immediate death almost inevitable; as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation; her declarations made under these considerations were to be considered by the jury as being made under the impression of her approaching dissolution, for resigned as she appeared to be, she must have felt the hand of death, and must have considered herself as a dying woman. And in Winter’s case, 40 George 3d, McNally, 386, before Lord Kilwarden, C. J., and Kelly, J., the declarations of the deceased were received, although she did not intimate that she considered herself in a dying condition, or that she had any apprehension of immediate death, it appearing that she had been absolved, and received extreme unction from a Catholic Priest. In John’s case, reported in 1 E. P. C. 1790, from the MSS. of Bullet’, Judge, it was ruled in the trial, among other things, “that the evidence of the state of the deceased’s health, at tb'e;..time the declarations were made, was sufficient to show that she was actually dying, and that it' was to be inferred from it, that she was conscious of her situation.” The prisoner having been found guilty, this point, among others, was referred to the judges, who, at a conference in Easter Term, 1790, all agreed that it ought not to be left to the jury to say. whether the deceased thought she was dying or not, for that must' be decided by the judge before he receives the evidence. “And that if a dying person either declare that he knows his danger, or it is reasonably to be inferred from the wound or state of illness, that he was sensible of his" danger, the declarations are good evidence.”

Note. In the 21st vol. of the American Jurist, 468, there is a brief notice of a dissertation by C. I. Mittermaier upon criminal imputability. In this dissertation, the author, to arrive at a solution of the questions — By what signs is it to be known, that the agent has not a knowledge of the morality of his act, and the liberty to abstain from it? What degree of injury of the intellectual faculties is necessary to destroy imputability? — lays dowD the following practical

RULE.

In order to withdraw the agent from the imputability of his act, it is not aul-ficient that his mind should for the moment be blinded by a transient cause— it is necessary, that the feeling which impels him to crime should arise from a disease;

It is obvious that this rule or principle, so distinctly stated, does not mean that the inference may be drawn from the mere fact, that the wound, in the opinion of the man of science, was in point of fact mortal; but that the nature of the wound or the' state of illness should be such as to affect the knowledge, and control the opinion of the dying person himself, as to the danger to which he stands exposed; for in that very case, where the wounds were bruises and contusion from blows or kicks, all the judges but two held that there' was no foundation for supposing that the deceased considered herself in any danger at all. But in the case before us, the dreadful nature of the wound, the state of illness as proved by the physician and declared by the deceased herself, were' such as could not leave her, or any rational being in doubt as to her being in great danger of immediate death.

The evidence in question, in reference to the state of facts’ shown upon the record, was of very slight importance, if of any, on the part of the state; but we lay no stress upon' that consideration.

Let the judgment be affirmed.

That this disease should be its only source;

And that its power á'hoiíld b‘é so irresistable, that the liberty to’ afct ceases completely td exist.

When any form of insanity is relied upon as a defence, the inquiries to be made and prosbcüted by the triers, according' to this rule, would bfe--Was there a disease? If there was, what was the degree of it? And the solution oí these questions, it is manifest, would require a painful collection and investigation of minute and various facts, to be derived, in most instances, from unskilful witnesses, and involving a scrutiny of the prisoner’s past life. Should the disease be established, then the inqniry must be made — was the prisoner impelled to the act by the specific feeling which arose from the disease and that only? For in cases of strict monomania, the party is perfectly sane except upon a single point or subject; and hence monomanics are as capable of crime as others, except in the case only where they act under the influence of the feeling produced by the disease.  