
    *Jackson v. The Commonwealth.
    
    January Term, 1870, Richmond.
    1. Trial for Felony—Prisoner Must Be Present—The Right Cannot Be Waived.—Upon a trial for felony it is the right of the prisoner, a right which he cannot waive, to be present from the arraignment to the verdict. And if the evidence of a witness on the trial, which has been reduced to writing, or any part of it, is read to the jury in the absence of the prisoner, it is error, for which the verdict will be set aside.
    2. Evidence—Dying Declarations—inadmissibie if Hope of Recovery.—Though the deceased may have expressed himself and have acted in such way as to indicate that he had no hope or expectation that he would live, yet if he afterwards so expresses himself as to indicate a hope, his statements in relation to the contest in which he was struck, are not to he admitted in evidence as dying declarations.
    3. Same—Same—incomplete Utterance—Inadmissible. —A single sentence is uttered by the deceased, and he is then interrupted, and obviously has not completed what he had intended to say. It is not admissible in evidence for the prisoner.
    At the February term of the County court of Prince EJdward' for 1869, Nathaniel H. Jackson was indicted for the murder of Alexander Bruce. At the same term of the court he was arraigned, and demanded to be tried in the Circuit court of the county. At the August term of this court he pleaded “not guilty,” and was put upon his trial. After the evidence had been introduced, and the jury had retired for deliberation, they came into court and stated that there was a difference of opinion among some of the jurors in respect to a portion of the testimony of Atkins R. Dalby, a witness on behalf of the prisoner, and asked that he might be recalled, in order that he might be re-examinedr whereupon, a portion of *the -testimony of Dalby, as taken down, was read to thé jury; the said Dalby not being then in court; nor was the prisoner. But whilst the said testimony, as taken down, was being read, the prisoner was brought into court by the sheriff of the county; and the prisoner being in court, it was agreed by the counsel on both sides, that the said Atkins R. Dalby should be re-examined in person, in regard to such matters as the jury desired to enquire of him. Whereupon the said Dalby was called and re-examined by the jury and the court.
    In the progress of the cause, the Commonwealth proposed to introduce the dying declarations of the deceased; which were objected to by the prisoner; but admitted by the court; and the prisoner excepted. It appears from the record that the testimony was taken down at length under the supervision of the judge, and is given in full in the exception. The only question was, whether the deceased had given up all hope of living when the declarations were made. He received the wound- which caused his death, on the 26th of January, and died on the 28th. The phyrsicians who dressed the wound had no hope of his recovery, though another, who was called in to see him, did have at first some hope. One of them says:—I heard Mr. Bruce at no time express any hope of recovery. He was preparing for, and apprehensive of, death all the time. He frequently so expressed himself. Another of the physicians says:—Mr. Bruce was under the impression he would die; and was so impressed all the time. And also another physician, who said he manifestly thought he would die from his wound. Witness often heard him express himself, and never heard him express a different opinion. They all testify to his frequently repeating the expression, “what a horrid death.” It was in proof, too, that he made his will; and he requested one of the witnesses to take an interest in his former servants, and said he had left them a homestead for *each family. These conversations, however, referred to by the witnesses, were on the day he received the wound. Another witness stated that he sat up with the deceased the last night of his illness, from a quarter to' twelve o’clock till daylight. The deceased was asleep when the witness went in. When he awoke, the witness said to him, “Old man, you have had a very good nap.” He said “yes;” “who knows but I may get well. ’ ’
    Dr. A. S. Dillon, a witness introduced by the prisoner, stated that he called on the deceased the morning after he received his wound. In reply to some enquiries made of him by the deceased, the witness made some remarks touching the character of his wound, and endeavored to speak cheeringly to him. Just about then, very unexpectedly to the witness, he made a remark, in which were these words:—“I did not know he had cut me,” and had coupled with these words the word “when,” or “where.” Witness was more inclined to think, he said “when.” Thus:—'“I did not now when he had cut me.” With some earnestness witness interposed and stopped him, and told deceased he did not expect or wish him to make any statement to witness. Witness inferred from his manner, that deceased, intended to give him a statement;of the affair; and witness did not wish to hear it. Witness thinks he had given a complete sentence. The attorney for the Commonwealth moved the court to exclude the further testimony of the witness, on the ground that the deceased had not made to the witness a complete statement; which motion the court sustained, and would not permit the witness to testify further, and excluded the testimony above stated.' To which opinion of the court the prisoner excepted.
    After the jury had retired to consider of their verdict, they returned into court; and one of them stated,, that he wished the instructions of the court as to the *law of self-defence. Whereupon the court proceeded to give in writing instructions to the jury, as follows: “To avail of the doctrine of self-defence, a man must not have provoked a quarrel; and must have avoided a collision with his adversary so far as he could do so without putting’his own life in extreme peril. But when he could, without such danger to his own person, withdraw from the conflict, to kill his adversary is not a just exercise of the right of self-defence. ’ ’ To which ruling of the court the prisoner again excepted.
    The statement of the reading of a part of the evidence of the witness Dalby, in the absence of the prisoner, is given in the record as immediately preceding the application of the juror mentioned in the last exception; and may have been intended to constitute a part of the statement included in that exception, but it is not contained in the bill of exception, and is not expressly excepted to; but it is given as a part of the record.
    The jury found the prisoner guilty of murder in the second degree; and fixed the term of his imprisonment in the penitentiary at five years; and he was sentenced accordingly.
    There was a motion for a new trial, which was overruled; and the prisoner excepted; but it is unnecessary to notice it further. The prisoner applied to this court for a writ of error, which was awarded.
    Berkeley, for the prisoner:
    1st. Upon the question of the effect of reading the evidence of the witness Dalby in the absence of the prisoner, referred to Sperry’s case, 9 Leigh 623; Hooker’s case, 13 Gratt. 763; Wade’s case, 12 Georgia R. 25; Witt’s case, 5 Coldw. R. 18; Scagg’s case, 8 Smeedes & Marsh. R. 722; Bennett 6 Head’s Pead. Cas. 451, edi. 1857. And he insisted that it was not a question whether the prisoner had suffered harm by the reading of *'the testimony; but it is enough that harm might have been done, pithgow’s case, 2 Va. Cas. 297; Worrnley’s case, 8 Gratt. 712; Whitfield’s case, supra; Wash’s case, 16 Gratt. 530. And he insisted further, that the counsel could not consent so as to bind the prisoner.
    2d. Upon the law of self-defence he insisted :—That the construction of the court, confirming the right to a case in which the accused has not provoked the quarrel, and where there is extreme peril of life, was erroneous. That where the accused has provoked the quarrel, if he afterwards seeks to decline the fight, and is too fiercely set upon to retreat with safety, he may kill his assailant. Hale’s P. C. 479; Appendix to Wharton on Homicide, p. 451. That to justify the taking life there need be only reasonable fear of great bodily harm. 1 Arch. Cr. Pr. and PI. 223, 793, edi. 1860; Wharton on Homicide 216, 217, 223, 229, 1026-1028 ; Appendix 456 ; Chorler v. People, 2 Comst. R. 193; Id. 643, 659; Rex v. Fagent, 7 Car. & Payne 238.
    3d. That the deceased must have no hope of living in order to the admission of his statements as evidence. Dunn v. State, 2 Ark. R. 229; 1 Greenl. Evi. 184, § 156, note 1; 2 Russell on Crimes 755 ; Rex v. Fagent, 7 Car. & Payne 238, 39 Eng. C. L. R. 701; State v. Center, 35 Verm. R. 378; Wharton’s Amer. Cr. paw, (j 672.
    4th. That the evidence of Dillon should have been admitted.
    5th. The prisoner should have pleaded in the County court, before he was sent to the Circuit court.
    The Attorney General, for the Commonwealth. It is submitted on the part of the Commonwealth, that there is no sufficient error assigned by the prisoner to justify this court in setting aside the judgment of the court below.
    The last error assigned by the prisoner will be the first noticed by the Cornmonwealth, for the reason that, *if this error be sustained by the Court of Appeals, it will be unnecessary to examine any of the other errors assigned. This error strikes at once at the jurisdiction of the Circuit court; and it is claimed for the accused, that, under the provisions of the act of the general assembly of 1866-7, chap. 208, p. 931, “that trials for felony shall be in the Count}' courts, &c., except that a person indicted for an offence punishable with death, ‘may, upon his arraignment, demand to be tried in the Circuit court,’ &c. ; and that upon this demand, the prisoner shall be remanded for trial in the Circuit court;” and that although the prisoner upon his arraignment exercised his right and demanded to be tried in the Circuit court, yet the County court erred in allowing him to exercise his rights in this behalf before he had pleaded to the indictment, and that the Circuit court erred in allowing the pleadings to be made up after the case had reached that court.
    There is nothing in the statute requiring the accused to plead before being remanded to the Circuit court for trial. The words of the statute are, “may, upon his arraignment, demand to be tried in the Circuit court,” &c. This provision is for the convenience and benefit of the prisoner. It might not be convenient for him to enter his plea at the time of his arraignment; especially if he contemplated delay by having his case submitted to another tribunal. Arraignment is one thing; pleading is another. The one is the act of the Commonwealth ; the other, the act of the prisoner ; and it seems that he is left free to exercise this right after the same is remanded to the Circuit court. It is humbly submitted, that the authorities cited by the prisoner in support of this error, do not sustain his view of the case. In Matthew’s case, 18 Gratt. 989, it will be seen that the prisoner exercised the right of pleading after his cause had reached the Circuit court; and although the Court of Appeals did not pass upon the question in that case, *it would seem that the practice of pleading in the Circuit court in such cases was at least .recognized by the Court of Appeals.
    2. The first error relied upon by the prisoner, when compared with the facts shown by the record, do not show such error or misconduct on the part of the court as will justify a new trial. The authority cited by the appellant, in the case of Sperry v. Commonwealth, 9 Eeigh 623, is not controverted, when properly applied; but in this case, accused was brought into court, and the witness re-examined in his presence by the jury, and, it seems, was not objected to by the accused. No injustice seems to have been done the accused by the reading of a part of the evidence, as taken down, as the witness, being re-examined, must have satisfied the jury as to the correctness of the evidence of the witness. If the evidence read was not the true evidence of Dalby, certainly testimony, as given by himself to the jury, after the reading, was the true evidence.
    3. As to self-defence, the court below substantially stated the law, to the jury at least, as it is defined by the Court of Appeals, in the case of Vaiden. See 12 Gratt. 717. The prisoner lays the rule down too broadly; court has a right to charge the jury in criminal cases.
    4. As to dying declarations. Can it be said that dying declarations of Bruce were given to the jury? It is true, the record states that the court allowed the statement made by Bruce to witness Byle, to go to the jury as dying declarations. If the statements of Bruce are relied on as dying declarations, they should have been given to the jury, for the reason that, from the time he was stabbed to his death, he expressed the constant apprehension of dea th, and the belief that he would die. He 'seems to have been fully satisfied in his mind that he must die. But suppose the evidence not good, in the strictest sense, as dying declarations, *they are certainly good evidence as forming a part of the res gestae. See Bivingston’s case, 14 Gratt. 592; also Vass’s case, 3 Beigh 786; Hill’s case, 2 Gratt. 594; 1 Greenl. Bv., g 156 to 162; Bull’s case, 14 Gratt. 613.
    5. The rule of evidence is well established, that a party cannot give in evidence a mere part of what a witness said—if any part is to be heard, it must be all that was said; garbled statements must be excluded; and as A. S. Dillon could not state all that was said, he was properly ruled out by the court.
    
      
      For monographic note on Dying Declarations, see end of case,
    
    
      
      Triai for Feiony—Prisoner Hast Be Present—The Right Cannot Be Waived.—The rule is well established that a person on trial for a felony must be present in person, and not by attorney, from the arraignment to the verdict and the record must show his presence, nor can he waive the right. See Sperry v. Com., 9 Leigh 623; Hooker’s Case. 13 Gratt. 763; Lawrence’s Case, 30 Gratt. 845; Bond’s Case, 83 Va. 587, 3 S. E. Rep. 149; Snodgrass v. Com., 89 Va. 688, 17 S. E. Rep. 238; Shelton v. Com., 89 Va. 453, 16 S. E. Rep. 365.
      Presence of Prisoner—When Inferred from Record.— See foot-note to Lawrence’s Case. 30 Gratt. 815.
      Same—When Unnecessary.—See foot-note to Lawrence's Case. 30 Gratt. 845.
      Same—Before Arraignment—Order Made. —Va. Code, ch. 208, § 3, which provides that a person tried for felony shall be personally present during the trial, does not apply before his arraignment; and therefore before arraignment an order may be made in his absence. Boswell v. Com., 20 Gratt. 860.
      Same— Same— Continuance.— Before arraignment the prisoner need not be present when his case is continued. Kibler v. Com. 94 Va. 804, 26 S. E. Rep. 858. See also, Anderson v. Com., 84 Va. 77. 3 S. E. Rep. 803. On’‘Continuances,” see generally, Harman v. Howe, 27 Gratt. 676.
    
   DORMAN, J.

The question raised in this case respecting the right of a prisoner to plead or not, upon his arraignment in the County court, when, under the statute, he makes a demand to have a trial in the Circuit court, and what is meant by arraignment in that clause of the statute, have, at this term, been already determined by this court, in its decision in the case of Whitehead v. The Commonwealth.

The first ground of error alleged in the petition of the prisoner, is, that after the evidence was closed and the jury had retired to consult upon their verdict, differing as to the testimony of one of the witnesses, they came into court, requested to hear again the testimony of this witness, the court permitted a portion of the testimony of the witness, as taken down, to be read in the absence of the prisoner as well as the witness. Prom the record it appears, that sometime during the reading of the notes of this testimony, the prisoner was brought into court; and also, that the witness, being afterwards present, was re-examined, by consent of all parties.

How much of the testimony as taken down was read, in the absence of the prisoner, does not appear. Prom the way it is mentioned, it must be presumed, that a considerable portion of it was thus read to the jury in the prisoner’s absence. No principle is supposed *to be better settled, and, in all criminal trials of the grade of felony, more rigidly adhered to than that in all such trials, the prisoner has a rig'ht to be present in every stage from the arraignment to the rendition of the verdict. It is held to be a right of which he cannot be deprived, and which he cannot waive. So imperative is the rule of law, that no part of the trial can proceed without him. If witnesses are examined, he must have an opportunity to hear and know what they say. If notes of the testimony are, afterwards, read to the jury, it is no less his privilege and right to hear the reading of it. How much influence the reading of the testimony in this case may have had upon the minds of the jury, it is impossible to determine. It is not, however, a question, whether the effect of the reading of the testimony, in his absence, was unfavorable to him, or otherwise, or how far his case was affected by it, if at all. Under the established and safe practice in criminal proceedings, the reading of this testimony was irregular and in violation of the rights of the prisoner, who must be present at every part of the proceedings. In his absence, there can be no trial. The law provides for his presence. And every step taken in his absence is void and vitiates the whole proceeding. On this point all authorities agree. And no question can be raised, as to the extent of the injury done to the prisoner, or whether any injury resulted from his not being present. Circumstances might occur, were the practice to obtain, where great wrong would result. The possibility of wrong is sufficient to secure in all trials, involving life and liberty, the rigid enforcement of the law.

Bishop on Criminal Procedure, § 687, says, “The prisoner cannot be deprived of his right to be present at all stages of the trial.” $ 688, he states, “In a case of felony or treason, the prisoner must be present during *the whole of the trial, including the giving in of the evidence and the rendition of the verdict.” The reading the testimony of a witness, at the request of the jury, who differed about it, constituted a part of the trial, “the giving in of the evidence. ’ ’ It may have been the part of the trial which determined the character of the verdict, and the accused had a right to be present and know all that was said or done on his trial.

In Andrews v. The State, 2 Sneed’s R. 550, the court declares, “In criminal cases of the grade of felony, where the life or liberty of the accused is in peril, he has the right to be present, and must be present during the trial and until the final judgment. ” This decision'was placed in part upon the bill of rights in Tennessee. But it is questionable, whether, in criminal trials under the general law regulating such trials, a party accused has not every privilege granted by that bill of rights. See, also, Witt’s case, 5 Coldw. R. 11; People v. Perkins, 1 Wend. R. 91; Rex v. Streek, 2 Carr & Payne’s R. 413.

In Wade v. The State of Georgia, 12 Georgia R. 25, it is declared, “The court has no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto, in his absence. The defendant has not only the right to be confronted with his witnesses, but he has also the right to be present, and see and hear all the proceedings which are had against him on the trial before the court. It is said, the presumption must be, that the court read the testimony correctly, and read over all that was declared against the defendant; therefore he was not injured. The answer is, it was the legal right and privilege of the defendant, to have been present in court, when this proceeding was had before the jury, in relation to the testimony delivered against him; and he is to be *considered as standing upon all his legal rights, waiving none of them. ”

These are citations sufficient to show the strict adherence to the rule in all trials where the life and liberty of the accused is in jeopardy. The law is made for the protection of the citizen, and all are alike amenable to its penalties and entitled to its immunities. Whatever may be the turpitude of his offence, however great his criminality, every man has a right to an impartial trial according to law, and, till found guilty by his peers, that law presumes him innocent ; and gives him the right to be present, to see and know all that is said or done by the court affecting his case. From reason and authority it seems to be clear, that the court erred in permitting any part of the testimony taken down to be read over to the jury in the absence of the accused.

The third ground of error alleged in the petition of the prisoner, is the admission of statements of the deceased as dying declarations. The law controlling the admission of this species of evidence is well settled. The only difficulty arises in its application to the facts of a particular case. So diverse are these facts, and so varied in all the circumstances attending each case, that embarrassment often arises in the proper application of the law to the facts shown to exist. The apparent conflict in the determinations on this point, proceed mainly from the imperfect understanding of these attending circumstances. It is difficult often to present them fully and correctly in a record of the case. Much, in every trial, must be left to judicial discretion, and the presumptions must be in favor of a right exercise of such discretion by the court. Yet, in the haste and excitement of a trial, errors may, and do occur, calling for correction by an appellate tribunal.

These dying declarations are an anomaly in the reception of evidence, and are only admissible where all *hope, not only of ultimate recovery, but of a prolonged continuance of life, has left the mind of the person making them. In Rex v. Hayward, 6 Car. & Payne R. 157, Chief Jrtstice Tindal thus expresses the rule: “Any hope of recovery, however slight, existing in the mind of the deceased at the time the declaration is made, would undoubtedly render the evidence of such declarations inadmissible.” See, also, 1 Wharton’s Am. Crim. Taw, $ 671. In Bull’s case, 14 Gratt. 620, it is thus laid down: “The rule of law is now well settled, that to render dying declarations admissible evidence, they must be shown to have been made when the declarant is under a sense of impending death, and without any expectation or hope of recovery.”

In the evidence disclosed in this record, there is much which would bring these declarations of the deceased within the rule as above laid down. He seemed impressed with the belief, that he must soon die of the wound inflicted upon him. He generally so expressed himself. In preparation for death, he made his will; yet, after these declarations were made, he used an expression as to himself, which seemed to indicate, that all hope of recovery was not gone from his mind. When told by an attendant that he had had ‘ ‘a good nap, ’ ’ he replied, ‘ ‘yes, ’ ’ “who knows but I may get well. ” This certainly implies the existence in his mind of a possibility, if not a probability, of recovery. It would seem that at that time he was not “without any expectation or hope of recovery.” From all the attendant circumstances of this case, as presented in the record, the conclusion reached is, that these declarations were inadmissible.

The fifth ground of error alleged in the petition of the prisoner is, that the court erred in its refusal to admit the testimony of the witness Dillon, respecting the statement of the deceased to him. This will be more clearly presented by quoting from the testimony. On *page 99, the witness says: “Just about then, very unexpectedly to me, he made a remark, in which were these words: ‘ ‘I did not know he had cut me, ’ ’ and had coupled with these words the word “when,” or “where;” I am more inclined to think he said when; thus, “I did not know when he had cut me.” With some earnestness on my part I interposed and stopped him ; I told him I did not expect him to make a statement, nor did I wish him. I inferred from his manner that he intended to give me a statement of the affair, and I did not wish to hear it. I think he had given a complete sentence. ’ ’

In the way this sentence, or part of one, was uttered by the deceased, it plainly presents a portion, and probably only a very small portion, of the facts designed to be communicated when uttered. There is not from the record the slightest reason to conclude that, as it stands, this expression was intended to be the whole truth respecting the circumstances of the death of the deceased, or any considerable portion of them. Were it certain even the sentence was completed, it was manifestly only the commencement of a narrative, which was interrupted. The witness is not certain as to the expression itself. Whether the deceased said when, or where, may be important. The impropriety of the admission of this testimony would seem to be settled by adjudications of this State.

In Vass’s case, 3 Gratt. 864, the court say: “If facts be stated, which are obviously designed by the party who states them to be connected with other facts which he is about to disclose, and to be qualified by them, so that the narration should form an entire and complete history of the whole transaction, and before the purposed disclosure is made it be interrupted, and the narrative remains unfinished, such particular declaration would not be admissible.”

See, also, Finn’s case, 5 Rand. 701.

*From these adjudications upon the point, and from principle, the rejection of this testimony by the court on the trial must be held correct, and that the testimony ought not to have been received.

The other grounds of alleged error in the petition of the prisoner are not held to be well taken, and the action of the court below upon them must be sustained. We do not intend, however, to decide that the law of self-defence, as declared bj’- the court, is so full as to embrace all the law in reference to this point. But as a new trial will be ordered, it is deemed unnecessary to dwell longer upon it.

The judgment of the court must be reversed, and a new trial ordered.

The other judges concurred in reversing the judgment.

Judgment reversed.  