
    State v. Poll and Lavinia, slaves, &c.
    From Chowan.
    The declarations of a deceased person, that he was poisoned by cer=. tain individuals, not made immediately previous to his death, but at a time when he despaired of his recovery, and felt assured his disease would prove fatal, are admissible as dying declarations.
    When a common design is proven, the act of one, in furtherance of that design, is evidence against his associates; but the declarations of one of the parties can be received only against himself.
    It is not competent for owners of slaves, or their counsel, to consent to the removal of a criminal cause against such slave; it cannot be otherwise removed than on affidavit.
    
    This was an indictment against the prisoners and one John Skinner, for the murder of Samuel Skinner, by poisoning. The bill was originally found by a grand Jury, of the county of Washington, and after arraignment and the plea of not guilty, recorded severally for each; the solicitor for the State, and the prisoner, John Skinner, consented to remove his case to the county of Chowan for trial; and the owner and counsel of the other two prisoners consented, with thé State’s officer, to a similar removal of the cases of Poll and Lavinia.
    The indictment against Poll and Lavinia came on to be tried in Chowan Superior Court, before Daniel, Judge, and'the following outline presents such facts as are necessary for a correct understanding of the points raised. The poison alleged to have been given, was white arsenic ; and the object of the State was, to shew that John Skinner purchased the poison under false pretences, and gave it to the prisoners (who were domestics in the family of Samuel Skinner,) and that they mixed it with the food and drink of Samuel. The State, to prove a conversation between the prisoners, introduced a witness who accidentally overheard it; and he stated that they spoke of having put something into Samuel Skinner’s soup, which would kill him and all others who partook of it. Lavinia then advised Poll to carry some of that which they had put into the soup, into the house3 and if, during the night, Samuel Skinner called for water, to put some in the water, adding “ that is the way he said do it 3” and Poll accordingly took down from a shelf something wrapped in paper, and putting another wrapper of paper over the first, placed it in her bosom. On exatnination before the committing magistrate, Lavinia said, that the he, referred to in the conversation stated, was John Skinner, who had given to Poll something like lime, but it was heavier.
    The solicitor for the State then offered to prove, by a declaration of John Skinner, that he had purchased a quantity of arsenic just before, under the pretence, as the State alleged, of curing the horse of one Mariner, of a poll evil. This declaration was objected to, but the Court received it 5 and Mariner then proved that he never requested John Skinner to purchase arsenic to cure his horse, and in fact never had a horse diseased with a poll evil.
    Samuel Skinner died on Thursday, and his declarations from the Sunday previous, up to his death, were offered in evidence : these were objected to, as not being dying declarations, but the Court received them. He stated his belief that he should die, though he was occasionally better: he said he was poisoned, and as he believed, by Poll, who had given him something in his food and drink.
    The Jury found the prisoners guilty, and a new trial was moved for 3 1st, because Samuel Skinner’s declarations were improperly received 3 and 2dly, because the declarations of John Skinner, that he had purchased arsenic, were not evidence against the prisoner. A new trial was refused 5 and it was then moved, in arrest of judgment, that the Superior Court of Chowan had not jurisdiction of the cause. The motion was overruled, and sentence of death pronounced, from which the prisoners appealed.
   Taylor, Chief-Justice.

The declarations of the deceased, made at a time when he, despaired of his recovery, and felt assured that though lie was something better after the physician attended him, his disease would prove ultimately fatal, appear to me to have been properly admitted. The latest and most authoritative cases shew that the Court is to decide, and not the Jury, whether the deceased made the declaration under the apprehension of death — (1 East’s FI. Cr. 357, John’s case.) But as to the declarations of John Skinner, I know of no principle upon which they could be received as evidence against the prisoners. Even if he were a party to the record, they could be evidence only against himself, and not against the other Defendants. .For this reason there ought to be a new trial. Whether the Superior Court of Chowan had jurisdiction of this case, depends upon the construction of the act of 1816, c. 912. The words of the second section arc, that such cases may be removed for trial ' to an adjoining county upon affidavit of the owner, or, in his absence, of the counsel of such slave or slaves, in the same manner as causes may now be removed by freemen.” By the preceding act of 1813, c. 853, suits may be removed by consent: but there is nothing in the phraseology to warrant a belief that criminal prosecutions were intended to be included. On the contrary, where the Legislature provide for their removal, they use different language, as in the act of 1808, c. 745, in which the words are, that no cause, civil or criminaland it then proceeds to require an affidavit for their removal. The samé expressions, all causes, civil and criminal,” are used in the act of 1806, c. 693. From all which, the conclusion is, that as criminal causes could not in 1816, be removed otherwise than by affidavit, it was not competent for the owner of the slaves and their counsel, to consent to the removal of this. I am, therefore, of opinion that a new trial should take place in Washington Superior Court, unless the case be properly removed by affidavit.

HeNDersor, Judge.

By the act of 1813, N. R. 1274, the parties in a suit may remove it by consent y and should the word suit embrace criminal prosecutions for capital offences, a removal by consent of the owner, or counsel of a slave, or the consent of both, is neither within the words or spirit of the act, for they are not parties. But it is inferred, that as a cause may be removed upon the affidavit of the owner or counsel, it may be removed by their consent. I think such inference is incorrect. The object of the law is to obtain an impartial trial, and when it is made to appear to the Court, that in all probability such object is unlikely to be obtained in the Court where the cause is pending, the Court is directed to remove it; and it is a matter of not much moment from what source the information comes : it.is the act of the Court upon such information. The Court perceives, if the fact be true, that the purposes of justice will be forwarded by a removal; and therefore, in conformity to the purposes before mentioned, the Legislature gave to the owner or counsel, the power of shewing on-oath the facts upon which the Court acts. But whether the purposes aforesaid will be answered, when the owner or counsel consents to the removal, do not appear. What are the reasons for such assent, need not be stated: there may be none, and therefore it would be better, perhaps, for the slave to be tried in the county where the offence is alleged to have been committed. The character, both of the accused and witnesses, would be better known; or the motive may be to obtain an unfair trial; and it is no answer to say, that the counsel or owner might obtain the same thing upon their affidavits; it is true they may, but in so doing they must commit a perjury, and every power or privilege may be abused. I therefore think, that the cause was never properly in Chowan Court, and that the trial there was a perfect nuMity. Judgment of death pronounced by that Court, must therefore be reversed: the Court of Washington will procee(| tjie tria^ as jf no Such proceedings had ever been,- as have taken place in Chowan. This view of the case renders it not absolutely necessary to express an opinion on that part of the case which respects the declarations of John Skinner, being given in evidence to the Jury. But perhaps it will prevent another appeal to this Court, shortly to state the reasons why we think they ought not to have been received, as, possibly, our silence on the subject may be construed into an approbation. The rule has never been carried farther than this, that when a common design is proven, the act of one, in furtherance of that design, is evidence against his associates : it is in some measure the act of all; but the declarations of one of the parties can be received only against himself. As to the dying declarations of the deceased, I concur in the opinion of the Chief-Justice.

Haul, Judge, concurred.  