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People o. Williams.

general verdict, assuming what the jury had found for the defendants, the judgment of the circuit must have been rendered by the court, as it was, for the plaintiffs.

These were all the questions discussed on this appeal, and I now reach the conclusion that the judgment below should be affirmed, with costs.

All the judges concurred, except PORTER, J., who did not vote.

Judgment affirmed, with costs,

PEOPLE v. WILLIAMS.

June, 1855.

The admission of a declaration of the deceased, made during her illness, before she had an apprehension of death,-Held a ground of re

versal, although it was received without objection.* A declaration is not admissible as characterizing an act and constituting

part of the res gestæ, unless the act also is pertinent to the issue. Thus on an indictment for poisoning, evidence that the deceased, on going out of her house just before she was poisoned, said she was going to meet the prisoner, is not admissible as tending to prove their meeting, even in connection with evidence of her illness on her return and her

attributing it to what the prisoner had given her to drink. On the trial of a husband on an indictment for poisoning his wife, it

seems that a recognizance given by the prisoner on the complaint of his wife, for abandoning her, is not admissible in evidence, as tending to show motive, without formal proof of its execution.

Andrew Williams, under indictment for murder of Rose Williams, his wife, upon arraignment in the court of oyer and terminer, held in and for the city of New York, pleaded not guilty, and put himself upon the county for trial. Upon the trial the following exceptions were taken by the prisoner's counsel: Mary Campbell, a witness called for the prosecution,

* For the rule as to dying declarations, see People v. Perry, 8 Abb. Pr. N. S. 27.

People v. Williams.

was asked by the district-attorney to state where the deceased said she, deceased, was going on the Saturday evening previous to her death, to which the prisoner's counsel objected. The court overruled the objection, and the witness answered: “The last Saturday before her death she left my house with clothing for her husband (who was a watchman on some ship in the North River), as she said ; she did not return until five o'clock the next morning; when she came in she appeared very ill; she said she got sick on board the vessel on which her husband was; she said she had not been drinking; she said that her whole frame seemed as if it were on fire, and her heart felt awful.” The district-attorney asked a witness, Dr. David Uhl, who received from the coroner for examination a certain bowl belonging to deceased, and from which it was proved that deceased had been fed by her husband a few hours previous to her death, and which was handed to the police by the witness Mary Campbell, about ten minutes after deceased died, to state the condition and contents of the bowl when he received it, to which the prisoner's counsel objected. The court overruled the objection, and the witness answered: “ There was a very white substance on the inside of the bowl, which I carefully scraped, and tied the bowl up in a piece of paper.”

The district-attorney also offered to prove the analysis of the contents of the bowl by Dr. Benj. W. McCready, to which the prisoner's counsel objected; the court overruled the objection, and the witness answered: “The bowl and spoon were nearly clean, and there was no dry powder upon them, but a dirty substance was scraped from them, and the proper analysis having been made, arsenic was discovered. About two or three grains of matter were taken from the bowl and the spoon, and nearly all of that was arsenic."

The district-attorney also offered in evidence a paper purporting to be a recognizance taken before A. Bogert, Jr., a police magistrate, signed by such magistrate as taken before him, and subscribed by the prisoner and a surety, July 7, 1853, wherein prisoner was recited to be a disorderly person, to wit, one who had abandoned his wife and refused to provide her with a support, and the condition of which was, that prisoner should be of good behavior, and provide support for his wife until June 1, 1854.

People v. Williams.

The counsel for the prisoner objected to said bond being put in evidence or read to the jury, on the ground that the magistrate aforesaid had not been produced to prove that it was subscribed and taken before him, nor was there even proof that the signature purporting to be that of said magistrate was his. The court overruled the objection, received the bond in evidence, and permitted it to be read to the jury.

The court charged the jury that they might infer that the deceased was with her husband on the Saturday night preceding her death, although the evidence on that point was very slight; to which the prisoner's counsel excepted. And the court refused to charge that if the bowl was exposed on a table or in a chest or room, or elsewhere, where many persons had access, between the time it was taken from the room of deceased and the chemical analysis by Prof. McCready, the evidence as to the analysis should be rejected, to which refusal the prisoner's counsel excepted.

The jury rendered a verdict of guilty, with a recommendation to mercy.

The supreme court at general term, reversed the conviction and granted a new trial, on the ground that the court erred in admitting the declarations of the deceased relative to her alleged visit to her husband, and to what occurred during that visit, which could only have been received as a part of the res gesta, or as having been uttered under a consciousness of approaching and inevitable death ; either in express terms, or as inferred from the tenor of the conversation, the nature of the sufferings, and the demeanor of the deceased, and of which no evidence sufficiently definite was given.

From this judgment a writ of error was taken by the plaintiff to this court.

A. Oakey Hall, district-attorney, for plaintiff in error.— The declarations answering question “State where deceased said she was going on the Saturday evening previous to her death ?” accompanied an act. It was (1 Greenl. on Ev. 88 109, 123), “ a verbal act, indicating present purpose and intention."

It was a declaration, part of and accompanied by, and explanatory of an act. 1 Phil. on Ev. 204. The expressions of symptoms

People o. Williams.

were competent testimony (1 Greenl. on Ev. $ 102; 1 Phil. on Ev. 190; Aveson v. Kinniard, 6 East, 189), relevant to show the first fact averred in the indictment, “death by poisoning." The court properly allowed the introduction of the recognizance. It was pertinent to show a motive for crime. It was a recognizance and not a bond; it was a record, and proved itself. L. 1833, p. 11, 8 7; 2 R. S. 4 ed. p. 929, § 31; Id. pp. 53, 54; People v. Kane, 4 Den. 540, 543.

Henry L. Clinton, for defendant in error.—The declarations of deceased as to her visit to her 'husband were made in the absence of the prisoner; and the testimony thereof was mere hearsayand inadmissible. Kirby v. State, 9 Yerger (Tenn.) 383; Zeller v. State, 2 Halst. 220. The statements of deceased were not dying declarations, nor part of the res gesta. Roscoe Crim. Ev. pp. 27, 33; 1 Phil. on Ev. 285, 9 ed.; 2 Rus. on Crimes, 6 Am. ed. pp. 752-3-4; 1 Greenl. on Ev. & 110. The testimony as to the condition and contents and analysis of contents of bowl was improperly admitted, because they were not sufficiently identified. 1 Rus. on Crimes, 125; Roscoe Crim. Ev. 632. The court erred in receiving in evidence the recognizance, withont due proof of its execution. 1 R. S. p. 758, $$ 9, 15, 16; 2 Id. 3 ed. pp. 42, 43; L. 1833, c. 271, 8 9; Jackson v. Humphrey, 1 Johns. 498; Jackson v. Enmaer, 2 Cow. 552; Duval v. Covenhoven, 4 Wend. 563; Dibble v. Rogers, 13 Id. 541; Jackson v. Vickory, 1 Id. 412; Thurman v. Cameron, 24 Id. 87; Merriam v. Harsen, 2 Barb. Ch. 232; Crowder v. Hopkins, 10 Paige, 183; Bradstreet v. Clark, 12 Wend. 673; Jackson v. Shepherd, 2 Johns. 79.

DENIO, J.-The evidence to show that the deceased came to her death from the effects of arsenic taken into her stomach was quite satisfactory; and there was strong reason to believe that she swallowed a portion of this poison during her absence from the house in Duane-street, between Saturday evening and Sunday morning. If, during that absence, she was in the company of the prisoner, the latter had an opportunity to administer it to her in food or drink. His subsequent conduct was such as to attach suspicion to him, and to lead to the belief,

People v. Williams.

more or less strong, that, if she was poisoned during that absence, he was guilty of the act, provided it was made to appear that he had an opportunity of committing it. Hence it was an important fact for the prosecution to establish that these persons met together while the deceased was abroad on Saturday night. It was competent to show this by the evidence of persons who saw them in each other's company; or it might have been proved by the prisoner's confession. There was some evidence of the latter character; for the prisoner was proved to have asserted that the deceased did not indulge in drinking while she was away from home, at the time referred to, a fact which he could scarcely bave known except by having been with her. Although the inference from this declaration was pretty strong, and might have enabled the jury to find the fact, it was not of such a conclusive character as to preclude other testimony upon the point, and the prosecution sought to furnish such other evidence by proving the declaration of the deceased, of her intention to go to her husband, when she set out from home on Saturday evening. The question to be determined is, whether that declaration was competent to be given in evidence.

The evidence of the witness Mary Campbell, of what the deceased said, after her return, as to her having been with her husband, was not objected to. It was, however, clearly incompetent. It was not admissible as a dying declaration; for although the deceased returned very ill, there is no evidence, nor any reason to believe, that she apprehended a fatal result. The circumstance that it was received without objection, and that it tended even more strongly to show the existence of the material fact sought to be proven than the declaration which was objected against, does not relieve us from the duty of examining the validity of that objection. The jury may have disregarded the incompetent declarations made by the doceased after her return, and bave relied upon the proof of her declared design on setting out, which the court had held to be competent; or the ruling of the court, admitting her declaration last mentioned to be received, may have led them to the belief that all her declarations which were proved were competent. We must therefore determine whether the decision of

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