CASES

DETERMINED BY THE

COURT FOR CROWN CASES RESERVED

IN

EASTER TERM, XXXII VICTORIA. 1869.

THE QUEEN c.JENKINS. .^priZ 24,

Evidence—Admissibility of Dying Declaration—" No present %npe of recovery."
On a trial for murder a written declaration of the deceased was put in evidence for the
prosecution. The declaration was mado on oath to a'magistrates' clerk, about thirteen
hours before death. The clerk asked the.deceased before he took down her statement,
whether she felt she was likely to die 1 She said, " I think so, from the shortness of my
breath." Hor breath was then extremely short. The clerk said, " I s it with the fear of
death before you that you make these statements, and have you any present hope of your
recovery ?"—Sho said, " None," The clerk then wrote out her statement, and added to
it the above conversation, in the form of a statement by the deceased, but he omitted the
i'word " present" befuro " hope." lie then read Over to the deceased what he had written,
• and she then added the words " at present" before " hope," and signed the declaration :—
Held, that the statement was not admissible in evidence, as it did not appear to have
been, made under a. settled hopeless expectation of death, inasmuch as the deceased had
expressly qualified tho words " no hope," by inserting before them the words " at present."
CASE stated by Byles, J . : —
• • The prisoner was convicted at tho last Bristol assizes of the murder
of Fanny Reeves, and is now under sentence of death, subject to the
decision of the Court of Criminal Appeal as to the adraissibility of the
dying declaration of the deceased woman.
On the night of the 16th of October, between 8 and 9 o'clock, the
deceased was found in the river Avon, at a place where the river is
*1881 v e r y deep. She was rescued from the water, but in an *ex-
J hausted condition, and she became, according to the medical
evidence, in great danger. On tho next day, the 17th, she said she
• did not think she should got over it, and desired that some one should
be sent for to pray with hor. A neighbour accordingly visited her
about 8 o'clock r. M., who prayed with her, and, as her mother said,
talked.seriously to her.
A t 1 0 o'clock the same evening tho magistrates' clerk came. He
found her in bed, breathing with considerable difficulty and moaning
occasionally. He administered an oath, and she made a written state-
• xnent as hereinafter set forth. He asked her if she folt she was in a
dangerous state, whether sho felt she Was likely to die ? She said, " I
think so." He said, " Why ?"—She replied, " From the shortness of
my breath." Her breath was extremely short; the answers were dis-
jointed from its shortness. Some intervals elapsed between her
VOL. I.] REGINA v. JENKINS..; . 188

answers. The raagistrates'clerk said, " Is it witb^the fear of death before

you that you make these statements ?" and added, " Have you any
present hope of your recovery ?"—She said " None."
The counsel for the defendant pointed out that in the statement the
words " at present" were interlined. The magistrates' clerk was re-
called. He said, that after he had taken the deposition he read it over
to her, and asked her to correct any mistake that he might have made.
She then suggested the words " at present." ., She said " no hope at
present of my recovery." He then interlined the words " a t present."
She died about 11 o'clock the next morning. "'• • ;
•\Vithout the declaration of the deceased,.there-was not evidence suffi-
cient to leave to the j u r y ; but the other evidence of the prosecution
was, so far as it went, confirmatory of the deceased woman'fc. statement.
The case, therefore, rested on what was called the dying declaration of
the-deceased.
The counsel for the prisoner submitted that,there was not such an
impression of impending death on the mind of the deceased as to ren-
der the declaration admissible. • .'-.•''
I expressed no opinion, but reserved this question" for the opinion of
this Court; and I allowed the case to go to the jury.
The case then set out the examination of Eanny Reeves, the
deceased,- It gave a detailed account of a walk she had taken with
*the prisoner on the evening of the 16th of October, and stated r»-.ion
that he had induced her to go to the edge of the river Avon, '•-•.•
and- had then pushed her in. After describing how she was saved from
being drowned,' the declaration continued :—" After/'being-so taken out
I became insensible, and did not recover till I found, myself in' bed in
this house. Since then I have felt great pain in'my chest, bosom", and
back. From the shortness of my breath I feel that-I am likely to die,
and I have made the above statement with the fear 6t death before .me,
and'with no hope at present of my recovery.. Dr. Smart has been
to see me twice to-day." . . . . .• .
"The mark X of FANNY REEVES."
The jury found.the prisoner guilty. .-.;•' ...
Sentence of death was passed, but execution stayed, that the opinion
of this Court might be taken on the a'dmissibility of the declaration.
The case was argued before Kelly, C. B., Byles, Lush, and Brett,
J J . , and Cleasby,-.B. . . , '•
' Collins (Norris with him), for the prisoner.—The declaration of the
deceased was not admissible in evidence, as it does not appear that she
had,-absolutely no hope of recovery': The general principle on which
declarations of this kind are admitted " i s that they are made in ex?
tremity when the party is at the point of death,-and when every hope
.of this world is gone:" Woodcock's Case, 1 Leach G: C. 500, 502.
Before a dying declaration is admissible in evidence, the prosecution
most prove affirmatively^—First, that it was made under fear of im-
pending death : Woodcock's Case. Secondly, that it was made under
the expectation of " a n almost immediate dissolution :" Rex y. Crockett,
4 C. & P. 544, 545 ( E . C. L. R. vol. 19)-; Rex v. Van Butchell, 3 C.
& P . 629, 631 ( E . C. L. R. vol. 14). Thirdly, that it was made
when there was no hope of recovery i Reg. v. Dalmas, 1 Cox 0 : C. 95.
In Reg. v. Peel, 2 F. & F . 21, 22, Willes, J., says that, before a dying
189 CROWN CASES RESERVED. E. % 1869. [L. R.

ieclaration is admissible, " it must be proved that the man was dying,
and there must be a settled hopeless expectation of death in the de
clarant." In Rex v. Hayward, 6 C. & P. 157, 160 ( E . C. L. R. vol.
25), Tindal, C. J., says, " any hope of recovery, however slight, ex-
*i qni ' s t ' n g ' n t n e mind of the deceased *at the time of the declara
•1 tions made, would undoubtedly render the evidence of such
declarations inadmissible." The evidence must also show clearly that
the declarant knew the stato he was in : Rex v. Nicholas, 6 Cox C. C.
120 ; Reg. v. Mogson, 9 Car. & P. 418 ( E . C. L. R. vol. 38) ; Rex
v. Spilsbury, 7 C. & P. 187, 190 ( E . C. L. R. vol. 32). The law
regards the admission of these declarations with great jealousy, as
they are wanting in those sanctions which guard evidence in other
cases: Grecnleaf on Evidence, vol. i. s. 162, p. 233, 9th ed.
The declaration in this case did not satisfy the requirements of the
law as established by these cases. The clerk wroto down that the
declaration was made " with no hope of recovery." These words are
in their terms absolute, but the deceased deliberately refused to express
herself thus. She said, " No, that is not my meaning. What I wish
to say is not that I have no hopo, but that I have no hope at present."
The deceased thus carefully qualified what would otherwise have been
an absolute statement, and in tho clearest way showed that she was not
entirely without hope. This declaration, therefore, does not come
within the rule which admits dying declarations, and there is conse-
quently no evidence against the prisoner, and the conviction should be
quashed.
T. W. Saunders (Bailey with him), for the prosecution.—It is
admitted that to make the declaration in this case evidence it must be
shown that it was mado in tho fear of impending death, under the
immediate expectation of death, and when there was no hope of re
covery. The authority of the cases that establish these rules cannot
be disputed. The prosecution, howovor, proved all that was necessary
to make the declaration evidence. Tho declaration was made " with the
fear of death before me, and with no hope at present of my recovery."
If the words " at present" wore omitted the case would be clear, but
these words do not really alter the meaning of the sentence. The sen-
timent of hope, or of want of hope, must refer necessarily to the time
when the feeling is expressed. " I have no hope," and " I have no
hope at present," have tho same meaning. Even if some meaning is to
be attributed to " a t present," its most obvious signification is, that it
*1911 *8 n o * a D S 0 ' u t e ' y impossible that the deceased should recover.
-" *While there is lifo there is hope, and therefore there cannot be
absolutely no hope of recovery.
The real meaning, howover, of the insortion of the words " at present"
appears in the case. The clerk asked the deceased, " H a v e you.any
present hope of your recovery ?" She said, " None." He then wrote
down " with no hope of my recovery," and she corrected this, because
it was not what she had in fact said, and not because it was not what
she wished to say. She, no doubt, saw no difference in meaning between
the two sentences. Direct evidence need not be given to show that.the
deceased was conscious of approaching dissolution. This may be
inferred from all the surrouuding circumstances: Reg. v. Brooks, 1
Cox C. C. 6.
VOL. I.] KEGINA v. JENKINS. 191

KELLY, C. B.—We are all of opinion that the conviction must be

quashed. The question, and the only question, is, whether the declara-
tion of the dying woman was admissible in evidence, because it is clear
that if the declaration is to be excluded, there was no evidence to go to
the jury. This question depends upon what passed between 'the clerk
and the deceased just before and at the time when the statement was
made. She was asked if she felt she was in a dangerous state, whether
she felt she was likely to die ? She said " I think so." She did not
express an absolute belief, but an impression, that she was likely to die.
There is nothing conclusive in this part of the statement. The clerk
then went on to ask her why she thought that she was about to die. She
replied, " From the shortness of my breath." The clerk says, " H e r
breath was extremely short—the answers were disjointed from its short-
ness. Some intervals elapsed between her answers." The clerk then
said to her, " Is it with the fear of death before you that you make
these statements ?" and added, " Have you any present hope of your
recovery ?" She said, " None." Thereupon he wrote out what he
conceived to be the substance of her statement. After detailing the
facts of the case, the statement as he wrote it made her say, " I have
felt great pain in my chest, bosom, and back. From the shortness of
my breath. I feel that I am likely to die, and I have made the above
statement with the fear of death before me, and with no hope of my
recovery." If the deceased had "subscribed this declaration, r#-iqo
a very difficult question might have arisen. But it appears that •-
after reading over these words to her, and asking her to correct any
mistake he might have made, she suggested the words " at pres'ent."
She said no hope " at present" of my recovery. The clerk then inter-
lined the words " at present."
The question is, whether this declaration as it now stands was admis-
sible in evidence. The result of the decisions is, that there must bo an
unqualified belief in the nearness of death, a belief without hope that
the declarant is about to die. If we look at reported cases, and at the
language of learned judges, we find that one has used the expression
" every hope of this world gone ; " ' another " settled hopeless expecta-
tion of death;" 2 another " a n y hope of recovery, however slight,
renders the evidence of such declarations inadmissible." 3 We, as
judges, must be perfectly satisfied beyond any reasonable doubt that
there was no hope of avoiding death; and it is not unimportant to
observe that the burthen of proving the facts that render the declara-
tion admissible is upon the prosecution.
If the present case had rested upon the expression, " I have made
the above statement with the fear of death before me, and with no hope
of my recovery," a difficult question might have been raised. But
when these words were read over to the declarant, she desired to put in
the important words " at present;" and the statement so amended is
" with no hope at present of my recovery." We are now called upon
to say what is the effect of these words, taking into consideration all
the circumstances under which they were put in. The counsel for the
prosecution has argued that the words " a t present" do "not alter the
1
Per Eyre, C. B., Woodcock's Case, 1 Leach, C. C. 502.
» Per Willes, J., Reg. v. Peel, 2 F . & F . 22.
» Per Tindal, C. J., Hex v. Hayward, 6 C. & P. 160 (E. C. L. R. vol. 25).
LAW REP., C. C. R., VOL. I . — 9
192 CROWN CASES RESERVED. E. T. 18C9. [L. R.

sense of the statement. Wo think, however, that they must have been
intended to convey Bome meaning, and wo must endeavour to give effect
to that meaning.
It is possible that whon the statement was first read over to the de-
ceased, she may have remembered that what she had boen asked was,
whether she had " any present hope of recovery," and observing that
the word " present" was omitted, that she merely wished to correct the
^ipo-, discrepancy betweon the words as spoken and those *written
•* down, without wishing to make any alteration in the meaning of
those words. On the other hand, she may have meant to alter and
qualify the statement as first written. She may have wished to express,
" All I meant to say was, ' I have not hope at present;'" but not to say
that she had absolutely no hope. The case is capable of cither of these
two constructions, one of which is against and the other in favour of
the prisoner ; and if we had simply to choose between tho two, without
anything to guide us as to the real meaning of- the deceased, we should
resolve the doubt in favour of tho prisoner in favorem vitie.
But another mode of solution is presented which calls on us to decide
for the prisoner on another ground. The deceased was asked in ex-
press terms by the clerk " to correct any mistake that he might have
made." She then said, " P u t in the words ' a t present.'" Even if
this were not a criminal case, this would be sufficient to show that the
omission of " at present" was a mistake—that she meant " no present
hope" as distinguished from " no hope." She therefore intended the
words to have some substantial meaning ; and if they havo any meaning
at all, they must qualify the absolute meaning which the declaration
must contain in order to render it admissible evidence. The conviction
must therefore be quashed.
BYLES, J.—As I tried the case, I wish to state that I entertain no
doubt that the declaration was not admissible. There being no other
evidence against the prisoner, I thought it best to admit the declara-
tion, and reserve the point whether it was admissible evidence.
Dying declarations ought to be admitted with scrupulous, and I had
almost said with superstitious, care. They have not necessarily the
sanction of an oath ; they are made in the absence of the prisoner;
the person making them is not subjected to cross-examination, and is in
no peril of prosecution for perjury. There is also great danger of
omissions, and of unintentional misrepresentations, both by the decla-
rant and the witness, as this case shows. In order to make a dying
declaration admissible, there must be an expectation of impending and
almost immediate death, from the causes then operating. The autho-
rities show that thcro must be no hope whatever.
*1941 *^n **"s c a s e t n e deceased said originally she had no hope at
* present. Tho clerk put down that she had no hope. She said in
effect when the statement was read over to her, " No, that is not what
I said, nor what I mean. I moan that at present I have no hope ;"
which ia, or may be, as if she had said, " If I do not get better I shall
die." The conviction must be quashed. Conviction quashed.
Attorney for prosecution : Walter Pigeon, Bristol.
Attorney for prisoner: J. II. Clifton, Bristol.